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PRINCIPLES 
 
 OP THE 
 
 LAW OF NEGLIGENCE. 
 
OSaQantgne Jpxesii 
 
 BALLANTYNE, HANSON AND GO. 
 LONDON AND EDINBUKCH 
 
PRINCIPLES 
 
 OF THE 
 
 LAW OF FEGLIGEIfCE. 
 
 ^ BY 
 
 jf^' \ 
 
 THOMAS BEVEN, 
 
 OP THE INNER TEMPLE, BARKISTEK-AT-LAW. 
 
 LONDON: 
 
 STEVENS AND HAYNES, 
 
 BELL TAED, TEMPLE BAR 
 1889. 
 
PEEFACE. 
 
 Theke is a passage attributed to Sir Eoger L'Bstrange that may 
 well be borne in mind when writing a Preface. It runs as 
 follows: — "Most Prefaces are effectually apologies, and neither 
 the Book nor the Author one jot the better for them. If the 
 book be good, it will not need an a,pology; if bad, it will not 
 bear one ; for where a man thinks by calling himself noddy in 
 the epistle to atone for shewing himself to be one in the text, 
 he does, with respect to the dignity of an author, but bind up 
 two fools in one cover." 
 
 I would, however, call attention to the fact that the treatise 
 which follows aims not merely at collecting authorities, but at 
 discussing them. This may account for some part of the un- 
 usual bulk of the book. The recent and rapid development of 
 the Law of Negligence may account for more ; while my desire 
 to err rather from superfluity than from defect is perhaps after 
 all the most important factor in the thickness of the volume. 
 
 Several of the most keenly contested legal problems of the 
 present day fall inevitably within the scope of a treatise on 
 Negligence, and their discussion, though lengthy, seemed to me 
 essential if my work was to be of any practical value. 
 
 The principle sought to be laid down by Lord Esher, M.R., in 
 Heaven v. Pender, and adopted by several high American 
 authorities, is of such wide-spreading influence that a thorough 
 examination of it is the only alternative to its submissive 
 adoption. I have, therefbre, ventured to set out my views at 
 
vi PEEFACE. 
 
 considerable length. The long discussion, again, of the Privy 
 Council case of Victorian Commissioners v. Coultras is not un- 
 necessary, if the principle which is the basis of that decision is 
 looked to, and not merely the facts actually iuvolved in it, which 
 are of by no means great general importance. . The same may be 
 said of the very long examination of cases bearing on the inter- 
 pretation of the maxim. Volenti nonfit injuria, and of the argument 
 in which the conclusions that are submitted are worked out. 
 
 In discussing the opinions of the law lords in the House of 
 Lords in Great Western Railway Company v. Bunch as to the 
 decision of the Court of Appeal in Bergheim v. Great Eastern 
 Railway Company, the position has been advanced that the opinion 
 of the Lord Chancellor was based on an entire misconception of 
 the judgment of Willes, J., in Talley v. Great Western Railway 
 Company. If this be established, it will be curious to note 
 whether the law of England will be turned into a new channel 
 by the error of a reporter. 
 
 A great deal of space has also been taken up in combating 
 certain views on the theory of three degrees of negligence ; and 
 an attempt has been made to advance a counter-theory and to 
 impress some definite meaning on the intrusive though often 
 denounced term " gross negligence." 
 
 But whether the conclusions which are expressed are accurate 
 or not is, from my point of view, of secondary moment. In the 
 discussions the authorities are set out or cited to the best of my 
 power, and, though the logic of the actual conclusions may be 
 incorrect, the materials are collected and presented for arriving 
 at jnore accurate views. 
 
 Those who may not wish to bother themselves with possibly 
 unfruitful discussions may refer in the . greater part of the work 
 to the series of propositions, at the end of the respective chapters, 
 embodying the leadiug conclusions that are arrived at. These 
 propositions are not appended to the chapters on Bailments, 
 Common Carriers, and several others throughout the book either 
 for some special reason (as, for example, in the case of the 
 
PREFACE. vii 
 
 Employers' Liability Act, that the subject, a commentary on an 
 Act of Parliament, does not admit it), or for the general reason 
 that a summary of matter involving such numerous and often so 
 minute points would have been impossible within any available 
 limits. 
 
 American decisions are largely referred to. The position and 
 authority of Ainerican decisions in English law cannot be 
 treated here ; the opinion of Cockburn, O.J., in Scaramanga -y. 
 Stamp is, however, in itself sufficient justification to an English 
 law writer for their use ; even if the consideration were absent 
 that in dealing with American law we are dealing with a system 
 sprung from the same sources as our own, and applied to the 
 needs of some sixty or seventy millions of people the most active, 
 versatile, free, and progressive on the globe. Whatever the strict 
 technical aspects may be, there are probably few English lawyers 
 who would not give — to put the case as low as possible — as much 
 weight to a decision of the Supreme Court of the United States 
 on a question of principle common to the two systems, as to a 
 decision of that fluid tribunal — a Divisional Court. 
 
 An apology is sometimes thought necessary for references to 
 the Civil law. I only regret that my acquaintance with that 
 comprehensive system is not such as to have enabled me much 
 more abundantly to have drawn from its treasures. 
 
 Mr. Julian Eobins, of the North-Eastern Circuit, has, with a 
 patience and kindness for which I cannot too warmly thank him, 
 waded through the whole of the rough proof sheets as they came 
 day by day from the press, and has discussed with me the many 
 problems of difficulty which have arisen in our course, and 
 though sometimes I have not been able to adopt his views I have 
 constantly profited by his suggestions, for which I here once 
 more return him my very grateful thanks. 
 
 The greater portion of the Index is the work of Mr. Herman 
 Robinson, of the Middle Temple. Only those who have tried 
 index-making can appreciate the laborious and painful care with 
 which he has carried out a most uninviting and wearying task, 
 
viii PEEFACE. 
 
 on the accurate and full perfonnance of which the success of a 
 book so largely depends. 
 
 As I began with a quotation I will also end with one, this 
 time from the concluding passage of Littleton's Tenures, which I 
 will not presume to garble, but will pray my readers to adapt : — 
 "And know, my son, that I will not that you believe, that all 
 which I have said in the said books be law, for this I will not to 
 take upon me to presume, but of such things that are not law, 
 inquire and learn of my wise masters leaa^ied in the law ; never- 
 theless, although certain thiags which are moved and specified in 
 the said books are not law, yet such things shall make thee more 
 apt and able to understand the arguments and the reasons of the 
 law, &c. For by the arguments and the reasons in the law a 
 man may sooner arrive at the certainty and knowledge of the 
 law. 
 
 " Lex plus laudatur quando ratione probatur." 
 
 THOMAS BBVEN. 
 
 I TXMFLE GABDENB, 
 
 August 1889. 
 
CONTENTS. 
 
 PAGES 
 
 TABLE OF CASES xiii-lv 
 
 TABLE OF STATUTES Ivii-lix 
 
 ADDENDA ET CORRIGENDA Ix 
 
 BOOK I 
 GENEKAL KELATIONS. 
 
 PART I. 
 CONSTITUTIVE PRINGIPLES. 
 
 CHAP. 
 
 I. Definitions of Negligence I 3~ '^ 
 
 II. Theoeies op Liability 13- 1 5 
 
 IIL Degbebs op Negligence 16-45 
 
 IV. Limits op Liability 46- 97 
 
 V. Onus op Pboop 98-127 
 
 VI. OONTBIBFTOEY NEGLIGENCE 128-161 
 
 VII. LoED Campbell's Act 162-194 
 
 PART II, 
 
 CORPORATIONS, PUBLIC BODIES, AND PUBLIC 
 OFFICERS. 
 
 I. COBPOEATIONS AND PUBLIC BODIES 195-235 
 
 II. Public Oppicebs . 536-270 
 
X CONTENTS. 
 
 PART III. 
 
 LIABILITY OF A MASTER IN RESPECT OF HIS 
 SERVANT. 
 
 CHAP. PAGES 
 
 I. Principles dbtkrmining the Master's Liability fob his 
 
 Servant 271-297 
 
 II. Limitations on Employer's Liability wheeb Work is done 
 
 UNDER AN Independent Contract 298-312 
 
 III. Master's Duty to his Servant 313-368 
 
 IV, Disabilities of the Servant at Common Law to recover 
 
 for Injuries received in the Course op his Employ- 
 ment 369-413 
 
 V. The Employers' Liability Act, 1880 414-448 
 
 BOOK II. 
 
 SPECIAL EELATIONS AEISING OUT OF 
 CONTKACT. 
 
 PART I. 
 BAILMENTS. 
 
 I. Various Relations 4Si-?6i 
 
 G=™ral 4^j_^^g 
 
 I. Deposits ^56-477 
 
 II. MANDATES ^yyl^^g^ 
 
 III. Gratuitous Loans 484-489 
 
 IV. PAWN or Pledge ^^^^^ 
 
 V. The Contract op Hire 499-539 
 
 1. Hire op Things 500-1:12 
 
 2. Hire op Labour and Services .... 512-5^0 
 
 VI. Carriers foe Hieb ' -,« r., 
 
 • 539-543 
 
 VII. Excepted Cases .... r.. .-r, 
 
 1. Postmasters , 
 
 2. Innkeepers S^sti 
 
CONTENTS. xi 
 
 CHAP. PAGES 
 
 II. Common Carriers 562-735 
 
 General Considerations 562-567 
 
 I. Common Carriers by Land 567-702 
 
 1. Of Goods 567-630 
 
 2. Op Passengers 630-702 
 
 Passengers' Luggage 679-702 
 
 II. Common Carriers by Sea 702-735 
 
 1. Of Goods 702-733 
 
 2. Of Passengers 733-735 
 
 III. Telegraphs and Telephones 736-745 
 
 PART II. 
 
 MINISTERIAL OFFICERS. 
 
 L HoxARiES Public, Sheriffs, &c 746-778 
 
 I. Notaries Public 746-750 
 
 II. The Sheriff 750-777 
 
 III. High Bailiffs of County Courts ..... . 777 
 
 IV. Public Clerks and Ebvbnue Officers . . . 777-778 
 II. v. Solicitors W9-^S 
 
 Barristers 802-805 
 
 PART III. 
 
 SKILLED LABOUR. 
 
 I. Skilled Labour 806-834 
 
 Generally 806-810 
 
 I. Architects, Surveyors, &c 810-813 
 
 II. Auctioneers 814-816 
 
 III. Stockbrokers 816-820 
 
 IV. Medical and Surgical Practitioners .... 820-834 
 
 PART IV. 
 
 ANOMALOUS RELATIONS. 
 
 I. partnership 835-844 
 
 Directors of Companies 837-844 
 
xii CONTENTS. 
 
 CHAP. rAGES 
 
 II. Trustees and Bxbcutoes 845-865 
 
 III. Bankbes 866-883 
 
 IV. Estoppel .... 884-908 
 
 BOOK III. 
 
 SPECIAL RELATIONS NOT ARISING OUT 
 OF CONTRACT. 
 
 I. Animals 9"- 932 
 
 II. Op Collisions ... 933- 96' 
 
 I. On Watbe .... .... 933- 954 
 
 II. On Land 955- 961 
 
 III. Fbncbs and Paety-walls , . . 962- 977 
 
 I. Fences 962- 975 
 
 II. Paety-walls 975- 977 
 
 IV. Fiee 978- 992 
 
 V. Gas and Watee Companies 993-101 1 
 
 VI. Highways, Turnpikes, Canals, &c 1012-1073 
 
 I. Highways 1012-1047 
 
 II. Tuenpikes 1047-1048 
 
 III. CANALS 1048-1059 
 
 IV. Beidgbs 1059-1062 
 
 V. Sea-walls, oe Sewbbs 1063-1073 
 
 VII. Duty op Peopbety Owneks 1074- 1 123 
 
 I. With ebgaed to the Condition op TiiBiE Peo- 
 pbety IN Relation to the Public gbneeally . 1074-1082 
 II. With bbgaed to Persons eesokting to thbie 
 
 Pebmisbs 1082-1123 
 
 VIII. Watee and Watbeooubsbs 1 124-1 162 
 
 I. Watbe brought on Land 1124-1141 
 
 II. Watbe coming upon Land 1142-1161 
 
 INDEX 1163-1252 
 
TABLE OF CASES. 
 
 Aabon v. Alexander, 7^4 
 
 Abbott V. Freeman, 959 , 
 
 Abbott V. Macfie, 152 
 
 Abbott V. Eice, 792 
 
 Abley v. Dale, 753 
 
 Abraham v. Eeynolds, 391, 392, 393, 394, 
 396, 399i 401. 402, 40s 
 
 Abrath v. North-Eastern Bailway Com- 
 pany, 230, 231 
 
 Acatos V. Bums, 580, 582 
 
 Ackworth v. Kempe^ 775 
 
 Acton V. Blnndell, 1 157, 1 160 
 
 Acton Local Board v. Batten, 1068 
 
 Adalia, The, 941 
 
 Adams v. Clifton, 847 
 
 Adams v. Gale, 854 
 
 Adams v. Glasgow and South-Westem 
 Railway Company, 157 
 
 Adams v. Griane, 495 
 
 Adams v. Lakeman, 1016 
 
 Adams v. Lancashire and Yorkshire Rail- 
 way Company, 675, 677 
 
 Adams v. Osbaldeston, 760 
 
 Adams v. Young, 546 
 
 Adamson {Ex parte), In re Collie, 887 
 
 Adderley v. Cookson, 734 
 
 Addison v. Ronnd, 475 
 
 Adriatic, The, 952, 954 
 
 i£tna Insurance Company v. Alton City 
 Bank, 870 
 
 Agnew V. Jobson, 259, 270, 1022 
 
 Agra Bank ». Barry, goo, 903 
 
 Agrell V. Loudon and North-Westem Rail- 
 way Company, 695 
 
 Agricultural Bank v. Commercial Bank, 
 
 749 
 
 Agricultural Savings Association v. Fede- 
 ral Bank, 892, 895 
 
 Ahitbol V. Beniditto, 774 
 
 Aiken v. Western Union Telegraph Com- 
 pany, 742 
 
 Aire v. Sedgwick, 254 
 
 Aireton v. Davis, 764 
 
 Aitkin (In the Matter of), 781 
 
 Akerbloom v. Price, 717 
 
 Alamango v. Board of Snpervision of 
 Albany County, &c., 266 
 
 Albany (Mayor of) v. Cunliif, 1060 
 
 Albany (Supervisors of) v. Dow, 766 
 
 Albin V. Presby, 549 
 
 Albro V. Jaquith, 417 
 
 Alden v. New York Central Railway Com- 
 pany, 637 
 
 Alderson v. Davenport, 752 
 
 Aldred's case, 1 128 
 
 Aldred v. Constable, 763 
 
 Aldrioh v. Boston and Worcester Railway 
 Company, 530 
 
 Aldrich V. Simmons, 714 
 
 Aldrich V. Wright, 923, 931 
 
 Aldridge v. Great Western Railway Com- 
 pany, S38, 603, 614 
 
 Aldworth V. Stewart, 733 
 
 Aleppo, The, 949 
 
 Alexander v. Gibson, 274 
 
 Alfredo, The, 949 
 
 Allday v. Great Western Railway Com- 
 pany, 601 
 
 Allen V. Bone, 786 
 
 Allen V. Clark, 797 
 
 Allen V. Haywood, 305 
 
 Allen V. London and South-Westem Rail- 
 way Company, 289, 292, 296 
 
 Allen V. Merchants' Bank, 870, 871 
 
 Allen V. New Gas Company, 334, 335, 
 366 
 
 Allen V. Sewall, 708 
 
 Allen V. Shaw, 887 
 
 Allen V. Smith. 561 
 
 Allison V. Haydon, 823, 825 
 
 Allison V. Rayner, 788 
 
 Almond v, Njgent, 83 
 
 Alsept V. Eyles, 773 
 
 Alston V. lierring, 381, 712 
 
 Alston V. Scales, 1016 
 
 Alton V. Midland Railway Company, 660, 
 702, 738 
 
 Amacraft v. St. Thomas Sanitary Autho- 
 rity, 233 
 
 Amalia, The, 715, 953 
 
 America, The, 950 
 
 American, The, and The Lyria, 720, 953 
 
 Ames V. Webbers, 758 
 
 Amies v. Stevens, 573 
 
 Amos V, Hughes, 477 
 
 Andalusian, The, 940, 948, 953 
 
 Anderson v. Chester and Holyhead Rail- 
 way Company, 590 
 
XIV 
 
 TABLE OF CASES. 
 
 Anderson v. Davenport, 752 
 
 Anderson v. London and North-Western 
 
 Eailway Companjr, 594 
 Anderson v. Oppenheimer, 1 140 
 Anderson v. Pyper, 637 
 Anderson v. Watson, 790 
 Andrew v. fiobinson, 815 
 Andrews (Ex parte), 852 
 Andrews v. Hawley, 792, 796 
 Andrews v. Little, 734 
 Angell V. Baddeley, 761 
 Anglo-French Co-operative Society {In 
 
 re), 768 
 Angus ■». Findlay, 147 
 Angus ». M'Lachlan, 557, 558, S6l 
 Annapolis, The, 714, 947 
 Annot Lyle, The, 94!8 
 Anon, (i Campb.), 1144 
 Anon, case (Cro. Eliz.), 980 
 Anon. (Freem.), 904 
 Anon, (in re) (11 Jur. 396), 801 
 Anon. (Lofft), 759 
 Anon. (12 Mod. 345), 747 
 Anon. (12 Mod.), 525 
 Anon. (2 Salk.), 475 
 Ansell V. Waterhonse, 566, 568, 631, 
 
 660 
 Antelope, The, 241 
 
 Apothecaries' Company v. Lotinga, 822 
 Applebee v. Percy, 927, 932 
 Appleby v. Franklin, 174 
 Archer v. Lavender, 847 
 Arctic Fire Insurance Company v. Austin, 
 
 721 
 Ardeu v. Goodaore, 767, 770, 771, 774 
 Argentine, The, 954 
 Argos, Cargo ex, 580, 733 
 Ariadne, The, 948 
 ArHow, The, 939, 950 
 Arkwrighta. Cell, 1153, 1155 
 Armiield v. Mercer, 497, 498 
 Armistead ». White, 546 
 Armistead v. Wilde, 555 
 Armory v, Delamirie, 457 
 Armour v. Hahn, 336 
 Armstrong v. Bowdidge, 810 
 Armstrong v. Lancashire and Yorkshire 
 
 Bailway Company, 157 
 Armsworth v. South-Eastern Bailway, 
 
 162, 164, 167, 176, 182 
 Arnold v. Blaker, 1035 
 Arnold v. The Cheque Bank, 890, 892, 
 
 895 
 Arnold v. Eamel, 1022 
 Arnold v. Pennsylvania Bailroad Com- 
 pany, 643 
 Arthur v. Bokenham, 352 
 Ash V. Dawnay, 767 
 Ashbumer v. Macguire, 854 
 Ashbumbam v. Thompson, 855 
 Ashbury Bailway Carriage and Iron Com- 
 pany V. Biche, 228 
 Ashby V. White, 60, 223, 7JS, 756 
 Ashendon v. London and Brighton Bail- 
 way Company, 60S 
 Ashley v. City of Port Huron, 225 
 Ashworth v. Stanwick, 319, 320, 365 
 Assop V. Yates, 323, 365, 1120, 1 121 
 
 Aston V. Heaven, 630, 955 
 
 Atchison (City of) v. King, 72 
 
 Atchison Bailroad Company v. Weber, 
 
 659 
 
 Atkins V. South-Eastern Bailway Com- 
 pany, 67s 
 
 Atkinson «. Newcastle and Crateshead 
 Waterworks Company, 220, 234, 
 
 321. 999 . , . 
 
 Atkinson v. Bitehie, 730 
 
 Atlantic Insurance Company v. Huth, 
 580 
 
 Attorney-General v. Cambridge Con- 
 sumers' Gas Company, 994, 995, 
 
 lOIO 
 
 Attorney-General v. Colney Hatch Luna- 
 tic Asylum, 1073 
 Attorney-General v. Conservators of the 
 
 Thames, 1030 
 Attorney -General v. Dakin, 760 
 Attorney-General «.. Edison's Telephone 
 Company, 736 
 
 Attorney-General v. Great Eastern Bail- 
 way Company, 1144 
 
 Attorney-General v. GKiardians of Dork- 
 ing, 223, 1069 
 
 Attorney-General v. Hackney Local 
 Board, 1024 
 
 Attorney-General v. Harley, 593 
 
 Attorney-General v. Leeds (Corporation 
 of), 1073 
 
 Attorney-General v. Price, 716 
 
 Attorney-General v. Bichmond, 1073 
 
 Attorney-General v. Siddon, 294 
 
 Attorney-General v. Sheffield Gas Con- 
 sumers' Company, 994, 995, 1010, 
 1032 
 
 Attorney-General v. Tomline, 1065, 1067 
 
 Attorney-General ». Wemyss, 199 
 
 Aubert v. Gray, 730 
 
 Auchmuty v. Ham, 928 
 
 Auckland, the Earl of, 716 
 
 Austin's case, 1012 
 
 Austin V. Great Western Bailway Com- 
 pany, 156, 640, 641 
 
 Austin V. Manchester Bailway, 463, S99, 
 600, 646 
 
 Australasian Navigation Company v. 
 Morse, 580, 712 
 
 Aveland (Lord) v. Lucas, 1044, 1047 
 
 Aveiy V. Bowden, 360 
 
 Avilla V. Nash, 388, 390 
 
 Awde V. Dixon, 891 
 
 Azford V. Prior, 1 104 
 
 Ayles V. South-Eastern Bailway Companv 
 no 
 
 Ayres v. Bull, 423, 427 
 
 Ayshford v. Murray, 761 ■ 
 
 Backhouse v. Snead, 710 
 
 Backwell's case, 225 
 
 Bacon's (Lord) case, 253 
 
 Bacon v. Bacon, 855 
 
 Bacon v. Cropsey, 758 
 
 Bacon v. Dawes, 420, 425 
 
 Baddeley v. Earl Granville, 350, 355, 448 
 
 Bades v. Higgs, 292, 296 
 
TABLE OF OASES. 
 
 XV 
 
 Badkia o. Powell, 754 
 
 Bagnall v. London and North- Weetern 
 Railway Company, 1157 
 
 Bagot V. Easton, 441 
 
 Bagsbaw v. Buxton Local Board of 
 Health, 1028 
 
 Bahrenburgv. Bailroad Company, 156 
 
 Baikie v. Chandless, 42, 787, 788, 794 
 
 Bailey v. Gould, 852, 856 
 
 Bailey v. Neal, 146 
 
 Bailiffs of Komney Marsh v. Corporation 
 of the Trinity House, 82, 945 
 
 Biurdv. Addie, 376 
 
 Baird v. South London Tramway Com- 
 pany, 678 
 
 Baird V. Williamson, 74, 1063, 1127 
 
 Baker (In re), 853 
 
 Baker v. Bolton, 163 
 
 Baker v. Harris, 198 
 
 Baker v. Hoag, 467 
 
 Baker v. Liscoe, 532 
 
 Baker v. St. Quintin, 775 
 
 Baldwin v. Casella, 927, 932 
 
 Baldwin v. London, Chatham, and Dover 
 Railway Company, 580, 585, 610 
 
 Baldwin v. United States Telegraph Com- 
 pany, 744 
 
 Bales V. Wingfield, 764 
 
 Balfet;. West, 481 
 
 Ballantine v. Golding, 247 
 
 Ballard V. Tomlinson, 11 29 
 
 Baltimore v. Wightman, 38 
 
 Baltimore Railway Company v. Green, 
 657 
 
 Bamford o. Tamley, 1127 
 
 Bank of Australasia v. Erwin, 893 
 
 Bank of Delaware County v. Broomhall, 
 872 
 
 Bank of Ireland v. Evans's Charities, 889, 
 
 893. 894. 960 
 Bank of New South Wales v. Milvain, 
 
 867 
 Bank of Rome v. Mott, 764 
 Bank of Dtica v. Hillard, 867 
 Bank of Yan Diemen's Land v. Bank of 
 
 Victoria, 874 
 Bank of Washington ». Tiiplett, S70, 87 1 
 Baoler v. Harlem 'Railroad Company, 361 
 Barber v. Meyerstein, 732 
 Barber v. Nottingham Canal Company, 
 
 I0S4 
 Barbour v. South-Eastern Railway, S79 
 Barclay v. Cuculla y Gana, 575 
 Baring ». Corrie, 522, 560 
 Barker v. BuUer, 784 
 Barker v. Green, 767 
 Barker v. Midland Railway Company, 601 
 Barker v. New York Railroad Company, 
 
 661 
 Barker v. Roberts, 516 
 Barker v. Sterne, 893, 898 
 Barker v. St. Quintin, 763 
 Barkley v. Wilcox, 1128 
 Barnardiston v. Soame, 252, 755 
 Barnes v. Addy, 848 
 Barnes v. District of Columbia, 210 
 Barnes v. Ward, 193, 1035, 1036, 1047, 
 
 1089, 1090, 1097 
 
 BarnetM. Hoo Highway Board, 1043 
 
 Barnett v. Lucas, 182, 185 
 
 Barnett v. Weston, 903 
 
 Barnhart v. Greenshields, 907 
 
 Barratt v. Price, 763 
 
 Barrv V. Croskey, 54 
 
 Bartholomew v. Jackson, 468 
 
 Bartlett v. Baker, 1075 
 
 Bartlett v. Boston Gas Light Company, 
 
 1008 
 Bartlett v. Crazier, 260, 269 
 Barton v. Gill, 772 
 Barton v. Springfield, jo 
 Barton v. Thompson, 644 
 Bartonshill Coal Company v. M'Guire, 
 
 2?2. 361. 376 
 Bartonshill Coal Company v. Reid, 318, 
 
 324, 327, 336, 366, 367, 373, 376, 
 
 390,434, 1 116, 1 1 19 
 Barwick v. English Joint Stock Bank, 
 
 231,273, 295, 311, 1009 
 Barwick v. Reade, 492 
 Bassett v. Godschall, 258 
 Basteni). Butler, 518, 833 
 Basten v. Carew, 254 
 Batavier, The, 946, 948 
 Batchelor v. Vyee, 763 
 Bateman {Ex parte), 531 
 Bateman v. Poplar District Board of 
 
 Works, 1068, 1073 
 Bates V. Wingfield, 761 
 Bather v. Day, 401 
 Bathnrst (Borough of)». Macpherson, 212, 
 
 213. 233 
 
 Batson v. Donovan, 458, 465, 468, 591 
 
 Batten v. Wedgwood, 784 
 
 Batterbury v. Vyse, 253 
 
 Battersby v. Lawrence, 822 
 
 Baxendale v. Bennett, 890, 893, S94 
 
 Baxendale v. Eastern Counties Railway 
 Company, 567 
 
 Baxendale v. Great Eastern Railway Com- 
 pany, 593^ 
 
 Baxendale v. Hart, 596 
 
 Baxter v. Gray, 824 
 
 Baxter v. Wyman, 425 
 
 Bayley v. Manchester, Sheffield, and Lin- 
 colnsh'-e Railway Company, 272, 
 276, 288, 293, 29s, 837 
 
 Bayley v. Williams, 816 
 
 Bayley v. Wolverhampton Waterworks 
 Company, 1006 
 
 Bayliffe v. Butterworth, 816 
 
 Baylis v. Lintott, 568 
 
 Beach v. Farmeter, 960 
 
 Beal V. South Devon Railway Company, 
 41, 43, 602, 604 
 
 Beard v. Knight, 777 
 
 Beauchamp v. Powley, 461, 491 
 
 Beaulieu v. Fingham, 979, 983 
 
 Beaurain v. Scott, 255 
 
 Becher v. Great Eastern Railway Com- 
 pany, 702 
 
 Beck V. Dyson, 918 
 
 Beck V. Evans, 39, 589 
 
 Beckett v. Cordley, 906 
 
 Beckett v. Grand Trunk Railway Com- 
 pany, 170 
 
TABLE OF CASES. 
 
 Beckford v. Montague, 767 
 
 Beckman v. Johnson, 539 
 
 Bedman v. Tottenham Local Board of 
 Health, iioi 
 
 Behrene v. Great Northern Bailwaj Com- 
 pany, 594, S96 
 
 Beilby «. Scott, 716 
 
 Beilby v. Shepherd, 716 
 
 Belcher v. Capper, 559 
 
 Belchier {Ex parte), 847 
 
 Belfast Bailway Company v. Keep, 681 
 
 Belgic, The, 714 
 
 Belknap J;. Bank of North America, 896 
 
 Bell V. Quebec (Corporation of), 961, 
 
 1033 
 Bell V. Twentyman, 1037 
 Bell V. Wilson, 447 
 Bellamy v. Marjoribanks, 881 
 Bellamy (In, re) v. Metropolitan Board of 
 
 Works, 861 
 Bellemire v. Bank of United States, 747, 
 
 749, 870 
 Beller v. Schultz, 487 
 Benares, The, 940, 951 
 Benfieldside Local Board 0. Consett Iron 
 
 Company, 996 
 Benjamin v. Storr, 1014, 1028, 1031, 
 
 1034, 1046 
 Bennett's case, 842 
 Bennett (JEha parte), 784 
 Bennett v. Dutton, 659 
 Bennett v. Mellor, 546, 547 
 Bennett v. Moita, 714 
 Benett v. Peninsular Steamboat Company, 
 
 597 
 E^heim v. 
 
 Bergheim v. Great Easteni Eailway Com- 
 pany, 27, 684, 687, 689 
 
 Berkshire Woollen Company v. Proctor, 
 548 
 
 Bemina, The, 72, iji, 156, IS7, 191, 
 192, 9S3 
 
 Bemina, The (No. 2), 129 
 
 Bernina, The, svl) nom. Mills v. Arm- 
 strong, 719, 728 
 
 Bernstein v. Baxendale, 593, 594 
 
 Berringer v. Great Eastern Eailway Com- 
 pany, 660 
 
 Beny v. Da Costa, 44 
 
 Beiyl, The, 950, oji 
 
 Bessant v. Great Western Bailway Com- 
 pany, 967, 968 
 
 Besozzi V. Harris, 915, 931, 1133 
 
 Beta, The, 189 
 
 Sevan v. Waters, 521 
 
 Beveridge v. Rinnear, 1091 
 
 Bevins v. Hulme, 795 
 
 Bevis V. Baltimore Bailroad Company, 690 
 
 Bianca, The, 720 
 
 Biddle v. Best, 476 
 
 Biederman v. Stone, 818 
 
 Bigelow V. Walker, 52S 
 
 Bigg V. Coloration of London, 1027 
 
 Bignell v. Clarke, 923 
 
 Bilbao, The, 720 
 
 Billing V. Brogden, 847, 856, 857 
 
 Binks V. South Yorkshire Bailway and 
 Eiver Bun Company, 1041, 1047, 
 I0S7, 1090 
 
 Binns v. Pigot, SS9 
 
 Birch ». Williams,' 784 
 
 Bird (Ex parte), 876 
 
 Bird [In re), 848 
 
 Bird V. Holbrook, 6, 121, 128, 143, 14S, 
 406, 924, 1086, 1088 
 
 Bird V. Great Northern Eailway, 108, 633 
 
 Birge v. Gardiner, 143, 153 
 
 Birkenhead (Mayor, &c., of) v. London 
 and North-Westem Bailway Com- 
 pany, 1069 
 
 Birkett v. Morris, 1145 
 
 Biscoe V. Earl of Banbury, 90S 
 
 Bishop {In re), 877 
 
 Bishop V. Bedford Charity, 1075 
 
 Bishop V. Hinxman, 769 
 
 Bishop V. Letts, 447 
 
 Bishop V. Williamson, 544 
 
 Bissicks V. Bath Colliery Company, 764 
 
 Bizzell V. Booker, 990 
 
 Blackbume v. Somers, 1073 
 
 Blackman v. London and Brighton Bail- 
 way Company, 664 
 
 Blackmore v. Bristol and Exeter Eailway 
 Company, 54, 57 
 
 Blackmore v. Vestry of Mile End Old 
 Town, 213, 1015 
 
 Blad's case, 247 
 
 Blades v. Higgs, 930, 931, 932 
 
 Blagrave v. Bnstol Watei-works Company, 
 
 . '"^^ 
 Blair v. Deakin, 1151 
 
 Blake (Jn re), 784 
 
 Blake v. Ferris, 1079 
 
 Blake v. Midland Bailway Company, 67, 
 166, 183, 193 
 
 Blake v. Shaw, 425 
 
 Blake v. Thirst, 1019 
 
 Blakemore v. Bristcd and Exeter Bailway 
 Company, 489 
 
 Blakemore v. Glamorganshire Canal Com- 
 ?any, 1053 
 
 Elamires v. Lancashire and Yorkehii'e 
 Bailway Company, 662 
 
 Blankensee v. London and North-Westem 
 Bailway Company, 594 
 
 Blenkiron v. Great Central Qtaa Con- 
 sumers' Company, 1001, loio 
 
 Bliss V. South Hadley, 155 
 
 Blithe V. Topham, 1090 
 
 Blogg V. Johnson, 855 
 
 Blood V. Spaulding, 966 
 
 Blower v. Adam, 68 
 
 Blower v. Great Western Eailway Com- 
 
 ^, pany. 576. 615 
 
 Bloxam v. Sanders, 559 
 
 Blue V. Marshall, 856 
 
 Blumantle v. Fitohburg Bailroad Com- 
 pany, 694 
 
 Blundell v. Catterall, 1029 
 
 BIyth V. Birmingham Waterworks Com- 
 ply. 3. 7I1 81, 999, 1002, loio, 
 1071 
 
 Boardman v. Mosman, 843, 861 
 
 Boardman v. Sill, 561 
 
 Bocki;. Gorrissen, 560 
 
 Boddington »;. Schleocker, 879 
 
 Bode's (Baron de) case, 246 
 
TABLE OF CASES. 
 
 XVll 
 
 Bodon V. French, 525 
 
 Bodenham v. Bennett, 590 
 
 Boelim V. Combe, 619 
 
 Bolch V. Smith, 35, 58, 108, 1098, 1099, 
 
 1 103 
 Bolingbroke v. Swindon Local Board, 288, 
 
 296 
 Bolt V. Thomas, 810 
 Bolton {In re), 794 
 Bolton V. Colder, 961 
 Bolton V. Bichard, 878 
 Bond V. Evans, 295, 297 
 Bond V. Wilder, 764 
 Bondham's (^r.) case, 820 
 Bondrett v. Hcntigg, 723 
 Boniface v. Relyea, 304 
 Booker {Exparte), 838 
 Booker v. Hjggs, 320, 430 
 Boorman v. Brown, 454 
 Booth V. Clive, 232 
 Boothman v. Earl of Surrpy, 752, 759 
 Boraine's case, 255 , 
 
 Borell V. Dann, 906 
 Bortick v. Head, 438 
 Borussia, The, 721 
 Boson V. Sandford, 279 
 Boss V. G-odsall, 857 
 Boss V. Litton, 961 
 Bostock V. Jardine, 523 
 Boston and Maine Bailroad Company v. 
 
 Bartlett, 66; 
 Botten V. Tomliiison, 752 
 Bottle Imp, The, 943 
 Bonghton v. Midland Great Western EaU- 
 
 way Coiflpany, 203, 1054, 1058 
 Boulston's case, 931, 932 
 Boulter v. Clark, 96 
 Boalter v. Crowther, 201 
 Boulter v. Webster, 170 
 Bourke v. Cork and Macroon Railway 
 
 Company, 171 
 Bourne v. Diggles, 482, 790 
 Bourne v. Gatliffe, 534, 627 
 BoviU V. Wood, 352 
 Bow V. Brown, 167 
 Bowater v. Smith, 833 
 Bowcher v. Nordstrom, 384, 713, 714 
 Bowe V. Hunking, 1075 
 Bower v. Peate, 1078, 1080, 1081, 1082 
 Bowes (In re), Earl of Strathmore v. 
 
 Fane, 560 
 Bowie V. Bankio, 424 
 Bowlby V. Bell, 818 
 Bowling V. Arthur, 872 
 Bowman v. Woods, 827 
 Box V. Jubb, 1 138 
 Boyce v. Bayliffe, 733, 734 
 Boyoe's Minors (In re), 857 
 Boyd V. Emmerson, 878 
 Boyle V. Tamlyn, 962, 965, 966, 967 
 Boys V. Pink, 594, 595, 619 
 Braoey v. Carter, 518, 787, 792 
 Brackenburg v. Pell, 792 
 Brackenbury v. Laurie, 760, 770 
 Brackett v. Brig Hercules, 734 
 Bradbee v. Christ's Hospital, 976, 1031 
 Bradbee v. Mayor, &c,, of London, 
 103 1 
 
 Bradburn v. Great Western Eailway Com- 
 pany, 180, i8l 
 
 Bradbury v. Sutton, 594 
 
 Bradford (^ re), 785 
 
 Bradle v. Hestonville, 679 
 
 Bradley v. Carr, 760 
 
 l^radley v. Dnnipace, 620 
 
 Bradley v. Fisher, 254 
 
 Bradley v. Eiches, 907 
 
 Bradshaw v. Lancashire and Yorkshire 
 Eailway Company, i86, 187, 188 
 
 Brady v. Giles, 285, 303 
 
 Brady v. Parker, 1 108 
 
 Braithwaite v. Watson, 1076 
 
 Bramall v. Lees, 168, 171, 172 
 
 Brand v. Hammersmith Eailway Com- 
 pany, 232 
 
 Brandao v. Bamett, 559, 881 
 
 Brandling v. Kent, 754 
 
 Brandon v. Scott, 476 
 
 Branwell v. Penneck, 446 
 
 Brass v. Maitland, 52, 581, 582 
 
 Bray B. Maitland, 1133 
 
 Bray v. Mayne, 504 
 
 Bray v. Somer, 756 
 
 Breadalbane, The, 939 
 
 Breese v. United States Telegraph Com- 
 pany, 743 
 
 Brehm v. Great Western Eailway Com- 
 pany, 633 
 
 Bremner v. Williams, 633 
 
 Brennan v. Guardians of Limerick Union, 
 260, 263 
 
 Bretherton v. Wood, 633, 660 
 
 Brett V. Great Western Eailway Com- 
 pany, 595 
 
 Brewers' case, 259 
 
 Brice V. Stokes, 845, 860 
 
 Briddon V. Great Northern Eailway Com- 
 pany, 585, 621 
 
 Bridge V. Gummon, 848, 860 
 
 Bridge V. Grand Junction Eailway, 129 
 
 Bridges V. Hawkesworth, 457 
 
 Bridges V. North London Eailway Com- 
 pany, 108, 113, 119, 128, 171, 671 
 
 Bridges V. Perry, 765 
 
 Brien v. Bennett, 642 
 
 Brier v. Evison, 848 
 
 Brierley «. Kendall, 93 
 
 Briggs V. Jones, 903 
 
 Briggs V. Oliver, loi 
 
 Bright V. Legerton (No. i), 865 
 
 Brind V. Dale, 540, 541, 542, 563, 619 
 
 Brindley v. Cilgwyn Slate Company, 
 560 
 
 Brine v. Great Western Eailway Com- 
 pany, 1058 
 
 Bringloe v. Morrice, 486 
 
 Bristol and Exeter Railway Company v. 
 Collins, 647 
 
 Bristoww. Cormican, 1144 
 
 Bristowe V. Whitmore, 560 
 
 British Cast Plate Manufacturers d. 
 Meredith, 198, 201 
 
 British Empire Shipping Company v. 
 Somes, 560 
 
 British Guardian Life Assurance Com- 
 pany (In re), 844 
 
 & 
 
XVUl 
 
 TABLE OF CASES. 
 
 British Mutual Banking Company o. 
 Charnwood Forest Eailway Company, 
 
 Bntish Mutual Investment Company v. 
 Cobbald, 791 
 
 Brittain v. Kinnaird, 259 
 
 Britton ?/. Great Western Cotton Com- 
 pany, 326, 338, 347, 348, 350, 367, 
 422, 426 
 
 Broadbent v. Bamsbotbam, 1155, 1158, 
 1 160 
 
 Broadwater v. Blott, 520 
 
 Broadwoed v. Granara, 559 
 
 Brock V. Copeland, 924 
 
 Brodenu. Saillard, 1157 
 
 Bromley «. Cavendish Spinning Com- 
 pany, 424 
 
 Brooke v. Lewis, 850 
 
 Brooke ». M'Lean, 977 
 
 Brooke v. Piokwiok, 591 
 
 Brooks V. Courtney, 1109 
 
 Brooks 11. Day, 791, 797 
 
 Brooks «. Hart, 956 
 
 Brown v. Aocrington Cotton Company, 356 
 
 Brown v. Boorman, 790 
 
 Brown v. Butterley, 433 
 
 Brown v. Collins, 15, 50, 99 
 
 Brown v. Compton, 753 
 
 Brown v. Copley, 751, 752 
 
 Brown u. Eastern and Midland Eailway 
 Company, 68, 1030 
 
 Brown v. European, &c., Railroad Com- 
 pany, IS3 
 
 Brown v. Gerard, 770 
 
 Brown «. Giles, 923 
 
 Brown v. Great WeBtem Eailway Com- 
 pany, II 
 
 Brown v. Illius, 1009 
 
 Brown «. Jarvis, 761, 773 
 
 Brown «. Jones, 258 
 
 Brown v. Kendall, 14, 1125 
 
 Brown v. Mallett, 934, 935, 936 
 
 Brown v. M'Dermot, 877 
 
 Brown «. Mayor, &o., of New York, 195 
 
 Brown v. People, 266 
 
 Brown v. Sargent, 107 1 
 
 Brown v. Tolley, 790 
 
 Brown a. Wilkinson, 953 
 
 Browning 11. Hanford, 765, 766 
 
 Brownlie v. Tennant, 376 
 
 Brownlow v. Metropolitan Board of Works, 
 198 
 
 Bruce v. Watt, 559 
 
 Bruoker v. Eromont, 278 
 
 BruereB. Pemberton, 854 
 
 Brumbridge ». Massey, 800 
 
 Brunsden v. Humphrey, 185, 188, 441 
 
 Brunskill 11. Eobertson, 775 
 
 Brunt v. Midlapd Eailway Company, 594 
 
 Bruty V. Grand Tnink Eailway Company, > 
 681 
 
 Bryant w. Bush, 797 
 
 Brydonw Stewart, 315, 317, 318, 412 
 
 Buocleugh V. Cowan, 1073 
 
 Buokhurst, The, 940, 942 
 
 Buckley «. Gross, 454 
 
 Buckman v. Levi, 534 
 
 Bnckman v. Lewis, 620 
 
 Buckmaster v. Great Eastern Ilailway 
 Company, 658 
 
 Buel o. New York Central Eailway Com- 
 pany, 68, 137 
 
 Buffon V. Merry, 515 
 
 Bulkley «. Welford, 782 
 
 Bnlman u. Furness Eailway Company, 58 
 
 Bulmer v. Bulmer, 438 
 
 Bulraer v. Gilman, 787 
 
 Bulstrode v. Hall, 1144 
 
 Banbury «. Mathews, 750 
 
 Bunoh ». Kennington, 923 
 
 Bunker ». Midland Eailway Company, 
 
 364. 431 
 
 Burohelli). Hiokison, 58, 151, lioi, 1102 
 
 Burdett v. Abbott, 758 
 
 Burdiok v. Garriek, 862 
 
 Burdiok v, Sewell, 492 
 
 Burdick v. Worrall, 956 
 
 Burgess v. Clements, 550, 551, 555 
 
 Burgess v. Gray, 305, 311, 404 
 
 Burgess v. Wiokham, 711 
 
 Burk V. Simonson, 1059 
 
 Burke v. Louisville Eailroad Company, 
 984 
 
 Burke v. Manchester, &c., Eailway Com- 
 pany, 633 
 
 Burke v. South-Eastern Eailway Com- 
 pany, 655, 657 
 
 Burnby v. BoUett, 275 
 
 Burnett v. Lynch, 455 
 
 Bumham v. Butler, 958 
 
 Bums V. Chicago and Milwaukee Eail- 
 way Company, 121 
 
 Burns a. Cork and Bandon Eailway Com- 
 pany, 20 
 
 Bums V. Poulsom, 287, 837 
 
 Buron «. Denman, 242, 268 
 
 Burrell «. North, 595 
 
 Burrows v. Commissioners of Sewers of 
 the Ci(y of London, 1021, 1045 
 
 Burrows v. Erie Eailroad Company, 679 
 
 Burrows v. March Gas Company, 53, 72, 
 154, 1007, ion 
 
 Burrows v. Walls, 864 
 
 Burton v. Corporation of Salford, 102 1 
 
 Burton v. English, 709 
 
 Burton v. Hughes, 457 
 
 Burton v. Le Gros, 777 
 
 Burton a. Moorhead, 922 
 
 Bush V. Brainard, 966, 1094 
 
 Bush V. Parker, 276 
 
 Bush V. Steinman, 298, 299, 300, 301, 
 
 ^ ,302,304,30s 
 
 BusheU's case, 254, 269 
 
 Busk V. Eoyal Exchange Assurance Com- 
 pany, 729 
 
 Butcher o. London and South-Westem 
 Railway Company, 687, 688, 695, 
 
 Butler V. Baring, 279 
 
 Butler V. Heane, 594 
 
 Butler V. Hunter, 1078, 1080 
 
 Butler a. Manchester, Sheffield, and Lin- 
 
 oolushire Eailway Company, 6w 
 Butler V. President of College of Phv 
 
 sioians, 824 '' 
 
 Butler ». Wildman, 710 
 
TABLE or OASES. 
 
 siz 
 
 Batterfield v. Forrester, 129, 957, 1074, 
 
 1 120 
 Butts V. Goddai-d, 1106 
 Bnxtoc V. Buxton, 853, 854 
 Buxton V. Nortli-Bastern Eailway Com- 
 
 pany, 648, 974 
 Bybee v. State, 1059 
 Byfoged Christensen, The, 951 
 Bynner v. Russell, 874 
 Byrne v. Boadle, 34, 99, 100, loi, 507 
 Byrne v. Wilson, 73 
 Bywell Castle, The, 941, 944, 951 
 
 Caballebo v. Henty, 906 
 
 Cachapool, The, 948 
 
 Caffrey v. Dai-by, 525 
 
 Cahill V. London and North- Western 
 Bailway Company, 681, 692 
 
 Call V. Papayanni, 247 
 
 Cailiffw. Danvers, 529, 531 ^ 
 
 Cairncross v. Lorimer, 885 
 
 Cairns v. Bobins, 534, 625, 628 
 
 Calabar, The, 717 
 
 Calcutta, The, 942 
 
 Calder v. Halket, 255, 269 
 
 Caldwell V. Ball, 705, 722 
 
 Caldwell v. Murphy, 679 
 
 Caledonian Railway Company v. Walker's 
 Trustees, 200 
 
 Callahan v. Bean, 156 
 
 Callow V. Young, 770 
 
 Calvert v. Joliffe, 776 
 
 Calye's case, 521, 549, 551, SSS. SS6 
 
 Camden Railroad Company v. Belknap, 
 618 
 
 Camden Railroad Company v. Hoosey, 
 678 
 
 Cameron v. Kyte, 248, 268 
 
 Cameron v. Reynolds, 751, 761, 771 
 
 Camidge v. Allenby, 875, 876 
 
 Camoys v. Scnrr, 486 
 
 Camp V. Western Union Telegraph Com- 
 pany, 742 
 
 Campbell v. French, 873 
 
 Campbell v. Mersey Docks Company, 
 
 S17 
 
 Canada Central Railway v. M'Laren, 201 
 
 Canada Shipping Company v. British 
 Shipowners' Mutual Protecting As- 
 sociation, 715, 72s 
 
 Candler v. Tillett, 855 
 
 Candy v. Spencer, 550 
 
 Cann v. Cann, 851 
 
 Cann v. Clipperton, 1022 
 
 Cann v. Wilson, 782, 813 
 
 Cannon v. Midland Great Western Rail- 
 way of Ireland, ir6, 678 
 
 Canterbury (Viscount) v. Attorney-Gene- 
 ral, 236, 237, 982 
 
 Card V. Case, 74, 911, 920, 924, 931 
 
 Carleton v. Franconia Iron Company, 
 1112 
 
 Carlile v. Parkins, 761, 764 
 
 Carlisle (Borough of) v. Brisbane, 160, 161 
 
 Carlon v. Ireland, 881 
 
 Carmichael v. Liverpool Shipowners' As- 
 sociation, 725 
 
 Carnatio (Nabob of) a. East India Com- 
 pany, 251 
 
 Carpenters' case, The, 764 
 
 Carpenter v. Boston Railroad Company, 
 664 
 
 Carpenter v. Holt, 545 
 
 Carpue v. London, Brighton, and South 
 Coast Railway Company, 100, 108, 
 166, 633 
 
 Carr v. Lancashire and Yorkshire Rail- 
 way, S97, 600, 615, 64S 
 
 Carr v. London and North- Western Rail- 
 way Company, 629, 886, 898 
 
 Carrett v. Smallpage, 760 
 
 Carriage Co-operative Supply Association, 
 
 843 
 Carrier Dove, The, 720 
 Carruthers v. Sydebotham, 714, 716 
 Carstairs v. Taylor, 74, 1139, 1140, 1141, 
 
 "53 
 Carters. Drysdale, 442 
 Carters. Towne, S3, 72, 156, 1135 
 Garty v. Niooll, 149 
 Casey w. Sinclair, 1113, 1121 
 Cashill V. Wright, 556 
 Castellain v. Thompson, 559 
 Castro V. Murray, 269 
 Caswell V. North, 337, 338, 355, 1120 
 Catbin v. Bell, 523 
 Catley v. Wintringham, 586 
 Cattle J). Stockton Waterworks, 998, 1004, 
 
 1005, 1010, loii, 1039, 1138 
 Cavander v. Balteel, 837, 907 
 Cavey v. Ledbitter, 1127 v 
 
 Cawte V. Olyett, 1098 
 Cayzer v. Carron Company, 933, 937, 938, 
 
 940, 941, 942, 943, 947 
 Celt, The, 952 
 
 Central Railroad v. Crosby, 137 
 Central Railroad and Banking Company 
 
 V. Smith, 231, 265 
 Chadwick v. Trower, 36 
 Chalmers v. Dixon, 1 137 
 Chamberlain v. Chandler, 733 
 Chamberlain v. King, 1022, 1023, 1046 
 Chamberlain v. Williamson, 188 
 Chambers v. Davidson, 560 
 Chambers v. Mason, 793 
 Chambers v. Minohin, 847 
 Chaplin v. Hawes, 956 
 Chapman v. AUen, 517 
 Chapman v. Chapman, 799 
 Chapman v. Gfreat Western Railway 
 
 Company, S3S. 624. 625 
 Chapman v. New Haven Railway Com- 
 pany, 161 
 Chapman v. Rothwell, 168, 1104, 1106, 
 
 1 109, 1 1 13 
 Chapman v. Royal Netherlands Steam 
 
 Navigation Company, 716, 953 
 Chapman v. Shepherd, 818 
 Chapman v. Speller, 764 
 Chapman v. Van Toll, 795 
 Chapman v. Walton, 524, 748, 797, 808 
 Chapman v. White, 868 
 Charitable Corporation v. Sutton, 842 
 Charles v. Taylor, 387, 389, 390 
 Charlton v. Lord Durham, 845 
 
.TABLE OF OASES. 
 
 Gliarlton v. London Tramways Company, 
 291 
 
 Charlwood v. Greig, 925 
 
 Charman v. SouthJIastern Railway Com- 
 pany, 970 
 
 Chartered Mercantile Bank of India v. 
 Cickson, 875 
 
 Chartered Mercantile Bank of India v. 
 Netherlands India Steam Navigation 
 Company, 725, 7Z7 
 
 Chaee v. Maine Central Bailroad Com- 
 pany, 127 
 
 Chase v. Westmore, 559, 560, 561 
 
 Cbasemore v. Bichards, 1152, 1154, 1158, 
 1 160, 1 161 
 
 Chattanochee National Bank v, Schley, 
 882 
 
 Chauvin v. Alexander, 768 
 
 Cheetham v. Hampson, 967, 968, 1074 
 
 Chesca, The, 725 
 
 Chesmer v. Noyes, 747 
 
 Chicago and Milwaukee Bailroad Com- 
 pany V. Boss, 358, 387 
 
 Child V. Gibson, 854 
 
 Child V. Hearn, 157, 967, 968 
 
 Chilian, The, 940 
 
 Chippendale v. Lancashire and Yorkshire 
 Bailway Company, 590, 615 
 
 Chisholm v. Doulton, 295 
 
 Chitty {In re G.), 781 
 
 Chonteaux v. Leech, 723 
 
 Chorley v. Balcot, 824 
 
 Chown V. Parrott, 793 
 
 Christeugon v. American Express Com- 
 pany, S93 
 
 Chnstie v. Griggs, 20, 108, 502, 631, 632, 
 639 
 
 Christina, The, 721 
 
 Christopherson v. Bare, 97 
 
 Christopherson v. Burton, 763 
 
 Church V. Appleby, 346 
 
 Church V. Brown, 799 
 
 Churchill v. Evans, 965 
 
 Churchward v. Shiddy, 931 
 
 Citizens' Bank ». Nantucket Companv. 
 617,618 ' 
 
 Citizens' Passenger Railway Company v. 
 Foxley, 117 
 
 City of Antwerp, The, 950, 951 
 
 City of Cambridge, The, 717 
 
 City of Glasgow Union Railway Company 
 ■ii. Hunter, 200 
 
 City of Peking, The, and the Compagniedes 
 Messageries Maritimes, 946, 947, 950 
 
 Civilta, The, v. The Eestless, 720 
 
 Clack V. Holland, 853 
 
 Claoton o. Mowlem, 425 
 
 Clapp V. Kemp, 287 
 
 Clara, The, 938 
 
 Clare v. National City Bank, 103 
 
 Clare Hall v. Harding, 906 
 
 Clark V. Adams, 439 
 
 Clark V. Barnes, 341 
 
 Clark V. Barnwell, 578 
 
 Clark V. Bums, 689 
 
 Clark V. Eastern Railroad Company, 627 
 
 Clark V. Eighth Avenue Railroad Com- 
 pany, 679 
 
 Clark V. Girdwood, 784 
 
 Clark V. Lord Rivers, 802 
 
 Clark's Administrators v. Richmond and 
 
 Danville Railroad Company, 11 13 
 Clarke {In re), 793 
 Clarke v. Chambers, 72, 88, 14S, 146 
 Clarke v. Couchman, 796 
 Clarke v. Earnshaw, 464, 497 
 Clarke v. Hart, 885 
 Clarke v. Holmes, 326, 327, 328, 329, 
 
 330. 339. 341, 347. 348, 360. 366, 
 
 385, 434. 435 
 Clarke v. M'Naught, 446 
 Clarke v. Midland Railway Company, 
 
 no 
 Clarke v. Palmer, 902, 903 
 Clarke v. Spence, 542 
 Clarke v. Tipping, 525 
 Clarke v. York, 185 
 Clay !). Tetley {In re), 857 
 Clay V. Willan, 531 
 Clay V. Wood, 956 
 Clayards v. Dethick, 121, 140, 1108, 
 
 1112 
 Clayton v. Hunt, 594 
 Cleadon, The, 720 
 Clegborn «. New York Central Railway 
 
 Company, 44 
 Cleopatra, The, 952 
 Clergy Oiphan Corporation {In re), 857 
 Clerk V. Gray, 589 
 Cleveland v. Spier, 405 
 Cleverton v. Dppernell, 928 
 Cliff J). Midland Railway Company, no 
 Clifford V. Hunter, 711 
 Clothier v. Webster, 198 
 Clough V. Bond, 849 
 Cjute o Wiggens, S47. S49 
 Clyde Navigation Company ». Barclay, 
 
 716, 717, 945 
 Clydesdale Bank v. Beatson, 807 
 C. M. Palmer, The, and The Lamax, 941, 
 „ ,945. 948 
 
 Cobban ». Downe, 533, 620 
 Cobbett V. Sir George Grey, 240, 267 
 Cobden v. Bolton, 589 
 Cock V. Goodfellow, 857 
 Cockbum v. Erewash Canal, 1059 
 Cockburn v. Peel, 857 
 Cooker v. Quayle, 857 
 Cookie V. London and South-Eastern 
 
 Railway Company, 108, 646, 670, 
 
 671 
 Cockle V. Whiting, 785 
 Cockran v. Irlam, 523, 749 
 Coddington v. Brooklyn, 38 
 Goe V. Piatt, 347 
 Coe V. Wise, 198 
 °°eg; "• Bernard, 17, 75, 451, 452, 455, 
 
 457. 458, 459, 464, 465, 476, 478, 
 
 t??' .fr^'rfS, 489, 496, 504! 506; 
 
 5«3. 541. S66, 572, 700, 703, 973 
 Cohen V. South-Eastern Railway Com- 
 
 pany, 602, 680 
 Oohn V. Davidson, 711 
 Colby V. Sampson, 773 
 
 Colchester (Mayor of) V.Brooke, 130, 1012. 
 I04S, "44 
 
TABLE OF OASES. 
 
 SSI 
 
 Colo V. Goodwin, 592, 742 
 
 Cole V. Hindson, 774 
 
 Cole V. North-WeBtern Bank, 235, 524 
 
 Cole V. Sherard, 747 
 
 Coleman v. Biches, 274, 530 
 
 Coles V. Bank of Skgland, 894 
 
 Coles V. Trecothiok, 814 
 
 Colget V. Norrish, 927 
 
 CoUen V. Wright, 818 
 
 CoUenberg, The Brig, S43. S77. S78 
 
 CoUett V. Lendon and North-Western 
 Railway Company, 643 
 
 Collier v. Dudley, 527 
 
 Collins V. Bristol and Exeter Bailway 
 Company, 607, 608, 609, 610, 611 
 
 Collins V. Cleft, 770 , 
 
 Collins V. Evans, 766 
 
 Collins V. Forbes, 516 
 
 Collins V. Griffin, 781 
 
 Collins V. Middle Level Commissioners, 
 72, 79, 1058, 1066 « 
 
 Collins V. South Boston Eailroad Com- 
 pany, I S3 
 
 CoUis V. Selden, 54, 58, 1103, 1 104 
 
 Collyer v. Spear, 776 
 
 Colonel Ledyard, The Bark, 712 
 
 Colonia, The, 952 
 
 Colonial Bank v. Hepworth, 899 
 
 Colonial Bank o. Whinney, 899 
 
 Colt V. M'Mechen, 573 
 
 Colton V. Onderdonk, 1137 
 
 Columbia (District of) v. M'Blligott, 331, 
 343. 1016 
 
 Columbine, The, 949 
 
 Columbus, The, 943 
 
 Colyear v. Countess of Mulgrave, 208 
 
 Colyer v. Pinch, 41, 902, 903 
 
 Combe v. London and Sonth-Westem 
 Eailway Company, 616 
 
 Comber v. Anderson, 525 
 
 Commander-in-Chief, The, 708 
 
 Commerce, The, 951 
 
 Commonwealth v. Dickinson, 764 
 
 Commonwealth v. Holmes, 295 
 
 Commonwealth v. Pierce, 830 
 
 Commonwealth v. Power, 659 
 
 Commonwealth v. Pratt, 295 
 
 Commonwealth v. Wilkinson, 1047 
 
 Condliffu. Condliff, 194 
 
 Condon v. Great South and Western Bail- 
 way, 168, 170 
 
 Congleton v. Angus, 444 
 
 Congreve v. Morgan, 308 
 
 Congreve v. Smith, 308 
 
 Conklin v. Thompson, 68, 69, 988 
 
 Cocsterdine v. Consterdine, 849, 861 
 
 Converse v. Boston Bailroad Company, 
 621 
 
 Converse v. Walker, 1 103 
 
 Conway v. Belfast and Northern Counties 
 Bailway Company, 385, 387 
 
 Conway v. Clemenoe, 423, 424 
 
 Cook {Ex parte), 526 
 
 Cook V. Addison, 850 
 
 Cook V. Johnson, 138 
 
 Cook V. Metropolitan Tramway Company, 
 
 446„ , 
 Cook V. Palmer, 752, 753 
 
 Cook V. Stark, 324, 430 
 Cooke V. Waring, 918, 932 
 Coombs V. New Bedford Cordage Com- 
 pany, 320, 322, 422 
 Coombs V. Purrington, 961 
 Cooper V. Chitty, 775 
 Cooper V. London and Brighton Bailway, 
 
 659 
 
 Cooper V. Phillips, 834 
 
 Cooper V. Stephenson, 797, 798, 800 
 
 Cooper V. Walker, 1035, 1046, 1093, '097 
 
 Coorg (ex-Eajah of) v. Bast India Com- , 
 pany, 251 
 
 Cope «. Bowlands, 825 
 
 Copeland v. Powell, 777 
 
 Coppin V. Braithwaite, 659, 734 
 
 Corbet v. Brown, 752 
 
 Corbett v. Paokington, 520 
 
 Corby v. Hill, 35, SJ, 148, 1097, 1098, 
 1099, 1 103 
 
 Corcoran v. East Surrey L-on Works, 419 
 
 Cor]- Distilleries Company v. Great South- 
 em and Western Bailway Company, 
 630 
 
 Cork and Yonghal Bailway Company (In 
 re), 355, 823 
 
 Corkran v. Irlam, 871 
 
 Corlett V. Gordon, 527 . 
 
 Cormack v. Digby, 287 
 
 Comer V. Champneys, 923 
 
 Corning v. Burden, 424 
 
 Goriiishiu. Abington, 885, 888 
 
 Commnn v. Eastern Counties EHilway, 37, 
 81, 664, 1 106 
 
 Cornwall V. Wilson, 524 
 
 Cornwell v. Metropolitan Commissionsis, 
 1041, 1093 
 
 Corrigan v. Great Northern Bailway Com- 
 pany, 6o2 
 
 Corry v. Great Western Bailway Com- 
 pany, 974 
 
 Corsi V. Maretzek, 827 
 
 Cortelyou v. Lansing, 493 
 
 Costello V. O'Eorke, 857 
 
 Coterill V. Starkey, 961 
 
 Cothay v. Sydenham, go5 
 
 Cottam V. Eastern Counties Eailway Com- 
 pany, 837 
 
 Cotterell v. Jones, 793 
 
 Cotton V. Wood, 102, 469, 961 
 
 Couch 1). Steel, 220, 221, 321, 376 
 
 Coughtry v. Globe Woollen Company, 62 
 
 Coulter V. American Express Company, 
 50, 68, 137 ,. , 
 
 Coupland v. Hardmgham, 1036, 1047, 
 1074, 1090, 1093 
 
 Conrtenay v. Earle, 790 
 
 Courtney v. Cole, 714 
 
 Courtney v. Stock, 784 
 
 Covell V. Laming, 71 
 
 Coventry v. Great Eastern Eailway Com- 
 pany, 886 
 
 Coventry (Eari of) v. Willes, 1063 
 
 Coverdale v. Charlton, 1034, 1061 
 
 Oowell V. Mumford, 91, 930 
 
 Cowley o. Mayor, &c., of Sunderland, 195, 
 
 232. 323 
 Cowper V. Grieen, 561 
 
xxu 
 
 TABLE OF OASES. 
 
 Cox V. Burbidge, 78, SSi» 920, 959. 963. 
 
 967, 1 127 
 Cox V. Coventon, 906 
 Cox V. Great Western Bailway Company, 
 
 436 
 
 Cox V. Hickman, 614 
 
 Cox V, Leech, 788 
 
 Cox «. Livingstone, 794 
 
 Cox V. London and North-Western Rail- 
 way Company, 579 
 
 Cox V. Midland Counties Railway Com- 
 pajiy, 291 
 
 Cox V. Mitchell, 247 
 
 Cox V. Eeid, 1023 
 
 Coxon «. Great Western Railway Com- 
 pany, 609 
 
 Coyle «. Great Northern Railway Com- 
 pany of Ireland, 127 
 
 Cozer V. Child, 756 
 
 Crabb v. Brinsley, 814, 860 
 
 Cracknell v. The Mayor and Corporation 
 of Thetford, 206, 1058 
 
 Crafterw. Metropolitan Railway Company, 
 666, 1 107 
 
 Crafts V. Boston, 126 
 
 Craig V. Watson, 800 
 
 Crake v. Powell, 226 
 
 Cranch v. White, 469 
 
 Cranfield ». Andrews, 1 146, 1150 
 
 Cranson v. Gobs, 826 
 
 Crawford v. Cinnamond, 791 
 
 Crawford v. Satchwell, 774 
 
 Crawley's Claim, 816 
 
 Craycraft (ire re), 764 
 
 Crichton V. Keir, 329, 366, 418 
 
 Cricket, The, 952 
 
 Cripps V. Judge, 419 
 
 Croaker v. Chicago and North-Western 
 Railway Company, 288 
 
 Crocker v. Banks, 149, 364, 368 
 
 Croft V. Alison, 280, 282, 359, 507 
 
 Croft «. Lyndsay, 852 
 
 Croft V. Waterhouse, 631, 633 
 
 Crogan 1). Schiele, 1091 
 
 Crogate v. Morris, 980 
 
 Cromford Canal Company v. Cutts, 1052 
 
 Crompton o. Lea, 1131 
 
 Crompton v. Ward, 754, 773 
 
 Cromwell v. Stephens, 545, S47 
 
 Crosby v. Fitch, 723 , 
 
 Cross V. Kitts, 11 52 
 
 Crosse v. Smith, 851 
 
 Crosskey v. Mills, 815 
 
 CrOBsley v. Lightowler, 1 128, 1 145 
 
 CroBsley v. Shaw, 768 
 
 Crouch V. Great Northern Railway Com- 
 pany, 617 
 
 Crouch V. London and North-Western 
 Railway Company, 563, 569, 570, 
 
 S9I 
 Crow V. Mechanics and Traders' Bank, 
 
 872 
 Crowder v. Long, 751, 752 
 Crow hurst v. Amersham Burial Boai-d, 
 
 8S 
 Cruden v. Fentham, 956, 957 
 C. S. Butler, The, 714, 722 
 Cubitt V. Porter, 975, 976 
 
 Cudley v. Harris, 394„ „ , i, ., 
 Cuff V. Newark and New York Railway 
 
 Company, 309 
 Cnllen v. Butler, 725 
 Cnllen v. Morris, 755 
 Culman v. Eastern Raiboad Corporation, 
 
 358 
 
 Culpepper v. Good, 618 _ 
 
 Cumnock «. Newbury Port Savings In- 
 stitution, 494 
 
 Gundy v. Lecocq, 295 
 
 Cunningham v. Dunn, 732 
 
 Cunningham v. Grand Trunk Railway 
 Company, 393 ,.„.,. 
 
 Cimnington v. Pennsylvania Railroad 
 Company, 624 
 
 Curran v. Warren Chemical Company, 103 
 
 Currie v. Misa, 526 
 
 Curtis V. Barclay, 527 
 
 Curtis V. Drinkwater, 633 
 
 Curtis V. Mills, 924 
 
 Curtis V. Rochester Railroad Company, 
 
 633 
 
 Cuthbertson v. Parsons, 304 
 
 Cutler V. Bonney, 553, 554 
 
 Cutler o. North London Railway Com- 
 pany, 602, 697 
 
 Cynthia, The, 714 . ^ 
 
 Czech V. General Steam NaTigation Com- 
 pany, 103, 729, 732 
 
 Daillt v. Beattie, 415 
 
 Dakin v. Brown, 129 
 
 Dakin v. Oxley, 712, 713 
 
 Dalby v. India and London Life Assurance 
 Company, 180 
 
 Dale V. Birch, 772 
 
 Dale V. Hall, 563 
 
 Daley v. Norwich and Worcester Railway 
 Company, 143 
 
 D'AUax «. Jones, 821 
 
 Dalston v. Janson, 617 
 
 Dalton V. Angus, 1079, 1080, 1082 
 
 Dalton V. Midland Railway Company 
 V 141 
 
 Dalton V. South-Bastem Railway Com- 
 pany, 168, 170 
 
 Daly V. AiTol, 925 
 
 Dalyell v. Tyrer, 301, 642 
 
 Danger's Trusts (Jre re), 786 
 
 Daniel v. Metropolitan Railway Company, 
 no, 648, 649, 650 
 
 Daniels v. Davison, 907 
 
 Daniels v. Gompertz, 760 
 
 Daniels v. Hams, 711 
 
 Daniels v. Potter, 1093 
 
 Dansey,u. Richardson, 545 
 
 Danvers v. Morgan, 1022 
 
 Darby v. Duncan, 363 
 
 D'Aro V. London and North-Western Rail- 
 way Company, 606 
 
 Darley Main ColUery Company v. Mit- 
 ' ohell, 186, 792 
 
 Darrigan v. New York and New England 
 Raikoad Company, 358 
 
 Dartnall v. Howard, 482, 799, 800 
 
 Daubigny v. Duval, 491 
 
TABLE OF CASES. 
 
 sxm 
 
 Daughtery v. American Union Telegraph 
 Company, 744 
 
 Dauntley v, Hyde, 795 
 
 Davenport v. Buckman, 140 
 
 Davenport v. Stafford, 854 
 
 Davey v. Chamberlain, 509 
 
 Davey v. London and South-Western Rail- 
 way, 123, 128 
 
 Davey v. Mason, 594, 595, 619 
 
 Davey v. Warne, 1 031 
 
 Davidson v. Gwynne, 543 
 
 Davidson v. Wright, 417 
 
 Daviea v. Aston, 495 
 
 Davies v. England, 319, 325, 366 
 
 Davies v. Jenkins, 775 
 
 Davies v. Lord Kensington, 755 
 
 Davies v. Makuna, 821, 825 
 
 Davies v. Mann, 120, 130, 132, 718 
 
 Davies v. Swansea (Corporation of), 1024 
 
 Davies v. Thomas, 905 
 
 Davies v. Williams, 276 • 
 
 Davis V. Artingstall, 814 
 
 Davis V. Charlton, 68 
 
 Davis V. Garrett, 76, JoS, 531, 621, 710, 
 714, 732 
 
 Davis V. London and Brighton Eailway 
 Company, 666 
 
 Davis V. Saunders, 99 
 
 Davis V. Spnrling, 855 
 
 Davis V. Willan, 589 
 
 Dawkins v. Lord Paulet, 244, 268 
 
 Dawkins v. Lord Kokeby, 244, 268 
 
 Dawkins v. Prince Edward of Saxe- 
 Weimar, 269 
 
 Dawson v. Chaminey, SS'i SS^ 
 
 Dawson v. Lawley, 790 
 
 Dawson v. Manchester Bailway Company, 
 
 633 
 Dawson v. Massey, 853 
 Dawson v. Midland Eailway Company, 
 
 971. 975 
 Dax V. Ward, 792, 795 
 Day V. Bather, 548 
 Dean v. Branthwaite, 302 
 Dean v. Keate, 503 
 Dean v. M'Carty, 985, 991 
 Deane v. Clayton, 406, 923, 931, 1083, 
 
 108s, 1086 
 Dearborn v. Dearborn, 795 
 Dearborn v. Union National Bank, 882 
 De Cnadra v. Swan, 712 
 Degg V. Midland Eailway Company, 6, 
 
 121, 338, 401, 40s, 406, 407, 1089 
 De Haven v. Kensington National Bank, 
 
 882 
 De Lanoey v. The Queen, 24S 
 De la Eosa v. Prieto, 823 
 Delaware Eailroad Company v, Salmon, 
 
 988 
 De Levis v. Boit, 188 
 De Medina v. Grove, 758 
 Do Moranda v. Dunkin, 752 
 Denaby Colliery Company v. Manchester 
 
 and Sheffield Eailway, 601 
 Denew v. Daverill, 518, 748, 814 
 Denham & Co. (In re), 843, 907 
 Dennis v. Whetham, 762, 763 
 Dent V. Smith, 723 
 
 Denton v. Great Northern Eailway Com- 
 pany, 660 
 
 De Eousigny v. Peale, 785, 788 
 
 Detroit and Milwaukee Eailroad Com- 
 pany «. Van Steinburg, 12 
 
 Devaynes «. Eobinson, 864 
 
 Devereux v. Barclay, 624 
 
 Deverill v. Grand Trunk Eailway Com- 
 pany, 356 
 
 Devonshire v. Eawlinson, 447 
 
 De Woolfe v. , 781 
 
 Diana, The, 188, 717 
 
 Dibble v. Brown, 734 
 
 Dicas V. Stockley, 560 
 
 Dickinson v. Grand Junction Canal Com- 
 pany, 1152, IIS4 
 
 Dickson v. Evans, 477 
 
 Dickson v. Great Northern Eailway Com- 
 pany, 601, 602 
 
 Dickson ». M'Coy, 920 
 
 Dickson v. Murray, 801 
 
 Dickson v. Eenter's Telegram Company, 
 
 64. 737, 739. 740 
 Dimech v. Corlett, 722 
 Dimes v. Petley, 13a 1028 
 Dimmock v. North Staffordshire Railway 
 
 Company, 984 
 Dixon V. Bell, 47, 89, 90, 990 
 Dixon V. Birch, 545 
 Dixon V. Metropolitan Board of Works 
 
 203, 1071, 1073 
 Dixon V. Muckleston, 902, 904 
 Dixon V. Eankin, 376 
 Dixon V. Sadler, 729 
 Dixon V. Wilkinson, 785 
 Dobree v. Napier, 247 
 Dpbson V. Land, 852 
 Dodsley v. Varley, 559 
 Doe V. Filliter, 44 
 Doe V. Sheppard, 347 
 Doe d. Christmas v. Oliver, 8S4 
 Doe d. Davenport v. Ehodes, 769 
 Doe d. Pitt V. Laming, 545 
 Doe d. Pring v. Pearsey, 962, 963 
 Dolan V. Anderson, 431 
 Donahoe v. Wabash Eailway Company, 
 
 137 
 Donald v. Suckling, 491, 492, 508 
 Donaldson v. Haldane, 790, 800 
 Donaldson v. Wilson, 1075, 1102 
 Donatty v. Crowder, 522 
 Dooby V. Watson, 791, 800 
 Doolan v. Midland Railway Company, 
 
 602, 613, 716 
 Doonnan v. Jenkins, 32, 459, 461, 462, 
 
 481 
 Dorchester and Melton Bank v. New 
 
 England Bank, 870 
 Dormont v. Purness Railway Company, 
 
 198, 228 
 Doughty v. Fairbank, 436 
 Douglas, The, 935, 936, 937, 94S 
 Douglas (JSxparte), 561 
 Dovaston v. Payne, 966, 968, 970, 1012 
 Doward v. Lindsay, 808 
 Dowell V. General Steam Navigation 
 
 Company, 130, 132, 133, 938 - 
 Dowell V. Smith, 366 
 
XXIV 
 
 TABLE OF CASES. 
 
 Downer v. Eowell, 515 
 
 Downing v. Biimingham and Midland 
 Trams Company, 679 
 
 Doyle ». Blake, 853, 855 
 
 Doyle V. Wragg, 958 
 
 Brake v. Sykes, 752 
 
 Drew ». East Whitby, 319 
 
 Drew V. Town of Sutton, 1037 
 
 Drewe v. Coulton, 252, 755 
 
 Drewe v. Lainaon, 763 
 
 Drosser v. Brereton, 846 
 
 Drovers* National Bank i>. Anglo-Ameri- 
 can Packing Company, 872 
 
 Druid, The, 713, 714 
 
 Dryden v. Frost, 904 
 
 Dublin, "Wicklow, and Wexford Eailway 
 Compaiiy «. Slattery, 117, 123, 124, 
 I2S, 342,_ 665, 67s, 787 
 
 Duchess of Kingston's case, 884 
 
 Duckworth w. Johnson, 168, 171, 172 
 
 Dudden v. Guardians of Clutton Union, 
 II4S, 1152, IIS4 
 
 Dudley {In re Corporation of), 1070 
 
 Dudley Canal Navigation Company v. 
 Grazebrook, 105 1, 1058 
 
 Dudley v. Smith, 50, 661 
 
 Dudman v. North London Eailway Com- 
 
 paiff, 677 
 Duero, The, 731 
 Duffs. Budd, 462, 623 
 Duff u. Great Northern Eailway Company, 
 
 64s 
 Duffy V. Young's ParaSSn Light and 
 
 Mineral Oil Company, 440 
 Duke of Brunswick v. Slowman, 44 
 Duke of Cornwall, The, 942 
 Duke of Sussex, The, 721 
 Dumfries, The, 952 
 
 Dun v. Seaboard Eailroad Company, 677 
 Duncan v. Blundell, 806 
 Duncan v. Findlater, 198, 199 
 Duncan v. Hill, 816, 818 
 Dundee, The, 940 
 Dundonald v. Masterman, 837 
 Dunlop w. Munroe, 262, 544 
 Dunn V. Birmingham Canal Company, 
 
 203, 1052, IOS4. loss, 1058, 1 138 
 Dunston v. Paterson, 775 
 Dupen V. Keeling, 792 
 Durant v, Tomlin, 440 
 Durfee v. Jones, 457 
 Duttos V. Howell, 255 
 Dutton V. Pool, 208 
 Duttonc. Powles, iioi 
 Dwight V. Brewster, S62, S63 
 Dynen v. Leach, 322, 328, 332, 365, 366, 
 
 iit6 
 
 Baser v. Barnes, 851 
 
 Eaken v. Thom, 321 
 
 Earhart ». Toungblood, 919 
 
 East V. East, 853 
 
 East Haddam Bank v. Soovil, 870 
 
 East Holyford Mining Company v. 
 
 National Bank, 867 
 East India Company v. Paul, 792 
 Bast London Waterworks Company 0. 
 
 Vestryof St.Matthew,Bethnal Green, 
 
 213 
 East Tennessee Eailroad v. Whittle, 581 
 Eastern Counties Eailway Company v. 
 
 Broom, 280, 289 
 Eastern Counties Eailway Company v. 
 
 Dowling, 1012 ' 
 Eastman v. Sandbom, S03 
 Easton v. London Joint Stock Bank, 899 
 Eaton V. Boston, &c., Eailroad Company, 
 
 S3 
 Eaves v. Hickson, 852 
 Ebenezer, The, 949 
 Ebor, The, 949 
 Eckert v. Long Island Eailway Company, 
 
 137 
 Edgeware Highway Board v. Harrow Gas 
 
 Company, 996, 997 
 Edmonds v. Peake, 848 
 Edmunds v. Bnshell, 23S 
 Edwards v. Dickenson, 262 
 Edwards a. Great Western Eailway, 567 
 Edwards v. Hodding, 815 
 Edwards v. London and Brighton Eailway 
 
 Company,' 3S9, 368 
 Edwards v. London and North- Western 
 
 Eailway Company, 292 
 Edwards 0. Midland Eailw'ay Company, 
 
 231 
 Edwards v. Sherratt, 618 
 Edwards v. Vestry of St. Mary, Islington, 
 
 28s, 1023 
 Egan V. Guardians of the Kensington 
 
 Union, 804 
 Egerley's case, 1043 
 Egerton v. Earl Brownlow, 3S3, 354 
 Egginton's case, 760 
 Eglington «. Norman, 937 
 Egremont (Lord) v. Pnlman, 1037 
 Egyptian, The, 947 
 Ehrgott V. New York, 82 
 Eichholz V. Banister, 64 , 
 Eisten v. North British Eailway Company, 
 
 438 
 Eleanor, The, 943 
 
 Ele^ V. Positive Assnranoe Company, 786 
 Elkins V. M'Kean, 52 
 Elliott V. Hall, 61 
 Elliott J). Duke of Norfolk, 754 
 Elliott w. Pray, in2 
 Elliott V. Eossell, 703, 70S 
 Elliott V. Tempest, 424 
 Ellis V. American Telegraph Company, 
 X,,,. 739. 743 _ 
 Jillis V. Great Western Eailway Company, 
 
 III 
 Ellis V. Kelly, 823 
 
 Ellis V. Loftus Iron Company, 78, 963, 
 „„. 967, 974 
 Ellis V. Sheffield Gas Consumers' Com- 
 
 pany, 308, 311, 993, 1075, 1081 
 Elmore v. Stone, 560 
 Elphinstone v. Bedreechnnd, 247 
 Elsee ». Gatward, 481 
 Elwelljj.Grand Junction Canal Company, 
 
 681 ' 
 
 Elwood V. Western Union Telegraph Com- 
 pany, 741, 745 
 
TABLE OF CASES. 
 
 XXV 
 
 Ely V. Wilbur, 833 
 
 Embrey V. Owen, 1142, 1146, 1 154 
 
 Emmerton v. Matthews, 275 
 
 Emmet v. Emmet, 854 
 
 Emmy Haase, The, 939, 951 
 
 Ener™, The, 733 
 
 Enfield v. Hills, 229 
 
 Englefleld Colliery {in re), 843 
 
 Englishman, The, 939 
 
 Ennor v. Barwell, 1155 
 
 Erichsen v. Barkwortb, 732, 733 
 
 Ericsson, The, 952 
 
 Brie Company v. Schuster, 132 
 
 Erskine v. Adeane, 76 
 
 E. S. {In re), 785 
 
 Ess V. Truscott, 749 
 
 Essequibo, The, 949 
 
 Essex (Earl of) v. Capel, 915 
 
 Ettrick, The, 953 
 
 Eureka Company v. Barr, 343, 427 
 
 Europa, The, 941 • 
 
 European Bank (In re), Agra Bank's 
 claim, 560 
 
 Evangelismos, The, 944 
 
 Evans ». Bear, 786 
 
 Evans v. Bicknell, 900 
 
 Evans v. Brander, 774 
 
 Evans v. Coventry, 842 
 
 Evans v. Manchester, Sheffield, and Lin- 
 colnshire Bailway Company, 203, 
 1049 
 
 Evans v. Bbymney Local Board, 1091 
 
 Evansville v. Griffln, 147 
 
 Evanaville, &c., Bailroad Company v. 
 Duncan, 678 
 
 Evershed v. London and North-Western 
 Eailway Company, 601 
 
 Ewbank v. Nutting, 274, 713, 714 
 
 Excelsior, The, 538, 714 
 
 Explorer, The, 189 
 
 Express Company v. Caldwell, 593 
 
 Ezart V. Lister, 780, 785 
 
 Fabhisas v. Mostyn, 241, 247, 268 
 
 Fairbanks v. KeiT, 65 
 
 Falcke v. Scottish Imperial Insurance 
 
 Company, 468 
 Falkland Islands Company v. Kegina, 
 
 930 
 
 Fama, The, 716 
 
 Fanny M. Carvill, The, 939 
 
 Farhall v. Farhall, 854 
 
 Farmeloe v. Bain, 886 
 
 Famell v. Bowman, 199 
 
 Famsworth v. Garrard, 518 
 
 Famworth v. Packwood, 551 
 
 Parrant v. Barnes, 52, 323, 1133 
 
 Farrant v. Blanchford, 865 
 
 Farrow v. Bpes, 906 
 
 Farwell v. Boston and Worcester Kail- 
 road Corporation, 372, 373, 375, 390 
 
 Faure Electric Accumulator Company {In 
 re), 841 
 
 Faviell «. Eastern Counties Eailway Com- 
 pany, 795 
 
 Fawcett v. York and North Midland Eail- 
 way Company, 969, 970, 1015 
 
 Fawkes v. Pratt, 784 
 
 Fay 1). Gray, 494 
 
 F. C. {In re), 783 
 
 Feathers v. The Queen, 236, 238, 240, 
 267 
 
 Feaver v. Montreal Telegraph Company, 
 
 „ 739. 740 
 
 Fell V. Brown, 804 
 
 Fell V. Knight, 558 
 
 Feltham v. England, 378, 385 
 
 Feltham v. Terry cet, 775 
 
 Fenham, The, 938, 939, 942 
 
 Fenn v. Harrison, 284, 523, 876 
 
 Fent V. Toledo, Peoria, and Warsaw Eail- 
 way Company, 981 
 
 Fenton v. Publin Steam Packet Company, 
 
 ,-, 301. 714 
 
 Fenton v. Logan, 495 
 
 Ferguson and Hutchinson {Sx parte), 
 
 7I4> 949. 952 
 Ferguson v. Earl of Kinnoull, 209, 216, 
 
 219, 233, 269 
 Ferguson v. Wilson, 838, 842 
 PergusBon v. Lewis, 796 
 Fetter v. Beal, 791 
 Figlia Maggiore, The, 580 
 Filer v. New York Central Eailroad Com- 
 
 pany, 679 
 Filliter V. Phippard, 982, 983, 992, 1130 
 Pindlay v. Liverpool and Great Western 
 
 Company, 730 
 Fine Art Society v. Union Bank of 
 
 London, 896 
 Finn v. Western Eailroad Company, 620 
 Pinningham v. Peters, 319 
 Finiicane v. Small, 460, 464, 529 
 Firmstone v. Wheeley, 1090 
 First National Bank of Carlisle v. Graham, 
 
 470 
 Firth V. Bawling Iron Company, 85, 966, 
 
 974, 1094, 1097 
 Fish V. Chapman, 539, 562, 723 
 Pish V. Kelly, 482, 782 
 Fisher v. City of Boston, 221 
 Fisher v. Magnay, 774, 775 
 Fisher n. Prowse, 1035, 1046, 1093, 1097 
 Pitch V. Eawlings, 1063 
 Fitzgerald v. Midland Eailway Company, 
 
 6S9 
 
 Fitzgerald v. St. Paul, &c., Bailroad Com- 
 pany, 152 
 
 Fitzpatrick v. Kelly, 760 
 
 Pitzsimmons v. Inglis, 47 
 
 Flanagan v. Nolan, 853 
 
 Plannery v. Waterfbrd and Limerick Eail- 
 way Company, 102, 108, 663 
 
 Flautt 27. Lashley, 564 
 
 Pleeming v. Orr, 918, 924, 929, 931, 932 
 
 Fleming v. Mayor and Corporation of 
 Manchester, 1070 
 
 Fleming v. Manchester, Sheffield, and 
 Lincolnshire Eailway Company, 568, 
 790 
 
 Fletcher v. Braddick, 243, 302, 714 
 
 Fletcher v. Great Western Eailway Com- 
 pany, 1052, 1058 
 
 Fletcher v. Green well, 1024 
 
 Fletcher v. Inglis, 723 
 
XXVI 
 
 TABLE OF CASES. 
 
 Fletcher v. Marshall, 817, 8 18 
 
 Fletcher v. Rylands, 21, 85, 421, 933, 
 934. 936, 9SS. 962, 963. 968, 978. 
 979) 984, 986, 991, 1004, 1005, 1006, 
 1126, 1129, 1130, 1131, 1132, 1133, 
 1 134, 1 140 
 
 Fletcher «. Taylour, 92 
 
 Flint V. Norwich, &o.. Company, 663 
 
 Flitcroft's case, 841, 842 
 
 Flower (In, re), 861 
 
 Flower v. Adam, 129, 951 
 
 Flower w.Bolinghroke, 79S 
 
 Flower v. Local Board of Low Layton, 
 1024 
 
 Flowers «. South-Eastern Railway, 594 
 
 Floyd and Barker's case, 253, 269 
 
 Floyd V. Nangle, 781, 785 
 
 Feat V. Margate (Mayor of), 1024 
 
 Fobbing (Commissioners or Sewers of) v. 
 The Queen, 1065 
 
 Foley V. Hill, 469, SI7> 866, 868 
 
 Fontos V. Mackintosh, 771 
 
 Foote V. Storrs, 534 
 
 Forbes's case, 868 
 
 Forbes v. Aberdeen Harbour Commis- 
 sio;iers, 150, 365 
 
 Forbes v. Lee OonseiTancy Board, 225 
 
 Forbes v. Boss, 853, 854, 857 
 
 Ford V. Cotesworth, 713, 732 
 
 Ford V. Leche, 752 
 
 Ford V. London and South -Western Rail- 
 way Company, 10, 664, 1095 
 
 Forde v. Skinner, 266 
 
 Fordham v. London, Brighton, and South 
 Coast Railway Company, 675 
 
 Foreman v. Great Western Railway Com- 
 pany, 589, 60s 
 
 Foreman v. Mayor of Canterbui'y, 199, 
 232, 266, 1016, 1018, 104s 
 
 Fores v. Johnes, 796 
 
 Forest of Dean Coal Mining Company (In 
 re), 837, 843 
 
 Forester and others v. Secretary of State 
 for India, 251 
 
 Forgan v. Burke, 445 
 
 Forshaw «. Chabert, 711, 856 
 
 Forth V. Simpson, 521 
 
 Forward v. Pittard, 531, 533, 568, 572 
 
 Foster V. Bank of London, 868 
 
 Foster v. Essex BanTc, 37, 457, 470 
 
 Foster v. Hilton, 776 
 
 Ponlger v. Taylor, 777 
 
 Foulkes V. Metropolitan District Railway 
 Company, 301, 568, 610, 611,614, 
 641,642,777,782 
 
 Fowler v. Dorton, 556 
 
 Fowler v. Grreat Western Railway Com- 
 pany, 618 
 
 Fowler v. Knoop, 713, 732 
 
 Fowler v. Lock, 319, 510, 512 
 
 Foxcraft v. Wood, 560 
 
 Foy V. Cooper, 790 
 
 Foy V. London, Brighton, and South 
 Coast Railway Company, 113, 668, 
 
 674 
 
 Francis v. Cockrell, 20, S9, 636, 637 
 
 Francis v. Francis, 857 
 
 Francis v. Ocean Insurance Company, 867 
 
 Franco v. Franco, 861 
 
 ftanconia. The, 189, 190, 194, 716, 953 
 
 Frankland, The, and The Kestrel, 949 
 
 Frankland v. Cole, 788, 795 
 
 Frankland v. Lucas, 784 
 
 Franklin v. Neate, 494 
 
 Franklin v. Sonth-Eastern Railway Com- 
 pany, 167, 168 
 
 Eraser v. Bell, 925 
 
 Eraser v. Hood, 424 
 
 Eraser v. Murdoch, 854 
 
 Eraser ?). Telegraph Construction Com- 
 pany, 722 
 
 Fray i'. Blackburn, 255, 269 
 
 Fray v. Foster, 796 
 
 Fray v. Voules, 790, 793 
 
 Free State, The, 952 
 
 Freedom, The, 578, 710, 725 
 
 Freeman v. Cook, 884 
 
 Ereemantle v. Great Northern Railway 
 Company, 1073 
 
 Ereemantle v. London and North- Western 
 Railway Company, 984 
 
 Preston (Jm re), 768 
 
 Friends, The, 945 
 
 Fritz V. Hobson, 1033, 1046 
 
 Froy V. Balmain Steam Ferry Company, 
 
 445 
 Fry V. Fry, 852 
 Fry V. Tapson, 847, 860 
 Fryer (In re), 860 
 Furlong v. Carroll, 985, 991 
 
 Gabell v. Sonth-Eastern Railway Com 
 
 pany, 654 
 Gage V. Bulkeley, 493 
 Gage V. Tirrell, 574, 708 
 Gagg V. Vetter, 987 
 Gale V. Laurie, 953 
 
 Galena Railway Company v. Jacobs, 135 
 Gallagher 0. Humphrey, 1099, 1106, 
 
 1 103 
 Gallaghers. Piper, 378, 1121 
 Gallin v. London and North-Westem 
 
 Railway Company, 646 
 Game v. Harvie, 476 
 Gannon v. Housatonic Railroad Company, 
 
 ^ 377 
 
 Gardner v. Grace, 141, 152 
 
 Garmell v. Ford, 600 
 
 Garmon v. Bangor, 141 
 
 Gamer v. Lawson, 784 
 
 Gamer v. Moore, 852 
 
 Garnett v. Eerrand, 269 
 
 Garnett v. M'Kewen, 865 
 
 Garnett v. Willan, 599, 623 
 
 Garside v. Trent and Mersey Navigation 
 
 Compan;y, 611, 612, 625, 628 
 Garston baihng Ship Company v. Hickie, 
 
 726 
 Gas Light and Coke Company v. South 
 
 Metropolitan Gas Company, 997 
 Gas Light and Coke Company v. Vestry 
 
 of St. Mary Abbotts, Aenaington, 
 
 I99> 999, 1040 
 Gashweiler v. Wabash Railroad Company, 
 
TABLE OF CASES. 
 
 xxvu 
 
 Gatcward'a case, 1063 
 
 GatlifFe v. Bourne, 571, 732 
 
 Gaudet v. Biovrn, 628 
 
 Gaunt. ». Smith, 520 
 
 GautretK. Egerton, 35, 58, 339, 782, 1057. 
 iicx), 1 102 
 
 Gaved v. Martjn, iiS3. USS 
 
 Gayford v. Nioholls, 308 
 
 Gazelle, The, 949 
 
 Geddes v. Proprietors of Bann Reservoir, 
 203, 206, 233, loos, 1070, 1073 
 
 G«dge». Minne, 915 
 
 Gee V. Metropolitan Eailway Company, 
 676, 677 
 
 Geipel v. Smith, 730 
 
 Geirk v. Connolly, 667 
 
 G«lley V. Clerk, 546, 548 
 
 Gemmill v. Gonrock Blape Work Company, 
 362 
 
 General South American Company {In re), 
 844 • 
 
 General Steam Kangation Company^ v. 
 British and Colonial Steam Naviga- 
 tion Company, 263, 384, 716 
 
 General Steam Navigation Company v. 
 Mann, 946 
 
 General Steam Navigation Company v. 
 Morrison, iioi 
 
 General Steam Navigation Company v. 
 Tonkin, 945 
 
 George Arkle, The, 947 
 
 George Eoper, The, 940 
 
 George andBichard, The, 192, 193 
 
 George v. Skivington, 56, 813 
 
 Georgia National Bank v. Henderson, 
 870 - 
 
 Gerhard v. Bates, 54, 782 
 
 Grerman Mining Company, Exparte Chip- 
 pendale, 842 
 
 Gheen v. Johnson, 806 
 
 Gibbon v. Budd, 824 
 
 Gibbon v. Coggon, 767 
 
 Gibbon v. Paynton, 460, 583, 584, 586, 
 
 596 
 
 Gibbons ». Pepper, 953 
 
 Gibbons v. United States, 240 
 
 Gibbs V. Great Western Eailway Com- 
 pany, 437 
 
 Gibbs V. Mersey Docks Trustees, 1048, 
 IG49 
 
 Gibbs «. Potter, 715 
 
 Giblin v. M'MuIlen, 37, 458, 470, 471, 
 472, 882 _ 
 
 Gibson v. Inglis, 534 
 
 Gibson v. Iveson, 495 
 
 Gibson v. Mayor of Preston, 215, 218, 
 219, 234, lois, 1045 
 
 Gibson v. SmalT, 321, 711 
 
 Gibson v. South-Bastern Railway Com- 
 pany, 202 
 
 Qidley v. Lord Palmerston, 238, 267 
 
 Gilbart v. Dale, 562 
 
 Gilbert v. Dale, 618 
 
 Gilbert's case, 84 
 
 Gilbert v. Corporation of the Trinity 
 House, 207, 233 
 
 Gilbert ». Williams, 748 
 
 Griles V. Grover, 457, 765 
 
 Giles o. Taff Railway Company, 285, 290, 
 297 
 
 Gill V. Louglier, 792 
 
 Gill V. Manchester Railway Company, 
 
 ^ S77> 579. 606, 613 
 
 Gillan V. Simpkin, 734 
 
 Gillespie v. Thompson, 712 
 
 Gillett «. Fairbank, 444 
 
 Gillett B. Hill, 517 
 
 Gillett V. Mawman, 514 
 
 Gilliard v. Lancashire and Yorkshire Rail- 
 way Company, 165, 166 
 
 Gillis ■0. Pennsylvania Railroad Company, 
 664 
 
 Gillson V. North Grey Railway Company, 
 986 
 
 Gilpin ». Cohen, 768 
 
 Gilshannon v. Stonybrook Railway Com- 
 pany, 317 
 
 Girolamo, The, 719 
 
 Gisbourne v. Hurst, 495, 539, 562, 563 
 
 Gladholm v. Barker (No. i), 715, 954 
 
 Gladholm v. Barker (No. 2), 954 
 
 Gladman v. Johnson, 926, 927 
 
 Gladwell v. Steggall, 56, 834 
 
 Glamorganshire, The, 939 
 
 Glassey v. Hestonville an'd Railway Com- 
 pany, 141 
 
 Gleason v. Clark, 795 
 
 Glenfrnin, The, 710 
 
 Glengarry, The, 948 
 
 Globe New Patent Iron and Steel Com- 
 pany {In re), 844 
 
 GloESop V. Heston and leleworth Local 
 Board, 207, 211, 215, 223, 233, 234 
 
 Gloucestershire Banking Company v. 
 Edwards, 751 
 
 Glyn & Co. v. East and West India Docks, 
 
 5S9. 722. 732 
 
 Glynn v. Hutchinson, 781 
 
 Godefroy v. Dalton, 42, 786, 787, 788 
 
 Godefroy v. Jay, 790, 791, 795 
 
 Goir {In re), 747 
 
 Goff V. Great Northern Railway Company, 
 274, 290, 291, 297 
 
 Gogart^ a. Great Southern and Western 
 Railway Company, 595 
 
 Gold V. Strode, 758 
 
 Golding's case, 244 
 
 Goldsmith v. Great Eastern Railway 
 Company, 606 
 
 Goldsmith v. Tunbridge Wells Improve- 
 ment Commissioners, 1128 
 
 Gompertz v. Bartlett, 877 
 
 Good V. London Steamship Owners' Asso- 
 ciation, 775 
 
 Goodlet «. Louisville Railroad Company, 
 127 
 
 Goodman v. Chase, 800 
 
 Goodman v. Walker, 788 
 
 Goodson V. Richardson, 998, loio, 1039 
 
 Goodtitle u. Alker and Elmes, 998, loio, 
 1039 
 
 Goodwin v. Robarts, 896 
 
 Goodwyn v. Cheveley, 922, 966 
 
 Gordon v. Grand Street Railroad Com- 
 pany, 678 
 
 Gordon v. Hutchinson, 562 
 
xsvm 
 
 TABLE OF CASES. 
 
 Gordon v. New Town Bailraad Company, 
 
 639 
 
 Gordon v. Rolt, 280 
 
 Gosden v. Elpfaick, 1023 
 
 Gosset V. Howard, 258, 259, 270 
 
 Goswill V. Dunkley, 871 
 
 Gould V. Oliver, 709 
 
 Goupy V. Arden, 874 
 
 Govett V. Eadnidge, 568 
 
 Grace v. Adams, 593 
 
 Grfeme v. Wroughton, 796 
 
 Graham ». North-Eastern Eailway Com- 
 pany, 388 
 
 Graham v. Thompson, 445 
 
 Graham v. Witherhy, 763 
 
 Grand Junction Canal Company v. Shugar, 
 1159, 1161 
 
 Grand Surrey Canal Company v. Hall, 
 
 1015 
 Grand Trunk Eailway Company of Canada 
 
 V. Jennings, 181 
 Grant (Ex parte). In re Plumbly, 816 
 Grant \ln re), 842 
 Grant v. Bagge, 759 
 Grant v. Caledonian Bailway Company, 
 
 IS4 
 Grant v. Drysdale, 418 
 Grant v. Secretary of State for India, 
 
 244 
 Gratitudine, The, 491, 710 
 Gi-aves V. Key, 884 
 Gray». Brassey, 376 
 Gray «. Gntteridge, 815 
 Gray «. Hay, 815 
 Gray v. North-Eastem Eailway Company, 
 
 109 
 Gray v. PuUen, 1020, 1045, 1077, 1081 
 Greasly v. Codling, 1028, 1032 
 Great Eastern Eailway Company v. 
 
 Hackney Board of Works, 1061, 
 
 1062 
 Great Eastern Eailway Company v. Tur- 
 ner, 841 
 Great Northern Eailway Company 0. 
 
 Harrison, 639, 642 
 Great Northern Eailway Company v. 
 
 Haweroft, 659 
 Great Northern Eailway Company v. 
 
 Morville, 600, 615 
 Great Northern Eailway Company v. 
 
 Shepherd, 690, 692, 700 
 Great Northern Eailway Company v. 
 
 Swaffield, 628 
 Great Western Eailway Company v, 
 
 Bennett, 1052, 1058 
 Grreat Western Eailway Company v. 
 
 Blake, 641, 647, 648 
 Great Western Eailway Company v. 
 
 Bunch, 27, 685, 686, 689, 695, 696, 
 
 697 
 Great Western Eailway Company v. 
 
 Crouch, 624, 626 
 Great Western Eailway Company «. 
 
 Davies, 85 
 Great Western Eailway Company 0. 
 
 Goodman, 652, 694 
 Great Western Eailway Company v. 
 
 M'Carthy, 605 
 
 Great Western Eailway Company v. 
 Eailway Commissioners, 6oi 
 
 Great Western Eailway Company v. 
 Eimell, S9S 
 
 Great Western Eailway Company v. 
 Sutton, 567 
 
 Great Western Eailway Company of 
 Canada v. Baird, 100 
 
 Greatrex w. Hay ward, 1 153 
 
 Green v. Austin, 775 
 
 Green v. Brown, 770 
 
 Green v. Buocle-chiirches, 209 
 
 Green v. Dixon, 799 
 
 Green v. Fletcher, 905 
 
 Green ». London Gfeneral Omnibus Com- 
 pany, 231, 234 
 
 Greenfield Savings Bank v. Stowell, 889 
 
 Greenham v. Gibbeson, 857 
 
 Grreenland v. Chaplin, 130 
 
 Gh'eenleaf v. Hlinois Central Eailroad, 
 
 331. 421 
 Greenshield v. Pritchard, 775 
 Greenslade v. Dare, 905 
 Greggs {In re), 784 
 Gregory v. Cotterell, 751, 768 
 Gregory v. Hill, 370, 403 
 Gregory v. Piper, 23, 35, 276, 283, 295 
 Gregory v. Slowman, 44 
 Gregory v. Stryker, 515 
 Gremare v. Le Clero Bois Valon, 825 
 Grrice v. Eichardson, 559, 560 
 Giier v. Sampson, 960 
 Griffin v. Colver, 93 
 Griffiths V. Earl of Dudley, 353, 356, 367, 
 
 448 
 Griffiths V. East and West India Dock, 
 
 . '°57 
 Griffiths V. Gidlow, 323, 365, 1120 
 Griffiths V. London and North- Western 
 
 Eailway Company, 1098 
 Griffiths V. London and St. Katharine 
 
 Docks Company, 314, 319, 326, 338, 
 
 366, 424 
 Grill V. General Iron Screw Collier Com- 
 
 . pany, 42, 729. 73 1 
 Gnnnell v. Cook, 521 
 Grinnell v. Western Union Telegraph 
 
 Company^ 737, 743 
 Grrmnon v. Harlem Eai 
 
 678 
 
 Grissell V. Bristowe, 816 
 Grissell V. Peto, 790 
 Grizzle v. Frost, 149, 361, 368, 422 
 Grocers' Company v. Donne, 198 
 Groenvelt's case, 826 
 Groenvelt v. Burwell, 254, 255, 269 
 Grosvenor v. Green, 906 
 Grote V. Chester and Holyhead Eailway 
 
 Company SOS, 506, 634, 636 
 Groucolt V. Williams, 76 
 Groves v. Puller, 314 
 Guardians of the Poor of Holborn M.Vestiy 
 
 of St. Leonard, Shoreditoh, 21S 
 Guille V. Swan, 6s 
 Gnldfaxe, The, 188 
 Gulf Coast and Santa Pe Eailway Com- 
 
 pany v Levy, 67, 741 
 Gulline V. Lowell, 152 
 
 lem l^ilroad Company, 
 
TABLE OF CASES. 
 
 Gundry v. Feltham, 915, 916 
 Gunn V. Bolckow, 560 
 Gurneyj). Sharp, 560 
 Gay V. West, 962 
 Guy Mannering, The, 717 
 Gwillim V. Soholey, 774 
 Gwinn v. Poole, 256, 257 
 Gwinnell v. Eames, 1036, 1042 
 
 Hackney (Bleotion Petition), 7|; 
 
 Hackney Newspaper Company {Borough 
 of) (In re), 844 
 
 Hadley v. Baxendale, 92, 739 
 
 Hadley v. Taylor, 1041, IQ47, 1090 
 
 Hagart's Trustees v. Hope, 255, 269 
 
 Hagood V. Southern, 239 
 
 Haigh V. Boyal Mail Steam-Packet Com- 
 pany, 183 
 
 Hales V. London and North-Western Eail- 
 way Company, 569 • 
 
 Halifax Union v. Wheelwright, 889 
 
 Hall V. Bristol (Mayor of), 121 
 
 Hall V. Corcoran, 826 
 
 Hall V. Crawley, 770 
 
 Hall «. Fuller, 867 
 
 Hall V. Hallet, 853 
 
 Hall V. Johnson, 317 
 
 Hall V. Laver, 792 
 
 Hall V. Mayor, &o., of Batley, 1071 
 
 Hall V. North-Eastem Bailway Company, 
 
 647 
 Hall V. PamisylTania Bailroad Company, 
 
 593 
 
 Hall V. Pike, 548 
 
 Hall V. Power, 659 
 
 Hall V. Smith, 56, 196, 197 
 
 Hallenbake v. FiA, 550 
 
 Eallett's Estate (Mre), 850 
 
 Halley, The, 247 
 
 Halliday v. Holgate, 494 
 
 Hamer v. Cambrian Bailway Company, 
 677 
 
 Hamilton v. Caledonian Company, 639 
 
 Hamilton v. Pandorf, 72^, 724 
 
 Hamilton v. Texas Bailroad Company, 
 664 
 
 Hamilton v. Vestry of St. George, Han- 
 over Square, 103S, 1062 
 
 Hamlin v. Great Northern Bailway Com- 
 pany, 658, 660 
 
 Hammack v. White, 34, 79, 99, lOI, 957, 
 988 
 
 Hammersmith Bailway Company t;. Brand, 
 200, 202, 421, 988, icxJS, ion, 1138, 
 1 141 
 
 Hammond ». Howell, 254 
 
 Hammond v. Vestry of St. Pancras, 211, 
 , 234, 1071 
 
 Hampshire v. Wickena, 799 
 
 Hanhury v. Kirkland, 850 
 
 Hancke v. Hooper, 832 
 
 Hancock v. Band, 546 
 
 Hancock ». York, Newcastle, and Berwick 
 Bailway Company, 934 
 
 Hand (In re), 246 
 
 Hand of Providence, The, 720 
 
 Handaysyde v. Wilson, 946 
 
 Handford v. Palmer, 504 
 
 Hannam v. Mockett, 931 
 
 Hannibal Bailroad v. Swift, 68i, 693 
 
 Hanson a. Lanoashii-a and Yorkshire Bail- 
 way Company, 108, 633, 663, 109S 
 
 Harbert's case, 352 
 
 Hard v. Vermont and Canada Bailway 
 Company, 381 
 
 Hardacre v. Stewart, 814 
 
 Hardcastle v. South Yorkshire Bailway, 
 148, 151, 1062, 1096, 1097 
 
 Harden v. Parsons, 864 
 
 Harding v. Barker, 512 
 
 Harding v. Holden, 760 
 
 Harding D. Purkess, 781 
 
 Hardingham v. Allen, 815 
 
 Hardman v. North-Eastem Bailway Com- 
 pany, 74 
 
 Hardwick (In re), 785 
 
 Hardy (Ex parte), 907 
 
 Hardy v. Veasey, 797, 868 
 
 Harman v. Andcraoa, 560 
 
 Harman v. Tappenden, 229, 252 
 
 Harmer v, Cornelius, 806 
 
 Harmond v. Pearson, 935 
 
 Harper v. Godsell, 476 
 
 Harper v. North of Scotland Bailway 
 Company, 578, 922 
 
 Harrington v. Binns, 795 
 
 Harris v. Anderson, 721, 946 
 
 Harris v. Buck, 491 
 
 Harris v. Costar, 631, 633, 700 
 
 Harris v. Great Western Bailway Com- 
 pany, 652, 653, 654, 694 
 
 Harris v. Mobbs, 68, 1034, 1045 
 
 Harris v. North Indiana Bailway Com- 
 pany, S8l 
 
 Hams V. Owners of the Franconia, 189 
 
 Harris ». Packwood, S31, 569, 586, 619 
 
 Harris v. Tinn, 429, 430 
 
 Harrison v. Bank of Australasia, 709 
 
 Harrison v. Great Northern Bailway, 78, 
 J054, 1056, 1058, 1066, 1 126 
 
 Harrison v. London and Brighton Bailway 
 Company, 602 
 
 Harrison v. North-Eastem Bailway Com- 
 pany, 108 
 
 Harrold v. Great Western Bailway Com- 
 pany, 668, 674 
 
 Hart V. Baxendale, 6o2 
 
 Hart V. Frame, 793, 807 
 
 Hart 0. Lancashire and Yorkshire Bail- 
 way Company, 665 
 
 Hart V. Pennsylvania Eailrokd Company, 
 644 
 
 Hart V. Ten Eyok, 454 
 
 Hart V. Western Union Telegraph Com- 
 pany, 742 
 
 Hattfield v. Boper, iS3j 156 
 
 Hartnallv. Bydfi Commissioners, 210, 214, 
 215, loiS, I04S 
 
 Hartop V. Hoare, 475 
 
 Harvey v. Dunlop, 14 
 
 Harvey v. Harvey, 758, 770 
 
 Harvey v. Mount, 794 
 
 Harvey v. New York Central Bailroad 
 Company, 359, 361 
 
 Harvey v. Towers, 123 
 
TABLE OF OASES. 
 
 HaBtings v. Halleck, 792 
 
 Haston V. Edinburgh Street Tramway 
 Company, 426 
 
 Hatch V. Lewis, 795, 796 
 
 Hathesing v. Laing, 560 
 
 Haugliey v. Hart, Z092 
 
 Hawken v. Shearer, 1092 
 
 Hawkins v. Cooper, iz8 
 
 Hawkins v. Harwood, 788, 795 
 
 Hawkins ». Hoffman, 734 
 
 Hawkins ». Plomer, 773 
 
 Hawkins v, Bobinson, 996, 1009 
 
 Hawley v. Northern Central Railroad Com- 
 pany, 341, 344 , 
 
 Hawthorn v. Hammond, 549 
 
 Hay ». Le Neve, 729, 937, 942 
 
 Haycraft v. Creasy, 48 
 
 Hayes v. Kennedy, 725 
 
 Hayes v. Michigan Central Railway Com- 
 pany, III 
 
 Hayes v. South Wales Eailway Company, 
 609 
 
 Hayes v. Tindall, 816 
 
 Hayman «. Hewitt, 959 
 
 Hayn v. CuUiford, 611, 712, 731 
 
 Hayiie v. Rhodes, 800 
 
 Haynes v. Great Western Railway Com- 
 pany, 606 
 
 Hazeldine v. Grove, 1023 
 
 Plcacockv. Sherman, 1060 
 
 Healey v. Gray, 546 
 
 Heane v. Rogers, 884 
 
 Heam v. London and South- Western Rail- 
 way Company, 593 
 
 Hearne v. Garton, 582 
 
 Heaven v. Pender, 8, 52, 53, 54, 56, 61, 
 62, 63, 64, 65, 444, 489, 782 
 
 Hector, The, 944 
 
 Hector, The (No. 2), 719 
 
 Heeman v. Evans, 773 
 
 Hegan ». Eighth Avenue Railroad Com- 
 pany, 960 
 
 Heiserman v. Burlington Railroad Com- 
 pany, 567 
 
 Hellawell v. Eastwood, 495 
 
 Helyear v. Hawke, 274 
 
 Hemming 'w. Hale, 481 
 
 Henderson v. Preston, 754 
 
 Henderson v. SteVenson, 652, 656, 658 
 
 Heney v. Dennis, 960 
 
 Henly v. Mayor of Lyme, 195, 212, 213, ■ 
 214, 21S, losi, 1063 
 
 Hennigan v. M' Vey, 922 
 
 Henry v. Lee, 874 
 
 Heppel V. King, 771 
 
 Heramer v. Webb, 309 
 
 Hereford (Dean of) v. Macnamara, 760 
 
 Hermann v. Seneschal, 199 
 
 Herring v. Metropolitan Board of Works, 
 1031 
 
 Hertford Union v. Kempton, 440 
 
 Heske v. Samuelson, 419 
 
 Hetherington v. North-Eastern Railway 
 Company, 173 
 
 Hengh v. London and North-Western 
 Eailway Company, 536, 623^ 625 
 
 Hewison v. Guthrie, 560 
 
 Hewitt V. Loosemore, 902, 903, 90s 
 
 Hewitt V. Melton, 790 
 
 Heyde v. Swan, 731 
 
 Heywood v. Pickering, 877 
 
 Hibbard v. Thompson, 833 
 
 Hibbert v. Bailey, 815 
 
 Hibernian, The, 714, 941, 942, 95 1 
 
 Hiokmore v. Guardians of St. George's- 
 in-the-East, 265, 266 
 
 Hiokik V. Trustees of Plattsburgh, 210 
 
 Hickox V. Naugatuck Railroad Company, 
 69s 
 
 Hicks V. Newport, Abergavenny, and 
 Hereford Railway Company, 181 
 
 Hiem v. Mill, 904 
 
 Higginbotham «. Great Northern Eailway 
 Company, 579 
 
 Higgins V. Butcher, 162 
 
 Higgins V. Dewey, 987 
 
 Higgins V. Kendriok, 765 
 
 Higgs V. Maynard, loi, 106, 507 
 
 Hill (In re), 784 
 
 Hill V. Audus, 192 
 
 Hill V. Bigge, 249, 268 
 
 Hill V, Boston, 219 
 
 Hillw. Featherstouhaugh, 518 
 
 Hill V, Finney, 790, 796 
 
 Hill V. Heap, 874 
 
 Hill V. Metropolitan Asylum District, 233 
 
 Hill V. New Eiver Company, 79 
 
 Hill J). Tupper, 1150 
 
 Hilleary v. Hnngate, 781 
 
 Hilliard v. Thurston, 986 
 
 Hilton V. Ankesson, 76 
 
 Hindal v. Blades, 774 
 
 Hingston v. Wendt, 712 
 
 Hinton v. Dibbiii, 38, 598, 463 
 
 Hipkins v. Birmingham and Staffordshire 
 Gas Light Company, 1000, loio 
 
 Hipkins v. Amery, go6 
 
 Hiscooks V. Jones, 773 
 
 Hitchcock V. Humfrey, 877 
 
 Hoare v. Great Western Railway Com- 
 pany, 606 
 
 Hoare v. Kearley, 103 1 
 
 Hobbs V. London and North-Western 
 Railway Company, 660 
 
 Hobbs V. London and South- Western 
 Eailway Company, 93 
 
 Hobday v. Peters (No. 3), 852 
 
 Hobson V. Thelluson, 761 
 
 Hoby V. Built, 795 
 
 Hookung, The, 939 
 
 Hodges V. New England Screw Company, 
 840 
 
 Hodgkinson v. Fernie, 243 
 
 Hodgman v. West Midland Railway Com- 
 pany, 602, 646 
 
 Hodgson V. Iwnoh, 761 
 
 Hodgson V. Mayor of York, 1058 
 
 Hodgson V. Soy, 561 
 
 Hodgson V. Towning, 759 
 
 Hodkinson v. London and North-Western 
 Railway Company, 624, 697 
 
 Hoe's case, 775 
 
 Hoey V. Dublin and Belfast Junction 
 Railway Company, 361, 368 
 
 Uotlmant). Union Ferry Company, 718 
 
 Hogan V, Sharpe, 918, 931 
 
TABLE OF GASES. 
 
 XXXI 
 
 Hogan V. South-Easteru Bailway Oom- 
 
 pany, 678 
 Hoggins V. Gordou, 804 
 Holbach v. "Warner, 75 
 Hdbom Union (Guardians of the Poor) v. 
 
 Vestry of St. Leonard, Shoreditch, 
 
 233 
 
 Holden v. Liverpool New Gas and Coke 
 Company, 129, 1007 
 
 Holder v. Soulby, 545, SS4 
 
 Holderness v. CoUinson, 560 
 
 Holdsworth v. City of Glasgow Bank, 273 
 
 Hole V. Barlow, 11 27 
 
 Hole V. Sittingbourue and Sheerness Bail- 
 way Company, 1075, 1077, 1080, 
 1081, 1082 
 
 Holkero. Porritt, 1143, 1150, 1153, 1 154 
 
 Holland V. North Metropolitan Tramways 
 Company, 127 
 
 Holland v. Northwioh Highway Board, 
 1025 
 
 HoUeran v. Bagnell, 171, 172 * 
 
 Holliday v. Kennard, 576 
 
 Holliday v. St. Leonard, Shoreditch, 198 
 
 Hollins V. Fowler, 623, 624 
 
 Hollis V. Claridge, 559 
 
 Hollister v. Nowlen, 592 
 
 Holly V. Boston Gas Light Company, 
 1002 
 
 Holmes v. Clarke, 320 
 
 Holmes v. Halde, 825 
 
 Holmes ». Kerrison, 873 
 
 Holmes v. Mather, 50, 955 
 
 Holmes v. Midland Bailway of Canada, 
 988 
 
 Holmes v. North-Eastem Bailway Com- 
 pany, lioi, H07, 1112 
 
 Holmes v. Onion, 287 
 
 Holmes v. Worthington, 329, 330, 33S, 
 366, 427, 435 
 
 Holt V. Bochdale (Corporation of), 1073 
 
 Holt V. Wilkes, 406 
 
 Holton V. Gunstress, 770 
 
 Holtzman v. Hoy, 832 
 
 Hony V. Hony, 791 
 
 Hooper v. Lane, 759, 763 
 
 Hooper v. London and North-Western 
 Bailway Company, 610 
 
 Hope V. Phelps, 833 
 
 Hope V. Liddell (No. i), 906 
 
 Hopgood V. Ernest, 904 
 
 Hopgood V. Parkin, 853 
 
 Hopkinson v. Smith, 794. 
 
 Hop wood V. Adams, 781 
 
 Horn V. Thomborough, 1023 
 
 Hornby (Exparte), 561 
 
 Home V. Meakin, 62 
 
 Hoskins v. Phillips, 792 _ 
 
 Hough V. Tex&B, &o., Bailway Company, 
 
 319. 330. 341. 343 
 Houghton V. Mathews, 523, SS9 
 Houlden v. Smitli, 255, 256, 269 
 Hoalditch v. Desanges, 561 
 Hounsell v. Smyth, 148, 151, 1090, 1097 
 Houser v. Tully, 546 
 Honsin v. Barrow, 768 
 Hovey v. Blakeman, 845 
 How V. Kirohner 559 
 
 Howard v. Baillie, 523 
 
 Howard v. Bennett, 433 
 
 Howard v. Cauty, 763 
 
 Howard v. Gosset, 259 
 
 Howard v. Harris, 468 
 
 Howard v. Hudson, 885 
 
 Howard v. Shepherd, 733, 790 
 
 Howard v. Sheward, 235 
 
 Howard v. Standish, 773 
 
 Howard (The Ship) v. Wissman, 576 
 
 Howat or Auld v. Shairp, 167 
 
 Howden v. Standish, 757 
 
 Howe V. Finch, 423, 428 
 
 Howe V. Newmaroh, 279, 282 
 
 Howell V. Youug, 791, 799 
 
 Howells V. Landore Siemens Steel Com- 
 pany. 335. 381, 384, 385, 386, 387, 
 390 
 
 Howes V. Ball, 492 
 
 Howes V. Young, 764 
 
 Howson V. Barrett, 61, 421 
 
 Hoyt V. Hudson, 1142 
 
 Hoyt ». Jeffers, 80 
 
 Hubbart v. Phillips, 792 
 
 Hudson V. Baxendale, 576, 579, 627, 629 
 
 Hudson V. Eoberts, 919, 923, 931, 932 
 
 Hudson «. Tabor, 1063, 1064, 1067 
 
 Hudston V. Midland Bailway Company, 
 584, 680, 681 
 
 Huggins's case, 754 
 
 Hughes (Expa/rte), 446 
 
 Hughes V. Buckland, 1022 
 
 Hughes V. Done, 796 
 
 Hughes V. Empson, 854,' 855 
 
 Hughes V. Great Western Bailway Com- 
 pany, 601 
 
 Hughes V. Macfie, 143 
 
 Hughes «. Percival, 28, 1019, 1078, 1081, 
 1082 
 
 Hughes V, Bees, 761 
 
 Hughes V. Sutherland, 952 
 
 Hulett v. Swift, 554 
 
 Hull {In re), 255 
 
 Hume V. Oldaore, 915 
 
 Hume V. Bicfaardson, 858 
 
 Humphrey v. Mears, 56 
 
 Humphrey v. Mitchell, 759 
 
 Humphries v. Cousins, 1005, 1078 
 
 Hunt V. Elmes, 903 
 
 Hunt V. Hooper, 763 
 
 Hunter v. Caldwell, 787, 788 
 
 Hunter v. Parker, 523 
 
 Huntley v. Bulwer, 788 
 
 Hurd V. West, 515 
 
 Hurdman v. Nortfi-Eastern Bailway Com- 
 pany, 60, 85, 1128, 1130, I156, 1 157, 
 1 160 
 
 Hurst V. Great Western Railway Com- 
 pany, 660 
 
 Hurst V. Lisbome, 713 
 
 Hurst V. Parker, 792 
 
 Hurst V. Taylor, 61, 1091 
 
 Hutchins v. Brackett, 544 
 
 Hutchinson v. Birch, 759 
 
 Hutchinson ». Guion, 581, 11 33 
 
 Hutchinson v. York, Newcastle, and Ber- 
 wick Bailway Company, 356, 365, 
 375, 390 
 
Yyyn 
 
 TABLE OF OASES. 
 
 Hatcliison v. Bothwell, 418 
 
 Hutton V. Warren, 734 
 
 Huxley v. Berg, 71 
 
 Huzzey v. Field, 274, 278 
 
 Hyams v. "Webster, 1019, 1072 
 
 Hyde v. Ti'ent Navigation Company, 533, 
 563, 568, S7I, 588, 612,613, 618, 622, 
 625,628 
 
 Hyer v. Weatern Union Telegraph Com- 
 pany, 742, 744 
 
 Hyman v. Nye, 22, Joi, 505, 638, 958 
 
 Ibbotson v. Shippey, 796 
 
 Illidge V. Goodwin, 959 
 
 Illinois Central Eailway Company v. 
 
 Bnckner, 140 
 Illinois Baili'oad Company v. Handy, 690 
 Ilott V. Wilkes, 1085, 1087 
 Imperial Hydropathic Hotel Company v. 
 
 Hampson, 838 
 Imray v. Magnay, 757, 763 
 Independence, The, 720 
 Indermaur v. Dames, 34, 35, 57, 337, 536, 
 
 1094, 1 100, 1 106, 1 1 12, 1 1 16, 1 1 17 
 India (Secretary of State for) v. Sahaba, 
 
 242 
 Indianapolis Eailroad Company v. Horst, 
 
 27 
 Indus, The, 948 
 Industry, The, 941, 944 
 Ingalls «. Bills, 22, 27, 28, 567, 637, 638 
 Ingallsbee v. Wood, 546 
 Ingate v. Christie, 540, S4I, S62, 566, 
 
 707 
 Ingham v. Primrose, 890 
 Ingle V. Partridge, 860 
 Ingram v. Foster, 874 
 Innes v. Magistrates, 209 
 Insurance Company v. Tweed, 151 
 International Paper Company (In re), 844 
 lonides v. Universal Marine Insurance 
 
 Company, 83 
 Ipstone Park Colliery Company (In re), 
 
 Brough's claim, 783 
 Ireland v. Livingston, 525 
 Ireson v. Pearman, 797 
 leaack v. Clark, 467, 491, 508, 632 
 Isle of Ely (case of the), 1067 
 Isle of Wight Bailway Company v. 
 
 Tahourdin, 837 
 Itinerant, The, 949 
 Ivay «. Hedges, iioi 
 Iveson 11. Moore, 1027, 1028, 1032, 1046 
 Ivimey v. Stooker, 1 144 
 
 Jacob v. Lucas, 855 
 
 Jacobs V. Humphrey, 761, 764 
 
 Jacobs V. Seward, 976 
 
 Jacobsohn v. Blake, 778 
 
 Jacks V. Bell, 787, 793, 796 
 
 Jackson v. Carshalton Gas Company, 64, 
 lOOS 
 
 Jackson v. Cummins, 517, 521, 559 
 
 Jackson v. Mawby, 766 
 
 Jackson v. Metropolitan Kailway Com- 
 pany, ir, 114 
 
 Jackson v. Bogers, 569, 618 
 
 Jackson v. Smithson, 917, 920, 931 
 
 Jackson v. Union Marine Insurance Com- 
 pany, 713 
 
 Jaffrey v. Toronto, Grey, and Bruce Eail- 
 way Company, 988 
 
 James v. Campbell, 96 
 
 James v. Couchman, 799 
 
 James v. Holditch, 876 
 
 James v, Litchfield, 906 
 
 James v. London and South-Westcrn 
 Eailway Company, 189 
 
 Jameson v. Police Commissioners of 
 Dundee, 1146 
 
 Jameson v. Swinton, 874 
 
 Jane Baoony The, 720 
 
 Jarmain v. Hooper, 775 
 
 Jarmey v. Lowgar, 979 
 
 Jarva, The, 942 
 
 Jarvis v. Dean, 1090, 1093 
 
 Jeftery v. Bastard, 774 
 
 Jeffrey v. Walton, 614 
 
 Jenoks v. Coleman, 659, 734 
 
 Jenkins v. Betham, 483, 807 
 
 Jenuer v. Joliffe, 766, 778 
 
 Jennings v. Great Northern Railway Com- 
 pany, 658 
 
 Jeveson v. Moore, 1028 
 
 JeweU ». Grand Trunk Railway Company, 
 300 
 
 Jewson V. Gatti, 144, 147, 1042 
 
 Job V. Job, 851 
 
 Joohem v. Eobinson, 1038 
 
 Joel V. Morrison, 284 
 
 John V. Bacon, 641, 1106 
 
 John M'Intyre, The, 953 
 
 Johnson v. Alston, 796 
 
 Johnson v. Boston, 394 
 
 Johnson v. Chapman, 578, 709 
 
 Johnson v. Cridit Lyonnais Company, 
 
 Johnson v. Great Southern and Western 
 
 Eailway Company, 645, 652 
 Johnson v. Hall, 378 
 Johnson «. Hudson Eiver Company, 126 
 Johnson v. Leigh, 759 
 Johnson v. Lindsay, 405 
 Johnson v. Marriott, 790 
 Johnson v. Midland Eailway Company, 
 ^ , S4S. 569. 707 
 Johnson v. Mitchell, 425 
 Johnson v. Newton, 849, 850 
 Johnson v. North-Eastern Eailway Coni- 
 
 pany, 580 
 Johnson v. Pritchard, 285 
 Johnson v. Robarts, 560 
 Johnson v. Stear, 493 
 Johnson v. Upham, 352 
 Johnson v. Wells, 67 
 Johnston v. Hogg, 730 
 Johnston v. Shaw, 439 
 Johnstone v. Sutton, 241, 268, 448 
 Jomt Stock Discount Company v. Brown, 
 
 840, 841 
 Joliet Iron Company v. Scioto Firebrick 
 
 Company, 497 
 
 V. Jolland, 795 
 
 Jolliffe D.Wallasey Local Board, 212, 2^s, 
 
 934,1024 •*•*' 
 
TABLE OP CASES. 
 
 XXXIU 
 
 Jonas V. King, 833 
 
 Jones (In re), 785 
 
 Jones {In re William), 784, 785 
 
 Jones V. Bird, 198, 225, 261, 270, 778 
 
 Jones V. Bojce, 50, 68, 69, 137, 676, 941, 
 
 9S7 
 Jones V. Fay, 828 
 Jones V. FestinicgBailway Company, 202, 
 
 204, 233, 421, 978, 991 
 Jones V. Gooday, 177 
 Jones V. Harrison, 226 
 Jones V. Hart, 278 
 Jones V. Higgins, 493 
 Jones V. Jackson, 550 
 Jones V. Jones, 276 
 Jones V. Lewis, 851, 859 
 Jones V. Monsell, 262 
 Jones V. Morrall, 854 
 Jones V. Page, 501, 639 
 Jones V. Pearle, 491, 492 
 Jones V. Peppercome, 560 
 Jones V. Perry, 919, 925 
 Jones V. Pickering, 270 
 Jones V. Pitcher, 722 
 Jones V. Pope, 772 
 Jones V. Kyde, 877 
 Jones V. Smith, 902, 906 
 Jones V. Tarlton, 561 
 Jones V. Tyler, 549 
 Jones V. Williams, 758 
 Jordan 0. Fall Biver Bailroad Company, 
 
 584 
 Jordan v. Grallnp, 764 
 Jorden v. Money, 885, 888 
 Jordin v. Crump, 121, 924, 932, 1087, 
 
 1088, 1089, mo 
 Joy V. Campbell, 855 
 Judah V. M'Namee, 824 
 Judge V. Cox, 919 
 Judaon v. Western Bailway, 620 
 Julia, The, 717, 722 
 Julius V. Bishop of Oxford, 227, 234 
 
 Kain v. Smith, 323, 341 
 
 Kane v. Northern Central Bailroad, 331 
 
 Eannen». M'MuUen, 833 
 
 Karo, The, 714 
 
 Kavanagh v. Cuthbert, 815 
 
 Eayti. Atherton Local Board, 102 1 
 
 Kay V. Wheeler, 724 
 
 Kaye v. Brett, 235 
 
 Keane v. Beynolds, 1016 
 
 Kearney v. London, Brighton, and South 
 Coast Bailway Company, 106, 507 
 
 Kearney v. Nicholls, 428 
 
 Kearns (In re), 801 
 
 Keddie v. North British Bailway Com- 
 pany, 618 
 
 Keeble v. East and West India Docks, 
 1 100 
 
 Keen v. Millwall, 443 
 
 Keenan v. Southworth, 544 
 
 Keighley's case, 1063, 1066 
 
 Keightley v. Birch, 761 
 
 Keith V. Pinkham, 679 
 
 Kellard v. Booke, 416, 428, 429 
 
 Kellett V. Staimard, 923 
 
 Kellogg V. New York Central Bailway 
 
 Company, 11 
 Kelly V. Johnson, 406 
 Kemp V. Burt, 787, 788, 794 
 Kemp V. Neville, 255, 269 
 Kemp V. Bose, 810 
 Kemp V. Westbrook, 493, 494 
 Kendall v. London and South-Western 
 
 Bailway Company, 376, 377 
 Kennedy v. Brown, 802, 803, 804 
 Kennedy v. Green, 904, 905 
 Kenrig v. Eggleston, 583, 586 
 Kensit v. Great Eastern Bailway Com- 
 pany, II4S, 1150, 1152, 1154 
 Kent V. Great Western Bailway Company, 
 
 1024 
 Kent V. Midland Bailway Company, 698, 
 
 699, 701 
 Kent V. Shnckard, J50 
 Kent V. Worthing Local Board, 213, loij 
 Kentucky Central Bailroad Company r. 
 
 Thomas's Administrators, 642 
 Ker V. Mountain, 661 
 Kerr v. Midland Great Western Bailway 
 
 Company, 568 
 Kerr v. Willan, 589 
 Kettle V. Bromsall, 457 
 Kettle V. Wood, 796 
 Kettlewell v. Paterson, 424, 430, 433 
 Kettlewell v. Watson, 9, 904 
 Keys V. Belfast Bailway Company, 609, 
 
 691, 692 
 Khedive, The, 933, 939. 940, 95i. 953 
 Kiddle V. Lovett, 424 
 Kilbee v. Sneyd, 849 
 Kilsby V. Williams, 878 
 Kimball v. Coshman, 285, 411 
 Kimberley v. Dick, 813 ' 
 
 King, The, v. Aire and Calder Navigation, 
 
 1057 
 King, The, u. Auatrey, 258 
 King, The, v. Barlow, 226 
 King, The, v. Bucks, 1060 
 King, The, v. Chelsea Waterworks, 1049 
 King, The, v. Devon (Inhabitants of), 1026 
 King, The, v. Dixon, 294, 1013 
 King, The, v. Ecclesfield (Inhabitants of), 
 
 1012 
 King, The, v. Edwards, 258 
 King, The, v. Essex (Commissioners of 
 
 Sewers for), i B. & C, 1063, 1066 
 King, The, v. Havering atte Bower, 226 
 King, The, v. Hertford, 464 
 King, The, v. Humphery, 560 
 King, The, v. Kent (Inhabitants oQ, 1049, 
 
 I0S7 
 King, The, v. Blerrison, 1051, 1058 
 King, The, v. Leake (Inhabitants of), 1015 
 King, The, v. Lindsey (Inhabitants of the 
 
 Parts of), 1049 
 King, The, v. London (late Sheriff of), 
 
 752 
 King, The, v. London (Sheriff of), 771 
 King, The, v. Lords Commissioners of the 
 
 Treasury, 246, 247 
 King, The, v. Lyme Eegis, 772 
 King, The, v. Medley, icxd6, ioii 
 King, The, v. Mellor, 1015 
 
XXXIV 
 
 TABLE OF OASES. 
 
 King, The, v. Mersey and Iiwell Naviga- 
 tion, I0S7 
 King, The, v. Middlesex, 771 
 King, The, v. Middlesex (late Sheriff of), 
 
 773 
 King, The, v. Moore, 65 
 King, The, v. Oxfordshire (Inhabitants of), 
 
 I0S9, 1062 
 King, The, v. Fagham (Commissioners of), 
 
 1067 
 King, The,». Pease, 970, 1005, ion, 1038, 
 
 lojo 
 King, TBe, v. Bichards, loia 
 King, The, ii. Enssell, 1030, 1037, 1038 
 King, The, ». St. Maiy, Leicester, 1049 
 King, The, v. Scriveners' Company, 746, 
 
 747 
 King, The, v. Severn and Wye Railway 
 
 Company, 1012, 1057 
 King, The, v. Somerset (Commissioners 
 
 of Sewers for), 1066 
 King, The, v. Surrey (Sheriff of), 771 
 King, The, v. Trafford, loSS 
 King, The, v. Trent and Mersey Canal, 
 
 I0S7 
 
 King, The, «. Turner, 477 
 
 King, The, v. Ward, 1038 
 
 King, The, v. Watts, 934 
 
 King, The, v. West Riding of Yorkshire 
 (2 W. Bl. 685), 1060 
 
 King, The, «. West Biding of Yorkshire 
 (2 East), 1060 
 
 King, The, v. Woking (Inhabitants of), 
 1049, 1057 
 
 King, The, v. Wright, 1015 
 
 King V. Ford, 988 
 
 King V. Franklin, 733 
 
 King V. Henkie, 444 
 
 King V. Montague, 1 144 
 
 King V. Bichards, 476 
 
 Kingj). Spurr, 512 
 
 King V. Withers, 799 
 
 Kingdou v. CaStleman, 855 
 
 Kinghome v. Montreal Telegraph Com- 
 pany, 739 
 
 Kingsley v. Lake Shore and Michigan 
 Railway Company, 689 
 
 Kingston v. Booth, 276 
 
 Kinlooh v. Cray, 559 
 
 Kinlooh v. India (Secretary of State for), 
 267, 239 
 
 Kirby v. Gh'eat Western Railway Com- 
 pany, 589 
 
 Kircnner v. Venus, SS9 
 ■ Kirkman v. Booth, 854 
 
 Kirkman v. Shawcross, 548, 560 
 
 Kirkstall Brewery Company v. Fnmess 
 Railway Company, 595 
 
 Kissam v. The Albert, 941 
 
 Kjobenhavn, The, 944 
 
 Klix V. Nieman, 147 
 
 Knight V. Fox, 306, 307 
 
 Knight V. Lord Hjmouth, 526, 766 
 
 Knight V. Pursell, 977 
 
 Knights V. Quarles, 791 
 
 Knott V. Cottee, 864 
 
 Knox V. Mackinnon, 846, 848 
 
 Kopitoffu. Wilson, 711 
 
 Koster ». Reed, 723 
 Krohn v. Sweeny, S47 
 Krom V. Schoomaker, 47 
 Kruger v. Wilson, 559, 560, 561 
 
 Laoet v. Hill (Crawley's claim^, 816 
 Lacey v. Hill (Sprimgeour'e claim), 816 
 Lack V. Seward, 129, 941, 946 
 Ladd V. New Bedford Railroad Company, 
 
 34S 
 Lade v. Shepherd, 1029 
 Ladywell Company v. Huggons, 785 
 Laertes (Ex Cargo), 711 
 La Grange w. South- Western Telegraph 
 
 _ Company, 738, 744 
 Laicock's case, 751 
 Laidler v. Elliott, 787, 788,^794, 796 
 Laingw. Whaley, 1150, 1154 
 Lake v. Millikin, 72 
 Lake St. Clair, The, v. The Underwriter, 
 
 943 
 Lamb ». Palk, 287 
 Lamb v. Western Railroad Corporation, 
 
 S3I 
 Lamert v. Heath; 525 
 Lancashire, The, 949 
 Lancashire (Justices of) v. Rochdale, 
 
 1048 
 Lancashire and Yorkshire Railway Com- 
 pany V. Knowles, 1052, 1058 
 Lancaster Bank v. Smith, 471, 883 
 Lancaster Canal Company v. Farnaby, 
 
 1049, 1057, 1 105, 1 1 12 
 Land Company of Ireland v. Lord Fer- 
 
 moy, 840 
 Landreville v. Gouin, logr 
 Lane v. Atlantic Works, 72 
 Lane v. Cotton, 198, 261, 262, 270, S44, 
 
 548, 567, 737 
 Lang V. Struthers, 783, 790, 800 
 Langford v. Gasooyne, 847, 850, SjS 
 Langmead v. Maple, 441 
 Langridge j). Levy, 51, 54, 782, 813 
 Laning v. New York Central Railroad 
 
 Company, 330, 341, 358 
 Lannen v. Albany Gas Light Company, 
 
 ICX38, lOII 
 
 La Flata, The, 720 
 Lap thorn v. Harvey, 1043 
 Larrabee ». Sewell, 957 
 Latch V. Bumner Railway Company, 
 ^ 633 
 
 Latt V. Booth, 47 
 
 Laughers. Pointer, 274, 285, 361, 302, 
 ^ 303. 304, 30s. 401, 413. 507 
 Launock v. Brown, 758 
 Laurie i>. Douglas, 723, 731 
 Laveroni v. Drury, 707, 724 
 Lawler v. Lenden, 445 
 Lawrence v. Fox, 208 
 Lawrence v. Harrison, 792 
 Lawrence v. Jenkins, 76, 85, 966 
 Lawrence v. Mintum, 709, 711 
 Lawrence v. Potts, 793 
 Lawrence v. Stonington Bank, S72 
 Lax V. Darlington (Mayor and Corporation 
 "'')>328, 366, 1 107, 1 1 12 
 
TABLE OF CASES. 
 
 Lay». Midland Railway Company, 105, 
 
 142. 151 
 
 Lea V. Facey, 1025 
 
 Leach v. Honey, 242 
 
 Leach v. Sonth-Eastem Railway Com- 
 pany, 682 
 
 Leader «;. Banvera, 761 
 
 ]Leader v. Moxon, 198, 225 
 
 Leaman v. Patten, 269 
 
 Leame v. Bray, 14, 50 
 
 Learoyd v. 'Wniteloy, 846, 847, 859 
 
 Leary v. Boston Railway Company, 344 
 
 Le Blanche v. London and North-WeBtem 
 Railway Company, 658, 660, 734 
 
 Le Case del Boyall Piacarie de la Banne, 
 1063 
 
 Le CoUedge de Physitians' case, 824 ' 
 
 Le Conteur v. London and Sonth-Westem 
 Railway Company, 593, 682, 683, 
 684, 689, 716 
 
 Leek V. Maestaer, 538 , 
 
 Leddy v. Gibson, 382, 390 
 
 Le Due 11. "Ward, 569 
 
 Lee V. Dixon, 794 
 
 Lee V. Oansel, 775 
 
 Lee V. Milner, 1053 
 
 Lee V. Pembroke Iron Company, 2CX) 
 
 Lee V. BUey, 78, 921, 96*3 
 
 Lee V. Sankey, 848 
 
 Leech v. Gartaide, 447 
 
 Leeds Estate Building and Livestment 
 Company v. Shepherd, 841, 844 
 
 Leeman ». Gordon, 734 
 
 Leese v. Martin, 882 
 
 Leeson v. Holt, 587 
 
 Leeson v. Todd, 589 
 
 Leete v. Uart, 199 
 
 Legg V. Evans, 495 
 
 Leggott V. Great Northern Railway Com- 
 pany, 187 
 
 Lehman v. Brooklyn, 108 
 
 Leigh V. Smith, 534, 619; 
 
 Leighton v. Sargent, 806, 824 
 
 Leman v. Fletcher, 823 
 
 Leman v. Eouaeley, 823 
 
 Lemprifere v. Pasley, 559 
 
 Le Neve ». Le Neve, 907 
 
 Leo, The, 953 
 
 Leon, The, 728 
 
 Leonard v. New York Telegraph Company, 
 
 ^ ,737.744 ^ 
 
 Leslie V. Ponnds, 301 
 
 Letchford v. Oldham, 723 
 
 Levi V. Abbott, 763 
 
 Levi V. Waterhouse, 590, 591 
 
 Levingston v. Guardians of Lurgan Union, 
 198 
 
 Levy V. Barnard, 560 
 
 Levy V. Herbert, 617 
 
 Lewis V. Gireat Western Railway Com- 
 pany, 602, 605, 606 
 
 Lewis V. Jones, 770, 929 
 
 Lewis V. London, Chatham, and Dover 
 Railway Company, 670 
 
 Lewis V. M'Kee, 651 
 
 Lewis V. Nobbs, 849 
 
 Leycester v. Logan, 192 • 
 
 Libra, The, 952 
 
 LickbaiTow a. Mason, 491, 492, 560, 891 
 
 Lidater v. Borrow, 1022 
 
 Ligo, The, 943 
 
 LiUey v. Bamaley, 559 
 
 Lilley v. Doubleday, 76, 531 
 
 Lilley V. Elwin, 446 
 
 Limpus V. London General Omnibus Com- 
 pany, 273, 274, 278, 282, 29s, S07, 
 666 
 
 Line v. Taylor, 925 
 
 Linford v. Fitzroy, 258, 269 
 
 Linnehan v. Rollins, 309 
 
 Linneban v. Sampson, 137, 919 
 
 Lipscombe v. Holmes, 824 
 
 Liakeard Return, 7^6 
 
 Lithgow (Ex parte), 764 
 
 Little V. Oldacre, 822 
 
 Little V. Summerlee Iron Company, 406 
 
 Little Rook Railw^ v. Miles, 644 
 
 Littledale v. Lord Lonsdale, 299 
 
 Littlehales v. Gascoyne, 854 
 
 Liver Alkali Company v. Johnston, 541, 
 
 S43> 564. 565. 566, 704. 707 
 
 Livingstone. M'Donald, 1156, 1160 
 
 Lloyd V. Iron, 538 
 
 Lloyd V. Ogleby, 955 
 
 Lloyd V. Waterford and Limerick Hallway 
 Company, 602 
 
 Lloyd V. Wood, 768 
 
 Lloyd V. Wyney, 1072 
 
 Lobb V. Amos, 447 
 
 Lockhart v. Lichtenthaler, 161 
 
 Locklibo, The, 717, 721, 942, 945 
 
 Lockwood V. Ewer, 493 
 
 Loffua V. Maw, 888 
 
 Logan V. Mathews, 507 
 
 Logic V. Gillies, 816 
 
 Loudon, The, 942 
 
 London v. Marquette, 613 
 
 London and Brighton Railway Company 
 V. Truman, 204, 205, 1095 
 
 London and Brighton Railway Company 
 V. Watson, 643 
 
 London Chartered Bank of Australia v. 
 White, 881 
 
 London Founders' Association, Limited, v. 
 Palmer, 818 
 
 London and North-Western Railway v. 
 Glyn, 596 
 
 London and North-Western Railway Com- 
 pany «. Sharp, 801 
 
 London and Provincial Starch Company 
 {In. re), 843 
 
 London and South- Western Bank v. Went- 
 worth, 891, 897, 898 
 
 London and South-Westem Railway Com- 
 pany V. James, 716, 953 
 
 London and Yorkshire Bank v. Belton, 
 
 495 
 Long V. Orsi, 794 
 Longdill V. Jones, 772 
 Longford v. United States, 238 
 Longmeid v. Holliday, 54, s5, 57, 834 
 Longmore v. Great Western Railway 
 
 Company, 666, 1107 
 Lord V. Midland Railway Company, 585, 
 
 602, 621 
 Lord Saumarez, The, 942 
 
TABLE OF CASES. 
 
 Loring v. Davis, 820 
 
 Lorymer v. Hellister, 783 
 
 Losee v. Bachauau, 1125 
 
 Louisville Bailway Company v. Katzen- 
 
 berger, 689 
 Louisville Bailway Company v. Manning, 
 
 82 
 Loup V. Wabash Railroad Company, 563 
 Love Bird, The, 939 
 Lovegrove v. London,. Brighton, and 
 
 South Coast Bailway Company, 378 
 Lovell V. Howell, mo, iiii, 1113 
 Lovell V. London, Chatham, and Dover 
 
 Eailwyr Company, 695 
 Lovett V. Hobhs, 619 
 Lovett V. Salem and South Danvers Bail- 
 way Company, 156 
 Lowery v. Manhattan Bailway Company, 
 
 50, 92-, 108 
 Lowry v. Guilford, 795, 796 
 LowBon V. Copeland, 8^3, 856 
 Lowther «. Earl of Badnor, 256, 257, 
 
 446 
 Loyd V. Preshfield, 868 
 Luby V. Lord Wodehouse, 251 
 Lucas V. Dorrien, 559 
 Lucey ^ Ingram, 263, 716 
 Ludbriflt V. Barrett, 253 
 Ludmore (In re), 764 
 Lumley o. Gye, 1006 
 Lunham v. Blundell, 850 
 Lupton V. White, 454, 850 
 Luther v. Bianconi, 856 
 Luxford V. Large, 128 
 Lydney and Wigpool Iron Ore Company 
 
 V. Bird, 78s 
 Lygo V. Newbold, 145, 642 
 I^me Eegis (Mayor, &o,, of) v. Henley, 
 
 208, 105 1 
 Lynar v. Mossop, 546 
 Lynch v. Knight, 67 
 Lynch v. Nurdin, 121, 142, 143, 144 
 Lynch v. Smith, 156 
 Lynn (Mayor of) v. Turner, 195 
 Lyon V. Fishmongers' Company, 1030, 
 
 1032, 1 14s 
 Lyon V. MelIs,_S4i, 599, 710, 731 
 Lyons v. Martin, 277, 280 
 Lyons v. Bosenthal, 100 
 
 Mao, The, 952 
 
 M'Alpin«. Powell, 1101 
 
 MacAndrew v. Electric Telegraph Com- 
 pany, 741 
 
 M'Arthur v. Sears, 572 
 
 M'Avoy V. Medina, 457 
 
 M'Avoy 1). Young's Paraffin Company, 
 4"S. 417 
 
 Macbeatb v. Haldimnnd, 238, 267 
 
 M'Cabe v. Guiness, 194 
 
 M'Cafferty v. Spuyten Duyvel and Port- 
 morris Bailway Company, 1137 
 
 M'Cance v. North-Western Bailway Com- 
 pany, 602, 6i5 
 
 M'Candlessw. M'Wha, 831 
 
 M'Cartan v. North-Eastem Bailway Com- 
 pany, 658 
 
 M'Carthy v. British Shipowners' Com- 
 pany. 336, 359. 368 
 
 M'Carthy v. Goold, 492 
 
 M'Carty v. New York and Erie Bailroad 
 Company, 624 
 
 M'Cawley v. Fumess Bailway Company, 
 183, 64s, 646 
 
 M'Clallen v. Adams, 83 1 
 
 Macclesfield's case, Lord, 253 
 
 M'Combie v. Davies, 491, 524 
 
 M'Connell v. Kilgallen, 813 
 
 M'Cormick v. District of Columbia, 1034 
 
 M'CuUough V. Shoneman, 306 
 
 M'Daniels v. Bobinson, 554 
 
 M'Donagh v. M'Clellan, 438 
 
 M'Donald v. Egerton, 547 
 
 McDonald v. Snelling, 137, 152 
 
 M'Donald v. Victorian Bailway Com- 
 missioners, 646 
 
 Macdonald v. Whitfield, 873 
 
 M'Donough v. Metropolitan Boad Tram 
 Company, 639 
 
 M'Dougall V. Knight, 784 
 
 Macdongall v. Faterson, 226 
 
 M'Eniry v. Waterford and Kilkenny Bail- 
 way Company, 378 
 
 M'Evoy u. Waterford Steamship Com- 
 pany, 336, 338 
 
 Macfarlane v. Caledonian Bailway Com- 
 pany, 378 
 
 Macfarlane v. Thompson, 421 
 
 M'Gee v. Eglinton, 418 
 
 M'Ghie v. North-Western Bailway Com- 
 pany, 324 
 
 M'GifSn V. Palmer's Shipbuilding Com- 
 pany, 416, 422, 423 
 
 M'Govan v. Tancred, 443 
 
 M'Gowan ». Dyer, 275 
 
 M'Grath v. Merwin, 826 
 
 Machu V. London and Sonth-Westem 
 Bailway Company, 595 
 
 M'llvaine v. Lautz, 967 
 
 M'Inally v. King, 332 
 
 M'Intyre v. Buchanan, 1 50 
 
 M'Intyre v. Carver, 518 
 
 Mackay v. Commercial Bank of New 
 Brunswick, 273 
 
 M'Keai v. M'lvor, 623 
 
 M'Kechnie v. Couper, 140 
 
 M'Kenzie v. Bntish Linen Company, 
 885,887 ^ 
 
 Mackenzie v. Cox, 469, 532 
 
 M'Kenzie v. M'Leod, 386, 288, 982 
 
 Mackersy v. Eamsays, 870 
 
 M'Kinney v. Irish North-Western Bail- 
 way Company, 318, 319 
 
 M'Kinney v. Jewett, 593, 622, 742 
 
 M'Kinnon v. Penson, 212, 217, 233 
 105 1 
 
 M'Kleroy v. Sewell, 829 
 
 Macklin v. Waterhouse, 592 
 
 M'Kone v. Wood, 928, 932 
 
 Maokreth v. Symmons, 561, 907 
 
 Maclarcn v. Compagnie Frangaise de 
 Navigation h Vapour, 950 
 
 M'Laughlin v. Pryon, 285, 302, 311 
 
 M'Lean v. Clydesdale Banking Com- 
 pany, 87S 
 
TABLE OF CASES. 
 
 xxxvu 
 
 Macleod v. Caledonian Bailway Com- 
 pany, 328, 366 
 
 M'Leod V. Jones, 467 
 
 M'Mahon v. CommiBsioners of Bailways, 
 1131 
 
 M'Mahon v. Field, 93 
 
 M'Mahon v. Leonard, 360 
 
 M'Manus v. Crickett, 279, 296, 507 
 
 M'ManuB v. Hay, 431, 432 
 
 M'Manus v. Lancashire and Yorkshire 
 Railway, 589, 604, 615 
 
 M'Martin v. Hannay, 1 102 
 
 M'Master v. Caledonian Hallway Com- 
 pany, 167 
 
 M'Millan v. M'Millan, 362, 363 
 
 M'Monagh v. Baird, 418 
 
 M'Nally v. Lancashire and Yorkshire 
 Railway Company, 602, 605 
 
 Macnamara v. Carey, 855 
 
 M'Namara v. Clintonville, 825 
 
 M'Neill V. "Wallaoe, 319 , 
 
 M'Quade v. Dixon, 423 
 
 M'Qneen v. Great Western Railway Com- 
 pany, S9S 
 
 Macrae v. Clarke, 767, 774 
 
 Macrow v. Great Western Railway Com- 
 pany, 584, 680, 681, 700, 734 
 
 M'Whinnie v. Union Steamship Com- 
 pany, 636 
 
 Madden v. Kempster, 559, 560 
 
 Maddison v. Alderson, 888 
 
 Maddox v. London, Chatham, and Dover 
 Railway Company, 675 
 
 Madras Railway Company v. The Zemin- 
 dar of Carvetinagarum, 1 1 38 
 
 Madrazo v. Willes, 241 
 
 Madrid v. Pelly, 842, 843 
 
 Magellan Pirates, The, 575 
 
 Magna Charts, The, 949 
 
 Magnay v. Burt, 767, 768 
 
 Magnus v. Buttemer, 723 
 
 Magnus v. Queensland National Bank, 
 847 
 
 Maguire v. Middlesex Railway Company, 
 140 
 
 Maguire v. Russell, 401, 403, 404, 405 
 
 Mahady v. Bushwick Railroad Company, 
 1038 
 
 Mahony v. East Holyford Mining Com- 
 pany, 867 
 
 Main, The, 949 
 
 Mali V. Lord, 291 
 
 Mallough V. Barber, 527, 748 
 
 Malpas V. Ackland, 906 
 
 Malpas V. London and South- Western 
 Railway Company, 614 
 
 Maltby v. Christie, 814 
 
 Manchester, She£Beld, and Lincolnshire 
 Railway Company v. Brown, 605, 
 606, 743 
 
 Manchester, Sheffield, and Lincolnshire 
 Railway Company v. Wallis, 967, 
 
 969,970,974,975 ^. , ,. 
 
 Manchester, Sheffield,, and Lincolnshire 
 Railway Company v. Woodcock, 
 104 
 
 Manchester South Junction Railway Com- 
 pany V. Fullerton, 68 
 
 Mandamns, In the Matter of an Applica- 
 tion for a Rule for a, 930 
 
 Mangam v. Brooklyn City Railway Com- 
 pany, 156 
 
 Mangan v. Atterton, 142, 143, 145, 152 
 
 Manprton, The, 952 
 
 Manitoba, The, 950, 953 
 
 Manley v. St. Helens Canal Company, 
 19s, 203, 233, 1025, 1046, 1049, 
 1058, 1062 
 
 Manning v. Adams, 393 
 
 Manning «. Wilkin, 796, 787 
 
 Mansergh (In re), 244, 245 
 
 Mansfield v. Baddeley, 1 108, 1 109, I no, 
 1113 
 
 Manwaring v. Harrison, 875 
 
 Manzoni v. Douglas, 34, 37, 99, 955, 989 
 
 Marble v. City of Worcester, 74 
 
 Marcussen v. The Birkbeck Bank, 888 
 
 Mare v. Lewis, 791 
 
 Marfell ,«. South Wales Railway Com- 
 pany, 972, 973, 97S 
 
 Margaret, The, 721, 936, 952 
 
 Maiia, The, 714 
 
 Marine Bank v. Fulton Bank, 866 
 
 Markham v. Stanford, 702 
 
 Mamer v. Banks, 501 
 
 Marpesia, The, 941, 942, 943, 951 
 
 Marrier v. St. Paul, &c.. Railroad Com- 
 pany, 281 
 
 Marriott v. Kinnersley, 852 
 
 Marriott (ire re) v. London and South- 
 western Railway Company, 601 
 
 Marriott u. Stanley, 129, 130 
 
 Marris v. Ingram, 786 
 
 Marsack v. Webber, 804 
 
 Marsh v. Home, 531, 591 
 
 Marsh v. Loader, 47 
 
 Marshal of the Marshalsea, The, 574 
 
 Marshall v. Newcastle and Berwick Rail- 
 way Company, 641 
 
 Marshall ». Ulleswater Company, 1030 
 
 Marshall v. York, Newcastle, and Berwick 
 Railway Company, 56, 568, 782 
 
 Marshalsea case. The, 256, 258, 757 
 
 Martin v. Connah's Quay Company, 426, 
 
 432 
 
 Martin v. Great Indian Peninsular Rail- 
 way Company, 606, 702 
 
 Martin v. Great Northern Railway Com- 
 pany, 128 
 
 Martin ». Jett, 1156 
 
 Martin v. North Metropolitan Tram Com- 
 pany, 958 
 
 Martin v. South-Westem Railway Com- 
 pany, 596 
 
 Martin v. Ward, 144 
 
 Martindale v. Smith, 560 
 
 Martinez v. Cooper, 903 
 
 Martinson v. Clowes, 785 
 
 Mary, The, 720, 721 
 
 Marzetti v,. Williams, 455. 79°! ^66 
 
 Mason v. Dixon, 162 
 
 Mason V. Hill, 1142 
 
 Mason v. Keeling, 917, 923, 929, 931 
 
 Mason v. Langford, 1 106 
 
 Mason v. Paynter, 762, 768, 773 
 
 Mason v. Sainsbury, 180 
 
TABLE OP CASES. 
 
 Mason v. Shrewsbury and Hereford Rail- 
 way Company, 11^2 
 
 Mason v. Thompson, 546 
 
 Masons' Hall Tavern Company, The, v. 
 Nokes, 790 
 
 Masaachusetts, The, 719, 937 
 
 Massey v. Banner, J26 
 
 Massey v. Carey (ire re), 785 
 
 Massiter v. Cooper, 659 
 
 Matchless, The, 522 
 
 Mateer v. Brown, 554 
 
 Mathews^ v. London Street Tramways 
 Company, 160 
 
 Matthew v. West London Waterworks, 
 
 301 
 Matthews v. Brice, 850 
 Matthews v, Haydon, 877 
 Matthews v. Munster, 793, 805 
 Matthiessen v. London and County Bank, 
 
 880 
 Matts V. Hawkins, 976 
 Maude v. Baildon Local Board, 1012 
 Maund v. Monmouth Railway Company, 
 
 196, 229 
 Mauser v. Eastern Counties Railway Com- 
 pany, 636 
 Having w. Todd, 533, 589, 618 
 Maxfield v. Burton, 904, 907 
 Masted v. Faine, 816 
 May V. Burdett, 23, 74, 9IS> 9I7< 93i> 964. 
 
 1127 
 May V. Harvey, 476 
 Maydew ». Forrester, 527 
 Mayer v. Mayer, 851 
 Mayhew v. Boyoe, 956 
 Mayhew v. Nelson, 594 
 Maynell v. Saltmsirsh, 1027 
 Mayor Cook (In re G-.), 784 
 Mechanics' Bank v. Earp, 871 
 Mechanics' Bank v. Merchants' Bank, 
 
 872 
 Meek v. Whitechapel Board of Works, 
 
 1071 
 Meier v. Pennsylvania Railway Company, 
 
 28, 638 
 Mellish ». Rawdon, 873, 874 
 Mellors v. Shaw, 320, 365 
 Melville's (Lord) case, 829 
 Melville v. Doidge, 808 
 Memhury v. Great Western Railway Com- 
 
 pany, 344, 346 
 Mendes v. Guedalla, 849, 861 
 Menetone v. Athawes, 514 
 Menzies v. Breadalhane, 1055 
 Mercantile Bank v. Stat« Bank, 231 
 Mercer v. Woodgate, 1035 
 Merchants' Despatch Company v. Moore, 
 
 629 
 Merchants' National Bank v. Goodman, 
 
 872 
 Merchant Shipping Company v. Axmitage, 
 
 SiS 
 Merchants of the Staple of England v. 
 
 Bank of England, 892^ 895 
 Merrill «. North Yarmouth, 1108 
 Merrimac, Ther942 
 
 Mersey Dock Board v. Penhallow, S37, 
 1050 
 
 Mersey Docks and Harbour Board v. 
 
 Cameron, 198 
 Mersey Dock Trustees v. Gibbs, 198,199. 
 200, 212, 232, 261, 267, 270, 537, 
 1112 
 Mesnard v. Aldiidge, 660 
 Metcalfe v. Hetherington, 198, 372, lioi 
 Metcalfe v. London and Brighton Railway 
 
 Company, 595 
 Meteor, The, 717 . 
 
 Metropolitan Asylums District v. Hill, 
 
 196, 200, 204, 205, 206 
 Metropolitan Board of Works v. Metro- 
 politan Railway Company, 1070 
 Metropolitan Railway Company v. Jack- 
 son, 65, 296, 359, 678, 732. 936, 990 
 Metropolitan Railway Company v. Wright, 
 
 117 
 Meux's Executors' case, 840 
 Meyerstein v. Barber, 559 
 Michael v. Alestree, 275, 957 
 MicheU v. Brown, 713 
 Micklethwait ». Newlay Bridge Company, 
 
 1 146 
 Middle v. Stride, 540 
 Middleton «. Fowler, 279, 563, 679 
 Midland Railway Company ». Bromiley, 
 
 469,698,699,701 
 Midland Railway Company v. Daykin, 
 
 972 
 Midland Railway Company v. Taylor, 
 
 852 
 Midland Railway Company v. Withing- 
 
 ton Local Board, 1024, 1025 
 Milan, The, 157, 728, 729 
 Milanese, The, 944 
 Mildmay v. Smith, 884 
 Miles V. Bernard, 524 
 Miles V. Cattle, 584 
 Miles V. Gorton, 560 
 Miles V. M'llwraith, 885 
 Miles V. Steam Navigation Company, 
 
 S7I 
 Millen v. Brasch, 593 
 Miller «. Hawker, 230, 231, 235, 265, 267, 
 
 1019, 1045 
 Miller v. Scare, 255 
 Miller v. Wilson, 797 
 Milligan «. Wedge, 303, 304, 305, 374 
 Millington v. Griffiths, 1000 
 Mills V. Armstrong, 953 
 Mills V. Barber, 477 
 Mills «. City of Brooklyn, 224 
 Mills V. Graham, 457 
 Millward v. Midland Railway Company, 
 
 431 
 Milne V. Smith, 311 
 Milnes v. Mayor, &c., of Huddersfleld, 
 
 n ., 559 ^ . 
 
 Milwaukee Railroad Company v. Arms, 10, 
 
 ,;r. 44 
 
 Milwaukee Railroad Company v. Kellogg, 
 
 91 
 Miner v. Gilmour, I142, 1147, 1148 
 Mineay v. Hammond, 804 
 Mink case. The, 931 
 Minnehaha, The, 727 
 Minor v. Staples, 550 
 
TABLE OF CASES. 
 
 XXSIX. 
 
 Missouri Steamship Company, Limited, 
 Monroe's claim, 731 
 
 Mistier v. O'Grady, logi 
 
 Mitchell V. City of Glasgow Bank, 817 
 
 Mitchell V. Coats Iron and Steel Company, 
 422 
 
 Mitchell V. Crasweller, 284, 286 
 
 Mitchell V. Lancashire and Yorkshire Bail- 
 way Company, 534, 626 
 
 Mitchell V. Newhall, 817 
 
 Mitchell V. Woods, 556 
 
 MoebuB V. Hermann, 153 
 
 Moffatt V. Bateman, 21, 23, 105, 458, 507, 
 630, 9S9 
 
 Moffatt V. Greai, Western Railway Com- 
 pany, 61S 
 
 Mogul Steamship Company v. M'Gregor, 
 
 71 
 Molten V. Camroux, 49 
 Monaghan v. Buchanan, 1 105 
 Mondel v. Steel, 518 
 Moneypenny v. Hartland, 524, 811, 812 
 Monongahela City v. Fisher, 135 
 Montford v. Lord Cadogan, 864 
 Montgomery II. Devereux, 793 
 Montgomery Bailroad Compauy v. Culver, 
 
 593 
 
 Montreal (Mayor of) v. Dmmmond, 200 
 
 Montriou v. Jefferys, 786 
 
 Montrotier Asphalte Company, Perry's 
 case, 843 
 
 Moody V. Waurd, 97 
 
 Moon V. Guardians of the Witney Union, 
 810, 813 
 
 Moone v. Bose, 754 
 
 Moorcock, The, 536 
 
 Moore v. Bennett, 905 
 
 Moore v. Gimson, 424, 430 
 
 Moore v. Great Northern Hallway Com- 
 pany, 60S, 606 
 
 Moore v. Lambeth Waterworks Company, 
 213 
 
 Moore v. Metropolitan Eailway Company, 
 291 
 
 Moore v. Midland Railway Company, 602 
 
 Moore ». Moore, 767 
 
 Moore v. Mourgue, 481, 524 
 
 Moore v. Palmer, 411 
 
 Moore v. Warren, 875 
 
 Moore ». Westervelt, 765 
 
 Morant v. Chamberlin, 1094 
 
 Moravia v. Sloper, 256 
 
 Mordaunt v. Mordaunt, 49 
 
 Mordy v. Jones, 580 
 
 Moreton v. Hadern, 837 
 
 Morewood v. Pollock, 714 
 
 Morgan v. Abergavenny, 923 
 
 Morgan v. Bridge, 775 
 
 Morgan v. London General Omnibus Com- 
 pany, 446, 447 
 
 Morgan v. Morgan, 154 
 
 Morgan v. Bavey, 455, 552, 553, 555 
 
 Morgan v. Sim, 98, 943 
 
 Morgan v. Stephens, 847 
 
 Morgan v. Vale of Neath Eailway Com- 
 pany, 378. 381, 388, 413. "10. i"3 
 
 Morisse v. Royal British Bank, 226 
 
 Morland v. Pellatt, 772 
 
 Morley v. Attenborough, 275 
 
 Morley v. Dunsoombe, 510 
 
 Morley v. Gaisford, 280 
 
 Morley v. Kncombe, 495 
 
 Morley v. Polhill, 162 
 
 Morner v. Ba^iker, 476 
 
 Morning Light, The, 942 
 
 Momington v. Wellesley, 561 
 
 Morranv. Waddell, 154 
 
 Morrell v. Morrell, 801 
 
 Morris v. Bethell, 888 
 
 Morris v. Hunt, 804 , 
 
 Morris v. Piatt, 14 
 
 Morrish v. Murray, 759 
 
 Morrison v. Baird, 415, 4l7i 433. 439. 
 440 
 
 Morrison v. G^eneral Steam Navigation 
 Company, 130 
 
 Morritt v. North-Eastern Eailway Com- 
 pany, 593 
 
 Mors V. Slue, 563. S67. 575. 586 
 
 Morsle Blanch v. Wilson, 733 
 
 Mortimore v. Cragg, 764 
 
 Morton v. Quick, 441 
 
 Mose V. St. Leonards Gas Company, looi, 
 1002, 1003, lOIO 
 
 Moses V. Conham, 475 
 
 MoBtyn V. Fabrigas, 255 
 
 Mott V. Shoolbred, 103 1 
 
 Mould V. Williams, 259 
 
 Moule V. Brown, 875, 879 
 
 Mouse's case, 709 
 
 Mower v. Leicester, 210 
 
 Moxham, The, 247 
 
 Moyle V. Jenkins, 443 
 
 Mudhopper, The, 722 
 
 Muilman v. D'Equino, 874 
 
 Mulchahey v. Washburn Car-wheel Com- 
 pany, 174 
 
 Mullen V. St. John, 107, 108 
 
 Mullet V. Challis, 761 
 
 Mulligan v. M'AJpine, 338, 421, 424 
 
 Mulligan v. Curtis, 144, 155 
 
 Mulliner v. Florence, 491, 558 
 
 Mullins V. Collins, 295 
 
 Munday v. Stubbs, 258, 270 
 
 Munday v. Thames Ironworks and Ship- 
 building Company, 440 
 
 Munn V. Eeed, 136 
 
 Mnnster v. South-Eastem Railway Com- 
 pany, 680 
 
 Murdock v. M'Kinnon, 418 
 
 Murgatroyd ». Blackburn and Over Darwen 
 Tram Company, 679 
 
 Hurley «. Grove, logo, iioi 
 
 Murphy v. Caralli, 303 
 
 Murphy v. New York Central Railroad 
 'Company, 319 
 
 Murphy v. Phillips, 332, 335, 366, 1004 
 
 Murphy v. Pollock, 358, 359, 368 
 
 Murphy v. Ryan, 1 144 
 
 Murphy v. Smith, 326, 328, 36a, 363, 378, 
 
 383. 385. 431. 1092 
 Murphy v. Wilson, 436 
 Murray v. Currie,.309, 393, 405, 411 
 Murray v. Hall, 976 
 Murray v. Mann, 815 
 Murray v. Marshall, 548 
 
xl 
 
 TABLE OF CASES. 
 
 Murray v. Metropolitan District Bailvay 
 Company, 676 
 
 Murray v. Soutli Carolina Railroad Com- 
 pany, 370 
 
 Murray v. Steel, 439 
 
 MuBchamp v. Lancaster and Preston Bail- 
 way Company, 606, 607 
 
 Musgrave v. Pulido, 250, 251, 268 
 
 Musson V. Lake, 746 
 
 Myers v. Meinrath, 826 
 
 Mytton V Cook, 471 
 
 Mytton-j;. Midland Bailway Company, 609, 
 610, 611,681 
 
 Nagel j). Allegheny Valley Railroad Com- 
 pany, 148 
 
 Naples, The, 937 
 
 Nargett v. Nias, 495 
 
 Nash V. Swinburne, 795 
 
 Nathan {In re), 245, 247 
 
 National Provincial Bank of England v. 
 Jackson, 904 
 
 National Coffee Palace Company {In re), 
 Expaaie Panmure, 817 
 
 National Funds Insurance Company, 842 
 
 National Mercantile Bank {Ex parte). In 
 re Haynes, 801 
 
 National Steamship Company v. Smarts 627 
 
 Native Iron Ore Company {In re), 844 
 
 Naylor v. Mangles, 560 
 
 Neill V. Byrne, 1097 
 
 Neilsou V. James, 817, 819 
 
 Neilson v. Eodgers, 167 
 
 Nelson v. Aldnoh, 815 
 
 Nelson v. Liverpool Brewery Company, 
 
 S9> 1075 
 
 Nelson v. Macintosh, 473 
 
 Nelson v. Spooner, 811 
 
 Nelson v. Woodruff, 577 
 
 Nesbitt V. Lushington, 709, 730 
 
 Netherland Steamship Company v. Styles, 
 719 
 
 New Jersey Railroad v. Kennard, 677 
 
 New Jersey Steam Navigation Company 
 V. Merchants' Bank, 592, 617 
 
 New River Company v. Johnson, 200, 232 
 
 New South Wales (Bank of) ». Owston, 
 231, 280, 289, 293 
 
 New York and Liverpool Steamship Com- 
 pany V. Rumball, 951 
 
 New York and New Hampshire Railway 
 Company «. Sohyler, 231 
 
 New York, &o.. Telegraph Company v. 
 
 „ D^bargh, 738, 741 
 
 New World v. Kmg, 38 
 
 Newall V. Royal Exchange Steamship 
 Company, 714 
 
 Newborn ». Just, 569 
 
 Newcastle (Duke of) v. Morris, 768 
 
 Newman v. Jones, 295, 297 
 
 Newman v, Walters, 734 
 
 Newton v. Ellis, 1023 
 
 Newton v. Earland, 759 
 
 Newton v. Hatter, 141 
 
 Newton-in-Makerfield Improvement Com- 
 missioners V. Justices of Lancashire, 
 1048 
 
 Nicholas v. Badger, 915 
 
 Nicholl ». Allen, 216 
 
 Nicholls, The, 952 
 
 NichoUsD. Great Western Railway Com- 
 pany, 160 
 
 Nicholls v. Mareland, 573 
 
 Nicholls V. Wilson, 518, 79S 
 
 Nichols V. Marsland, 914, 964, 991, 1003, 
 1010,1055, 1131, "34. 1 1361 "41. 
 
 "53 
 Nicholson v. ChapmaUj 467 
 Nicholson v. Lancashire and Yorkshire 
 
 Railway Company, 11 06 
 Nicholson v. Mouncey, 198, 237, 262, 270, 
 
 Z02, 713 
 Nicholson v. Willan, 586 
 Nickalls v. Merry, 816 
 Nicol «. Beaumont, 1034 
 NicoU V. Bastard, 475 
 NicoU V. Greaves, 445 
 NicoUs V. Marslani 75, 83 
 Nield V. London and North- Western Bail- 
 way Company, 1054, 1056, 1059, 
 
 1 1 57, 1 160 
 Niobe, The, 720, 721 
 Nitro-glycetine case, The, 570 
 Nitro-i)hosphat« Company v. London and 
 
 St. Katharine Docks Company, 73, 
 
 75, 201, 232, 573, 1064 
 Nixon V. Roberts, 715, 954 
 Noden v. Johnson, 733 
 Nolan V. Brooklyn Railroad Company, 675 
 Nolan V. New York Railway Company, 
 
 147 
 
 Norbury, Lord, v. Kitchin, 1 148 
 
 NorcroBS v. Norcross, 550 
 
 Normandy, The, 953 
 
 Normanton Gas Company v. Pope and 
 Pearson, 997, 1070 
 
 Norrington {In re), 855 
 
 Norris {Ex parte), 846, 856 
 
 Norris v. Wright, 860 
 
 North V. Smitii, 282, 957 
 
 North-Bastem Railway Company v. Wan- 
 less, no 
 
 North Staffordshire Railway Company 11. 
 Dale, ic6i 
 
 Northern Counties of England Eire Insur- 
 ance Company v. Whipp, 900, 902, 
 904 
 
 Northern Pacific Railway Company v. 
 Herbert, 320 
 
 Northern Star, The, 953 
 
 Northfield v. Orton, 783 
 
 Northumberland Whinstone Company v. 
 Alnwick Highway Board, 1043 
 
 Norton v. Cooper, 781 
 
 Norton v. Sims, 751 
 
 Norway, The, 723, 732 
 
 Norway Plains Company v. Boston Bail- 
 road Company, 623 
 
 Norwich v. Breed, 109 1 
 
 Norwich Steamboat Company v. Wright, 
 953 
 
 Notara v. Henderson, 580, 628, 710, 712, 
 
 ^, 713.730 
 
 Netting HiU The, 93, 954 
 
 Nowlan v. Ablett, 445 
 
TABLE OF OASES. 
 
 xli 
 
 Nugent V. Smith, 74, 75, 452, 538, 541, 
 543. 548, 562, 564, 565. 573, 577. 
 702, 703, 708, 723 
 
 Nuttall V. Brace well, 1148, 11 50, 11 54 
 
 Oakes v. Monkland Iron Company, 445 
 Oakfield, The, 717, 721 
 Obey, The, 714, 715, 952 
 O'Byrue v. Burn, 361, 362, 363, 376 
 O'Byrne v. Hartington, 199, 262 
 Ocean Wave, The, 721, 945 
 Oddie V. National City Bank, 878 
 O'Donnell v. Allegheny Valley Railroad 
 
 Company, 333 
 Ogden V. Benas, 880 
 Ogden V. Kummens, 323, 328, 365, 366, 
 
 424 
 Ogle (Bx parte), 854, 856 
 Ogle V. Atkinson, 476 
 Ogle V. Morgan, 445 • 
 
 O'Hanlon v. Murray, 482 
 Ohio Bailroad Company v. Snyder, 152 
 Ohrby v. Byds Commissioners, 210, 215, 
 
 lois 
 Ohrloffi). Briscall, 577 
 Oil City Gas Company v. Bobinson, 72 
 Oliver v. Court, 814 
 Olliet V. Bessey, 753, 754, 775, 980 
 O'Mara v. Hudson Biver Company, 8 
 O'Neii V. Marson, 754 
 Oppeuheim v. White Lion Hotel Com- 
 
 ^ PW' 459. 556 
 
 Oquendo, The, 712 
 
 Orange Connty Bank v. Brown, 584 
 
 Orchard v. Backstraw, 522 
 
 Original Hartlepool ColUeries Company v. 
 
 Gibh, 961, 1030, 1032, 1033, 1046, 
 
 1 144 
 Ormerod ii. Todmorden Mill Company, 
 
 1 147, 1 148, 1 149, 1 150 
 Ormond v. Holland, 320, 336, 357, 365, 
 
 368, Sii 
 Ormrod (Ex parte), 447 
 Ormrod v. Huth, 275 
 Orr V. Union Bank of Scotland, 889, 892 
 Orr Ewing v. Colquhonn, 1 144, 1 14S 
 Orwell, The, 708 
 Osbom V. Grillett, 162, 163, 173 
 Osborne v. Jackson and Todd, 429 
 Osborne v. London and North-Westem 
 
 Eailway Company, 345 
 Osborne v. Milman, 266 
 Osborne v. Morgan, 9, 413 
 Ostran ». New York Central Railroad Com- 
 pany, 674 
 Ostrander v. Brown, 625 
 Otter, The, 949 
 Ottley V. Gihbs, 793 
 Overcnd and Giiimey Company v. Gribb, 
 
 841 
 Overton v. Freeman, 301, 307 
 Ovington v. M'Vicar, 421 
 Owen V. Burnett, 39, 594 
 Owen V. Ord, 786 
 Owinga v. Jones, 1075 
 Oxford Benefit Building and Investment 
 
 Society, 842 
 
 Oxlade v. North-Eastern Railway Com- 
 pany, 569 
 
 Page v. Defries, 287 
 Page V. Great Northern Railway Com- 
 pany, 590 
 Page V. Metropolitan Railway Company, 
 
 389 
 
 Paget V. Birkbeck, 929, 932 
 
 Pain V. Patrick, 1027, 1046 
 
 Paine v. Partick, 1027 
 
 Palermo, The, 716, 953 
 
 Paley v. Garnett, 424 
 
 Palgrave v. Windham, 776 
 
 Palin V. Reid, 462, 546 
 
 Palinurus, The, 949 
 
 Pallister v. Pallister, 752 
 
 Palmer v. Grand Junction Railway Com- 
 pany, 563 
 
 Palmer v. Hutchinson, 239, 267 
 
 Palmer v. Jones, 860 
 
 Palmer v. Naylor, 723 
 
 Pantam v. Isham, 981 
 
 Pappa V. Rose, 252, 524 
 
 Paradine v. Jane, S74 
 
 Parana, The, 93, 954 
 
 Pardington v. South Wales Railway Com- 
 pany, 604 , 
 
 Pardu V. Drew, 734 
 
 Pariah v. Foss, 823 
 
 Park V. Hammond, 748 
 
 Parker v. Parebrother, 815 
 
 Parker v. Flint, 549 
 
 Parker v. Gordon, 874 
 
 Parker v. Great Western Railway Com- 
 pany, 567 
 
 Parker v. Kett, 752 
 
 Parker v. M'Kenna, 842, 843 
 
 Parker v. Rolls, 786 
 
 Parker v. Sonth-Eastern Railway Com- 
 pany, 654, 656, 657, 658, 694 
 
 Parkhurst v. Foster, 545 
 
 Parkinson v. Gilford, 772 
 
 Pamaby v. Lancaster Canal Company, 
 
 196. 537 
 Parradine v. Jane, 1132 
 Parrot v. Mumford, 751, 775 
 Parrot v. Wells, 802 
 Parry v. Smith, 64, 990 
 Parsons v. Gingell, 522 
 Parsons v. Loyd, 259, 270 
 Parsons v. Yestry of St. Matthew, Bethnal 
 
 Green, 215, 216, 218, 233, 1045 
 Partridge v. Gilbert, 977 
 Pasley v. Freeman, 738, 782, 812 
 Pasmore v. Bimie, 792 
 Pass V. Dnndas, 863 
 Passenger Railroad Company v. Stutter, 
 
 660 
 Patchell V. Irish North- Western Railway 
 
 Company, iii 
 Pate V. Koe, 769 
 Patent Bread Machine Company (In re), 
 
 Ex parte Valpy and Chaplin, 802 
 Paterson v. Wallace, 314, 315, 316, 317, 
 
 318, 323, 36s 
 Patman v. Harland, 905 
 
xlii 
 
 TABLE OP CASES. 
 
 Patria, The, ^25 
 
 Patroolus, The, 949 
 
 PatBoheider v. Great Western Railway 
 Company, 697 
 
 Fatten v. Jouneon, 625 
 
 Patten v. Bea, 286 
 
 Patten v. Wiggin, 827 
 
 Patterson v. Kidman, 36, 921 
 
 Pattison v. Syracuse National Bank, 470, 
 882 
 
 Payne v. Partridge, 1027 
 
 Payne v. Eeese, 420 
 
 Payne v. Eogers, 967, 1074 
 
 Payne v. Smith, 957 
 
 Paynter v. James, 559 
 
 Peachy v. Rowland, 303, 307, 311 
 
 Peacock v. Bell, 259, 269 
 
 Pearce {In re), 765 
 
 Pearse v. Green, 527 
 
 Pearson v. Cox, 87, 102, 1090 
 
 Pearson v. Duaue, 659 
 
 Pearson v. Yewens, 763 
 
 Peck V. New Yorlt, &o., Railway Com- 
 pany, so, 140 
 
 Peokforton Castle, The, 949 
 
 Pedgrift v. Chevallier, 823 
 
 Peek V. Batavia, 210 
 
 Peek V. Ghimey, 782 
 
 Peek V. North Staffordshire Railway Com- 
 pany, 589, 597, 6d4, 646 
 
 Peel V. Price, 706 
 
 Peerless, The, 942 
 
 Pegram v. Dixon, 423 
 
 Pemberton v. Chapman, 849 
 
 Pendlebury v. Greenhalgfa, 267, 1045, 
 1017, 1018, ioi9_ 
 
 Peniston v. Chicago Railroad Company, 66 1 
 
 Pennell v. Cummings, 833 
 
 Pennington v. Brinsop Hall Company, 
 1 1 28, 1 147 
 
 Pennington v. Yell, 792 
 
 Pennsylvania, The, 939, 940, 949 
 
 Pennsylvania Coal Company v. Sander- 
 son, 1 128 
 
 Pennsylvania Railroad Company v. Allen, 
 67 
 
 Pennsylvania Railroad Company v. Coon, 
 10 
 
 Pennsylvania Railroad Company v. Hen- 
 derson, 644 
 
 Pennsylvania Railroad Company v. Kil- 
 gore, 662 
 
 Pennsylvania Railroad Company v. Roy, 
 38 
 
 Penny v. South-Eastem Railway, 200, 
 232 
 
 Penny v. Watts, 906 
 
 Peoria Bank v. Northern Railway Com- 
 pany, 621 
 
 Percival v. The Qneen, 245 
 
 Percival v. Stamp, 759, 760 
 
 Percy V. Millandon, 838 
 
 Perionowaky v. Freeman, 832 
 
 Perry ». Bamett, 817, 819 
 
 Perry v. Brass, 425 
 
 Perry v. Ktzhowe, 276 
 
 Perry v. House of Refuge, 266 
 
 Ferry (Executors of) v. The Queen, 245 
 
 Perry Herrick v. Attwood, 901, 903 
 
 Peter v. Russel, 903, . ,^,00 
 
 Peterson v. Union National Bank, bJS 
 
 Peverley v. City of Boston, 677 
 
 Phelps V. London and North-Western 
 Railway Company, 584, 681 
 
 Phelps V. Wait, 958 
 
 Philadelphia Railway Company v. 
 Spearen, 10 
 
 Philadelphia and Reading Railway Com- 
 pany V. Derby, 38, 284 
 
 Philadelphia and Reading Railway Com- 
 pany p. Hendriokson, 988 
 
 Philips V. Naylor, 768 
 
 PhiUips ». Bacon, 761 
 
 Phillips V, Barber, 723 
 
 Phillips V. Clark, 577 
 
 Phillips V. Edwards, 706 
 
 Phillips w. Eyre, 243, 247, 250, 268 
 
 Phillips V. Homfray, 791 
 
 Phillips V. London and South-Western 
 Railway Company, 177, 178 
 
 PhiUips V. Miller, 906, 907 
 
 Phillips V. Nicol, 922 
 
 Phillips V. Phillips, 849 
 
 Phillips V. Rensselaer, &o.. Railroad Com- 
 pany,67S 
 
 Phillips V. Rodie, 559 
 
 Phillips V. Viscount Canterbury, 761, 762 
 
 Fhilh'pson v. Gatty, 865 
 
 Philpott ». Swann, 580 
 
 Physicians (College of) v. Rose, 822 
 
 Physicians (College of) v. West, 820 
 
 Pianciani «. London and South-Wcstem 
 Railway Company, 593, 716 
 
 Piokard v. Anderson, 857 
 
 Pickard v. Sears, 884 
 
 Pickard v. Smith, 108, 261, 1076, 1080, 
 1081 
 
 Pickering v. Barclay, S74, 723 
 
 Pickering v. James, 259, 270 
 
 Pickering v. Marsh, 930 
 
 Pickering v. North-Eastem Railway Com- 
 pany, 616 
 
 Pickering Lythe East Highway Board v. 
 Bany, 1044 
 
 Pickford v. Grand Junction Canal Com- 
 pany, 617 
 
 Pickford V. Grand Junction Railway Com- 
 pany, ss8, 569, 617 
 
 Pierce v. Drew, 1034 
 
 Pierce v. Schenck, 515 
 
 Pierce v. Winsor, 581 
 
 Piggott V. Eastern Counties Railway Com- 
 pany, 203, 983, 992 
 
 Piggott V. Wilkes, 760 
 
 Pigot V. Cubley, 493 
 
 Pike V. Carter, 256 
 
 Pilmore v. Hood, 54 
 
 Pimm V. Roper, 813, 834 
 
 Pingree v. Leyland, 341 
 
 Pinkerton v. Woodward, 552 
 
 Pinkham v. Topsfield, 344 
 
 Pinnock v. Harrison, SS9, S5l 
 
 Pippin V. Shepherd, 56, 834 
 
 Pirie V. Middle Dock Company, 578, 709 
 
 Pitcher v. King, 772 
 
 Pitlock V. Wells, 542 
 
TABLE OF CASES. 
 
 zliii 
 
 Ktt V. Yalden, 42, 786, 788 
 
 Pittsburg Eailroad CompEoiy v. Hinds, 659 
 
 Pittsburg Bailroad Company v. HoUowell, 
 621 
 
 Pittsburg Southern Bailway Company w. 
 Taylor, 1038, 1108 
 
 Planck V. Anderson, 767 
 
 Playe v. Kew, 511 
 
 Playfair v. Mnsgrove, 775 
 
 Playford v. United Kingdom Electric Tele- 
 graph Company, 737, 738, 739, 740, 
 
 741. 744 
 Pluckwell V. Wilson, 128, 955, 956 
 Plumb V. Flintt, 904 
 Plummer v. Whitchcott, 753 
 Poe's case, 244 
 Folak V. Everett, 885 
 PoUock V. Stables, 817 
 Pomfret v. Rycroft, 1037 
 Pontifex v. Midland Bailway Company, 
 
 568, 790 
 Fool and Forden Highway Board v. Ghin- 
 
 ning, 104s 
 Pooley V. Driver, 83S 
 Pope V. Niokerson, 708 
 Porter v. Viner, 752 
 Portsmouth (Mayor of) v. Smith, 1013 
 Postlethwaite v. Freeland, 732 
 Fothonier v. Dawson, 492 
 Pott V. Clegg, 866 
 Potter V. Brown, 247 
 Potter V. Faulkner, 57, 406 
 Potter V. Metropolitan District Bailway 
 
 Company, 18^, 187 
 Potts V. Dutton, 797 
 Potts V. Plunkett, 316, 356, 368 
 Potts V. Fort Carlisle Dock and Bailway 
 
 Company, 256, 368 
 Potts V. Sparrow, 796 
 Poulsum V. Thirst, 1023 
 Foulton V. London and South- Western 
 
 Bailway Company, 228, 229, 234, 
 
 291, 256 
 Foulton V. Lattimore, 518 
 Poussard v. Spiers, 713 
 Powell V. Evans, 853, 856 
 Powell V. Fall, 203, 421, 436, 986 
 Powell ». Gfraves, 469 
 Powell V. Salisbury, 76 
 Power V. Butcher, 560 
 Powers V. Mitchell, 530 
 Fowles V. Hider, J 10, £12 
 Pozzi V. Shipton, 568 
 Praeger v. Bristol and Exeter Bailway 
 
 Company, 646, 669, 670 
 Frendergast v. Compton, 659, 734 
 Prentice v. Harrison, 258 
 Preston (Mayor, &c., of) v. Fnllwood 
 
 Local Board, 997 
 Prestwioh v. Foley, 793 
 Price V. BuUer, 795 
 Price V. Easton, 740 
 Price V. Harwood, 774, 775 
 Price V. Noble, 710 
 Frideanx v. Criddle, 877 
 Priestley v. Stone, 813 
 Priestley v. Fowler, 316, 370, 373, 375. 
 
 390. 395. 396, 5" 
 
 Prince V. Oriental Bank Corporation, 866 
 
 Printing and Numerical Begistering Com- 
 pany V. Sampson, 367 
 
 Prior V. London and South-Western Bail- 
 way Company, 616 
 
 Propevt V. Parker, 799 
 
 Protheroe v. Mathews, 923 
 
 Pryce v. Belcher, 756 
 
 Pudsey Coal Gas Company v. Corpo- 
 ration of Bradford, 996, 997 
 
 Puffer V. Orange, 1036 
 
 Pugh V. GrrifSths, 759 
 
 Purves V. Landell, 42, 787, 789 
 
 Putnam v. Sullivan, 898 . 
 
 Pym V. Great Northern Bailway Com- 
 pany, 166, 168, 170, 183 
 
 QuAKMAN V. Burnett, 282, 302, 303, 304, 
 
 30s, 401, 507, 596, 1080 
 Queen, The, 952 
 Queen, The, v. Aston, 258 
 Queen, The, i). Badger, 269 
 Queen, The, v. Bagge, loij 
 Queen, The, v. Birmingham and Glou- 
 cester Bailway Company, 1013 
 Queen, The, v. Bradford Navigation Pro- 
 prietors, 1050 
 Queen, The, v. Commissioners of Woods, 
 
 &o., 247 
 Queen, The, v. Cox and Bailton, 780 
 Queen, The, V. Derbyshire (Inhabitants of), 
 
 1059, 1062 
 Queen, The, v, Diplock, 754 
 Queen, The, v. Downes, 828 
 Queen, The, v. Dudley, 138 
 Queen, The, v. Ellis, 1044, 1047 
 Queen, The, v. Essex (Commissioners of 
 
 Sewers of), 14 Q. B. D., 1065, 1068 
 Queen, The, v. Excise Commissioners, 
 
 247 
 Queen, The, v. Godolphin, 258 
 Queen, The, v. Great North of England 
 
 Bailway Company, 289 
 Queen, The, ». Great Western Bailway 
 
 Company, 225 
 Queen, The, v. Holbrook, 295 
 Queen, The, v. Judge of City, of London 
 
 Court, 440 
 Queen, The, v. Justices of Dei'byBhire,ioi5 
 Queen, The, v. Keyn, 189 
 Queen, The, v. Kitchiner, 1048, 1059, 
 
 1061, 1062 
 Queen, The, v. Lancashire and Yorkshire 
 
 Bailway Company, 225 
 Queen, The, v. Ledger, 959 
 Queen, The, v. Leigh, 1066 
 Queen, The, v. London (Mayor of), 234 
 Queen, The, v. Lords Commissioners of 
 
 the Treasuiy, 246, 247 
 Queen, The, v. Machen, 258 
 Queen, The, v. Marshall, 269 
 Queen, The, j). Metropolitan Board of 
 
 Works, 1030 
 Queen, The, v. Morby, 828 
 Queen, The, v. Percy, 258 
 Queen, The, v. Poole (Mayor, &c., of), 213, 
 
 219 
 
xliv 
 
 TABLE OF CASES. 
 
 Queen, The, v. Pratt, 1029 
 Queen, The, v. Eymer, 545 
 Queen, The, v. St. Luke, Chelsea (Vestry 
 
 of), 224 
 Queen, The, v. Stainforth (Inhabitants of), 
 
 258, 259, 270 
 Queen, The, v. Stephens, 295, 297 
 Queen, The, v, Thomas, 1015 
 Queen, The, v. Tithe Commissioners, 227 
 Queen, The, v. Train, 994, 1009, 1034 
 Queen, The, v. Trustees of Oxford and 
 
 Witney Turnpike Heads, 1014 
 Queen, The, v. Williams, 199 
 Queen, The, v. Wilts, 1060 
 Quickstep, The, 721 
 Quincy Cfanal v, Newcomb, 1051 
 Quinn v. Power, 285, 296 
 
 Kackham v. Siddall, 846 
 Biidley v. London and North-Western 
 Eailway Company, 120, 121, 128, 
 
 13Z. 133. 942 
 Raglan Highway Board v. Monmouth 
 
 Steam Company, 1045 
 Railroad Company v. Barron, 650 
 Railroad Company a. Fraloff, 585 
 Railroad Company v. Gladmon, 143, 144 
 Railroad Company v. Jones, 642 
 Railroad Company v. Lookwood, 345, 459, 
 
 644, 742 
 Railroad Company v. Stout, 144, 146 
 Railway and General Light LuprOTement 
 Company {In re), Marzetti's case, 
 840 
 Raisin v. Mitchell, 129 
 Rajah, The, 953 
 Ram Coomar Coondoo v. Chunder Canto 
 
 Mookeijee, 785 
 Rameshur Fersbad Narain Singh v. Koonj 
 
 Beheri Pattuk, 1152, 1155 
 Ramsay v. Quinn, 382, 384 
 Ramsbotham ». Buckhurst, 758 
 Hamshay (&parte), 255, 269 
 Randall v. Baltimore and OUo Railroad 
 
 Company, 376 
 Randall v. Newson, 54, 636 
 Eandell v. Wheble, 760, 767, 773 
 Randleson v. Murrw, 303, 305, 619 
 Ranger v. Great Western Eailway Com- 
 pany, 231 
 Raphael v. Goodman, 753 
 Raphael v. Pickford, 585, 621 
 Rapson v. Cnbitt, 304, 306, 311 
 Eatcliff V. Davis, 493 
 Eatcliff «. Graves, 854 
 Ratcliffe v. Barnard, 902, 903 
 Eatclifife v. Burton, 758, 759, 775 
 Rauch V. Lloyd, 143 
 Rawson v. Johnson, 617 
 Rawstron v. Taylor, 1155, 1 160 
 Raymond v. Ktch, 162 
 Rayner v. Mitchell, 285, 296 
 Eaynor v. State, 827 
 Bead v. Coker, 71, igg, sen, 232, 1022 
 Read v. Edwards, 78, 923, 968 
 Read v. Grreat Eastern Eailway Com- 
 pany, 182, 185 
 
 Readhead b. Midland Railway Company, 
 20, 21, 502, 581, 631, 634, 63s, 636, 
 
 639> 7". 946 
 Reading and Columbia Railway v. Eitchie, 
 
 123 
 Eeardon v. New York Card Company, 
 
 326 
 Eedgate v. Haynes, 295 
 Eedpath v. Allen, 355 
 Eed Eiver Eoller Mills v. Wright, 1 128, 
 
 1151. "54 
 Reece v. Righy, 787, 788, 795 
 Reed v. Darlington, 750 
 Eeed v. Deerfleld, 958 
 Reed v. Tate, 956 
 Reedie ». London and North- Western 
 
 Eailway Company, 306, 307, 311, 
 
 312 
 Eees V. Berrington, 800 
 Reeve {Ex parte), 247 
 Reeve v. Palmer, 801 
 Reeves v. Capper, 559 
 Reeves v. Slater, 775 
 Reeves v. State Bank of Ohio, 870 
 Eegina v. Badger, 255 
 Eegina v. Best,.ioi3 
 Eegina v. Bull, 830, 832 
 Eegina v. Chamberlain, S30 
 Regina v. Chittenden, 1030 
 Eegina v. Cluworth, 1025 
 Eegina v. Commissioners of Sewers, 1031 
 Eegina v. Crick, 829 
 Regina v. Crook, 830 
 Regina v. Delamere, 1054 
 Eegina v. Eyre, 250, 252 
 Eegina v. Hutchinson, 990 
 Eegina i>. Leicestershire (Sheriff of), 770, 
 
 771 
 Eegina v. Lesley, 247 
 Eegina v. London (Mayor, &o., of), 224 
 Regina v. Longbottom, 140 
 Eegina v. Longton Gas Company, 993, 
 
 .995, 1009 
 Eegma v. Lord Eadnor, 10 13 
 Eegina v. Markuss, 828, 829 
 Eegina v. Marshall, 255 
 Regina v. Mathias, 1034 
 Eegina©. Middlesex Asylum (Visitors of), 
 
 224 
 Eegina v. Noakes, 829 
 Eegina v. Pinney, 250 
 Eegina v. Pitts, 51, 71 
 Eegina v. Pocock, 219 
 Regina v. Richmond, 1031 
 Eegina v. Eobinson, 932 
 Eegina v. St. George, 71 
 Regina v. Spencer, 826, 827, 832 
 Regina v. Stretford (Inhabitants of), 1026 
 Regina v. Train, 1034 
 Eegina v. United Kingdom Electric Tele- 
 
 graph Company, 1034, 1046 
 Eegma v. Wagstaffe, 828 
 Eegina v. Watts, 1035, 1074 
 Regina v. Whitehead, 832 
 Eegina v. Wilts (Justices of), 1014 
 Reid V. Darlington Highway Board, 1018 
 Eendsberg, The, 474 
 Eex V. Almon, 295, 297 
 
TABLE OF OASES. 
 
 xlv 
 
 Bex V. Askew, 820 
 
 Bex V. Bognor CommisBioners, 1067 
 
 Bex V. Brooks, 924 
 
 Bex V. Canterbury (Archbishop of), 224, 
 
 234 
 Bex V. Carlile, 1040, 1047 
 Bex V. Croke, 1050 
 Bex V. Cross, 1031, 1046, 1073 
 Bex V. Cumberland (Inhabitants of), 1026 
 Bex V. Evans, 71 
 Bex V. Gardner, 195 
 Bex V. Gloucester (Bishop of), 224 
 Bex V. Henley, 1025 
 Bex V. Hickman, 71 
 Bex V. Hug^ns, 914, 931 
 Bex V. Ivens, 549, 558 
 Bex V. Jones, 1031, 1046 
 Bex V. Landulph (Inhabitants of), 1026 
 Bex V. London (Mayor, &c., of), 228, 
 
 231 
 
 Bex V. Lord Grosvenor, 1012 
 
 Bex V. Mead, 760 ^ 
 
 Bex V. Nancy Simpson, 830 
 
 Bex V. Pease, 198, 201, 202, 203, 421 
 
 BeS V. Perring, 771 
 
 Bex V. Pioton, 252 
 
 Bex V. Bippon, 229 
 
 Bex V. Botherham Local Board, 227 
 
 Bex V. St. George, Hanover Square, 218 
 
 Bex V. St. JohnXong, 827, 830 
 
 Bex V. Sealing, 923 
 
 Bex V. Senior, 830 
 
 Bex V. Spiller, 830 
 
 Bex V. Steyning, 1014 
 
 Bex V. Tew, 7S4, 795 
 
 Bex V. Van Butchelt, 826, 830 
 
 Bex V. "Walker, 140 
 
 Bex V. Wall, 252 
 
 Bex V. Ward, 1031 
 
 Bex V. Webb, 831 
 
 Bex V. Westwood, 208 
 
 Bex V. Williams, 826 
 
 Bex V. Williamson, 830 
 
 Beynolds v. Hanrahan, 957 
 
 Beynolds v. New York Central, &c.. Bail- 
 road Company, 126 
 
 Beynolds v. North-Eastem Bailway Com- 
 pany, 642 
 
 Bhodes "v. Airedale Drainage Commis- 
 sioners, 1021 
 
 Bhodes v. Hull, 768 
 
 Bice V. Boston Bailroad Company, 623 
 
 Bice V. Shuter, 239 
 
 Bice V. State, 828 
 
 Eich V. Basterfield, 307, 1075 
 
 Bich V. Kneeland, 540, 563, 564 
 
 Bich V. Pierpont, 830, 832 
 
 Bich V. Pilkington, 229 
 
 Bichards v. Great Eastern Bailway Com- 
 pany, 676 
 
 Bichards ». London, Brighton, and South 
 Coast Bailway Company, 687, 688, 
 
 69S> 698 ^ 
 
 Bichardson v. Corcoran, 190 
 
 Bichardson v. Great Eastern Bailway 
 Company, 21, 28, 108, 637 
 
 Bichardson v. Metropolitan Bailway Com- 
 pany, 675 
 
 Bichardson v. North-Eastem Bailway 
 Company, 578, S79 
 
 Bichardson v. Trundle, 766 
 
 Bichmond v. Coles, 824 
 
 Bichmond v. Smith, 551, 553 
 
 Bicket V. Metropolitan Bailway Com- 
 pany, 1027 
 
 Bicketts {Ex parte), 247 
 
 Bicketts v. East and West India Docks, 
 &o.. Company, 967, 968, 969, 970, 
 
 974. 975. 1094 
 
 Bickford v. Bidge, 879 
 
 Biddle v. Proprietors of Locks and Canals, 
 &c., 1051 
 
 Bidler v. Eidler, 48 
 
 Bidley v. Tiplady, 784, 795 
 
 Eigborgs Minde, The, 717 
 
 Bigby V. Hewitt, 130 
 
 Bigg V. Manchester, Sheifield, and Lin- 
 colnshire Bailway Company, io8, 
 666 
 
 Bigge V. Burbidge, 518 
 
 Biley v. Baxendale, 331, 365 
 
 Biley v. Home, 567, 569, 592, 618 
 
 Bipon, The, 717 
 
 Eiseley v. Byle, 775 
 
 Bobarts v. Tucker, 867, 877, 890 
 
 Bobbins v. Jones, 1034, 1035, 1036, 1047, 
 1062, 107s 
 
 Bobert Dixon, The, 717 
 
 Boberts {Ma; parte), 876 
 
 Boberts v. Croft, 902 
 
 Boberts v. Great Western Bailway Com- 
 pany, 621, 972, 973, 975 
 
 Boberts v. Hunt, 1015 
 
 Boberts v. Midland Bailway Company, 585 
 
 Boberts v. Orchard, 200, 1022, 1023, 1046 
 
 Boberts V. Bichards, 1144, 11 53 
 
 Boberts v. Bose, 1028 
 
 Boberts v. Smith, 319, 365, 412, 1121 
 
 Boberts v. Turner, 538 
 
 Boberts v. Wyatt, 454, 492 
 
 Bobertson v. Adamson, 319, 422, 11 13 
 
 Bobertson v. Amazon Tug and Lighterage 
 Company, 634 
 
 Bobertson v. Brown, 324 
 
 Bobertson v. Fleming, 60, 739, 782, 800, 
 
 813 
 
 Bobertson v. Kennedy, 563 
 
 Bobertson v. Bnssell, 417 
 
 Bobins (Expmie), 6l8 
 
 Bobins v. Bridge, 802 
 
 Eobinson v. Barton Eccles Local Board, 
 1012 
 
 Bobinson v. Briggs, 905 
 
 Bobinson v. Chamberlain, 210 
 
 Bobinson v. Dunmore, 539, 679 
 
 Bobinson v. Gell, 777 
 
 Eobinson v. Great Western Bailway Com- 
 pany, 606 
 
 Eobinson v. Hawksford, 876 
 
 Eobinson v. Knights, 518 
 
 Bobinson v. London and South-Western 
 Bailway Company, 602 
 
 Bobinson v. MoUett, 817, 871 
 
 Bobinson v. New York Central liailroad 
 Company, 663 
 
 Eobinson v. Butter, 560 
 
xlvi 
 
 TABLE OF CASES. 
 
 Eobinson v. Yewena, 763 
 Bobson V. Bennett, 875 
 Bobson V. North-Eastern Bailway Com- 
 pany, 114, 672 
 Bobson V. Oliver, 875, 876 
 Bochdale Canal Company «. King, 1053 
 Bochester (Bishop of) v. Bridges, 222, 
 
 234 
 Boderick v. Acton Local Board, 1070 
 Bodooonachi v. Elliot, 730 
 Boe V. Birkenhead Bailway Company^ 274, 
 
 Boe V. Latouche, 273 
 
 Boe V. Street, 769 
 
 Eogers i>. Kennay, 495 
 
 Bogers v. Langford, 875 
 
 Bogers v. Bajendro Dutt, 60, 240, 267 
 
 Bohl V. Parr, 725 
 
 Bolin V. Steward, 866 
 
 Bollason (In re), Halse's claim, 496 
 
 Boiler, The, 243 
 
 Bolls V. Vestry of St. George, Southwark, 
 
 1034 
 
 Bona, The, 712 
 
 Bonan v. Midland Bailway Company, 605, 
 606 
 
 Books case, The, 931 
 
 Booth V. North-Eastern Bailway Com- 
 pany, 602, 621 
 
 Booth V. Wilson, 76, 461, 483, 966, 967, 
 971 
 
 Boret V. Lewis, 758 
 
 Bosalie, The, 943 
 
 Bose V. Groves, 1030 
 
 Bose V. North-Eastern Bailway Company, 
 114,673,674 
 
 Boskell V. Waterhouse, 618, 619 
 
 Boss V. Fedden, 74, 991, 1 139, 1140, 
 1 141 
 
 Boss v. Hill, 464, 700 
 
 BoBsiter v. Trafalgar Life Assurance As- 
 sociation, 781 
 
 Botch V. Edie, 730 
 
 Bothschild v. Boyal Mail Company, 725 
 
 Eoufigny v, Peale, 795 
 
 Bounds V. Delaware Bailroad Company, 
 
 643 
 Bourke v. White Moss Colliery Companv, 
 
 „ 392.395.405, 
 
 Bousillon V. Bonsillon, 352 
 
 Bowbotham v. Wilson, 353 
 
 Bowley v. London and North-Western 
 Bailway Company, 174, 178 
 
 Eownson (In re), Field v. White, 862 
 
 Bowson V. Earle, 795 
 
 Ebyal British Bank, Ex parte Nichol, 
 231 
 
 Eojal Charter, The, 720 
 
 Boyal Exchange Shipping Company v. 
 Dixon, 709 
 
 Boyal Mail Steam Packet Company i). 
 English Bank of Bio Janeiro, 709 
 
 Buck V. Williams, 198, 200, 232, 1071 
 
 Buddeman v. Smith, 288, 1 140 
 
 Buddy V. Midland Great Western Bail- 
 way Company, 602 
 
 Bumball v. Metropolitan Bank, 887 
 
 Bnmmell v. Dillworth, 328 
 
 Bumsey v. North-Eastern Bailway Com- 
 pany, 353, 701 
 Bushforth v. Hadfield, SS9. 56° 
 Buss o. War Eagle, 639 
 Bussel V. Langstaffe, 891 
 Bussel V. Palmer, 788, 794, 795 
 Bussel V. Bussel, 561, 903 
 Bussell V. Carrington, 517 
 Bussell V. Hankey, 526 
 Eussell V. Hudson Biver Company, 317 
 Bussell a. Men of Devon, 217, 233, 1013, 
 
 1045 
 Bussell V. Nieman, 574 
 Bussell V. Shenton, 1075 
 Bussell V. Tillotson, 341 
 Butland's (Countess of) case, 259, 270, 
 
 768 
 Byall V. Bowles, 491 
 Byan v. Eowler, 319 
 Byder «. Womb well, 112 
 Bylands ■<). Fletcher, 14, 15, 74, 914, 
 
 1049, 1126, 1129, 1130, 1131, 1132, 
 
 1133, 1134, 1136, 1137, 1139, 1141, 
 
 "53 
 
 Sadlee v. Henlook, 307, 309,311,312, 
 
 394, 447 
 
 Sadler v. South Staffordshire and Bir- 
 mingham District Steam Tramways 
 Company, 961 
 
 Sadock V. Burton, 525 
 
 St. Helens Smelting Company v. Tipping, 
 1127 
 
 St. John Baptist College (Ea; parte). In 
 re Metropolitan and District Bail- 
 ways, 859 
 
 St. Lawrence and Ottawa Bailway Com- 
 pany V. Lett, 170, 438 
 
 St. Mary Newington (Vestry of) ». Jacobs, 
 1038, 1046, 1047 
 
 Salig Bam v. Secretary of State for India, 
 251 
 
 Salisbury o. Metropolitan Bailway Com- 
 pany, 842 
 
 Salmon {In re). Priest v. Uppleby, 859, 
 864 
 
 Salway v. Salway, 849 
 
 Sammellj). Wright, 302 
 
 Sampson v. Hoddenott, 1146, 1153, 1154, 
 1156 
 
 Sampson v. Smith, 1027 
 
 Samuel v. BuUer, 767 
 
 Samuel v. Cheney, 623 
 
 Sanders v. Spencer, 549 
 
 Sanders v. Stuart, 739 
 
 Sanderson v. Sanderson, 194, 438 
 
 Sandford ». Clarke, 398 
 
 Santos V. lUidge, 241 
 
 Sarch v. Blackburn, 924, 932, 1089, 
 mo 
 
 Sargent v. Slack, 520, 921 
 
 Satterlee v. Groat, 539 
 
 Saunders v. Darling, 774 
 
 Saundersou v. Baker, 752 
 
 Sawyer v. Goodwin, 791 
 
 Saxon V. Blake, 802 
 
 Saxonia, The, 948, 949 
 
TABLE OF CASES. 
 
 xlvii 
 
 Saxton V. Hawkesworth, 323, 328, 366, 
 1121 
 
 Sayers v. CoUyer, 906 
 
 Scarfe v. Farrant, 565 
 
 Scales V. Pickering, 1050 
 
 Scandover v. Wame, 774 
 
 Scaramanga v. Stamp, 710, 714, 732 
 
 Scarf ». Jardiue, 885 
 
 Scarfe v. Morgan, 559 
 
 Scbeffer v. Washington City, &c., Bail- 
 road Company, 91 
 
 Schloss V. Heiiot, 709 
 
 Schmidt v. Blood, 529 
 
 Schmidt v. Kansas City Distilling Com- 
 pany, 147 
 
 Schmidt V. Boyal Mail Steamship Com- 
 pany, 714 
 
 Soholes V. North London Bailway Com- 
 pany, 65 
 
 Schooner Marcia Tribon, The, 946, 947 
 
 Schroyer v. Lynch, 544 
 
 Schnltz V. Astley, 890 * 
 
 Schuster v. M'Kellar, 714 
 
 Sohwalbe, The, 720 
 
 Scioto, The, 947, 948 
 
 Scothom a. South Staffordshire Bailway 
 Company, 607 
 
 Scott V. Hale, 988 
 
 Scott V. London and St. Katharine Docks 
 Company, 34, lOl, 104, 106, S07i 633, 
 
 68s, 985. 992 
 Scott o. M'Kenzie, 525 
 Scott V. Mayor of Manchester, 198 
 Scott V. National Bank, 883 
 Scott V. Nevington, 561 
 Scott V. Seymour, 247 
 Scott V. Shepherd, 46, 47, Jo, 89, 90, 137, 
 
 960, 988, IOS7 
 Scott V. Stansfield, 25 S, 257, 269 
 Scott V. Sarman, 523 
 Scott V. Waithman, 774 
 Scrimgeoor's claim, 816 
 Scrivener v. Pask, 812, 813 
 Seagull, The, 951 
 Sea Nymph, The, 943 
 Seal V. Hudson, 752 
 Seaman v. Fatten, 252 
 Scare v. Prentice, 826, 829 
 Searle ». Laverick, 505, 506, 521 
 Searle v. Lindsay, 318, 320, 378 
 Searles v. Manhattan Bailway Company, 
 
 102 
 Sears v. Eastern Bailroad Company, 661 
 Seccombe v. Wood, 943 
 Secret, The, 942 
 Seddon v. Tutop, 441 
 Seers v. Hind, 854 
 Seger v. Town of Barkhampsted, 71 
 Selmes v. Judge, 1024, 1025, 1046 
 Semayne's case, 758, 759, 769 
 Senior v. Ward, 167, 336, 337, 365 
 Serrao v. Noe), 185 
 Sessions v. Bice, 885 
 Seton V. Lafone, 886 
 Seward ». The Vera Cmz, 170 
 Sewell V. Bnrdick, 491, 722 
 Seybolt v. New York Bailroad Company, 
 
 644 
 
 Seymour «. Bridge, 819 
 ^ Seymour v. Brown, 515 
 ^ Seymour v. Ellison, 780 
 
 Seymour v. Greenwood, 280, 291 
 
 Seymour v. Maddox, 319, 365 
 
 Shadgett u. Clipson, 774 
 
 Shaffers v. G-eneral Steam Navigation 
 Company, 416, 429 
 
 Shakeshaft (&^ar'te), 852 
 
 Shallow V. Verdon, 194 
 
 Shand v. Henderson, 1051, 1053, 1058 
 
 Sbannon, The, 942 
 
 Sharp V. Grey, 634, 958 
 
 Sharp V. Packhead Spinning Company, 
 149 
 
 Sharp V. Powell, 85, 89, go 
 
 Sharrod v. London and North-Western 
 Bailway Company, 969 
 
 Shaw«. Araen, 518 
 
 Shaw V. Berry, 554 
 
 Shaw V. Great Southern and Western 
 Bailway Company, 616 
 
 Shaw V. Sheldon, 344 
 
 Shaw V. York and North Midland Bail- 
 way Company, 599 
 
 Shaw V. Yorkrfiire Bailway Company, 615 
 
 Shearman v. BobiDson, 854 
 
 ShefSeld (Earl of) v. London Joint Stock 
 Bank, 899 
 
 SheSSeld Industrial Society v. Jarvis, 976 
 
 Shepherd v. Bristol and Exeter Bailway 
 Company, 622 
 
 Shepherd v. Kottgen, 709 
 
 Shepherd v. Midland Bailway Company, 
 no, 666 
 
 Sherman v. Kortright, 261 
 
 Sherman v. Mott, 942 
 
 Sherwell v, Shaplock, 733 
 
 Shiells V. Blaokbume, 481, 482, 483, 827, 
 829, S69 
 
 Shiells V. Edinburgh and County Bailway 
 Company, 302 
 
 Shipbrook v. Hinohinbrook, 850 
 
 Shirley v. Wright, 758 
 
 Shrewsbury's (Countess of) case, 981 
 
 Shriver v. Sioux City Bead Company, 593 
 
 Shute V. Bobins, 873, 876 
 
 Sibley v. Aldrich, 554 
 
 Sidaways v. Todd, 531, 533 
 
 Sill «. Thomas, 793 
 
 Sills V. Brown, 129 
 
 Simat V. Silva, 416 
 
 Simkin v. London and North-Western 
 Bailway Company, 68, 1094 
 
 Simkin v. London and- North-Western 
 Bailway Company, 1094 
 
 Simmons v. New Bedford Company, 663 
 
 Simmons v. Bose, 781 
 
 Simmons v. Taylor, 880 
 
 Simons v. Great Western Bailway Com- 
 pany, 602, 604, 60s 
 
 Simons v. Monier, 298 
 
 Simpson v. Blues, 189 
 
 Simpson v. Hartopp, 495 
 
 Simpson v. Bolfe, 824 
 
 Simson v. London General Omnibus Com- 
 pany, 36, 37. 921 
 
 Smclair v. Bowles, 518 
 
xlviii 
 
 TABLE OF CASES. 
 
 Siner ». Great Western Railway Com- 
 panyj 113, 646, 667, 668, 674 
 
 Singleton v. Eastern Counties Bailway, 
 142 
 
 Sinquasi, The, 720, 721 
 
 Siordet v. Brodie, 734 
 
 Siordet v. Hall, 710 
 
 Sisters, The, 941, 944 
 
 fikelton V. London and North-Western 
 Eailway Company, iii, 119, 973 
 
 Skorritt v. Soallan, 358, 359, 368 
 
 Skinner v. London, Brighton, and South 
 Coast Eailway Company, 11,34, 100, 
 507, 663, 669 
 
 Skinner v. Upshaw, 559 
 
 Skipp V. Eastern Counties Bailway Com- 
 pany, 320, 36s, 376 
 
 Skipwith V. Great Western Eailway Com- 
 pany, 654 
 
 Slatbr V, Baker and Stapleton, 831 
 
 Slater v. Hames, 762 
 
 Slater v. Mersereau, 73, 304 
 
 Slater v. Swann, 961 
 
 Slattery v. Dublin, &c., Eailway Com- 
 pany, 426 
 
 Slayton v. Chester; 772 
 
 Sleat V. Fagg, 39, 465 
 
 Sleath V. Wilson, 284 
 
 Slim V. Great Northern Eailway Com- 
 pany, 590, 601 
 
 Sloman v. Great Western Eailway Com- 
 pany, 693 
 
 Sly V. Edgeley, 300 
 
 Small V. Moates, 560 
 
 Smart v. Hutton, 751, 775 
 
 Smart v. Sanders, 523 
 
 Smedes v. Utica Bank, 869 
 
 Smeed v. Foord, 76 
 
 Smethurst V. Hastingq; 846 
 
 Smillie v. Boyd, 925, mo 
 
 Smith V. Baker, 275 
 
 Smith V. Birmingham Gas Company, 196 
 
 Smith V. Brampton, 980 
 
 Smith V. Brown, 189, 191 
 
 Smith V. Clark, 515 
 
 Smith V. Cologan, 524 
 
 Smith V. Cook, 520, 917, gi8, 921, 923, 931 
 
 Smith V. Dobson, 129, 131 
 
 Smith V. Dowell, 323 
 
 Smith V. Egginton, 767 
 
 Smith V. First National Bank, 102, 469 
 
 Smith t;. Fletcher, 74, 1065, 1130, 1141 
 
 Smith V. Fox, 791 
 
 Smith V. Great Eastern Eailway Company, 
 103, 928 
 
 Smith V. Harrison, 420 
 
 Smith V. Home, 569, 586, 623 
 
 Smith V. Howard, 357, 368 
 
 Smith V. Keal, 271, 753 
 
 Smith V. Kenrick, 74, 1127 
 
 Smith V. Lascelles, 526 
 
 Smith V. Lawrance, 302 
 
 Smith V. Leveaux, 866 
 
 Smith V. London and St. Katharine Docks 
 Company, 58, 1107, 1109, 1113 
 
 Smith 1). London and Sonth-Westem Rail- 
 way Company, 14, 71, 80, 84, 90, 91, 
 203, 986, 987, 992 
 
 Smith V. Low, 904 
 
 Smith V. M'Giiire, 274 
 
 Smith V. Mercer, 867 
 
 Smith V. Midland Eailway Company, 616 
 
 Smith V. Musgrave, 1065 
 
 Smith V. Nashua Railroad Company, 625, 
 628 
 
 Smith «. New York Central Railroad Com- 
 pany, 664, 742 
 
 Smith V. Niles, 515 
 
 Smith V. O'Connor, 152 
 
 Smith V. Pelah, 128, 925 
 
 Smith V. Philadelphia, 221 
 
 Smith V. Pocock, 800 
 
 Smith V. Pritchard, 777 
 
 Smith V. Robinson, 906 
 
 Smith V. St. Lawrence Tow-boat Com- 
 pany, 717, 721 
 
 Smith V. Smith, 1073 
 
 Smith V. South-Eastern Eailway Company, 
 291 
 
 Smith V. Steele, 384, 390 
 
 Smith V. Union Bank, 880 
 
 Smith V. West Derby Local Board, 23, 
 213, 1019, 1020, 1021, 104s, 1077 
 
 Smith V. Wildes, 140 
 
 Smith V. "WilBon, 781 
 
 Smithers v. Hanks, 832 
 
 Smout V. Ilbery, 744 
 
 Smyley v. Glasgow and Londonderry 
 Steam Packet Company, 326, 366 
 
 Suead v. Watkins, 558 
 
 Sneaiy v. Abdy, 764 
 
 Sneddon v. Moss End Iron Company, 387 
 
 Sneesby J). Lancashire and Yorkshire Eail- 
 way Company, 86 
 
 Snook ». Grand Junction Water Company, 
 984, looi, 1002, 1003, loio, 1071, 
 1073 
 
 Snow V. Carruth, 712 
 
 Snow V. Fitohburg Railroad Company, 
 663 
 
 Snow V. Parsons, 11 50 
 
 Snowball v. Goodrioke, 752, 761 
 
 Soci^t^ GenSrale v. Metropolitan Bank, 
 891 
 
 Soci6tS GSnSrale de Paris v. Walker, 899 
 
 Solicitor, In the Matter of a, 786 
 
 Solomon v. Bitten, 117 
 
 Soltau V. De Held, 1014 
 
 South V. Mainland, 754 
 
 South Australian Insurance Company v. 
 Eandell, 516 
 
 South Durham Iron Company {In re), 
 844 
 
 South and North Alabama Eailroad Com- 
 pany, 623 
 
 South Sea Company v. Dnncombe, 494 
 
 Southampton and Itohin Bridge Company 
 V. Southampton Local Board, 198, 
 199, 1072 
 
 Southcote's case, 457, 463, 496, 586, 754, 
 773 
 
 Southcote V. Stanley, 35, 59, 412, 1103, 
 1104, 1 105, 11 12 
 
 Southern v. How, 274 
 
 Southern Express Company v. Van Meter, 
 623 
 
TABLE OF CASES. 
 
 xlix 
 
 Sowell V. Champion, 753, 757 
 
 Spaight V. Tedcastle, 717, 720, 947 
 
 Sparks (In re), 784 
 
 Spaulding v. Chicago and North-Western 
 Bailw^ Company, 988 
 
 Spears v. Hartly, 493, 560 
 
 Speight V. Gaunt, 807, 84S, 847, 859, 871 
 
 Spence v. Union Marine Insuranoe Gom- 
 pany.4S3 
 
 Spencer (Zra re), 795 
 
 Spice «. Bacon, SS7, S58 
 
 Spicer v. South Boston Iron Company, 
 
 „ . .332, 33S„ 
 
 Spirit of the Ocean, The, 715, 952 
 
 Spittle V. Lavender, 815 
 
 Springett v. Ball, 129, 95S 
 
 Springett v. Balls, 193 
 
 Spurrier v. Allen, 792 
 
 Squire v. Wheeler, 558 
 
 Staoey v. Dane County Bank, 872 
 
 Staffordshire and Worcestershire Canal 
 Company v. Hallen, 1044, 1049, 
 1066 
 
 Stahlschmidt v. Lett, 862 
 
 Stainbach v. Kae, 937 
 
 Stallard v. Great Western Bailway Com- 
 pany, 650, 697 
 
 Standard Bank of British South America 
 V. Stokes, 977 
 
 Stanford v. Roberts, 798 
 
 Stanforth v. Bnrnback Foundry Company, 
 
 „ 33S 
 
 Stanmore, The, 950 
 
 Stannard v. Cllidiome, 797, 799 
 
 Stannian v. Davis, 549 
 
 Stansfeld v. Boiling, 1083 
 
 Stanton v. Bichardson, 711 
 
 Staples V. Accidental Death Insurance 
 Company, 440 
 
 State V. Hardister, 830 
 
 State V. Maine Central Bailroad Com- 
 pany, 126 
 
 State ex rel. Eoundtree v. Board of Com- 
 missioners, 1059 
 
 Stead V. Gasooyne, 763 
 
 Steadman v. fifockley, 559 
 
 Steamboat New Jersey, The, 725 
 
 Steamboat New World Company v. King, 
 644 
 
 Steamboat New York, The, o. Bea, 946 
 
 Steel V. Henley, 825 
 
 Steel V. Lester, 511, 837 
 
 Steel V. South-Eastem Bailway Company, 
 
 309 
 
 Steel V. State Line Steamship Company, 
 
 710, 712, 731. 
 Steer v. St. James's Besidential Chambers 
 
 Company, 1106 
 Steggles V. New Biver Company, 1000 
 Stephen v. Thurso Police Commissioners, 
 
 310 
 Stephens v. Baird, 884 
 Stephens v. Elwall, 1019 
 Stephens v. London and South-Western 
 
 Bailway Company, 595 
 Stephens v. Myers, 71 
 Stettin, The, 384 
 Stettin, The, v. The Lion, 716 
 
 Stevens v. Armstrong, 306 
 
 Stevens ». Beohes, 772 
 
 Stevens «. Great Western Bailway Com- 
 pany, 606 
 
 Stevens v. Jeacocke, 222, 234, 321 
 
 Stevens v. Woodward, ro4, 1140 
 
 Stevenson v. Blakelock, 560 
 
 Stevenson v. Cameron, 771 
 
 Stevenson v. Hart, 622, 623 
 
 Stevenson v. Boward, 788, 790 
 
 Stevenson u. Watson, 253 
 
 Steward v. North Metropolitan Tramways 
 Company, 1021 
 
 Stewart v. London and North-Western 
 Bailway Company, 651, 680, 685 
 
 Stewart v. Sanderson, 8S7 
 
 Stewart v. West India and Pacific Steam- 
 ship Company, 709 
 
 Sticknej v. City of Salem, 1042 
 
 Stickney v. Sewell, 859 
 
 Stief V. Hart, 495 
 
 Stiles V. Cardiff Steam Navigation Com- 
 pany, 926, 927 
 
 Stiles B. Guy, 853 
 
 Stimpson v. Wood, 194 
 
 Stimson ». Farnham, 761 
 
 Stimson v. Jackson, 621 
 
 Stinson v. City of Gardiner, 1042 
 
 Stirling v. Turner, 209 , 
 
 Stockdale v. Hansard, 768, 772 
 
 Stookdale u. Lancashire and Yorkshire 
 Bailway Company, 641 
 
 Stockport District Waterworks Company 
 V. Mayor, &c. , of Manchester, 997 
 
 Stockport Waterworks Company v. 
 Potter, 1148, 1149, 1150, IIS4 
 
 StoesBiger,K. South-Eastem Bailway Com- 
 pany, S94, 890 . „ ., „ 
 
 Stokes V. Eastern Counties Bailway Com- 
 pany, 638, 664 
 
 Stokes V. Saltonstall, 50, 108, 631 
 
 Stokes V. Trumper, 788, 794 
 
 Stone V. Cartwright, 267, 299, 413, 717, 
 
 I04S 
 Stone V. Hyde, 442 
 Stone V. Jackson, logo, 1097 
 Stone V. Stone, 862 
 Storey v. Ashton, 285, 29S, 296 
 Stourbridge Canal Company v. Earl of 
 
 Dudley, 1052, 1058 
 Straker v. Graham, 874 
 Strang v. Stewart, 962 
 Strathnaver, The, 945 
 Strauss v. County Hotel Company, S46 
 Strauss v. Francis, 793, 80S 
 Street!). Blay, 518 
 Stretton v. Ashmall 859, 861 
 Strickland v. Symons, 854 
 Stride a. Hill, 771 
 Stringer v. Barker, 1024 
 Stringer v. English and Scottish Marine 
 
 Insurance Company, 730 
 Stringfield v. Lanezzari, 880 
 Strong (In re), 786 
 Strout V. Foster, 937 
 Stuart V. Crawley, 578, 579 
 Stuart V. Evans, 427 
 Stuart V. Stuart, 857 
 
 d 
 
1 
 
 TABLE OF CASES. 
 
 Stuart !). Western Union Telegraph Com- 
 pany, 743 
 
 Stumore, Weston, & Co. v. Breen, 732 
 
 Sturgis V. Boyer, 717 
 
 Styles V. Guy, 856, 857 
 
 Sullivan v. Earl Spencer, 251, 269 
 
 Sullivan v. Union Pacific Eailway Com- 
 pany, 162, 174 
 
 Sullivan"?;. Waters, iioi, 1103 
 
 Sunbolt V. Alford, 558, 560 
 
 Sutolife V. Booth, 1 144 
 
 Sutherland, The, 714 
 
 Sutton (Ex parte), 781 
 
 Sutton V. Buck, 457 
 
 Sutton V. Clarke, 72, 198, 201, 261 
 
 Sutton V. Johnstone, 209, 216, 219, 233, 
 244 
 
 Sutton V. Mayor, &o., of Norwich, 1068, 
 1073 
 
 Sutton V. Moody, 931 
 
 Sutton V. New York Central Eailway Com- 
 pany, II 
 
 Sutton V. Tatham, 816 
 
 Sutton V. Wilders, 847, 852 
 
 Suydam v. Grand Street Railroad Com- 
 pany, 961 
 
 Swainson v. North-Eastern Eailway Com- 
 pany, 389, 390, 399, 405, 413 
 
 Swallow, The, 942 
 
 Swan (JEx parte), 889 
 
 Swan 11. North British Australasian Com- 
 pany, 88s, 886, 889 
 
 Swans, The case of, 924 
 
 Swanland, The, 943 
 
 Swannell v. Ellis, 788, 794, 795 
 
 Swansea, The, v. The Condor, 943 
 
 Sweeney ■u. Berlin, &o., Envelope, Com- 
 pany, 420 
 
 Sweeney «. M'Gilvray, 429, 432 
 
 Sweeney v. Murphy, 393 
 
 Sweeny v. Old Colony and Newport 
 Eailway Company, 3, 35, 11 12 
 
 Sweeting v. Pearce, 816 
 
 Swift V. Jeweshury, 813 
 
 Swift V. Macken, 359, 368 
 
 Swift 11. Winterbotham, 813 
 
 Swindon Waterworks Company v. Wilts 
 and Berks Canal Navigation Com- 
 pany, 1146, 1147, 1153 
 
 Swinfer v. Lord Chelmsford, 804, 805 
 
 Swinton v, Molloy, 24I 
 
 Swire v. Leaoh, 494 
 
 Sword V. Cameron, 314, 323, 366 
 
 Sybray v. White, 1092 
 
 Sykes's case, 842 
 
 Sykes v. North-Eastern Eailway Com- 
 pany, 173 
 
 Sylph, The, 188, 9S2 
 
 Syms ». Chaplin, 594, 595, 619 
 
 Syred v. Oarruthers, 498 
 
 Taapfe v. Lord Downes, 255, 258 
 Taff Vale Eailway Company v. Giles, 628 
 Talley v. Great Western Eailway Com- 
 pany, 581, 680, 683, 686 
 Tamvaco v. Timothy, 708 
 Tancil v. Seaton, 457 
 
 Tancred v. Allgood, 776 
 
 Tandy a. Lord Westmoreland, 251, 268 
 
 Tanjore (Eajah's case), 251 
 
 Tanner i;. Smart, 792" 
 
 Tarlton v. Fisher, 768 
 
 Tarrant v. Webb, 356, 365, 368 
 
 Tarry v. Ashton, 34, 1004, 1078, 1080, 
 
 IO81, 1082, 1 104, IIL2 
 
 Tassell v. Cooper, 868 
 
 Tate V. Hyslop, 708 
 
 Tattan v. Great Western Eailway Com- 
 pany, 568 
 
 Tattersall v. National Steamship Com- 
 pany, 711 
 
 Taubraan «. Paoifie Steam Navigation 
 Company, 658, 734 
 
 Taylor v. Atlantic Mutual Insurance 
 Company, 935 
 
 Taylor v. Baker, 906 
 
 Taylor v. Blaoklow, 797 
 
 Taylor v. Cartwright, 865 
 
 Taylor v, Cheever, 494 
 
 Taylor v. Clemson, 258 
 
 Taylor v. Cronland Gas and Coke Com- 
 pany, 823, 82s 
 
 Taylor a. Delaware and Hudson Canal 
 Company, 142, 1100 
 
 Taylor v. Great Northern Eailway Com- 
 pany, 585, 621 
 
 Taylor v. Greenhalgh, 267, 1017, 1018, 
 
 Taylor v. Hall, 813 
 
 Taylor v. Liverpool and Great Western 
 
 Eailway Company, 725 
 Taylor 'v. Meltham Local Board, I02i, 
 
 1022 
 Taylor v. New York, 1075 
 Taylor v. Oldham Corporation, 1012 
 Taylor v. Plumer, 526 
 Taylor v. Eichardson, 752 
 Taylor v. Stibbert, 904, 906 
 Taylor v. Stray, 818 
 Taylor v. Whitehead, 1037 
 Tebbs V. Carpenter, 853 
 Tebbutt V. Bristol and Exeter Eailway 
 
 Coinpany, 287 
 Temple Bar, The, 708 
 Templeman v. Haydon, loj, 958 
 Tenant v. Goldwin, 965, 1126, 1127, 
 
 1 129 
 Terre Haute and Lidianapolis Eailroad 
 
 Company v. Buck, 674 
 Terry v. Hutchinson, 44 
 Terry v. Terry, 857 
 Tessymond's case, 829 
 Teutouia, The, 730 
 Thair v. Edwards, 1024 
 Thames Iron Company v. Patent Derrick 
 
 Company, 559 
 Thames and Mersey Marine Insurance 
 
 Company v. Hamilton, 724 
 Tharsis Sulphur and Copper Company v. 
 
 Loftus, 253 
 Thatched House case, go'i 
 Thetis, The, 287, 722 
 Theodore H. Eand, The, 950 
 Thomas Powell, The, o. The Cuba, 940, 
 
 941 
 
TABLE OF OASES. 
 
 li 
 
 Thomas v. Birmingham Canal Company 
 
 Thomas v. Boston and Providence Bail- 
 
 road Company, 563, 623, 625 
 Thomas v. Churton, 255 
 Thomas v. Day, 531, 619 
 Thomas v. Hudson, 757 
 Thomas u. Mirehouse, 776 
 Thomas v. Morgan, 919 
 Thomas v. Newnam, 770 
 Thomas v. North Staffordshire Eailway 
 
 Company, 6oi 
 Thomas v. Quartermaine, 320, 326, 329, 
 336. 341. 344. 346, 349. 3S2, 354. 
 366. 367. 368, 41S. 4i6, 419. 422, 
 427.43s, 1 109. mo 
 Th,omas v. The Queen, 238, 267 
 Thomas v. Ehymney Eailway Company, 
 
 641, 648, 650 
 Thomas v. Winchester, 51 
 Thompson {In re), 766, 801 
 Thompson v. Davenport, 744 » 
 Thompson v. Pinch, 865 
 Thompson v. Lacey, 544 
 Thompson v. Mashiter, 494 
 Thompson v. Midland Railway Company, 
 
 658 
 Thompson v. North-Eastern Bailway Com- 
 pany, S37..III2 
 Thompson v. Riggs, 866 
 Thompson v. Western Union Telegraph 
 
 Company, 743 
 Thome v. Deaa, 481 
 Thome v. Tilbury, 476 
 Thornton w.'Stokell, 864 
 Thorogood v. Bryan, 157, ijS, 161, 729 
 Thorogood v. Marsh, 553, 571, 586 
 Thorpe v. Cooper, 442 
 Threfall v. Berwick," 558, 559 
 Thrower's case, 1012 
 Thrnssell v. Handyside, 61, 344, 1 121 
 Thnringia, The, 952 
 Thursfield v. Jones, 195 
 Thwaites v. Mackenzie, 793 
 Tickner v. Smith, 855 
 Ticonderoga, The, 720 
 Tillett V. Ward, 6, 922, 931, 966 
 Timhrell v. Waterhouse, 1 106 
 Titchbume v. White, 583 
 Tobin V. Mnrison, 469, 525, 529 
 Tobin V. The Queen, 238, 242, 262, 267 
 Todd V. Flight, 1075 
 Todd V. Railroad Company, 677 
 Toledo, &c.. Railway Company v. Findar, 
 
 988 
 Toleman v. Portbury, 477 
 Tcflhausen 0. Davis, 1102 
 Tolman v. Syracuse Railroad Company, 
 
 121, 123 
 Tomkins v. Saffery, 816 
 Tomkins v. Saltmarsh, 469 
 Tomlinson ». Gill, 786 
 Tona, The, 717 
 Toomey v. Brighton Eailway Company, 
 
 665 
 Topham v. Braddick, $27 
 Tottenham Board v. Button, 1068 
 Towne v. Crowder, 772 
 
 Townley v. Sherborne, 843, 861 
 
 Townsend v. Barber, 855 
 
 Townsend v. Wathen, 1083, 1089 
 
 Traill v. Small and Boase, 362, 462, 473 
 Treadwiu v. Great Eastern Eailway Com- 
 pany, 594 
 
 Trent Navigation v. Wood, 564 
 
 Treves v. Townshend, 854 
 
 Trickett v. Tomlinson, 888 
 
 Tronson v. Dent, 580, 712 
 
 Truman v. London, Brighton, and South 
 Coast Railway Company, 196 
 
 Tucker v. Axbridge Highway Board, ioi6 
 
 Tucker v. Bradley, 761 
 
 Tucker v. Chaplin, 183 
 
 Tucker v. Wilson, 493 
 
 Tuff«. Warman, 129, 131, 134 
 
 Tulk V. Moxhay, go6 
 
 TuUy V. Houting, 713 
 
 Tunney v. Midland Eailway Company, 
 317. 378 
 
 Tunno v. Morris, 752 
 
 Turberville v. Stampe, 80, 278, 281, 980, 
 982, 991, 1 130 
 
 Turley v. Thomas, 956 
 
 Tumer v. Burkinshaw, 815 
 
 Tumer v. Comey, 847 
 
 Tumer v. Pelgate, 259 
 
 Tumer v. Great Eastern Eailway Com- 
 pany, 393, 394, 400, 401. 402, 405 
 
 Turner v. Great Western Eailway Com- 
 pany, 595 
 
 Turner «. Phillips, 805 
 
 Tumer v. Eeynall, 823 
 
 Turner v. South-Eastern Eailway Com- 
 pany, 652 
 
 Turpin v. Bilton, 527 
 
 Turquand v. Marshall, 841, 843 
 
 Tarrill v. Crawley, 558, 559 
 
 Tuttle V. Chicago Eailway Company, loi 
 
 Tweddle v. Atkinfion, 740 
 
 Two Friends, The, 734 
 
 Twomley v. Central Park Eailroad Com- 
 pany, 50 
 
 Tyler v. Wilkinson, 1 142 
 
 lyiy V. Morrice, 583 
 
 Dhla, The, 942 
 
 Undaunted, The, 717 
 
 Underbill «. Wilson, 751 
 
 Underwood v. Hewson, 97 
 
 Underwood v. Stevens, 850 
 
 Union Bank v. Knapp, 867 
 
 Union Pacific Eailroad Company v. Fort, 
 
 363 
 
 Union Steamship Company v. The 
 Aracan, 953 
 
 United Service, The, 717 
 
 United Service Company (In re), John- 
 ston's claim, 869, 881 
 
 United Society of Shakers v. Underwood, 
 
 471. 839 
 United States, The, 948 
 United States v. Bank of Metropolis, 868 
 United States v. Holmes, 138 
 United States v. L^e, 238 
 United States v. Smith, 575 
 
lii 
 
 Upshare v. Aidee, 679 
 Upaton V. Slark, 562 
 Upton «. Brown, 785 
 Upton «, Townend, 1082 
 Upton ». WeHs, 769 
 
 VAaLiANO V. Bank of England, 879, 896 
 
 Vallance v. Falle, 756 
 
 Van Den Bynde ■«. Ulster Eailway Com- 
 pany, 293 
 
 Vanfcliaden v. Britten, 771 
 
 Vancferheyden v. Young, 252, 269 
 
 Vanderplank v. Miller, 128 
 
 Van Sandan v. Browne, 1795 
 
 Van Sohaick v. Third Avenue Railroad 
 Company, 208 
 
 Van Toll v. South-Eastern Eailway Com- 
 pany, 6o2i 656 
 
 Van Wart v. WooUey, 870, 871 
 
 Varble v. Bigley, 563 
 
 Vaughau v. Booth, 445 
 
 Vaughan v. Cork, and Youghal Eailway 
 Company, 331, 335, 366, 367 
 
 Vaughan v. Menlove, 8c3, 462, 473, 485, 
 982, 984 
 
 Vaughan v. Taff Vale Eailway Compaiiy, 
 10, 202, 203, 421, 990, 1005, ion 
 
 Vanghton v. London and North-Western 
 Eailway Company, 595 
 
 Vaux V. Shaffer, 942 
 
 Veitch a. Euasell, 824 
 
 Velasquez, The, 717, 939 
 
 Venables ». Smith, 512 
 
 Vennall v. Garner, 128, 943 
 
 Vera Cruz, The, 184, 939 
 
 Vera Cruz, The (No. 2), 190 
 
 Vere v. Cawdor, 923 
 
 Vere ». Smith, 464, 497 
 
 Vemer v. Sweitzer, 542 
 
 Vicars v. Wilcocks, 75 
 
 Victor, The, 953 
 
 Victoria, The, 948, 953 
 
 Victorian Eailway Commissioners v, Coul- 
 tas, Jo, 65 
 
 Vienna, The, 948 
 
 Vigo Agricultural Society v. Brumfiel 
 477 
 
 Ville de I'Orient, The, 712 
 
 Villiers v. Avey, 921 
 
 Vindobala, The, 954 
 
 Viner v. Eranois, 193 
 
 Virany v. Wame, 804 
 
 Virgil, The, 942, 947, 949 
 
 Virgo, The, 942, 945 
 
 Viscount Canterbury v. Attorney-General 
 267 ' 
 
 Volant, The, 952 
 
 Vosburgh v. Moak, 97 
 
 Vose V. Lancashire and Yorkshire Eail- 
 
 T7- 1^*^ S.^'J^r^y- 314, 388, 434 
 Vowles V. Miller, 962 
 
 Vrede, The, 734 
 
 Vyse V. Foster, 854 
 
 Wabash Eail-way Compawy v. Farver, 
 
 TABLE OF OASES. 
 
 Wabash Eailroad Company v. M'Daniels; 
 
 361 
 
 Wabash, &c., Eailway Company ». Locke,' 
 62 
 
 Wadham College, Oxford (Case of Mas- 
 ters and Fellows of), 229 
 
 Wadsworth v. Marshall, 795 
 
 Wahlberg v. Young, 715, 721 
 
 Waite V. Littlewood, 857 
 
 Waite V. North-Eastern Eailway Com- 
 pany, 150, 151, 15s 
 
 Wake V. Atty, 527 
 
 Wakelin v. London and South- Western 
 Eailway Company, 126, 338, 342, 
 67s, 1131, 1141 
 
 Wakeman v. Gowdy, 873 
 
 Wakeman v. Eobiason, 50, 99, 955 
 
 Waldron ». Chase, 517 
 
 Walker v. Goe, 76 
 
 Walker v. Great Western Eailway Com- 
 pany, 291 
 
 Walker «. Horner, 1015 
 
 Walker v. Hunter, 763 
 
 Walker v. Jackson, 571 
 
 Walker v. Midland Eailway Company, 
 1 102 
 
 Walker v. South-Eastern Eailway Com- 
 pany, 291 
 
 Walkers. Symonds, 843, 845, 861 
 
 Walker ». Willoughby, 775 • 
 
 Walker v. York and North Midland Eail- 
 
 ,,, ,,'^^y STP^^y- S9S. 600 
 
 Wall V. M'Namara, 241 
 
 Wallace v. Telfair, 461 
 
 Wallace v. Western Eailway Company, 
 342 
 
 Wallace «. Woodgate, 560 
 
 Waller v. South-Eastern Eailway Com- 
 pany, 378 
 
 Walley v. M'Conuell, 753 
 
 Wallington v. Hoskins, 1044, 1045, 1047 
 
 Walhs w. Hine, 411 
 
 Walmsley {Ex^arte), 247 
 
 Walsh V. Great Western Eailway Com- 
 pany, 193 
 
 Walsh «.WhiteIey, 420, 42s 
 
 Walthew«. Mawogani, 709 
 
 Walton «. London, Brighton, and South 
 
 WaltontSSl^'8'7?' •^^' '3^ 
 Wandsworth District Board of Works w. 
 
 United Telephone Company, 10^4 
 Wannamaker K. Burke, 323 • 
 
 Wanstall v. Pooley, 358 
 Warburton v. Midland Eailway Company, 
 
 Warburton v. Great Western Eailway 
 
 Company, 388, 390 
 Ward {In re), 857 
 
 Ward (5|J, Simmons v. Rose, 781, 784 
 Ward V. Evans, 875 
 Ward ». Freeman, 269 
 Ward V. Lee, 198, 1072 
 Ward V. London General Omnibus Com- 
 
 pany, 283, 297 
 
 Warden i>. Mourillyan, 1:40 
 
 Wardens. Bailey, 243,268 
 Warden v. Greer, 578 
 
TABLE OF CASES. 
 
 liii 
 
 Wai'e V. Lord Sgmont, 908 
 
 Ware v. Begent's Canal Company, 1053 
 
 Warkworth, The, 7IS,'9S3 
 
 Warlow V. Uarrisoo, 814 
 
 WarmoU v. Young, 757 
 
 Wame v. Kempater, 798 
 
 Warner v. Banks, 639 
 
 Warner v. Erie Railroad Company, 333 
 
 Warner v. Holyoke, 1037 
 
 Warren (JSx parte), 765 
 
 Warren v. Rtohbnrg Eailway Company, 
 
 639 
 
 Warren v. Wildie, 319 
 
 Warren Bank v. Suffolk Bank, 749 
 
 Warrior, The, 949 
 
 Washburn Company v. Patterson, 426 
 
 Wason V. Wareing, 905 
 
 Waterford and Whitehall Turnpike Com- 
 pany V. People, 200 
 
 Waterhouse v. Keen, 1024 
 
 Waterhouse v. Skinner, 617 
 
 Waterman v. Bobinson, 475 
 
 Waters v. Life and Mrs Insurance Com- 
 pany, 531 
 
 Waterson v. Murray, 420 
 
 Watfcins v. Great Western Bailway Com- 
 pany, 643, 1107, 1 1 13 
 
 Watkins v. Beddin, 203 
 
 Watkins v. Eymill, 656, 657 
 
 Watling V. Oastler, 324, 325, 366 
 
 Watson V. Ambergate Bailway Company, 
 607 
 
 Watson V. Bodell, 257 
 
 Watson V. Carroll, 768 
 
 Watson V. Gray, 975 
 
 Watson V. Muirhead, 781 
 
 Watt V. Nelson, 331 
 
 Watts V. Christie, 559 
 
 Watts V. Porter, 797 
 
 Way V. Chicago Bailroad Company, 
 
 639 
 Wayde v. Carr, 956 
 Wear (Biver) Commissioners v. Adamson, 
 
 7. 33. 83> 84, 573. 933, 1096 
 
 Weaver v. Ward, 20, 48, 49, 50, 144 
 
 Webb (In re), 628 
 
 Webb V. Great Western Bailway Com- 
 pany, 606 
 
 Webb V. Fox, 457 
 
 Webb V. Eennie, 329, 333, 365, 366 
 
 Webb V. Rome, &c., Eailway Company, 
 80,988 
 
 Webber v. Great Western Eailway Com- 
 pany, 614 
 
 Weblin v. Ballard, 337, 415, 427 
 
 Weblin v. Smith, 415 
 
 Webster v. Hudson itiver Bailroad Com- 
 
 fany, 73 
 V. Saratoga and Schenectady Bail- 
 road Company, 613 
 
 Weems v. Mathieson, 318, 421, 434 
 
 Weet V. Brockport, 210 
 
 Weightman v. Coiporation of Washington, 
 208, 210, 261 
 
 Welch V. Jagenheimer, 644 
 
 Welch V. Lawrence, 958 
 
 Weldon v. Gould, 560 
 
 Weldon v. Winslow, 160 
 
 Welfare v. Brighton Railway Company, 
 II, 103, 106, 107, 469, 507, 1078, 
 1082 
 
 Welland Canal Company v. Hathaway, 
 884 
 
 Weller v. London, Brighton, and South 
 Coast Bailway Company, 670 
 
 Wellington v. Downer Kerosene Oil Com- 
 pany, 52, S3 
 
 Wells Laundering Company v. Hanlo, 
 560 
 
 Welsh V. Moir, 420 ' 
 
 Welsh V. Wilson, 1038 
 
 Wenona, The, 952 
 
 Wentworth v. Day, 559 
 
 West Cumberland ton and Steel Com- 
 pany?;. Kenyon, 1128, 1146, 11 54 
 
 West India and Panama Telegraph Com- 
 pany V. Home and Colonial Marine 
 Insurance Company, 724 
 
 West Riding Justices v. The Queen, 1048 
 
 Westaway v. IVost, 790, 792 
 
 Westbury and Powell's case, 223 
 
 Westby's case, 773 
 
 Western Telegraph Company u. Carew, 
 
 rt 737 
 
 Western Union Telegraph Company v. 
 Fatman, 744 
 
 Western Union Telegraph Company v. 
 Hall, 93. 739 
 
 Western Union Telegraph Company v. 
 Hyer, 739. 744 
 
 Westley v. Clarke, 860 
 
 Weston V. Arnold, 977 
 
 Westphalia, The, 939, 949 
 
 Westropp V. Solomon, 817 
 
 Wettor V. Dunk, 1092, 1097 
 
 Whaite v. Lancashire and Yorkshire Rail- 
 way Company, 594 
 
 Whalley V. Lancashire and Yorkshire 
 Railway Company; 1056, 1129 
 
 Whalley v. Wray, 540 
 
 Wharton ». Lancashire and Yorkshire 
 Railway Company, 672 
 
 Whatman v. Pearson, 2S5, 1023 
 
 Wheatley v. Lane, 162, 182 
 
 Wheatley v. Patrick, 285 
 
 Wheeler v. Brant, 929 
 
 Wheeler v. Mason Manufacturing Com- 
 pany, 322, 328 
 
 Whitaker v. Bank of England, 866 
 
 Whitamore v. Waterhouse, 275 
 
 Whitbread «. Jordan, 902 
 
 Whitby V. Brook, 988, 990, 992 
 
 White V. Baugh, 849 
 
 White V. Binstead, 776 
 
 White V. Bonlton, 566, 630 
 
 White V. Chappie, 770 
 
 White V. Chowan (Comnlissioners of), 
 1062 
 
 White V. Colson, 1045 
 
 White ». Crisp, 934 
 
 White V. IVanoe, icx), 1103, iro8 
 
 White V. flillacre, 784 
 
 White V. Hindley Local Board, 213, 1015 
 
 White V. Humphrey, 529, 628 
 
 White V. Taylor, 754 
 
 White V. Wakefield, 907 
 
liv 
 
 TABLE OF CASES. 
 
 Whitecross Wire Company v. Savill, 709, 
 710 
 
 Whitefield v. Newquay Local Board, 
 1072 
 
 Whitehead v. Howard, 791 
 
 Whitehead v. Izod, 818 
 
 Whitehead ». Lord, 795 
 
 Whitehouse v. Birmingham Canal Com- 
 pany, 201, 1058 
 
 Whitehouae v. Fellows, 198, 201, 232 
 
 Whitely v. Pepper, 287, 1076, 1082 
 
 Whiteman v. Hawkins, 791 
 
 Whitesell v. Crane, 660 
 
 Whitfield V. Le Despenoer, 198, 262, 270, 
 
 S44> 749. 777 
 
 Whitfield ». South-Bastem Railway Com- 
 pany, 231, 234 
 
 Whitham v. Kershaw, 44 
 
 Whitmore v. Greene, 753, 775 
 
 Whitney v. Lee, 470, 473 
 
 Whittingham v. Ideson, 924 
 
 Wiggett V. Fox, 391, 392, 393, 394, 396, 
 
 , 399, 404. 405, 413 
 
 Wiggins V. Hathaw^ay, 262 
 
 Wigmore v. 3s^, 375, 390 
 
 Wilbraham v. Livesay, 906 
 
 Wilby V. Midland Railway Company, 11 1 
 
 Wilby «. West Cornwall Railway Com- 
 pany, 613 
 
 Wiley V. Slater, 929 
 
 Wilkins v. Day, 68, 69, 1034, 1046 
 
 Willins V. Hogg, 863 
 
 Wilkinson v. Beviok, 850 
 
 Wilkinson v. Coverdale, 490 
 
 Wilkinsons. Fairrie, 1106, 1109, 11 13 
 
 Wilkinson v. Haygarth, 976 
 
 Wilks V. Lorck, 774 
 
 Willard v. Dorr, 712 
 
 Willett J). Buffalo and Rochester Com- 
 pany, 49 
 
 William, The, 461 
 
 William Lindsay, The, 942, 945 
 
 Williams's case, 222 
 
 Williams (Ex parte), 842 
 
 Williams {in re), 516 
 
 Williams v. Aftican<Steamship Company, 
 71S 
 
 Williams v. Bay ley, 918 
 
 Williams ». Clough, 319, 322, 324, 325, 
 
 ,„.„.33ij 366, 434 
 
 Wilhams v. Colonial Bank, 899 
 
 Williams v. Davies, 1043 
 
 Williams v. East India Company, 477^ 
 1133 
 
 Williams v. Evans, 8|4 
 
 Williams v. Gesse or Jessey, 595 
 
 Williams v. Gibhs, 794 
 
 WiUiams v. Gilding, 1024 
 
 Williams v. Grant, 723 
 
 Williams v. Great Western Railway Com- 
 pany, III, 142, 680 
 
 Wilhams v. Groucott, 1092, 1097 
 
 Williams v. Hingham Turnpike Corpora- 
 tion, 22 r 
 
 Williams v. Jones, 281, 282, 286 
 
 AVilliams v. Millington, 814, 815 
 
 Williams v, Mostyn, 767, 773 
 
 Williams v. Richards, 958, 961 
 
 Williams v. Smith, 876 
 
 Williams v. Swansea Harbour Trustees, 
 
 538 
 Williams v. Thomas, 757 
 Williams v. Wilcox, .1144 
 Williams v. Williams, 906 
 Wilmot V. Blkington, Soi 
 Wilson V. Anderton, 476 
 Wilson V. Brett, 40, 43, 483, 486 
 Wilson ». Lord Bury, 839 
 Wilson V. Caledonian Railway Company, 
 
 310 
 Wilson V. Canada Shipping Company, 943 
 Wilson V. Dickson, 715 . 
 Wilson V. Ducket, 495 
 Wilson V. Glasgow Tramway Company, 
 
 446 
 Wilson V. Halifax (Mayor, &e., of), 210, 
 
 215, 1024 
 Wilson V, Hart, 905 
 
 Wilson V. London, &c., Navigation Com- 
 pany, 733 
 Wilson V. Merry, 335, 356, 358, 379, 382, 
 ^., 384, 38s. 386, 387, 390, 396, 400, 430 
 Wilson V. Newberry, 85, 974, .1078 
 Wilson v. Newport Dock Company, 69, 93 
 Wilson V. New York (Mayor of), 210 
 Wilson V. Owens, 285 
 Wilson V. Smeth, 872 
 Wilson V. Tucker, 791, 797 
 Wilson V. Tummon, 753 
 Wilson «. Waddell, 1127, 1130, 1141 
 Wilson V, Wishaw Coal Company, 418 
 Wilson V. Zulneta, 447 
 Wilton V. Atlantic Mail Steam Navigation 
 
 Compaw, 734 
 Wilton V. Middlesex Railroad Company, 
 
 642 
 Wiltshire v. Sidford, 975, 976 
 Wiltshire v. Sims, 523, 525 
 Winch V. Conservators of the Thames, 
 
 219, 349 
 Windham v. Clere, 258, 269 
 Wingate v. Monkland Iron Company, 401, 
 -„r. 444 
 
 Winpenny «. Philadelphia, 937 
 Winterbottom ». Lord Derby, 1028, 1032, 
 
 1046 
 Winterbottom v. Wright, 56, 374, 702 
 Wintermutej).€larfc, 546 
 Wintle V. Freeman, 763 
 Wise V. Great Western Railway Company, 
 
 604 
 Wisely v. Aberdeen Harbour Commis- 
 sioners, 663 
 Wiseman v. Booker, 967, 972, 973, 974, 
 Tir- ,?7S 
 Witherley v. Regent's Canal Company, 
 
 I0S7 
 Withers v. North Kent Railway Company, 
 
 666 
 Withington v. Tate, 908 
 Wogan V. Somerville, 822 
 Wolt V. Summers, 559 
 Wolverhampton Waterworks Company v. 
 
 Hawkesford, 756 
 Woodc. Cobb, 411 
 Wood V. Cm'ling, 534 
 
TABLE OP OASES. 
 
 Iv 
 
 Wood V. Donall, 423 
 
 Wood V. Sutcli£fe, 1 128 
 
 Woodi). Waud, 1142, 1153, HS4 
 
 Wood's (Daniel) case, 780 
 
 Woods V. Caledonian Railway Company, 
 140 
 
 Woods V. Mnnis, 768 
 
 Woodbury v. Fiink, 630 
 
 Woodfin {In re), 783 
 
 Woodgftte V. Great Eastern Bail way Com- 
 pany, 658 
 
 Woodhead v. Grartness Mineral Company, 
 
 9. 369, 397. 402, 403. 404, 40S1 444 
 Woodhouse v. Woodhonse, 855 
 Woodley v. Coventry, 560 
 Woodley v. Metropolitan District Railway 
 Company, 337, 339, 340, 342, 396, 
 405, 417, 1113, 1114, HIS, "16, 
 1117, H18, H19, 1120, 1122 
 
 Woodley v. Mitchell, 726, 729 
 
 Woodman v. Ball, 822 * 
 
 Woodrop Sims, The, 937, 941, 942, 947 
 
 Woodward v. London and North- Western 
 Railway Company, 594 
 
 Woolf ». Beard, 129 
 
 Woolf V. Summers, 735 
 
 Woolfe V. Home, 815 
 
 Woolley V. Soovell, 51, loi 
 
 Wootton V. Dawkins, 1088 
 
 Wordsworth v. Willan, 956 
 
 Worms V. Storey, 712, 731 
 
 Worth V. Gilling, 919, 925, 931 
 
 Worthington v. Local Board of Moss Side, 
 227 
 
 Worthington v. Morgan, 903 
 
 Wraight v. Johnston, 793 
 
 Wray v. Fors, 1039 
 
 Wren v. Eastern Counties Railway Com- 
 pany, 585 
 
 Wren «. Kirton, 850 
 
 Wright V. Castle, 792 
 
 Wright V. Child, 752, 764 
 
 Wright V. Pawoett, 224 
 
 Wright V. Freeman, 769 
 
 Wright V. Greenroyd, 823 
 
 Wright V. Howard, 1145, 1153 
 
 Wright V. London General Omnibus Com- 
 pany, 27s 
 
 Wright V. London and North-Westem 
 Railway Company, 41 1 
 
 Wright V. Maiden and Melrose Railway 
 Company, 156 
 
 Wright V. Marwood, 709 
 
 Wright V. Midland Railway Company, 
 649 
 
 Wright V. Pearson, 930 
 
 Wright V. Ramsoot, 923, 932 
 
 Wright V. Snell, 559 
 
 Wright V. Soresby, 795 
 
 Wright V. Wallia, 428 
 
 Wyatt v. Great Western Railway Com- 
 pany, H9 
 
 Wyatt V. Rosherville Gardens Company, 
 
 91S 
 Wyld V. Piokford, 39, 598, 618, 624 
 Wylie V. Birch, 761, 772 
 Wyllie V. Caledonian Railway Company, 
 
 391. 411 
 Wyman v. Leavitt, 67 
 Wynn a. Allard, 957 
 
 Xantho, The, 725, 726, 727, 730 
 
 Yaeboeough 0. Bank of England, 196, 
 
 229, 234 
 Yarmouth v. France, 339, 341, 342, 344, 
 
 354. 366, 416, 418, 425 
 Yates V. Brown, 719 
 -Yates V. Duff, 734 
 Yates «. Lansing, 254, 269 
 Yates V. Whyte, 180 
 Yea V. Lethbridge, 774 
 Yearsley v. Heane, 768 
 Yeatmau v. Yeatman, 856 
 York«. Grindstone (or York w. Grenaugh), 
 
 S46, 559 
 
 York, Newcastle, and Berwick Railway 
 Company v. Crisp, 601 
 
 York and/ North Midland Railway Com- 
 pany V. The Queen, 225 
 
 Youde V. Cloud, 851 
 
 Youl V. Harbottle, 624 
 
 Young V. Cole, 817 
 
 Young.?!. Davis, 217, 218, 219, 233, 
 1016 
 
 Young V. Fewson, 734 
 
 Young V. Grote, 867, 888, 889, 890, 891, 
 892, 893 
 
 Young V. Wallingford, 791 
 
 Younge v. Combe, 855 
 
 Zambaco v. Cassavetti, 860 
 Znnz V. South-Eastem Railway Company, 
 602, 651, 656, 657 
 
TABLE OF STATUTES. 
 
 Statute of Westminster the Second, 
 
 c. 39 . . 
 c. 50 . 
 
 13 Edw. 1. 0. 30 . 
 29 Edw. III. 0. 21 
 42 Edw. III. 0. II 
 n Hen. IV. 0. 4 . 
 6Hen.VI. C.S . 
 3Hen. Vin. c. 11 
 
 14 Hen. VIII. c. 5 
 
 22 Hen. Vni. c. 5 
 s. 9 . 
 
 23 Hen. Vm. 0. 5 
 
 33 Hen. Vni. c. 9 
 
 34 & 35 Hen. Till. 
 2 & 3 P. & M. u. 8 
 
 5 Eliz. c. 4 . 
 29 Eliz. c. 5, 8. 2 . 
 
 21 Jao. I. c. 16 . 
 14 Car. II. c. 2 
 
 22 Car. II. c. 12 . 
 I Anne> c. 12 
 
 6 Anne, 0. 31 
 8 Anne, c. 14 
 10 Anne, c. 14 
 
 8. I 
 
 3 Geo. I. 0. rj, a. 8, 
 
 2 Geo. II. C.-I9 
 12 Geoi U. c. 29 . 
 14 Geo. II. >;. 33 . 
 7 Geo. HI. c. 42, s. S7 
 
 12 Geo. III. 0. 73 . 
 
 13 Geo. in. 0. 78.. 
 
 14 Geo. m. c. 78, 8. 86 
 28 Geo. m. c. 38 . 
 
 41 Geo. III. 0. 79, 8. 10 
 43 Geo. III. 0. 59 . 
 48 Geo. III. c. 141 
 52 Geo. III.-o. no 
 
 54 Geo. III. 0. 90 . 
 
 55 Geo. III. c. 143 
 
 3 Geo. IV. c. 12& 
 
 4 Geo. IV. 0. 83 
 c. 95 . 
 
 6 Geo. IV. c. 50 
 
 8. 46 . 
 
 C.94 . 
 
 7 & 8 Geo. IV. c, 18 
 
 757t n. ; 762 
 220 
 
 756, »• 
 
 1060 
 
 756, »• 
 
 96 
 
 - 1063 
 
 820, 821, 822, 824 
 
 . 820 
 
 216, 1059, 1060 
 
 1061 
 
 1063 
 
 96 
 
 824 
 
 216 
 
 822 
 
 1013 
 
 791 
 
 226 
 
 1060 
 
 1060 
 
 981, 982 
 
 77S 
 982 
 981 
 
 751 
 446 
 
 1060, 1061 
 1061 
 
 PAGE 
 
 II Geo. IV. & I Will. IV. 0. 68 
 (Carriers Act, 1830) . . . 38, 
 
 1013 
 982 
 217, 988, 992 
 555, 982, 984 
 482 
 748 
 1060 
 777, m. 
 1060 
 1061 
 1060 
 1048 
 524 
 1048 
 , 756 n. 
 •7S7,»- 
 524 
 1086, 10S8 
 
 586, 
 
 569, 
 I &2Will. rV. c. II - 
 
 0. 22 (Metropolitan Hackney 
 
 Carriage Act) - 
 
 3 & 4 Will. IV. c. 35 
 c. 99, B. 7 . 
 
 4 Will.- IV. 0. 70, B. 4 
 
 5 & 6 Will. IV. c. 50 
 Act, 1835) 
 
 SB. 6, 1 1 . 
 
 BS. 18, 44 . 
 
 s. 21 
 
 s. 23 
 
 s. 72 
 
 s. 94 
 
 s. 99 
 
 s. 109 
 
 c. 59 . 
 
 7 Will. IV. & I Vict. 
 
 1 & 2 Vict. c. no, s. 12 
 
 2 & 3 Vict. 0. 47 (the Police 
 
 1839) • • 
 
 s. 54 
 
 8. 54, Bub-B. 6 
 
 593, 602, 603 
 247 
 
 55 
 
 4 & 5 Viot. c. 49 
 
 5 & 6 Vict. c. 39 . 
 
 c. 55 . . 
 
 8. 9 . 
 
 C. 79, 8. 23 . 
 
 0. 98, 8. 31 . 
 
 6 & 7 Vict. c. 86 . 
 
 7 Vict. c. 15 (Factory Act, i 
 
 7 & 8 Viot. c. 85, B. 6 
 
 C. II2,'8. iS- 
 
 8 Vicfe c. 18 
 
 c. 20, 8. 47 . 
 
 8. 68 
 
 88. 103, 104 
 
 ■ 8. 105 
 
 510 
 . 106 1 
 
 • 770 
 
 748, 749 
 (Highway 
 
 217, 1018 
 . 1013 
 . 1016 
 . 1061 
 
 • 1015 
 . 1038 
 . ■ 1013 
 . 1013 
 
 1021, 1046 
 
 912 
 
 761 
 
 . 766 
 
 Act, 
 
 85, 1047 
 
 85 
 
 1041 
 
 1060 
 
 524 
 
 968 
 
 1844) 
 
 245 
 
 774 
 
 510 
 
 347 
 
 640 
 
 221 
 
 859 
 
 970 
 
 968, 970, 972, 974 
 
 293 
 
 582 
 
 1061 
 
 96 
 
 8 & 9 Vict. c. 20 . 
 c. 109 .... 
 
 9 & 10 Viot.-c. 93 {Lord Campbell's 
 
 Act) . 162-64, 375. 438, 954, 1036 
 
 8. 2 . . . . 163, 164 
 
 8. 3 164 
 
 8.4 164 
 
Iviii 
 
 TABLE OF STATUTES. 
 
 9 & lo Viot. 0. 93 (Lord Campbell's 
 Act), s. 5 . . . . . 164 
 
 s. 33 .... 777 
 
 c. 9S, s. 60 . . . . 257 
 
 8. 138 .. . 777, n. 
 
 10 & II Vict. c. 15, s, 6 . . 999 
 
 0. 17 998 
 
 s. 28 .... 999 
 
 10 & II Viot. 0. 89 (Towns Police 
 Clauses Act, 1847) . . . 1047 
 
 s. 28 . . . . . 1041 
 
 1 1 & 12 Viot. c. 63 (Public Health 
 Act, 1848), s. 37 . . . 266 
 
 241 
 
 ■s. 68 
 
 211, 218, 227 
 
 13 & 14 Viot. 0. 61 (County Courts 
 
 Act), s. 13 .... 226 
 0. 64 1061 
 
 15 & 16 Vict. 0. 76 . . . 757 
 0.84 999 
 
 16 & 17 Viot. 0. 59 . . ■ . 878 
 a. 19 . . . 878, 879 
 
 17 & 18 Vict. 0. 31 (Bailway and 
 Canal TrafiBo Act, 1854), s. i 
 
 593. 594 
 594 
 
 ■ R. 2 . 
 •8. 3 . 
 
 • SB. 4, S, 
 
 ■s. 8 . 
 ■s. 9 . 
 
 ■ s. 10 
 
 6,7 
 
 {See also 597, 601, 614, 
 
 Act) 
 
 0. 104 (Merchant Shipping 
 
 ' s. 2 . 
 
 -se. 510, S14 
 
 218 
 
 18 & 19 Vict. 0. 108 
 
 0. 120 (Metropolis 
 
 Management Act), s. 
 
 8. 68 
 
 8. 72 
 
 s. 96 
 
 S. IIO 
 
 S. Ill 
 
 s. 127 
 
 s. 13s . 
 
 C. 122, S. 3 . 
 
 8. 108 
 
 19 & 20 Vict. 0. 25 
 
 0. 120, 8. 62 . 
 
 21 & 22 Vict. C. 79 
 0. 90 . 
 
 22 Vict. C. 21 
 
 22 & 23 Viot. 0. 35 
 
 s. 31. 
 
 0.66 . 
 
 23 & 24 Viot. 0. 7 
 0. 38 . 
 
 B. 12 
 
 0. 66 . 
 
 0. 125 . 
 
 B. 6 . 
 
 B. 22 
 
 B. S4 
 
 0. 139, ss. 8, 9, II 
 
 0. 146 . 
 
 24 Vict. 0. 10 (Admiralty, Court 
 Aot, 1861), s. 7 . . . 
 
 S94> 595 
 
 • „S9S 
 S95>589,»- 
 
 • ,595 
 
 • 596 
 6560 
 
 714, 953 
 938 
 954 
 336 
 
 Local 
 
 . 1061 
 
 . 1068 
 
 211 
 
 • 1013 
 
 999. 1019 
 
 . 1019 
 
 216, 218 
 
 1019, 1068 
 
 975 
 1024 
 880 
 1013 
 880 
 823 
 823 
 857 
 
 823 
 
 859 
 858 
 823 
 997 
 999 
 999 
 999 
 998 
 998 
 
 188 
 
 PAGE 
 
 6 25 Vict. c. 70 . . . 1061 
 
 ■ C. 96, ss. 18, 19, 20, 21, 22, 
 
 23 923 
 
 1086, 1089 
 
 0. 100, s. 31 . 
 
 0. 130, ss. I, 2 
 
 25 & 26 Vict. u. 61, B. 16 
 c. 63 . 
 
 s. 54 
 
 s. 56 
 
 0. 89 . 
 
 c. 91 . 
 
 0. 102, s. 33 . 
 
 s. 106 
 
 0. 107, s. 4 . 
 
 26 & 27 Vict. 0. 41, 3. I 
 
 ss. 2, 3 . 
 
 0. 51, s. 58 . 
 
 0.93 . 
 
 c. 125 . * 
 
 27 & 28 Viot. 0. 9S 
 
 28 & 29 Vict. 0. 60, H. I 
 ■a. 2 
 
 28 & 29 Vict. 0. 126 (Prisons Aot, 
 
 1865), 8. 10 
 30 & 31 Viot. 0. 29 
 
 0. 131 . 
 
 0. 134, 8. 6 . 
 
 B. 18 
 
 753 
 
 819 
 
 . 837 
 
 . 1041 
 
 • 930 
 0. 142, s. 31 . . . . 777, n. 
 
 31 & 32 Vict. 0. 29 . ... 823 
 
 0. no (Telegraph Act, 1868). 736 
 
 0. 121 834 
 
 32 & 33 Vict. 0. 62 . 757, 766, n., 786 
 ^ 0. 73 (Telegraph Aot, 1869) 736 
 
 259, 1013 
 
 • 946 
 952. 954 
 
 • 954 
 
 • 837 
 . 823 
 . 1019 
 
 1021 
 ■ 756 
 
 • 557 
 
 • 558 
 
 • 735 
 
 • 998 
 . 96 
 . 194, n. 
 
 91. 929 
 929 
 
 0. 117 
 
 33 & 34 Viot. 0. 70 
 
 ^ 0. 73, s. 12 . 
 
 o. 77 . 
 
 8. 13 . 
 
 8.15. 
 
 0. 104 . 
 
 — — - B. 43 . 
 
 34 Vict. 0. 2, s. I . 
 
 34 & 35 Viot. c. 41 
 
 0. 56 . 
 
 0. 105 . 
 
 c. 113 . 
 
 35 & 36 Viot. c. 8 . 
 
 0. 33, B. 8 . 
 
 c. 73, s. 9 . 
 
 — — 0. 70 (Coal Mines Eegulation 
 
 Act), s. 26 
 
 s. 52 . 
 
 part iii. ss, 60, 68 
 
 0. 93 (Pawnbrokers 
 
 1872) 
 
 36 &_37 Viot. 0. 48 (Regulation of 
 
 BaiTways Aot), a. 6 
 ' s. 22 . 
 
 0. 65 (Judicature Acta, 
 
 1875), s. 24 . 
 
 s. 25, sub-s. 2 
 
 B. 25, sub-8. 9 
 
 s. 25, sub-B. 1 1 
 
 8. 87 . . 
 
 C. 85, 8. 16 . 
 
 ss. 22, 28 , 
 
 834 
 998 
 
 I06I 
 
 756. «• 
 756 
 
 757. »• 
 
 837 
 844 
 
 756, m. 
 
 998 
 930 
 
 582, m. 
 999 
 755 
 755 
 384 
 
 ^H 
 398 
 
 439 
 
 Aot, 
 496, 498 
 
 1873, 
 
 601, n. 
 662 
 
 280 
 862 
 938 
 851 
 780 
 952 
 582, «. 
 
TABLE OF STATUTES. 
 
 lix 
 
 36 & 37 Viot. li. 89 . 
 
 PAU£ 
 
 • 998, 999 
 
 c. 90 . 
 
 . 1048 
 
 37 & 38 Vict. c. 57 . 
 
 . 862 
 
 c. 78, s. 2, sub-s. I 
 
 • 90s 
 
 — 0.9s . 
 
 
 38 Vict. 0. 17 (Explosives Act, 
 
 187s) „. 582 
 
 38 & 39 Vict. 0. 39 (The Metalli- 
 ferous Mines Act, 1875) . 439, 440 
 
 • c-43 823 
 
 0. SS (Public Health Act, 
 
 187s) 
 
 ■ s. 13 . 
 
 ■B. 144 
 
 ■ s. 149 
 
 ■ 8. 189 
 
 ■ B. 264 
 
 ■ s. 343 
 
 218, 219, 223, 1048 
 
 IC368 
 
 1013 
 
 1061 
 
 1013 
 
 1021 
 
 211 
 
 998 
 
 and Work- 
 
 444.445 
 . 1061 
 . 582, n. 
 
 c. 86, s. 4 
 
 c. 90 (Employers 
 
 mens Act, 1875) 
 0. 194, SB. 8, 10 
 
 39 & 40 Vict. c. 36, s. 139 
 
 c. 40 . 
 
 c. 41 
 
 C. 61, B. 32 
 
 C. 81, S. 12 
 
 40 & 41 Vict. e. 16, 8. 4 
 c. 21 (Prisons Act, 1877), ss. 
 
 30. 31. 32 
 
 c. 26 
 
 c. 31 
 
 0. 39 
 
 41 Vict. c. 16 (Factory and Work- 
 shop Act, 1878), SB. II, 12, 16, 
 96 
 
 823 
 
 823 
 
 . 756, n. 
 
 880, 881 
 
 • 937 
 
 iS. 
 
 ■ 753 
 
 ■ 837 
 
 • 998 
 524 
 
 ■ part iii. a. 82 
 
 41 & 42 Vict. c. 31, s. 10 
 c. 49 . 
 
 c. 52, ss. 77, 80, 81 
 
 c. 77 . 
 
 BS. 21, 22 . 
 
 42 & 43 Vict. c. 47 
 c. 76 . 
 
 149 
 
 440. 346 
 . 801 
 
 • 998 
 ■ 998 
 
 1043, 1047 
 . 1061 
 . 582, n. 
 . 837 
 
 43 Vict. c. 19 
 
 43 & 44 Viot. c. 5 
 c. 42 (Employers' 
 
 Act, 1880) 
 
 44 & 45 Viot. u. 41, B. 3 
 
 45 & 46 Viot. 0. 43 
 
 c. 50, BS. 4, 5,6, 119, 
 
 0. 61, s. 45 . 
 
 s. 39, sub-s. 2 . 
 
 s. 39, Bub-B. 3 . 
 
 B. 40 . 
 
 B. 41 . 
 
 s. 45, Bub-s. 6 . 
 
 B. 45, sub-s. 7 . 
 
 8. 46 
 
 s. 52, sub-s. I . 
 
 s. 58, sub-s. 2 . 
 
 B. 58, sub-B. 3 . 
 
 s. 60 
 
 s. 73 . 
 
 s. 79, snb-s. 2 . 
 
 s. 80 . 
 
 s. 81 . 
 
 B. 82. 
 
 B. 86 . 
 
 46 & 47 Vict. c. 28 
 
 0. 30 . 
 
 c. 37 . 
 
 PAGE 
 
 • • 837 
 
 . IO6I 
 
 Liability 
 
 ■ 362, 414 
 906 
 
 . 801 
 
 240 . 1061 
 
 ■ • 875 
 
 ■ ■ 873 
 
 • • 873 
 
 ■ ■ 873 
 
 • • 873 
 
 • • 875 
 
 ■ • 877 
 
 ■ . 875 
 
 • ■ 877 
 . 876 
 . 876 
 
 . 878, 880 
 
 . 878 
 
 . 880, 881 
 
 . 880 
 
 . 881 
 
 . 878 
 
 . . 875 
 
 • ■ 837 
 . . 837 
 
 • 1070 
 
 0. 52 (Bankruptcy Act, 1883) 801 
 
 sub-ss. 46, 145 . . . 765, ». 
 
 48 & 49 Vict. c. 23, s. 1 1 . i 
 
 0-34 
 
 — -c.37 ..... 
 
 49 Vict. c. 23 
 
 49 & 50 Vict. c. 48 . 
 
 50 & 51 Vict. B. 5 (Sheriffs Act, 
 1887), s. 23, sub-s. I . 
 
 Employers' Liability Bill, i888 174, 434 
 
 51 & 52 Vict. u. 43 (County Courts 
 
 Act, 1888), ». 35 ... 777 
 
 c: 58 448 
 
 c. 59 859 
 
 s. 8 862 
 
 755 
 998 
 
 ,1048 
 
 837 
 823 
 
 750 
 
ADDENDA BT OOERIGENDA. 
 
 Faqe 56, also page 702, note 2, for Winterbotham read Winterbottom. 
 „ 18.1, note 2, add Grand Trunk of Canada Railway Company v, Jennings, 13 App. 
 
 Cag. 800. 
 „ 198, note i ; also page 237, note, also page 713, note 8, for Mounsey read 
 
 Mounoey. 
 „ 222, line 2.% far bridge read bridges. 
 „ 285, bottom line,/or Prior read Pryor. 
 „ 344, note 2, aft&r affirmed in the House of Lords 5 Times Law Eep. 468, 
 
 add 14 App. Cas. 179. 
 „ 430, line 22, /or Stack reacZ Stark. 
 „ 5o7, note 3, far 3 H. & C. 722 read 3 H. & C. 596 ; note 6, far Cricket read 
 
 Criokett. 
 „ 517, note 3, far Cummings read Cnramins. 
 „ 518, note 3, far De New read Denew. 
 „ 524, side-note, far required by read required of. 
 „ 536, note Si add The Moorcock, 13 P. D. 157. 
 „ 541, line I'Jtfar Mills read Mells. 
 „ 560, line 28, far Spear read Spears. 
 ,> 7'5> ^°^ 8, far Glaholm read Grladholm. 
 „ 748, note 6, far Danew read Denew. 
 „ 774, line 5, after damages iiisert " against him." 
 „ 824, note S, for 20 & 21 Vict. 0. 90 read 21 & 22 Vict. c. 90. 
 „ 890, note I, for Stoessig read Stoessiger. 
 „ 980, note I, far Olliot read OUiet. 
 „ 1025, line 14, /or- Witherington read Withington. 
 „ 1052, note 3, after 57 L. J. Q. B. 150 add affirmed in the House of Lords 
 
 14 App. Gas. 179. 
 „ 107s, note 4, add Sandford v. Clarke, 21 Q. B. D. 398 
 ,, 1 128, note 2, for Brinsop Lead Company read Brinsop Hall Company. 
 
BOOK I. 
 GENERAL RELATIONS. 
 
PEINCIPLES 
 
 OF 
 
 THE LAW OF NEGLIGE:N^CE. 
 
 PART I. 
 
 CONSTITUTIVE PRINCIPLES. 
 CHAPTEE I. 
 
 DEFINITIONS OF NEGLIGENCE. 
 
 The definition of negligence most often cited is that by Alder- AUerson, B/s, 
 son, B.' — " 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." This, though in- 
 valuable as a description, is too wide for a definition of negligence 
 from the standpoint of legal liability ; since it would include even 
 improvident business enterprises, which in their undertaking 
 hold out employment, in their collapse involve ruin, perhaps to 
 thousands ; but which, though both committing and omitting 
 what a reasonable man would neither do nor omit, yet bring in 
 their train no legal responsibility whatever. 
 
 .The most formally scientific analysis of negligence is that of Auaim's. 
 Austin.' He draws a distinction between negligence, heedlessness, 
 and rashness, which, though closely allied, " are broadly distin- 
 guished by differences." 
 
 In cases of negligence, the party performs not an act to which 
 he is obliged ; he breaks a positive duty. 
 
 ^ Blyth V. Birmingham Watervrorks affairs" are omitted. Compare p8f 
 
 Company, ii Ex. 784, 25 L. J. Ex. 212. Bigelow, C.J., in Sweeny v. Old Colony 
 
 In tbe Law Journal report the words and Newport Kailway Company, 92 Mass. 
 
 " guided upon those considerations which 368. 
 
 ordinarily regulate the conduct of human - Lectures on Jurisprudence, lecture 20. 
 
4 THE LAW OF NEGLIGENCE. [book i. 
 
 In cases of heedlessness or rashness, the party does an act 
 which he is bound to forbear ; he breaks a negative duty. 
 
 In cases of negligence, he adverts not to the act which it is his 
 duty to do. 
 
 In cases of heedlessness, he adverts not to consequences of the 
 act he does. 
 
 In cases of rashness, he adverts to those consequences of the act ; 
 but by reason of some assumption which he examines insufficiently 
 he concludes that those consequences will not follow the act in the 
 instance before him. 
 Discussed. The view of negligence which commends itself to Austin is 
 
 that "it applies exclusively to injurious omissions — to breaches by 
 amission of positive duties." Whatever its philosophic value, this 
 circumscribes negligence in far too narrow limits for the purposes ■ 
 of practical jurisprudence. For example, the servants of a farmer, 
 to save themselves trouble, left a roller by the side of a highway, 
 with its shafts slightly projecting over the metalled part of the 
 road. The plaintiffs pony shied, and plaintiff's wife was thrown 
 out of her carriage and killed. In an action " for wrongful and 
 negligent user by the defendant of the highway," the plaintiff was 
 held entitled to recover.' Now this act does not appear to have 
 been done by the servants with intention to test the righi to act 
 as they did, but merely to save themselves trouble ; so that it 
 is not comprehended in that class of nuisances which are wilful 
 as distinguished from negligent ; and being negligent is negligent 
 in what is done and not through the omission of precaution in 
 the doing it. Again, the distinction drawn between negligence 
 on the one hand and heedlessness and rashness on the other 
 may be valid in the regions of pure speculation, but for practical 
 purposes the law could draw no distinction between the driver 
 who runs into a vehicle without looking where he is going, and 
 the driver who runs into a vehicle because he does not trouble 
 to draw up, or is willing to take the risk of doing injury on 
 the chance of the consequences not following.. Whether an 
 act is in Austin's sense negligent or heedless or rash, in law it 
 is comprehended under the term negligent act— sharply dis- 
 tinguished on the one hajid from that class of acts in which' 
 there is either actual intent, or those circumstances from which 
 the law draws the cqnclusion of intent ; and, on the other hand, \ 
 from those acts which are the result of inevitable chance, and are ' 
 known as acciden^ in the narrow sense. 
 deflnTo^°°'' ^^' ^^^'^*°^' describes negligence in its civil relations as 
 " such an inadvertent imperfection by a responsible human agent 
 1 Wilkins V. Day, 12 Q. B. D. i lo. 2 Law of Negligence, § 3. 
 
PARTI.] DEFINITIONS OF NEGLIGENCE. 
 
 in the discharge of a legal duty as produces in an ordinary and 
 natural sequence a damage to another." But inadvertence in its Discussed. 
 ordinary meaning is closely allied, if not synonymous, with heed- 
 lessness ; whereas the scope of negligence is much wider than that 
 of mere heedless or inadvertent acts, and extends to neglects of 
 which the consequences are clearly foreseen, though not willed ; as 
 the allowing a drain-pipe to be stopped and thereby causing a 
 flood, where the injurious consequence has clearly been foreseen, 
 but, through mere inertia of the person whose duty it was to clear 
 it, no prevention has been applied. This is neither an inadvertent 
 act, since the consequences were foreseen ; nor yet a wilful one, 
 since they were not willed ; the negligent person trusting to the 
 chapter of accidents or to the act of some third person to save 
 him from the consequences gi his sluggishness. 
 
 Another attempted definition, which may be noticed on account of Mr. Hoi'aoe 
 the introduction of a new element, is, "Negligence in law is a breach d^'nitfon. 
 of duty unintentional and proximately producing injury to another 
 possessing equal rights."' Two terms of this are more complex 
 than the meaning of negligence itself — namely, " proximately pro- 
 duciag injury to another " and " possessing equal rights ;" while 
 the introduction of a consequence of negligence, its " proximately 
 producing," &c., is scarcely apposite in a definition of the thing 
 itself. 
 
 Waiving these objections, however, it is extremely difficult 
 to affix any intelligible meaning to the term " possessing equal 
 rights." The reasoning seems to found itself on a passage in 
 Addison on Torts,' where it is said that the person injured must 
 be in " the exercise of an available right." " Now,'' the author 
 of the definition proceeds, " if the law regarded the right as 
 inferior it could not avail, and if it regarded the right as superior 
 no negligence need be alleged.^ The plaintifE's right must be of 
 that sort which he is able to oppose to the right which is being 
 exercised by the defendant, and make available against him by 
 saying — It is true you are lawfully exercising your right, but I 
 am in the exercise of a right which I am able to oppose to yours, 
 and you must therefore exercise care towards me. The proposition 
 is that the question of negligence only arises where the rights of 
 the parties are equal, or, in other words, where the rights are 
 unequal the question of negligence does not arise."* 
 
 ' Smith's Law of Negligence, p. I, tnie, then the conohision about "equal 
 
 2 5th edit. pp. 17-20. rights " follows ; and _ if the conclusion 
 
 ' No authority or reasoning is advanced about "eqaal rights" is true, then they 
 
 in support of these propositions ; and it are involved ; and so in eternal circle. 
 does not seem to occur to the author that * As to the ambiguities of the term 
 
 without authority or reasoning they are " rights," sec G. 0. Lewis's Use und Abuse 
 
 mere petitiones principii. If they are of Some rolitical Terms, pp. 7-30. 
 
6 THE LAW OF NEGLIGENCE. [book i. 
 
 Examiued. Now there are obviously many acts wHch one party has no 
 
 right to do at all, as, for example, to let off fireworks in a street, 
 yet which, if carefully done, will not produce injury to any person 
 (in which event the criminal law is the only remedy), but yet, if 
 negligently done and causing injury to a neighbour, give a right 
 of action. Here there is no equality of right, for the neghgent 
 person has no right whatever. Again, if the fireworks are let off 
 with great recklessness in a private place into which the plaintiff 
 trespasses, the plaintiff has not an equal or any right, yet the 
 want of care on the part of the defendant affects him with the 
 negligent consequences, not from the merits of the injured person, 
 but from the policy of the law.' But the position may be taken 
 up that the equal rights are not equal rights of property, but the 
 rights are equal personal rights — the right of each not to he 
 injured by the other. Every man, it is sometimes said, has an 
 absolute right to his person free froin detriment at- the hand of 
 his neighbour. Yet, by a slight variation in the circumstances of 
 the illustration, this will be seen not to be so, for, if the trespasser 
 is injured by the owner of the land by an act precisely the same 
 as in the former case, yet not done recklessly, there is no right of 
 recovery on the part of the trespasser ; whUe, if the trespasser 
 were the actor, and the injury were inflicted on the owner of the 
 land, though care were used, there would still be liability. Again, 
 if the defendant has an easement over the plaintiff's property, in 
 respect of which the defendant is negligent, the rights are not • 
 equal in any intelligible sense ; the one has rights, the other but 
 duties ; yet an action for negligence lies for an injuriously 
 negligent user of the easement. So too a master may beat his 
 apprentice, yet, if he incautiously exceeds, the apprentice would 
 have his action, based on what is practically negligence ; but no 
 theory of equality of rights intervenes. In the case cited" to 
 sustain the proposition, where an ox belonging to defendant, being 
 driven by his servants through the streets of a country town, 
 entered the plaintiff's shop, which adjoined the street, through the 
 open doorway and damaged his goods, it was held that defendant 
 was not liable, because no negligence was shewn. But, assuming 
 negligence, it would not be dependent on any equality of right 
 between the plaintiff and defendant whether the plaintiff should 
 recover or not, since he had no right in any event to have his ox 
 in the plaintiff's shop, and the plaintiff in either event had a right 
 to have the ox out of his shop. But, in the one event, the plaintiff 
 could not recover : not because no right of his was violated, but 
 
 1 Bird V. Holbiook, 4 Birp;. 628 ; Dcgc v. Midland Bailway, 1 11, & N. 777, at p. 780. 
 = Tillett K. Ward, 10 Q. b; D. 17. //o. r / 
 
PAETi.] DEFINITIONS OF NEGLIGENCE. 
 
 because the violation was not tlie act of the defendant in the first 
 case, but a casualty, to which the common law, aiming at freedom ■ 
 of passage along highways, attached no legal liabilities without 
 blame being proved.' In the other event the plaintiff could re- 
 cover, not because his rights were greater or the defendant's less 
 than in the former case, but because the defendant had neglected 
 a precaution in the present which he had observed in the former 
 case. In both cases the rights of the defendant to drive his cattle 
 and of the plaintiff to possess his shop in peace are the same. Yet 
 in the one case there is immunity, in the other liability, attaching 
 to the same act of the same ox : not because in the one there is 
 an equality, in the other an inequality, of rights ; but because the 
 common law, on grounds of public policy, safeguards one descrip- 
 tion and lets the other ansjver for the consequences attending it. 
 At the best, in the case of the plaintiff's inability to recover, it is 
 not through any conflict of rights where the plaintiff has one, 
 the defendant another ; but through a mere disability on the 
 plaintiff's part to sustain an action ; since, immediately the de- 
 fendant claims a right to have his ox in his neighbour's shop, a 
 right of action arises. 
 
 The other illustrations are drawn from the relations of adjacent 
 owners, where the maxim Sic utere tuo wtalienv/m non loedas marks 
 the rule. But, admitting a suggested principle is consistent with 
 a class of cases, it is not thence to be concluded that it is the 
 .principle explaining the cases; much less that it is a principle 
 applicable to wide and unexamined classes of cases that it may be 
 convenient to group. What the true explanation of the liability 
 may be is not material here. It may be suggested, however, 
 that the liability is not dependent on equal rights, or indeed on 
 any right so far as the defendant is concerned ; but on the existence 
 of a duty which may vary, being sometimes greater, sometimes 
 less, as it has reference to one or other of any number of differently 
 circumstanced people. 
 
 It has, indeed, been maintained that the principle of protection windscheid's 
 against injuria is that every one is the equal of every other in responsibility. 
 the State, and that no one shall raise himself over the other.' 
 Yet this is not wide enough adequately to cover the ground over 
 which the liability for negligence extends ; since, to suggest one 
 instance out of many, the liability of a master for the act of his 
 servant acting contrary to his commands, but within the scope of 
 his employment, is not referable to it. The liability in that case 
 could scarcely be based on an argument such as this : " The law 
 
 ' See per Lord Blackburn, Biver Wear CommisBioners v. Adamson, 2 App. Cas. at 
 p. 767. a Windsoheid, Pand. § 148, u. 6. 
 
8 THE LAW OF NEGLIGENCE. [book i. 
 
 makes me the equal of you ; your servant has interfered with my 
 rights; therefore, I am entitled to compensation from yon." 
 Nor yet could it he based on an argument that the act of the 
 servant is the act of the master, since by that assertion it would 
 deny the validity of the principle from which it started, the 
 equality of every one in the State. But, setting this objection 
 aside, where it was shewn that the act was an act expressly forbidden 
 by the master, it would be more difficult still to refer the liability 
 to any such elementary , principle, without at the same time 
 assuming a liability of the master for all the acts of the servant — 
 a liability which certainly never existed in any system. If the 
 master is liable because he has put the servant in the position to do 
 the act — =and in the estimate of equality the law merges the servant 
 in the master-^then he is liable in many cases where no liability 
 could be asserted, though the servant could not have done the 
 wrongful act but for the position he occupies through the master. 
 Brett, M.B.'s, In Heaven v. Pender,' Brett, M.R., said: "Actionable negligence 
 Sefimtion. consists ia the neglect of the use of ordinary care or skill towards 
 a person to whom the defendant owes the duty of observing 
 ordinary care and skUl, by which neglect the plaintiff, without 
 contributory negligence on his part, has suffered injury to his 
 person or property." The patent objection to this is that it only 
 deals with one side even of actionable negligence ; since all those 
 cases where, from position or contract, one is bound to use more 
 than ordinary care or skill towards another are excluded by the 
 expression. Thus the law discriminates between the amount of 
 care that must be exercised between children and adults,^ but the 
 definition admits no flexibility in this respect whatever. 
 Messrs. Shear- Messrs. Shearman and Redfield say : " Negligence constituting 
 EedfleTd'a ^ cause of civil action is such an omission by a responsible person 
 dtsfinition. to use that degree of care, diligence, and skill which it was his 
 legal duty to use, for the protection of another person from 
 injury, as in a natural and continuous sequence causes un- 
 Objections. intended damage to the latter."* But this would not include the 
 negligence of a competent servant for which the master ia 
 responsible. If the servant were incompetent to the knowledge 
 of the master, the master being a responsible person, would be 
 liable for entrusting work to an incompetent servant. But if 
 the servant is competent, then the master has done his duty ; 
 and this is shewn by considering that, if the person injured were 
 
 I ■'. m?' \^; 5?7- better powers of motion " : per Hunt, C. J., 
 
 \ Ihe old, the lame, and the infliin are in O'Mara v. Hudaon Eiver Company, 
 
 entitled to the use of the streets, and more 38 N. Y. 445, at p. 449. 
 
 care must be exercised towards them by ' Shearman and Eedfield, Law of Neg- 
 
 engmeers than towards those who have ligence, § 3. 
 
PARTI.] DEEINITIONS OF NEGLIGENCE. -g 
 
 a fellow-servant, the master would not be liable, on the ground 
 that he had done his duty ; yet, in the event of injury being 
 done to a third person, he would be liable, and his liability would 
 be dependent, not on any amount of care, diligence, and skill he 
 could or ought to have exerted, but, on the simple issue whether 
 the servant had exercised the care which was due to the injured 
 person. True, the servant is, for the purposes of personal liability, 
 a responsible person.' StUl, in law, the master is no less guilty of 
 negligence ; yet this liability of the master wo'iild find no place 
 under the terms of the definition. Again, an inadvertently un- 
 lawful positive act, as, for example, placing a roller on a highway, 
 is not in any usual sense the " omission of care," &c., " for the 
 protection of another person from injury," since, provided the 
 act is to be done, it maybe done with all circumstances of 
 extremest care ; but the neghgence is the not ascertaining its 
 unlawfulness previously to determining on the act. There is 
 there no omission to use care, diligence, and skill for the pro- 
 tection of another person, for all that the case admits of has by 
 hypothesis been done. The negligence there is acting at all, 
 though the act, being determined on, was done with all possible 
 precaution. 
 
 The analysis of a cause of action on negligence by the same Analysis. 
 authors seems unexceptionable. They say : Negligence consists 
 in — 
 
 (i) A legal duty to use care; 
 
 (2) A breach of that duty ; 
 
 (3) The absence of distinct intention to produce the precise 
 
 damage, if any, which actually follows.^ 
 With this negligence, in order to sustain a civil action, there must 
 concur — 
 
 (i) Damage to the plaintiff; 
 
 (2) A natural and continuous sequence uninterruptedly 
 
 connecting the breach of duty with the damage as 
 
 cause and effect. 
 
 Other definitions of negligence are — " Fraud imports design and other defini- 
 
 purpose, negligence imports that you are acting carelessly and 
 
 without that design ; "' " want of diligence ; "■* " want or omission 
 
 of care or attention ; "' " want of due diligence ; "° " acting care- 
 
 1 Woodhead v. Gartness Mineral Com- intention, the law makes the presumption 
 pany, 4 R. 469 ; Osborne v. Morgan, 130 of intention. 
 
 Mass. 102. ' Per Fry, J., in Kettlewell v. Watson, 
 
 2 I.e., the absence of distinct legal 21 Ch.D. 685. 
 
 intention, which includes not only the * Campbell on Negligence, p. 3. 
 
 absence of actual intention, but of those ' Barrill's Law Dictionary, sub nom. 
 
 facts from which, independent of actual ' Bouvier's Law Dictionary, sub nom. 
 
10 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Willes, J.'i 
 
 definition 
 
 adopted. 
 
 Standard of 
 care required. 
 
 lessly ; '" and, not to multiply examples, which might be done to 
 a practically limitless extent, the definition of Willes, J.,' which 
 will be most frequently adopted in the following pages : " Neg- 
 ligence is the absence of care according to the circumstances." 
 This, though vague, is comprehensive, and accentuates the fact 
 of prime importance, failure in respect of which is at the bottom 
 of most of the defects in the comprehensiveness of the definitions— 
 that what is due care and caution has to be worked out ia the 
 spebial treatment 'of the various departments of negligence, and 
 cannot be disposed of by any sweeping generalization. Against' 
 this definition it may be urged that absence of care may happen 
 either advertently or through inadvertence.' If advertent it is 
 not negligent ; and whether advertent or inadvertent, the defini- 
 tion does not discriminate. This, however, a moment's reflection 
 will shew not to be so. All the definition is concerned with is 
 absence of care ; and this, as it is purely a negative conception, 
 cannot connote a positive quality-advertence. Again, the steps by 
 which the position is attained in which " absence of care " 
 operates, are not, primarily at any rate, regarded by the law, 
 which will not go back to consider how circumstances originated ; 
 but deals with them only as they exist. There is, however, a 
 distinction between absence of care in circumstances arising in 
 the ordinary course of things ; and absence of care in circum- 
 stances either intentionally or recklessly produced. Probably, 
 too, it is this latter class of acts which is intended when the 
 term " wilful negligence" is used. 
 
 Here another difficulty may conveniently be noticed ; Erie, 
 C.J., on one occasion told a jiiry that negligence is not to be 
 defined, because it involves some inquiry as to the degreel of 
 care required, and that is the degree which the jury think 
 reasonable considering all the circumstances.' But this attri- 
 butes too much to the jury and too little to the provijace ' 
 of the judge. In some cases, indeed, there is left to the pry 
 so much as is here indicated, but that is where there is either 
 a dispute as to facts ; or a question of conduct submitted 
 
 ' Wharton's Law Lexicon, sub nom.. 
 
 " Vaughan v. Taff Vale Bafcay Com- 
 pany, in the Exchequer Chamber, 5 H. & 
 N: 679, at p. 688. This is adopted by Pax- 
 son, J., in Philadelphia!!. Stinger, 78Penn. 
 St._225. Tothe same effect is Agnew, J., in 
 Philadelphia Railway Company v. Spearen, 
 47 Penn. St. 300, at p 305 : " There is 
 no absolute rule as to what constitutes 
 negligence, that conduct which might be 
 so termed in one case being in another 
 properly considered ordinary care ; nor in 
 cases where it is concurrent will the same 
 
 rule apply to adults and to children. It 
 is therefore always a question of fact for 
 the j ury , under the instruction of the Court, 
 as to the relative degree of care or the 
 want of it, growing out of the circum- 
 stances and conduct of the parties." 
 Also Sherrett; J., Pennsylvania Eailroad 
 Company v. Coon, 11 1 Penn. St. 430; 
 and Davie, J., Milwaukee Kailroad Com- 
 pany V. Arms, 91 U. S. (i Otto) 494. 
 
 ^ Ford V. London and Snuth-WeBtern 
 Railway Company, 2 F. & F. 730, at p. 
 732- 
 
PART I. J DEFINITIONS OF NEGLIGENCE. ♦ U 
 
 to them is not proved directly, but is a matter of uncertain 
 inference.' What in reality the jury has to do is not to fix the ^ 
 standard of care and dihgence, but to determine the bearings of 
 the conduct in the particular case ; in doing so, incidentally they 
 draw a legal conclusion, because such conclusion is not to be disen- 
 tangled from the f acts.^ The legal standard of diligence is a thing ^ 
 apart from the interpretation of a jury in any individual case, and is 
 fixed by the law with reference to the ordinary and usual diligence 
 which a man of ordinary sense, knowledge, and prudence is used 
 to shew in his own afiairs.' Of this experience is the test ; and 
 the standard varies with the shifting of general public sentiment." 
 ^Whether in any particular case this standard has been attaiaed is 
 for the jury, if the evidence will in any view allow of their saying 
 so.' But the facts may be admitted, and may be only susceptible 
 of the iuference of liability. Then the Court will direct the jury 
 that, if they believe the evidence, the defendant is liable." For 
 since there is no dispute as to facts or inferences, the only point 
 is whether the law attaches the legal consequence of negligence ; 
 if it does, it is for the judge to say so." In the same way, if the 
 inferences from the facts cannot, on the hypothesis most favour- 
 able to the plaintiff, attain the legal standard, the judge will take 
 the case away from the jury. So long, however, as the dispute in 
 the case is as to a matter of fact, the whole is for the jury. But 
 often diflSculty arises as to whether the alleged conduct of the 
 defendant comes up to the legal standard ; then it becomes the 
 judge's duty to specify what that standard is. <^ This he usually 
 does by putting before the jury the various possibilities of the 
 case, and instructing them what should be their conclusion in law 
 in the event of their finding any one of these. To this the objec- 
 tion has been urged that the Court not infrequently submits the 
 whole matter to the jury without referring them to any distinct 
 standard. In this case, it has been pointed out,' the position taken 
 
 ' Per Andrews, J., Sutton v. New York the jury or not." See Best on Evidence, 
 
 Central' Railway Company, 66 N. Y. 243. 7th edit. p. 286, chapter on Presumpticms. 
 
 • Kellogg V. New York Central Railway, ° Jackson v. Metropolitan Railway 
 79 N. Y. 72 ; Brown v. Great Western Company, 5 App. Cas. 193. 
 
 Railway Company, 52 L. T. 622. " Skinner v. London, Brighton, and 
 
 - Pollock on Torts, p. 24. South Coast Railway, 5 Ex. 787. 
 
 * In Welfare a. Brighton Railway Oom- ' " I admit," says Mason, J., in Kellogg 
 pany, L. R. 4 Q. B. 693, at p. 696, v. New York Central Railway, 24 How 
 Cockbum, C.J., says : "It is a matter of Pr. 177, " the facts may be so clear and 
 universal knowledge and experience that in decided that the inference of negligence 
 a great city persons do not employ their is irresistible, and in every »uoli case it is 
 own servants to Jo repairs on the roofs of the duty of the judge to decide ; but where 
 their houses or buildings ; " and continues : the facts or the inference to be drawn from 
 " that being a matter of universal prao- them are in any degree doubtful, the only 
 tice and of universal and common know- proper rule is to submit the whole matter 
 ledge, I think is a circumstance which the to the jury under proper instructions. " 
 judge ought to take into account in deter- * Holmes, Tfte Common Law, p. 123. 
 mining whether there is evidence to go to 
 
12 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 1. 
 
 Mv. Holmes's 
 view. 
 
 Conclusion. 
 
 ; Reasoa for 
 iieoent great 
 extension of 
 the law of 
 negligence. 
 
 up by the Court is that, since there are no clear views of public 
 policy applicable to the matter, a rule remains to be drawn from 
 daily experience, and to that end the Court refers to the assistance 
 of the jury what would be within its own province were the cir- 
 cumstances more familiar.' Yet it will not go on doing this for 
 ever ; and, where similar circumstances are of often recurrence, the 
 Court will formulate a standard for its guidance, embodying a rule, 
 
 ■ either by adopting the experience of former juries, or, if their 
 decisions are indeterminate, by striking out a course of its own. 
 
 ; Mr. Holmes concludes as follows : — " Facts do not often exactly 
 repeat themselves in practice, but cases with comparatively small 
 variations from each other do. A judge who has long sat at nisi 
 prius ought gradually to acquire a fund of experience which 
 enables him to represent the common-sense of the community in 
 ordinary instances far better than an average jury. He should 
 be able to lead and instruct them in detail, even where he thiaks 
 it desirable on the whole to take their opinion. Furthermore, 
 the sphere in which he is able to rule without taking their opinion 
 at all should be continually growing." 
 
 To return, then, to the direction of Erie, C.J. If the foregoing 
 considerations are correct, the degree of care to be observed in 
 each case implies a standard in law with reference to which 
 liability is to be determined, and towards a definite expression of 
 which the law is continually tending. In all the more common 
 relations this standard already exists. And when these occur, it 
 is the office of the judge, not to leave to the jury to fii such a 
 degree of care as to them may seem fit, but to direct them what 
 standard the law has seen fit to adopt in each of the states of fact 
 
 , which, on the materials before them, it is open to them to find. 
 Where the law has not yet fixed, or approximated to, a standard, 
 the function of the jury is in proportion enlarged. But this 
 extension of its functions is merely provisional, till the Courts 
 have before them sufficient material to adjust a standard to the 
 newer development of facts, when the function of the jury 
 becomes subject to the application of the test. 
 
 These considerations account for the apparent great increase of 
 complication in the law of late years — a complication which is due 
 to the substitution of approximate standards of conduct for the 
 unchecked determinations of juries. 
 
 1 Mr. Holmes refers tp Detroit and Milwaukee Railroad Company v. Van Steinbure 
 17 Mich. 99, I2a This case is earlier than the oommenoement of the series known 
 £is tii6 AiuGncSiU JctoportSi 
 
CHAPTER II. 
 
 THEOEIES OF LIABILITY. 
 
 The necessity of making satisfaction for injury is most commonly Desire for 
 said to be the outgrowth of the desire for vengeance. When one Jo™ldation 
 has committed wrong, there is a sentiment that it is fitting that °^ i?gal 
 he should suffer wrong ; but this existed only where the wrong 
 was intentional. And our early law seems to have made no pro- 
 vision for the redress of intentional wrongs.' But injury may 
 happen from no personal fault of the owner, but from the dis- 
 position or defect of the thing owned ; in this point of view the 
 primitive Roman law, which dealt mainly with living creatures 
 — animals and slaves — held the surrender of the slave or beast 
 the extremest concession to which the law bound the owner ; ^ and 
 this, probably, because the notion at the root of the surrender 
 was that retaliation might be wreaked on the actual offender. 
 Our old law as to deodand is a manifestation of the same 
 principle — that the injured person is entitled to requital, and 
 that which did the evU must in its own substance suffer for it. 
 The later Roman law advanced beyond this, to the stage where 
 the wrongs done by slaves or the injuries caused by animals 
 affected their owners with a personal liability.' Personal wrongs 
 seem never to have been dissociated from personal liability. So 
 with our own law — ^the indisposition to surrender the actual 
 instrument of wrongdoing in certain cases let in the principle 
 of substitution ; from substitution to compensation, from election 
 to compulsion, were but steps easily taken to the goal of that 
 wide theory of liability which is summed up in the maxim, 
 Bespondeat superior. Yet at the root of all remains the notion of 
 blame ; for which, in the first instance, the penalty must be exacted 
 
 ' Holmes, The Common Law, p. 2. like are a punishment. This is in accord 
 
 In Mayne on Damages, 4th edit. p. 42, with the conclusion of Mr. Holmes from 
 
 it is argued that because malice may another starting-point : see Mr. Holmes, 
 
 render a wrongful act more wrongful, and as above, 
 
 therefore be provahle in aggravation of ^ D. 9, i, i, § g. 
 
 damages, it follows that damages in cases ' D. 9, i, i, §§ 4, S ; D. 9, 4, 2, § I. 
 of fraud, malice, violence, cruelty, or the 
 
14 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Two theories 
 of liability. 
 
 First, tlia.t a. 
 man acts at 
 his peril. 
 
 Mr. Holmes's 
 view. 
 
 Second, thj^t 
 liability is 
 based on 
 personal 
 fault. 
 
 from the instrument of wrong, animate or inanimate, and in a 
 subsequent stage from any one who was responsible for its action. 
 But the modern law includes within the limits of liability many 
 cases of what are not only unintentional injuries, in the sense 
 that their particular consequences were not foreseen,' though fault 
 was involved in setting their agencies to work, but in the sense 
 that, in itself, the act of the defendant, from which liability takes 
 its rise, was a lawful act, and the consequences from which injury 
 resulted impossible to be looked at as probable.' 
 
 There are two theories to explain this : the one — for which 
 Eylands v. Fletcher^ is most often cited as the illustration — that 
 under the common law a man acts at his peril ; the other-— of 
 which Austin is the exponent^ — that liability is based upon 
 personal fault. 
 
 As to the former of these, its principle has been judicially 
 expressed by Grose, J.,* as follows : — " Looking into all the cases 
 from the Year Book in the 21 Henry VII. down to the latest 
 decision on the subject, I find the principle to be that if the 
 injury be done by the act of the party himself at the time, or he 
 be the immediate cause of it, though it happen accidentally or by 
 misfortune, yet he is answerable in trespass." Mr. Holmes," how- 
 ever, who has exhaustively examined the subject, strongly inclines 
 to the opinion that " the common law has never known such a 
 rule, unless in that period of dry precedent which is so often to be 
 found midway between a creative epoch and a period of solvent 
 political reaction." He bases his opinion, amongst .other argu- 
 ments, upon the general principle of law that accident must lie 
 where it falls ; and that, relatively to a given human being, every- 
 thing is accident which he could not fairly have been expected to 
 contemplate as possible, therefore to avoid.' In the words of 
 Nelson, C.J.,' " No case or principle can be found, or, if found, 
 can be maintained, subjecting an individual to liability for an 
 
 act done without fault on his part All the cases concede 
 
 that an injury arising from inevitable accident, or, which in law 
 or reason is the same thing, from an act that ordinary human 
 care and foresight are unable to guard against, is but the misfor- 
 
 where one who justifiably in self-defence 
 shot at an assailant, and accidentally hit 
 
 ' Smith V. London and South-Western 
 Eailway Company, L. E. 6 C. P. 14. 
 
 " Eylands v. Fletcher, L. E. 3 H. L 
 33°- 
 
 * Supra. 
 
 * See citations in Holmes, The Com- 
 mon Law, p. 82. 
 
 » Leame v. Bray, 3 East 593 ; 3 Black- 
 stone's Commentary by Coleridge; p. 
 123, «. 
 
 " The Common Law, p. 89. 
 
 ' See Morris v. Piatt, 32 Conn. 75, 
 
 an innocent person, was held not liable for 
 tile damage done. Also the earlier case of 
 Bi^own 4). Kendall, 60 Mass. 292, where 
 defendant, in trying to separate his dog 
 from another with which it was fighting, 
 accidentally struck the owner of the latter 
 dog, but was held not liable because he 
 was not to blame. 
 
 « Harvey B. Dunlop, Lalor's Supplement 
 to Hill and Denio, p. 193. 
 
PARTI.] THEORIES OF LIABILITY. 15 
 
 tune of the sufferer, and lays no ground for legal responsibility.'" ' 
 
 The Roman law at any rate is based on that theory. If there The view ot 
 
 is nothing to be laid to the fault of the defendant there is nothing Law."*"*" 
 
 with which he is chargeable. Is injuria autem occidere intellegitur 
 
 aujiis dolo aut culpa id acdderii, nee iilla alia lege damnum quod sine 
 
 injuria datur, reprehenditur ; itaque impunitus est qui sine culpa 
 
 et dolo malo casu quodam damnum committit} And again in the 
 
 Institutes' : Ac ne si quidem hoc lege tenetur, qui casu bccidit, si modo 
 
 eidpa ejus nulla inveniatur ; nam alioquin non minus quam ex dolo 
 
 ex culpa quisque hoc lege tenetur. Itaque si quis dum jaculis ludit 
 
 vd exercitatur transeuntem servum tuum trajecerit distinguitur. 
 
 Nam si id a milite quidem in campo locove ubi solitum est exerdtari, 
 
 admissum est, nulla cidpa ejus intellegitur ; si alius tale quid admisit 
 
 cfidpcB reus est. 
 
 Mr. Holmes'* points out that the test imposed by law is an The test. 
 inquiry what would be blameworthy in the man of ordinary 
 ittteiligence and prudence, not making allowances for minute 
 differences of character ; but saving from liability such as are 
 wanting in faculties .deficiency in which is recognizable by all 
 and implies an absolute inability to safeguard against the con- 
 sequences of such deficiency. A blind man is not required to see 
 at his peril ; nor an infant to know ; nor a man of pronounced 
 insanity to act at his peril. In fine, the law presumes a man to 
 possess ordinary capacity to avoid harming his neighbours, un- 
 less a clear and manifest incapacity is shewn ; and in general it 
 does not hold him liable for unintentional injury unless a man 
 of ordinary intelligence and forethought would have been to 
 blame for acting as he did.' 
 
 But the standards of the law are external standards ; and, Conduct, 
 since the law is wholly indifferent to the inner motive of an act determines 
 if its external manifestation comes up to what the law requires, liability, 
 there is no liability, though the motive is wrong ; and, again, 
 though the motive be one which the law approves, yet, if its 
 manifestation is not that which the law requires in the class of 
 acts, the actor is not free from liability to the extent to which his 
 action falls short of what should have been done." 
 
 ' As to the effect of the decision in sistent with negligence on the part of the 
 
 Bylands v. Fletcher, see the discussion in defendant ; L. R. 3 H. L. at p. 340. 
 Kgelow upon Torts, pp. 492-500. Also " Gains, iii. 211. ^ iv. 3, §§ 3, 4. 
 
 7 Am. Law Kev. 652. All the instances * The Common Law, p. 89. 
 
 given by Blackhnm, J., in. that portion of ° See a learned judgment of Doe, J., 
 
 his judgment which is quoted by the Lord in Brown v. Collins, 53 N. H. 442. 
 Chancellor in the House of Lords in the " Holmes, The Common Law, lecture 
 
 judgment of Bylands v. Fletcher are con- iii., Trespass and Negligence. 
 
CHAPTER III. 
 
 DEGREES OF NEGLIGENCE. 
 
 There is no matter within the range of jurisprudence that has 
 given rise to more controversy than that which is concerned with 
 the determining what degrees of negligence are recognized by 
 law, and the defining them when their number is determined. 
 Negligence A preliminary remark may be made that the confusion that has 
 
 oonolpto. grown up in this branch of law is due in part to the habit of 
 regarding negligence as a positive rather than as a negative 
 word. The rule of law prescribes diligence that is to reach a 
 certain standard. If the person bound to the observing such 
 diligence fails to attain the standard prescribed by law, he 
 thereby becomes guilty of negligence, which is an absence of the 
 care required, not a positive infringement of duty ; and, from 
 the greater frequency of conformity to the standard^ than of 
 aberration from it, the habit is to mark the degrees of aberration 
 rather than those of conformity. Yet it must not be forgotten 
 that the existence of negligence postulates defect and not the 
 presence of any positive quality — the want of what should be 
 found not primarily, at least, the presence of what should not. 
 The positive quality is " care according to the circumstances ; " and 
 therefore the more logical course would be to group subjects with 
 reference to the amount of care required in their management. 
 On the ground of convenience only this is not done ; and the 
 absence rather than the presence of care is the feature fixed on 
 for discrimination. This, however, is done with a tacit reference 
 to the reverse of the subject : since the matter of concern being 
 purely a relation, the mention of one aspect implies the mental 
 presence of the other aspect ; and one point of view cannot be 
 insisted on without suggesting the other side of the relation as its 
 indispensable complement. So that liability for a slight degree 
 of negligence implies the duty to use a great degree of care, and 
 the obligation to use a slight degree of care is only another aspect 
 of immunity in cases where moderate diligence has been shewn. 
 
PARTI.] DEGREES OF NEGLIGENCE. 17 
 
 There are two schemes of division presented between which Two eohemea 
 the authorities on the subject have divided themselves. One, negligenoe." 
 that had the approbation of all the older writers/ divided 
 (legligence into three degrees : gross neglect, said to be equiva- 
 lent to the lata cul^ of the Komans ; ordinary neglect, said to 
 con-espond to their levis culpa ; and slight neglect, answering to 
 what was then all but universally received as being their third 
 degree, lemssima culpa. The other, which is adopted by the most 
 recent writers" on Eoman law and jurisprudence, divides negligence 
 into two classes : culpa levis, the lack of such diligence as a good 
 business man would shew in a transaction similar to that investi- 
 gated, where such transaction relates to his business ; and culpa 
 lata, the neglecting the ordinary care that is taken by persons 
 not specialists. Of thes§, the former, notwithstanding much 
 confusion in the adjustment of the various degrees, was recognized 
 in the English and American courts and by text-writers without 
 Question till quite recently. The latter is the outcome of investi- 
 gations, into the doctrine of the Eoman law, the result of which is 
 embodied in Basse's "Culpa des Eomischen Eechts ; " the con- 
 clusions expounded in which are sought to be imported into 
 Anglo-American law by Dr. Wharton' and the w;"iters who follow 
 him. 
 
 The division of negligence into three degrees was first expressly 
 adopted in practical English law, as distinguished from law as 
 expounded by text-writers, in the judgment of Holt, C.J,, in 
 Coggs V. Bernard ; and he took the division from Bracton, who, 
 like most early text-writers, was overshadowed by the influence 
 of the Eoman law, then dominant amongst ecclesiastical writers ; 
 and had conformed the expression of his law, however the 
 substance may have been derived, to the divisions and doctrines 
 then in vogue amongst the teachers of the civil law. Later 
 investigations in Germany having tended to throw discredit on 
 this principle of division, as an authoritative exposition of the 
 Eoman law ; and the theses having been advanced that the jurists 
 of " the classic Eonam law, which was the law of business Eome," Enlo of the 
 did not in truth and in fact recognize three degrees of negligence, 
 but two only ; and that the division into three degrees was an 
 instance of the quibbling ingenuity, which exercised itself on the 
 Eoman system of law, when it had ceased to be moulded " by the 
 business jurists of Eome when at her prime," and when the 
 
 ' Story on Bailments, § 17 and note; de Droit Eomain, vol. ii. p. 16, n. i; 
 
 Sir William Jones, Law of Bailments, p. Wharton, Law of Negligence, § 58 etseq.-, 
 
 21 et seq., and the older authorities there Goudsmit's Eoman Law, § 75 > -SoUantt's 
 
 cited. Elements of Jurisprudence, p. 95. 
 
 = Adopting the views of Haase, Culpa ' Law of Negligence, 
 
 des Eomischen Eechts ; Maynz, Elements 
 
 B 
 
18 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Three proposi- 
 tions founded 
 on it. 
 
 I. English law 
 to be con- 
 formed to it. 
 
 II. The 
 theoretic rule 
 of English law 
 in practice 
 ohsolete. 
 
 III. Incom- 
 piVt^|}le with 
 praQ^ical 
 n«ed9- 
 
 I. Must 
 English law 
 he brought 
 into haimony 
 with the 
 Bumau ? 
 
 Eoman system had fallen into the hands of the schoolmen; 
 straightway a school of writers arose whose argument, starting 
 from the point of their having made good their historical and 
 critical position in its primary reference to the laws of Eome, 
 may bo presented in three propositions. 
 
 1. That "the classic Roman law, which was the law of busi- 
 ness Eome," having been misinterpreted, on the discovery of that 
 misinterpretation the (assumed) rule of convenience in the 
 English law, which was suggested by what was wrongly con- 
 sidered to be the rule of the Roman law, should be abandoned 
 along with the misapprehension from which it took its origin. 
 
 2. That there is no need to drop the principle of three divisions 
 of negligence, since, in practice, it does not exist.' 
 
 3. That if this principle of division did exist it would be 
 an inconvenience and "incompatible with the necessities of 
 business." 
 
 These positions are now to be considered from the standpoint 
 of English law and on the assumption that the basis of them is 
 conclusively made good. 
 
 As to the first of them, it may be pointed out that the common 
 law as a system is of independent growth from that of Rome, and 
 that the introduction of any doctrine from the civil law was not 
 dependent on the authenticity of the doctrine, judged by the 
 standard of the best exponents of the civil law system, but on the 
 recognition of its suitability for the circumstances in which the 
 common law was developing. Roman law doctrines, assimilated 
 in the common law, are matters of suggestion and not of legislation, 
 dependent for their acceptation, not on the authenticity of their 
 origin, but on the suitability of their working for the circum- 
 stances to which they are applied. For example, when Southcote's 
 case was overruled by the judgment in Coggs v. Bernard, it 
 certainly never entered the minds of any of the judges who 
 were parties to that judgment, that it was a matter of the 
 slightest practical importance whether " the.. business jurists of 
 Eome when at her prime " had adopted the division of bailments 
 which was found in Bracton; but it must have been of the 
 extremest moment to them whether their judgment embodied 
 the current ideas of what was equitable, and was adapted to tlje 
 needs of existing society.^ 
 
 That the state of Eoman authority had nothing to do with the 
 recognition by English judges of Eoman doctrines absorbed into 
 
 text-writers, it is practically dropped bv 
 our Courts " : § 58 (3). •' t-f J 
 " See Austin, Lectures on Jnrispra- 
 dence, 3rd edit. vol. ii. p. 655, 
 
 ' Wliarton, Law of Negligence, § 64. 
 The exact expression is that, "while it" 
 (the theory of three degrees of negligence) 
 "lingers still in English and American 
 
PARTI.] DEGREES OF NEGLIGENCE. 19 
 
 Englisli law is curiously illustrated by a passage in Maine's Mnino's 
 "Ancient Law"' relating to Bracton, from whom Holt, J., Law?°* 
 directly drew : " That an English writer of the time of Henry III. 
 should have been able to put off on his countrymen as a com- 
 pendium of pure English law a treatise of which the entire form 
 and a third of the contents were directly borrowed from the 
 ' Corpus Juris ; ' and that he should have ventured on this experi- 
 ment in a country wliere the systematic study of the Eoman law 
 was formally prescribed, will always be amongst the hopeless 
 enigmas in the history' of jurisprudence." But apart altogether 
 from this, the authority of Selden, in his Dissertation annexed to Sei den's 
 Pleta, may be vouched to prove that the civil law as civil law, to'Fie'ta. '°" 
 and apart from any considered applicability of its doctrines to 
 national use, had not " by public sanction any force, any more 
 than the passages out of Plato, Aristotle, Demosthenes, Cicero, 
 Seneca, Plutarch, and such authors here and there frequently 
 quoted by the French lawyers."* 
 
 It must also be borne in mind what Bracton's purpose was — Bracton'a 
 to lay down the English law for English judges, and to teach P"''P°^^' 
 gualiter et quo ordine lites decidantur secundum leges et consuetudines 
 Anglicanas, which he did, not by means of reference to authorities 
 of Roman law, but to facta et casus qui qvstidie CTnergunt et eveni- 
 unt in regno Anglice ; or, as the point is put by Prof. Giiterbock^ : Prof. Guter- 
 "The reader, instead of getting the impression that sometimes Eo^roa™ 
 domestic and sometimes foreign materials are presented to him, gai™^E^"iish 
 finds before him the picture of an indivisible homogeneous whole, law. 
 in which the Eoman elements are no longer merely Roman law, 
 but have become integral parts of the leges et ccmsuetudines Angli- 
 cance." If that were so at the outset, the force of the considera- 
 tion is infinitely increased after the principle, true or false, has 
 for nearly two centuries been recognized as of binding force in 
 om' law. Better might it be argued that the provisions of the 
 Prussian Code (avowedly an outcome of the Roman system), in 
 which there are three degrees of negligence specified — grave, 
 ordinary, and slight {ein grobes, mdssiges, geringes Versehen*) — are 
 abrogated by the results of the researches of antiquaries. Such 
 a contention, that legislative law should depend for its validity 
 upon the results of historical inquiry subsequent to its enactment, 
 is a patent absurdity; and no less so is the assumption that 
 English judge-made or customary law should be affected by the 
 
 1 p. 82. might have had among us during the 
 
 2 Chap. ix. § i. " Our nation never tefore-mentioned interval." 
 
 admitted the imperial law into the public, ^ Bracton and his Eelations to the 
 
 called the civil government, whatever English Law, p. 58. 
 effect the use of that law, such as it was, * P, i. tit. 3, §§ 18, 22. 
 
20 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 II. Wliatis 
 the existiug 
 practice of 
 the Caurl:s. 
 
 Bule in 
 contract — 
 Beadhead v. 
 Midland 
 Railway 
 Company. 
 
 Bums V. Cork 
 and Bandon 
 Eailway. 
 
 Christie v. 
 Griggs. 
 
 Eule in tort — 
 Weaver v. 
 Ward. 
 
 most learned historical investigations of jurists engaged on the 
 interpretation of a foreign system. 
 
 The second position is, that while the rule of the three degrees 
 of negligence survives, through the conservative tendencies or 
 want of research of text-writers, " it is practically dropped by 
 our Courts.'" 
 
 This is a matter easily tested. In the well-known case of 
 Readhead v. Midland Eailway Company^ the Court of Queen's 
 Bench (Blackburn, J., dissenting) held the defendants not liable 
 for an accident caused by the breaking of the tyre of a wheel of 
 a carriage in which the plaintiff rode, as there was no warranty 
 by a carrier of passengers that his carriage should be absolutely 
 roadworthy, and the defendants had used all diligence in pro- 
 viding a safe carriage and examining it both before starting and 
 in the course of the journey. The plaintiff appealed. In the 
 result the Exchequer Chamber laid down the principle of law 
 applicable to be' that " due care undoubtedly means, having 
 reference to the nature of the contract to carry, a high degree of 
 care, and casts on carriers the duty of exercising all vigilance to 
 see that whatever is required for the safe conveyance of their 
 passengers is in fit and proper order. But the duty to take due 
 care, however widely construed, or however rigorously enforced, 
 will not, as the present action seeks to do, subject the defendants 
 to the plain injustice of being compelled by the law to make 
 reparation for a disaster arising from a latent defect in the 
 machinery which they are obliged to use, which no human skill 
 or care could either have prevented or detected." In the Irish 
 case of Bums v. Cork and Bandon Railway* the obligation of a 
 carrier of passengers is stated to be that of warranting " that the 
 vehicle in which he conveys them is at the time of the commence- 
 ment of the journey free from all defects, at least so far as human 
 care and foresight can provide, and perfectly roadworthy." Again, 
 in Christie v. Griggs,' Sir James Mansfield, C. J., expresses the same 
 in almost the same words, stating the obligation as one that, " as far 
 as human care and foresight could go, he would provide for their 
 safe conveyance." These are cases where the right of action 
 arises on a contract. 
 
 In regard to tort the case is simpler. The judges in 
 Weaver v. Ward^ express the law, " No man shall be excused of a 
 trespass .... except it may be judged lotterly without his fault." 
 
 64, 
 
 1 Wharton, Law of Nogligenoe, §§ 58, 
 
 2 L. E. 2 Q. B. 412, L. E. 4 Q. B. 379. 
 
 s L. E. 4 Q. B. at p. 393. 
 
 4 13 Ir. C. L. E. S43, at p. 546. See 
 
 too Francis v. Cockrell, L. E. 5 Q. B. 
 503, not cited iu the text, since it is cited 
 by Wharton, Law of Negligence, § 775, n. 
 
 " 2 Campb. 81. 
 
 ' I Hob. 134. 
 
PART I.J DEGREES OF NEGUGENCE, 21 
 
 And this is exemplified in the famous judgment of Blackburn, J., 
 in Fletcher v. Ey lands ' : " The person whose grass or corn is eaten 
 down by the escaping cattle of his neighbour, or whose mine is 
 flooded by the water from his neighbour's reservoir, or whose 
 cellar is invaded by the filth of his neighbour's privy, or whose 
 habitation is made unhealthy by the fumes and noisome vapours 
 of his neighbour's alkali works, is damnified without any fault of 
 bis own : and it seems but reasonable and just that the neighbour 
 who has brought something on his own property which was not 
 naturally there, harmless to others so long as it is confined to his. 
 own property, but which he knows to be mischievous if it gets on 
 his neighbour's, should be obliged to make good the damage which 
 ensues if he does not succeed in confining it to his own property." 
 In Eeadbead v. Midland* Eailway Company- which states tbeEuiein 
 general rule of diligence in the carriage of passengers, we have a^cussea 
 seen that the requirement was to exercise " all vigilance to see that 
 whatever is required for the safe conveyance of their passengers 
 is in fit and proper order." The standard must, primd facie, 
 be alike for all. Spondet peritiam artis ; and the peritia is 
 that of the age and country and circumstances in which it is 
 demanded. But this being granted, even within these limits 
 different degrees are demanded. Thus, where one man took 
 another in his carriage with him gratuitously, without examining 
 the bolts and fastenings of his carriage (which, however, were 
 examined every three months by a blacksmith), and during the 
 journey an accident happened, the failure to examine the vehicle 
 was held not to be negligence sufficient to charge the owner 
 of the carriage.' Again, where a railway company made an 
 examination of a truck, but not a sufficiei^t examination to 
 discover a crack in an axle, through which an accident subse-; 
 quently happened, and which a jury found " might have been 
 discovered by a sufficiently minute examination," the Court held 
 the company not liable, since they were not bound in the cir- 
 cumstances to " an examination of a very minute character," 
 " but certain precautions were taken by the workmen employed 
 on this duty which are usually taken by railway companies 
 in such cases, and are generally found by experience to be 
 sufficient."'' Yet once more, where a person hired a carriage, a 
 pair of horses, and a driver from a jobmaster, and, by reason of 
 a bolt in the under part of the carriage breaking, the splinter- 
 bar became displaced, the horses started off, the carnage was 
 
 1 L R. I Ex. 265, at p. 280. * Richardson v. Great Eastern EaiUvay 
 
 ■> l' R. 4 Q- B. 379. It P- 393' Company, i C. P. D. 342. 
 
 » Moffatt V. Bateman, L. B. 3 P, C. 1 15. J. [ 
 
22 THE LAW OF NEGLIGENCE. [book i. 
 
 upset, and the hirer injured, the Court held that the jobmaster's 
 duty was to supply a carriage as fit for the purpose for which it 
 is hired as care and skill can render it."' 
 Comparison Now, to compare these cases — all modern and of authority — 
 
 dufy^mctid. ■'"til tlie new test suggested. In the first place, they are all 
 three included under that heading, called cul;pa levis, which 
 signifies " the lack of such diligence as a good business man 
 would shew in a transaction similar to that investigated, snch 
 transaction relating to his business." They are cases arising out 
 of matter in the nature of contracts ; they relate to, the safety of 
 persons conveyed by the defendants ; and they depend upon the 
 amount of care exercised. Yet in the one case the care is 
 sufficient that submits the vehicle once in three months to a 
 blacksmith. In the second case an examination of the defective 
 vehicle was made ; but though it was not minute enough to dis- 
 cover the defect which caused the accident (which yet might 
 have been discovered), still the examination was held to satisfy 
 legal requirements. In the third case nothing less than the 
 minute examination which was held not necessary in the second 
 case was required. Now, to quote Dr. Wharton," " it must be 
 again remembered that the test is that of the good, not of the 
 perfect, man of business ; and this, as has already been shewn, 
 because, among other reasons, no perfect business man exists." 
 But the precise difference between the second and third cases is 
 the difference between the good and the perfect man of business, as 
 expounded in the very passage beginning with the quotation just 
 cited. The decision of the Court in the second case was that the 
 defendants had used the precautions " which are usually taken by 
 railway companies in such cases, and are generally found by expe- 
 rience to be sufficient;" or, to follow the words of Dr. Wharton, 
 had adopted " all improvements which, when tested by experience, 
 seem likely to add to the security of those entrusted to his care, 
 provided, that such improvements can be applied without, by 
 their cumbrousness or expense, impeding the transportation 
 which such persons desire." In the third case the duty was to 
 supply an article as fit as care and skill could render it without 
 any qualification whatever. If, then, either of these was the care 
 of the " good man," the other must be different, either more or 
 less; certainly not the same. But the diligence required in the third 
 case, which was to make the carriage "as fit and proper as care 
 and skill can make it,"" is precisely Dr. Wharton's diligentia dili- 
 
 1 Hyman».Nye,6a.B.D.68s. Com- ' Per Lindley, J.: "The expresBion 
 pare Ingalls 1). Bills, 50 Mass. i. • reasonably fit ' denotes something short 
 
 2 Law of N.ghgence, § 635. of absolutely fit ; but in a case %i this 
 
PARTI.] DEGEEES OF NEGLIGENCE. 23 
 
 geniissimi, " the utmost diligence."' But in the first case cited' 
 the diligence required was also the diUgence of the specialist — 
 it was found that " the carriage was regularly examined by a 
 blacksmith every three months," and this was held sufficient. 
 Yet obviously much less care was used than in the second or 
 third cases ; still it was enough ; since a different standard was 
 resorted to in each. 
 
 The cases already given have been cases of contract. Now Eulo in tort 
 to approach the subject from the side of negligence arising ^'^""^^^'^ 
 from tort — the same requirement of a diligence exceeding 
 that of the mere good and diligent man is found not infre- 
 quently to be exacted. A master orders his servant to lay down 
 a quantity of rubbish near his neighbour's wall, but so as 
 not to touch the wall. "The servant, by extraordinary care, 
 might have prevented the rubbish touching the plaintiff's wall." 
 " The servant used ordinary care in the course of executing the 
 master's order, and, notwithstanding that, the rubbish ran against 
 the wall." The master was held liable as a trespasser.' Again, 
 a contractor was employed by a local board to construct a sewer 
 under a highway, in the course of which he dug a trench, which 
 was afterwards filled in with earth, and the roadway was made 
 apparently good. The work was done under the directions and to 
 the -satisfaction of the surveyor of the defendants, who inspected 
 the road for three months at the risk of the contractor, till, being 
 in a satisfactory state, it was handed it over to the local board. The ' 
 surveyor continued to inspect and to pass over the road up to the 
 time of the accident, eight months later, when, as the plaintiff's 
 horse drawing a spring cart was going along the road, its fore 
 feet suddenly sank through a coating or crust of macadam into a 
 cavity. Neither the engineer nor the surveyor could account for 
 the existence of the cavity. Yet the local board was found 
 guilty of negligence.* Or to take a different class of actions : 
 a person- keeping an animal whose -nature is to do mischief, with 
 knowledge of its propensities, is liable for any damage done by 
 it, " since negligence is presumed without express averment.'" 
 In each of these cases the standard of diligence is far higher than 
 any that could be required of an ordinarily prudent and careful 
 man. In the first, the facts shew that this standard was actually 
 attained ; yet the act of the servant doing a thing in itself lawful, 
 and with care equal to the rule of ordinary diligence, was held 
 
 description the diffei-f nee telween tbe two ' Gregory v. Piper, 9 B. & C. 591. 
 
 expressions is not great " : Hymano.Nye, * Smith v. Derby Local Board, 3 
 
 6 Q. B. D. at p. 688. C. P. U. 423- 
 
 1 Law of Negligence, § 636. " May «. Burdett, 9 Q. B. loi. 
 
 2 Moffatt V. Bateman, supra. 
 
24 THE LAW OF NEGLIGENCE. [book i. 
 
 to aflfect the master with liability. In the second, though 
 ordinary skill had been exerted, the defendants were not held 
 liable for what they could neither discover nor explain. In the 
 third, negligence was presumed without any fault dans locum 
 injuria!, and though the keeping of a monkey is not illegal. 
 Each of these cases would not seem to fall short even of that 
 infinitesimal negligence which Dr. Wharton regards as an im- 
 possible standard — and certainly none of them falls below the test 
 that Sir William Jones lays down — the omission of that care 
 which very attentive and vigilant persons take of their own goods, 
 or, in other words, of very exact diligence.* 
 III. To exact Thirdly, it is said that if the principle of division of negligence 
 diUgence is i^to three degrees did exist, the degree of cidpa levissima would 
 impraoficable. j^g ^n inconvenience, and " incompatible with the necessities of 
 
 business." 
 Argument that Wharton,^ Summarizing Hasse,' asks where is the dUigentis- 
 be habitually' simus ov exadissimus to be found who is to be taken as the 
 diiiffeii- standard by which the diliqentia diliqentissimus, with its antithesis 
 
 examined. of cvlpa levissima, are to be gauged. " This question is put," says 
 he, "by Le Brun, without any reply from his astute antagonists; 
 and it is repeated by Hasse with the confident assertion that the 
 search is one that will be made in vain." Possibly Le Brun's 
 " astute antagonists " — Pothier was one — while quite ready to 
 admit the search would be unproductive, did not think it expe- 
 dient to let the controversy wander into so irrelevant a bypath, 
 since their contention was not based on a question of diligentia in 
 concreto, a standard dependent on the existence of any particular 
 man, but of a diligentia in ahstracto, a standard to which, though 
 none might habitually attain, all must in particular cases conform.* 
 Yet, had they felt inclined for such futile inquiries, they might 
 with equal readiness have issued a retaliatory challenge for a 
 "good specialist" who never made a mistake. The true answer 
 to either challenge is that the law does not in either case con- 
 template such. The standard of conduct is not that of any man, 
 however excellent, but the average conduct of men in the com- 
 
 o f*^ °r 5*''}?^"*'' ^ ^^- posed, " vol, i. p. 347. So, too, the taste in 
 
 - Law of Neghgenoe, § 65. literature or art of a class may be more cor- 
 
 . S .P* Eomischen Eeclits. rect than that of any writer or performer— 
 
 This maybe illustrated by a passage e.g., the taste in architecture at the present 
 
 from Lady_ Holland s life of the Eev. day formed on the models of bygone times. 
 
 Sydney Smith, ' It requires a long appren- What incongruity, then, in fixing a stand- 
 
 liceehip to speak well in the House of ard of conduct in certain emergencies- 
 
 Commons. It 1.1 the mcst formidable higher than thehabitual practice of the in- 
 
 ordeal in the world. Few men have sue- dividual. For a development of the same 
 
 ceeded who entered it late in life ; Jeffrey idea see chap, vii., On the Moral Perfec- 
 
 is perhaps the best exceplion. Bobus tion of Jesus, in " Phases of Faith " by 
 
 used to say that there was more sense and F. W. Newman, at once a scholar a 
 
 good taste in the whole House, than in man of powerful and original mind, and a 
 
 any one individual of which it was com- logician. 
 
EAETi.] DEGEEES OP NEGLIGENCE. 25 
 
 nmnity or class or calling, aud in the circumstances of Mm whose 
 conduct in the instance in point may happen to be arraigned, 
 though no individual man has ever habitually attained it. The 
 reference is not made to a course of diligence, but to a point of 
 diligence — diligence in the particular phase of the matter as to 
 which inquiry is being made. That even O^sar, to quote an 
 example of Hasse's drawn from the discussions of the schoolmen 
 and cited with approbation by Dr. Wharton,' " sometimes yielded 
 to a rtsgligentia which was not merely levis but lata" and was 
 therefore not up to the mark of the standard of the mythical 
 dUigentissimus, is a good reason why Osesar in the cases of his 
 shortcoming should be held liable, but none that other less happily 
 endued persons should be allowed to be guilty of negligentia either 
 levis or lata ; and consequently not that they should be allowed 
 immunity iov- culpa levissima in the sense imposed by English 
 authority — of very exact diligence." But the citation of any such 
 instance as that of Caesar tends rather to lead astray from the point 
 than to clear it. The theory of negligence has nothing at all to 
 do with Caesar's "intense sensibility during a crisis to impending 
 dangers, his incomparable fertility in expedients, and his almost 
 preternatural coolness, promptness, and intrepidity in apply- 
 ing the right remedy at the right moment to the right thing."' 
 It demands but care according to the circumstances; and the 
 sole question is whether this care, which in the cases of most 
 frequent occurrence is that to be looked for from men of ordinary 
 skill in the matter in hand, is in all cases adequate, or whether 
 in certain circumstances the law does not demand an exceptional 
 attention which cannot justly be described as that which a good 
 business man would shew in a transaction similar to that inves- 
 tigated. To say that " no one more diligent than Caesar could 
 be found" — a very questionable assertion even in the narrowest 
 sense — ^may be an eminently interesting piece of historical infor- 
 iflation, but has not the remotest bearing on the point which 
 the proposition is advanced to prove; since the only relevant 
 jHoposition — that Caesar is not liable for negligence when he is 
 negligent, because he is Caesar — is too obviously untrue (under 
 the law of England) to need examination. 
 
 The infirmities in this reasoning about the impossibility of cuipa levissima 
 culpa levissima are numerous : but to pick out a few — aTonti^uouB ^ 
 
 First, it is assumed that, because " there is no continuous "^^'y- 
 
 1 Law of Negligence, § 65. an inscription announcing the entombed 
 
 ^ Jones on Bailments, p. z2. hero an the bravest of the brave, who 
 
 ' Wharton, Law of Negligence, § 65. never knew fear, observed, " Then he 
 
 This " eloquent " writing calls to mind an could never have snuffed a candle with his 
 
 anecdote of Charles V., who, being shewn fingers. " 
 
 the tomb of some French knight bearing 
 
26 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 ^/f 
 
 If it does, 
 this does not 
 negative an 
 objection to 
 exercise it. 
 
 Argument of 
 the "imprac- 
 ticability of 
 such a 
 superlative 
 standard," 
 
 duty whicli we can engage in without being justly chargeable at 
 some time or other during its discharge with this culpa levissima " 
 the thing does not exist.' But cidpa levissima is only alleged to 
 be a special degree applicable in exceptional cases and of rare 
 occurrence ; yet the argument directed against it assumes that it 
 is a condition of life. The position is this : — In certain crises 
 A. may be placed in such a position with regard to B. that 
 exceptional care may be required of him ; just as at other times 
 he may be so placed that a lesser degree of care than usual — 
 Hasse's common or ordinary care — may alone be required ; while 
 the usual relations of A. and B. may be those of exacting expert 
 diligence. As, then, the fact that the normal relationship requiring 
 " expert diligence " does not exclude the possibility of a special 
 relationship in which non-expert diligence is necessary, in like 
 manner (assuming that the law ever postulates more than " expert 
 diligence ") no reason is apparent why special relations should not 
 be raised requiring more than ordinary expert diligence. 
 
 Secondly, even if the duty required is " continuous," it does 
 not follow from that that the law the less exacts it.^ As Dr. 
 Wharton observes, " the human mind, from its limitedness of 
 vision, is incapable of perfect diligence. In certain periods of 
 great excitement such diligence may, for a time, be approached. 
 But, in any continuous work, such intense diligence is intermit- 
 tent, and, when the intermission comes, there is negligentia 
 levissima." If that is negligentia levissima, it is clearly actionable. 
 Take a not unprecedented case — a pointsman outside a large station, 
 with trains constantly passing requiring " intense diHgence," lapses 
 for a moment, closes the wrong points, runs a train on a wrong 
 line, and causes an accident. The company is liable for the con- 
 sequence of the pointsman's lapse. To this it may be answered, 
 the negligence is the negligence of the Company in leaving one 
 to do the work of two ; but it is also that of the man himself, 
 who may have discharged the duties perfectly for ten years, and 
 faltered only for two seconds, and for this an action would lie 
 against him as being a wrongdoer. 
 
 Thirdly, the reasoning is inverted, and it is said that if 
 the managers of enterprises of any importance were to be held 
 responsible for culpa levissima, such enterprises would not be 
 undertaken ; if culpa levissima existed, its subject-matter would 
 
 ^ Wharton, Law of Negligence, § 66. 
 
 '' In this connection, Dr. Wharton says, 
 "Magnus Apollo dormitat" — a reminis- 
 cence, probably, of Horace's "Indignor 
 quandoquehonus dormitat Sbmervs." The 
 nextlinehetterillnstratesthedoctor's point: 
 " Verum opere in longofas est ohrepere 
 
 aomnum." But this is not good law, else 
 evidence of character would be admissible 
 m reduction of damages for negligence, 
 as it seems to be in the matter of bad 
 verses: see Dacier's Horace, De Arte 
 Poetica, note on the above veriies. 
 
PAETi.] DEGREES or NEGLIGENCE. 27 
 
 cease to exist. IThe proof of this, in Dr. Wharton's words, is, 
 " Have we not illustrated the impracticability of such a superla- 
 tive standard of diligence by the fact that our Anglo-American 
 common carrier's liability for insurance of goods is now, with the 
 approval of the Courts, almost universally excepted away ? " 
 Admitting the fact, the conclusion does not follow ; that the law 
 will not disregard a contract when made is quite a different thing 
 from an antecedent approval of the terms of it. And even the 
 fact that the law approved an excepting of the common carrier's 
 hability in contract for goods would not affect the duty of a railway 
 company to guard against personal injury.' But in England, at 
 least, guarding oneself by bearing in mind that the contracts of 
 persons are, as far as possible without injury to State policy, to 
 be observed, the tendency is not as alleged,^ nor yet — to continue 
 the inquiry as far as possible — ^it would seem, in Dr. Wharton's 
 own State of Pennsylvania.' 
 
 But, fourthly, it is said, once more to draw from Dr. Wharton,'' Argument 
 that though occasionally judges speak of culpa levissima, " when ievissimals 
 this is done it is generally with qualifications to shew that the abie^from"'^''" 
 culpa levissima in question is simply the culpa levis of the business ouipa levis. 
 Eoman jurists — that negligence which a man, who specially under- 
 takes a particular business, shews either in the inadequate pre- 
 paration for, or the inadequate management of, such business." 
 In proof of this he cites the Massachusetts case of Ingalls v. Bills,* 
 where the Court, after laying down the proposition that carriers of 
 passengers are bound to use the utmost care and diligence in 
 providing against those injuries which human care and foresight 
 can guard against, continues : " But if the injury arose from some 
 invisible defect which no ordinary test will disclose, like that in 
 the present case, the carrier is not liable." From this he argues : 
 " The ctilpa levissima, therefore, of the theorist subsides into culpa 
 levis when applied to practical life." To refer again to the three 
 cases put in an earlier stage of this discussion, the speciaKst may 
 apply " an ordinary test " to his vehicle once in three months for 
 some purposes, and it will be enough. For others he might be 
 bound to make an ordinary examination previous to each journey. 
 For others again, and of these is the case in point, he does not 
 satisfy what is required of him unless he thoroughly overhauls his 
 vehicle previously to every journey, and discovers all defects which 
 
 1 See, as to tlie high standard of care upon Bergheim v. Great Eastern Railway 
 required of railway and gas companies in Cfompany, 3 C. P. D. 221. 
 
 America, Shearman and Bedfield, Law of ' Grogan v. Adams Express Company, 
 
 Negligence, chap. 3, Degrees of Negligence, 1 14 Penn. St. 523. Indianapolis Eailroad 
 
 §§ 41-51- Company v. Horst, 93 U. S. (3 Otto) 291. 
 
 2 Great Western Eailway Company u. ' * Law of Negligence, § 636. 
 Bunch, 13 App. Ctts. 31, commenting ' 50 Mass. i. 
 
28 
 
 THE LAW OP NEGLIGENCE. 
 
 [book I. 
 
 Lord Fitz- 
 gerald iu 
 Hughes V. 
 Percival. 
 
 Argument 
 Ihat^tlia 
 standard is 
 an impossible 
 one. 
 
 an ordinary test may disclose. The test in each case is the same ; 
 the mode of using it is various, intensifying with the duty. The 
 law may say that neglect of this most intense duty is culpa levis, 
 but it can scarcely say that the degree of care in the use of the 
 same tests upon similar suhject-matter in cases hke Tngalls v. 
 Bills' and in Eichardson v. Great Eastern Eailway^ is the same; 
 since absence of liability in the one case was consistent with the 
 existence of a crack " that, having reached the surface, might 
 have been discovered by a sufficiently minute examination," while, 
 in the other, it was necessary, in order to prevent liability attaching, 
 that the injury should arise from " some invisible defect which no 
 ordinary test will disclose." That the law, in some cases, requires 
 more than the care of the Eoman paterfamilias, or, in very many, 
 requires less, follows from what is said by Lord Fitzgerald in the 
 House of Lords in Hughes v. Percival,' where the cause of action 
 arose through want of care in carrying out certain building 
 operations involving cutting into a party wall. "What," says 
 that learned lord, " was the defendants duty ? The law has 
 been verging somewhat in the direction of treating parties 
 engaged in such an operation as the defendants as insurers of 
 their neighbours, or warranting them against injury. It has not, 
 however, reached quite to that point. It does declare that under 
 such a state of circumstances it was the duty of the defendant 
 to have used every reasonable precaution that care and skill 
 might suggest in the execution of his works, so as to protect his 
 neighbours from injury, and that he cannot get rid of the 
 responsibility thus cast on him by transferring that duty to 
 another. He is not in the actual position of being responsible 
 for injury, no matter how occasioned, but he must be vigilant 
 and careful, for he is liable for injuries to his neighbour caused 
 by any want of prudence or precaution, even though it may be 
 culpa levissima.'' In this, at least, there are no " qualifications 
 to shew that the cuipa levissi'nia in question is simply the culpa 
 levis of the business Eoman jurists." , 
 
 Fifthly. Again, it is assumed that culpa levissima implies a failure 
 of some species of transcendent and impossible diligence. In fact, 
 the fallacy is perpetrated of treating culpa levis and culpa lata as 
 relative terms, while culpa levissima is taken to imply an abso- 
 lute standard— the highest degree of care and diligence the 
 human mind can conceive of, This is manifestly absurd, and 
 inconsistent with any definition of culpa levissima given for any 
 other purpose than to refute its existence." Qui enim earn non 
 
 ^ Supra. 
 
 2 C. P.O. 341. Compare, too, Meier w. Pennsylvania Eailway Companv, 64 Penn. 
 St- 225. ' 8,App. Ca3.443, atp. 45. 
 
 « Lemssmam scilicet culpam de eo qui summam diligentiam deheret nee earn 
 
PAnTi.] DEGEEES OF NEGLIGENCE. gg 
 
 adhibent diligentiam qitam solent pairesfamilias ad rem attentissimi, 
 ■eulpam lemsaimam ; qui omittunt diligentiam, a fnigipatre familias 
 adhiieri solitam levem ; qui, denique, ne ed qioidem diligentid, qua 
 omnes, etiam dissoluti homines, uti solent, viunttor, latam committere 
 dimntur} If eulpa levis is negligence arising from the lack of 
 such diligence as the average business man would show, then 
 eidpa levissimM, as contrasted with it, is a failure of compliance 
 with some severer standard not necessarily specified save by refer- 
 ence to the culpa levis. Or again, if culpa levissima marks short- 
 comings in very exact diligence, then culpa levis is failure to reach 
 the accustomed standard.^ 
 
 prcEStitit sed meiliocrem tantam: Lexicon JuriJicum, siib voce Culpa, Sir William 
 Jones, Law of Bailments, pp. 22, Ii8. 
 
 1 Story on Bailments, § 18, citing Heineo, Klem. Jur. Inst. lib. 3, tit. 14, § 787 ; 
 which, however, is not the passage in the text, though to the same effect. Compare 
 Heinec, Pars. 3, Pandectar, Lib. 13, § 116. 
 
 ^ The doctrines accepted in the English law are not in the least affected by histoiioal Summary of 
 discoveries in the civil law, and therelore in this treatise any prolonged consideration of conclusions of 
 the conclusions of its professors would be not only unnecessary, but irrelevant. The Eoman law 
 view put forwai'd in the text, however, requires some reference to the controversy in writers, 
 the Boman law. The argument of Hasse is summarized by Prof. Maynz in his 
 "Elements do Droit Eomain," vol. ii. p. 17, and may be shortly noticed. First, the term 
 culpa levlasima, it is said, is only found in a fragment in Ulpian, and there has no 
 technical signification. The passage alluded to is D. 9, 2, 44, pr., In lege Aquilia et 
 hvissima culpa venit. Secondly, since culpa levis is the want of care of a man essentially 
 attentive and careful, culpa hvissima must mean more than this ; but the Boman law 
 iiowliere requires a higher degree of diligence than that of a good father of a family — 
 that is, of a man essentially careful and attentive. Thirdly, the Eoman law never mentions 
 any other degree than culpa levis when it requires to discriminate between casus and 
 culpa lata. Fourthly, the argument from the use of the term exactiasima diligentia in 
 the civil law — e.g., L iii. 27, i ; 1). 17, 2, 72 ; D. 44, 7, i, § 4 — to the existence of its 
 correlative, levissima culpa, is invalid, since the passages have no technical signification. 
 Fifthly, that to require a greater degree of care that than of a good father of a family 
 would be inequitable. D'aiUeurs serait U equitable cFexiger, dans u» cas quelconque, 
 des soins plus itendus que ceux d'vn homme essentiellfment soigneux et attentif. Le 
 Ugislateur qui leferait, craii certes au dela des limites tracles par la nature mSme, et 
 erierait arhitrairement un stjstime impossible d. rialiser dans la pratique. 
 
 To this it may be urged that whether the fragment from Ulpian has any technical 
 significalion or not, it yet is the expression of an exceptional fact that under the le;e 
 Aquilia, as a general rule, the mere existence of culpa in its slightest form raises the 
 presumption of liability (see Maynz, vol. ii. p. 16); whereas in other branches of law 
 this is not necessarily so. To this the reply is that, there being so strict a rule in 
 regard to the lex Aquilia, there is neither cu^a lata nor culpa levis under it, and 
 therefore degrees do not apply. But the degrees of diligence to which we are bound 
 ought to be determined by reference to ourselves, not with regard to any one external 
 object, one degree being owed to one thing, another to another, and the highest degree 
 to a third ; and if a higher degree is habitually required in cases that come under the 
 lex Aquilia than is habitually applied in contracts, this would argiae that the degrees 
 exist rather than the contrary. In the Greek translation in the Basilica of the passage 
 in the lex Aquilia, which mentions culpa levissima, the word used, says Sir William 
 Jones in his " Law of Bailments," is pfBvida (60, 3, 5), while the word corresponding 
 tn culpa levis \s ifUXeta. Now this is very nearly a contemporanea expositio; for 
 though the Digest was published a.d. 533 and the Basilica not till a.d. 884, still this 
 code was merely a collection of those translations of the Boman law which had been 
 lung in actual use in the courts of law, and were received by the legal schools as 
 authoritative (Finlay's "History of the Byzantine and Greek Empires," vol. ii. p. 287), 
 while the earliest of the scholastic commentators, Acoursius, was three centuries later 
 (i 182-1260). 
 
 It is true that the explanation of such a passage as that relatmg to tho diligence of 
 the negotiorum gestor, I. iii. 27, i, ad exactissimam quisque diligentiam eompellitwr 
 reddere rationem; nee sufficit tcdem diligentiam adhibere qucdem suis rebus adhibere 
 
30 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I, 
 
 The Boman 
 law writers' 
 division not 
 one into 
 degrees, but 
 into kinds. 
 
 Discussed. 
 
 The division of negligence into culpa levis — designating the lack 
 of such diligence as a good business man would shew in a trans- 
 action similar to that investigated where such transaction relates 
 to his business — and culpa lata — designating the neglect of the 
 ordinary care that is taken by persons not specialists, is not a 
 division, properly speaking, of degrees of negligence, but rather 
 into kinds.' Between the negligence which does not know what 
 all know, and does not see what all see,^ and the negligence of a 
 soleret, si modo alius diligentior commodius administraiurus esset negotia, is that the 
 diligentia diligentis et studiosi patris familiaa marks the rule exactissimce diligentice, 
 and that diligentia quam auis rebus adliibere solet is an individual exception which, 
 being dependent on the personal circumstances that admit its application, does not 
 come under any rule but that of the particular instance ; and this seems to be so. The 
 same holds good as to the rule under the title Pro Socio, D. 17, 2, 72 : Cfidpa autem 
 rum ad exactissimam diligentiam dirigenda est ; sufficit enim totem diligentiam com- 
 munihus rebus adliibere qualem suis rebus adhibere solet quia quiparum diligentem 
 sibi socium adquirit, de se queri debet. The same meaning is not equally clear in the 
 title De Obligationibus, D. 44, 7, i, § 4 : Xs vero qui utendum accepit, si majore easu 
 etui liumana mfirmitas resistere nan potest (vehtti incendio ruina, naufragio) rem quam 
 accepit, amiserit securus est. Alias tamen exactissimam diligeiitiam cusfodiendw rei 
 prcestare compeUitur ; nee svffidt ei eandem diligentiam adhibere quam suis rebvi 
 adhibet si alius diligentior custodire poterit. Sea et in majoribus casibus si culpa 
 ejus interveniat tenetur; veluti si qua^i amicos ad ccenam invitaturus argentum 
 quod in earn rem utendum acceperit, peregre projiciseens secum portare voluerit, et id 
 aut naufragio aut prcedonum hostiumve incursu amiserit. The liability in this last- 
 case is similar to the liability in the English law of trespass as illustrated in Bylands 
 V. B'letcher. Although in the matter in question there has been no negligence, yet in 
 an earlier stage there has been fault, and hence liability. But the principle involved 
 in the requirement of exactissimam diligentiam is the absolute highest standard 
 to be found — si alius diligentior custodire poterit. If, then, this is the diligentia of 
 the dUigens et studiosus paterfamilias, then the levis culpa, the normal standard of 
 the Roman, is the same as the levissima culpa of Sir William Jones and the other 
 English and American authorities — the omission of that care which very attentive and 
 vigilant persons take of their own goods. But it is hard to snopose that in practical 
 business the standard was kept up to this superlative standard. That a large dispensing 
 power was available to remit the rigorous application of the test Si alius diligentior 
 custodire poterit, is indicated by Dr. Wharton, Law of Negligence, § 53. See Hasse, 
 P-. i.lSi '■1"' quotes a test of a duty to perform a journey quo plerique ejusdem con- 
 ditionis homines solent pervenire. The result is that in the civil law lata culpa 
 marks nirnia negligentia id est non intelligere quod omnes intelligunt (D. 50, 16, 213, 2) ; 
 culpa Uvis or euha merely (for, when culpa only is mentioned, caZpa levis is intended 
 to be signified : (Taylor on the Civil Law, 4th edit. p. 174) is the adpa which exists when 
 a person bound to a special duty neglects to enter upon and ^scharge it with the 
 diligence belonging to a dUigens bonus studiosus paterfamilias, qui sobrie et non 
 sine exacta diligentia rem suam administrat (Wharton, Law of Negligence, § 30) ; 
 and the homo diligens est et studiosus paterfamilias eujus personam incredHnle est in 
 aliqw) facile errasse (D. 22, i, 3, 25). But there are two tests of this diligence— (l) Si 
 alius diligentior custodire poterit; (2) Quo plerique ejusdem conditionis homines 
 Solent pervenire. 
 
 Further, in the lex Aquilia, which was the general remedy of the Roman law for 
 positive damage (damnum corpore corpori datum), la plus Ugb-e faute sufflt d^a 
 pour nous rendre responsable du dommage qui en a ite la suite; but the most 
 authoritative commentators on the Roman law consider this to be comprehended in 
 the term culpa hois. There is a notable syllogism of Donellus which illustrates this : 
 Quorum d^mtiones ecedem sunt, ea inter se sunt eadem; levis autem culpcc et levis- 
 simcB una et eadem definitio est; utraque igitur culpa eadem. Yet the distinction 
 between the highest diligence of the specialist and the ordinary diligence of the spe- 
 cialist could not fail sometimes in judicial proceedings to need discrimination; and the 
 two tests above mentioned enable this to be done. The later stages of the law distin- 
 guished two different things by different names, which in the Digest are comprehended 
 tinder one name, and have explicitly enounced what alwavs implicitly existed. 
 
 1 " Kinds are classes between which there is an impassable barrier ; and what we 
 have lo seek is, marks whereby we may determine on which side of a barrier an obiect 
 takes its place:" Mill's Logic, vol. ii. p. 268. ^ Hasse, p. in. 
 
PAHTi.j DEGREES OF NEGLIGENCE. 31 
 
 business man in his specialty, there is an intrinsic difference, and 
 not a mere difference in degree. In other words, there is an im- 
 passable barrier forbidding a transfer from one of these classes to 
 the other by the mere addition or subtraction of the quality of care. 
 The differentia of the classes is possession of special knowledge or 
 acquired skill. The possession of this may not be necessary to 
 rank any person with those who are under the necessity of shew- 
 ing care conjoined with knowledge ; since one may estop himself 
 from denying the possession of the knowledge that his conduct 
 represents him to possess, and then, though he has it not, he 
 becomes bound as though he had. Yet the standard of the one 
 class presupposes special knowledge ; the standard of the other 
 presupposes the absence of special knowledge. Now the highest 
 degree of care and caution does not bridge the interval between 
 what is required of the specialist from what is required of the 
 non-specialist. For example, a dangerous surgical operation is illustrated. 
 to be performed by a specialist. The question of the care or want 
 of care in the conduct of it is based on a special knowledge of the 
 mechanical means of carrying out the operation needed, and 
 an acquired skill in the use of those means. But one not a 
 medical man is invited to undertake it. Even if the circum- 
 stances bound him to a perfect care in the conduct of the opera- 
 tion, he would not rise to the level of the diligence of the spe- 
 cialist, though the care he might be bound to exercise might be 
 tenfold that the specialist would afford. For in the specialist's 
 case there would be required the additional factor of special , 
 knowledge. Thus, though the non-specialist might exercise un- 
 failing care, he would not be on the same plane with the spe- 
 cialist, whose efficiency would be determined by two factors — 
 knowledge and care, as against care merely. If he failed in care to 
 an extent that would in the absence of knowledge make him liable 
 on the basis of culpa lata, his failure would still be referable to his 
 duty as a specialist ; and if he failed in knowledge, it would still 
 be the same test— that of the specialist — that would be applied. 
 
 It is not, then, correct to describe the division of negligence 
 into culpa lata and culpa levis as a division into degrees of negli- 
 gence. The negligence designated by these words is not a 
 negligence that shades down gradually the one into the other, 
 but different kinds of negligence that will run on each in its own 
 course, without nearer approach through all its phases. 
 
 The division, however, is of great value, and is applicable to Consideration 
 the whole field of law that is occupied with rights arising out of °f tbis™^"'"' 
 contract, and wrongs independent of contract. Hence arises a division. 
 fourfold division. 
 
32 THE LAW OF NEGLIGENCE. [book i. 
 
 I. Culpa lata (non intelligere quod omnes intelligunt). 
 
 (a) In the case of rights arising out of contract. 
 (6) In the case of wrongs independent of contract. 
 
 II. Culpa levis (lack of the diligence of the good business man 
 in his business). 
 
 (a) In the case of rights arising out of contract. 
 (6) In the case of wrongs independent of contract. 
 Now, on consideration it will be apparent that the duty to 
 exercise the care of the non-specialist is far more likely to arise in 
 cases of tort, and the duty to exercise the care of the specialist is 
 more likely to arise in cases of contract. For the making a con- 
 tract, or the entering into a relation from which a relation analor 
 gous to a contract naturally arises, implies an undertaking to exer- 
 cise the amount of skill necessary, for its efficient performance — r 
 Spondei periiiam artis — while those positions into which people are 
 thrown without premeditation or design are mostly of a sort that 
 require no more care or skill in their performance than is required 
 from ordinary persons indiscriminately and universally. As, that 
 is, the circumstances out of which the duties arise are more or less 
 fortuitous, so the duties themselves do not require for their perform- 
 ance any special acquirement as distinguished from special care. 
 Though, then, under the head of ctdpa lata there may be found 
 cases where the liability for absence of care is to be referred to a 
 contractual obligation, and under the head -of culpa levis there 
 may occur breaches of duty which are referable to the class of 
 wrongs independent of duty, yet, broadly speaking,, the cases 
 where liability arises from neglecting the amount of care expected 
 of every citizen are cases of tort;' the cases where liability arises 
 from neglecting the amount of care such as a good business man 
 would shew in a, transaction similar to that investigated are cases 
 of contract. 
 
 Where, however, the division of negligence to which cases ai-e 
 to be referred is clearly culpa lata, it does not thence follow that 
 the amount of negligence which imputes negligence in each case 
 is the same. Within the limits of the class to which the 
 standard of cul'pa lata is applicable there are very varying 
 degrees required to fix liability. Three leading classes of cases 
 may be indicated : — 
 Throe classes I. Those cases where the act complained of is an infringement 
 of .«/„« rma. Qf ^ j.jgjj^ .j^ ^j^g injured person superior to the right of the injurious 
 person to act in the manner which produced the act complained of. 
 
 A ^PT^l't^ Doorman v. JenHns, 2 Tjas not that of the hmmm man as against 
 A. & E. 256, are posaihly an exception, the dnty to know what all know and to 
 though qumre whether there the duty see what all see. 
 
 of mtlpa lata. 
 
PARTI.] DEGREES OF NEGLIGENCE, gg 
 
 II. Those cases in which the person injured by the aot com- 
 plained of is in the exercise of a right equal to that exercised by 
 the person who injured him. 
 
 III. Those cases in which the person injured by the act com- 
 plained of is acting in a manner subordinate to the right of the 
 person to do the class of acts by which the person is injured. 
 
 I. The person injured by the act complained of is in a superior First class: 
 position where, save for the presence of the negligent person, his Jon'exereishig 
 right to be where he was (or to exercise the right in respect of ^^p^"™ 
 which he was injured) is a right attaching to property. Thus, 
 
 in an early case of trespass quare dausum fregit, the defendant 
 pleaded that he owned land adjoining that of the plaintiff upon 
 which there was a thorn hedge ; that he cut the thorns, and that 
 they against his will (ipso "invito) fell on the plaintiff's land, and 
 the defendant went quickly upon the same and took them, which 
 was the trespass complained of. Judgment on demurrer was 
 given for the plaintiff. Choke, C.J., said — "When the defend- 
 ant cut the thorns and they fell on the land the falling was not 
 lawful, and as to what was said about their falling in ijpso invito, 
 that is no plea, but he ought to show that he could not do it in 
 any other way, or that he did all in his power to keep them out."^ 
 Here the owner of the land was entitled to the enjoyment of his 
 land free from any molestation whatever, and any damage, unless 
 absolutely free from blame, was actionable. Of this kind are all 
 negligent acts in the nature of trespass. The negligent act im- 
 parts an actionable wrong, and unless the act is shown to have 
 been inevitable, the defendant is liable. 
 
 II. Those cases in which the person injured by the negligent Second class; 
 act is in the enjoyment of an equal right with the person injuring gXexercfshig 
 
 Jjjjjj_ an equal right. 
 
 Every subject of the realm has primd facie a right to pass 
 and repass along the public highways of the realm. If then, in 
 exercising his right, any subject receives damage from another, in 
 the exercise of his right, he has to bear his own loss unless he 
 can establish that that other is in fault and liable to make it 
 good. " And he does not establish this against a person merely 
 by showing that he is owner of the carriage or ship which did 
 the mischief, for the owner incurs no liability merely because 
 he is owner ;"^ so that where the defendant bought a horse at 
 Tattersall's and the next day took him out to try him in a public 
 thoroughfare, where the horse became restive, ran upon the 
 pavement, and killed a man, the administratrix was held not 
 
 1 Y. B. 6 Ed. IV. 7, pi. l8, a.d. 1466. ^ Biver Wear Commissioners 1^. A.dam- 
 
 Cited in Ames, Cases in Tort, p. 6g. son, 2 App. Cas. 743, at p. 763. 
 
 C 
 
34 
 
 'THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Dock 
 Company. 
 
 entitled to maintain an action, because the duty on the defendant 
 was only to use due care and skill — ^the quae a prudewte provideri 
 possunt of the Roman law ;^ and a distinction was drawn during 
 the argument between the case where a carrier is bound to 
 provide for the safe conveyance of his passengers as far as human 
 skill and foresight could go, and a case, like that before the Court, 
 where the defendant was doing no more than he was rightfully 
 entitled to do — viz., ride in a public place, until he was shown to 
 be guilty of some description of unskilf ulness or imprudence.' 
 Scott ». If both parties to the accident are in the exercise of their 
 
 st™ShaiWs public rights no action can be sustained, unless one is affirmatively 
 shown to have fallen short of that care and caution which is 
 ordinarily t£) be expected from persons in the enjoyment of similar 
 rights. But if the person charged with the injury is not in the 
 exercise of his public rights a severer liability is affixed to his act. 
 Thus, where a sack or a barrel falls from a house and injures a 
 passenger in the public street, the fall, though unexplained, is 
 sufficient to put the defendant to disproof of negligence.' The 
 case here becomes assimilated to that Wticed under the first class 
 of cases ; and the plaintifiF, while exercising his public right, is 
 protected to the extent he would be protected (if the right were 
 a private right) against an occurrence, which is not what would 
 be expected to result from the act of an ordinary prudent man in 
 the exercise of an equal right to the use of the highway, and 
 which cannot primd facie be referred to the exercise of any 
 private right. The plaintiff's security is more assured ; the defend- 
 ant's liability is greater ; not merely for those acts which he can 
 help, but for those that he cannot explain. Or, to put it in another 
 way, the plaintiff is injured while in the enjoyment of his rights 
 as a citizen ; if the injury is infficted by another citizen with equal 
 rights and in the enjoyment of them, in order to affect him with 
 liability it will be necessary to show that he has not acted as an 
 ordinary prudent citizen in similar circumstances would act. The 
 second case is where a citizen is in the exercise of his public rights 
 and is injured by an act not referable to the exercise of similar 
 rights by another ; in which case a greater care is required of those 
 so acting, though not an amount of care in excess of what would 
 be required of a reasonably prudent man.'' 
 
 Again, to take the sort of case of which Indermaur v. Dames" 
 is the leading example, where one man comes on the premises of 
 another for the purpose of transacting some business with him, or 
 
 1 Hatnmack v. White, II C. B. N. S. 
 588 ; Manzoni v. Douglas, 6 Q. B. D. 145. 
 ^ Compare Skinnera.LondoD.Brighton, 722, 
 
 CcastRailwayCompany, 5Ex. * Tarry «. Asliton, i Q. B. D 314 
 
 2O. P. 311. 
 
 Indermaur v. 
 Sanies. 
 
 and Sout 
 787. 
 
 ' Scott r. London, &c., Dock Companv, 3 
 H. & C. 596 ; Byrne i>. Boadle, 2 H. & C. 
 
 L, E. 
 
PARTI.] DEGREES OF NEGLIGENCE. 
 
 35 
 
 in the pursuit of some object that implies an inducement held out 
 from the owner for him to go there. At first sight it would 
 appear that his position would be subordinate to the rights of the 
 owner of the premises. This, however, is not so, since the law 
 in cases of that description presumes a right on the part of the 
 stranger to all reasonable and proper provision for his safety. 
 The right of the one to use his property in what way he pleases 
 is in e^nUibi-io with the right of the other to visit the premises in 
 safety, and the owner's duty is to take reasonable care of his 
 safety ; while on his premises, and to light, guard, or protect in his 
 interest all those portions of the premises from which unusual 
 danger might be anticipated. 
 
 III. Those cases in which the person injured by the act com- Third class : 
 plained of is acting in a manner subordinate to the right of the gon"esereS"nff 
 person to do the class of acts by which the person is injured, a subonimate 
 Thus, where one goes to a house as a visitor, and sustains injury 
 from the condition in Which the owner chooses to keep his pre- 
 mises, he will not be able to recover' ; or if the owner of a 
 dangerous way permits the way to be used by one knowing of the 
 danger, who is injured thereby, he cannot recover, on the ground 
 that he was not obliged to use the way, and the owner was not 
 obliged to make it any safer because he allowed some one to use it.^ 
 The condition, then, of the way, though negligent with regard to 
 those who would use it by invitation,^ whether expressed or 
 implied, is not negligent with regard to those who use it by 
 permission,^ that is, who choose to go there of their own accord 
 and are not hindered by the owner. But if, after g^iving the per- 
 mission, some wrongful act is done which renders the property 
 more dangerous than it would have been in the circumstances of 
 the permission, the defendant is liable.* 
 
 In the cases we have considered, we have very different Distinction of 
 amounts of proof requisite in order to establish a primd facie buSie!^ " 
 conclusion of negligence. In the first class, the mere happening 
 of an accident is sufficient. In the second, there was but super- 
 added some independent circumstance of fault. In the third 
 evidence of a positive misdoing is required. But in all the 
 fault is lata in the sense of being non-expert. In the first 
 class, the negligence is the omission of that care which very 
 attentive and vigilant persons take of their own goods; or in 
 other words, of very exact diligence." In the second, the negli- 
 
 ^ Southcote V. Stanley, l H. & N. 247. Sweeny v. Old Colony and Newport Eail- 
 
 - Bolch V. Smith, 7 H. & N. 736 ; way Company, 92 Mass. 368. See the 
 
 Gautret v. Egerton, L. E. 2 C. P. 371. judgment by Bigelow, C. J., pp. 372-378. 
 
 ° Indermaur v. Dames, L. B. 2 C. P. ^ SirWilliam JonesonBBilmeDt8,pp.22, 
 
 311. iiS; compare Gregoiy v. Piper, 9 B. & C. 
 
 * Corby v. Hill, 4 C. B. N. S. 556 j 591. 
 
36 THE LAW OF NEGLIGENCE. [book i. 
 
 gence is the want' of that diligence whicli the generality of man- 
 kind use in their own concerns — that is, of ordinary care.' In 
 the third, the negligence is that want of slight diligence which 
 Story describes as " gross negligence."^ 
 
 This is illustrated by Parke, B., in Ohadwick v. Trower,' 
 delivering the judgment of the Exchequer Chamber. The question 
 was, in what circumstances a' person who pulled down his wall 
 was bound to give notice to the owner of an adjoining vault. 
 After pointing out the difference between the case where there 
 is knowledge of the existence of the adjoining vault, and where 
 there is not, the learned judge said: " For one degree of care 
 would be required where no vault exists, but the soil is left iu its 
 natural and solid state ; another, where there is a vault ; and 
 another and still greater degree of care would be required where 
 the adjoining vault is of a weak and fragile construction." Here, 
 then, there is no doubt on the part of the Exchequer Chamber as 
 to how many degrees of negligence there are, and how they may 
 be discriminated. 
 Three clasgee Turning now to the division of negligence, known as evlpa 
 of culpa levta. ig^g^ j^ ^jjg gense of failure of an expert to bestow the amount of 
 diligence required of him — a division that will be found to be 
 concerned mainly with relations arising out of contract, a similar 
 difference in the amount of the evidence necessary to raise the 
 presumption of negligence will be found. 
 The noi-mai The notion of a contract suggests a principle of give and take, 
 
 dmge°noe?'^^'^ wHch places the parties, theoretically at least, on an equality ; and 
 therefore the typical case of a contract would require from each 
 Care of an party to it the care and prudence of an average reasonable man of 
 reasonable ^^^ *™^' ^^^ ^^ *^^ circumstances with respect to which the con- 
 man- tract is entered into. This would assimilate the general rule in 
 contract with the second of the classes we have considered in tort. 
 But besides this, there are circumstances from which contractual 
 obligations arise or are constituted, which exact duties of 
 greater or less stringency than those of the most ordinary occur- 
 rence. Thus, a passenger in an omnibus was injured by a blow 
 from the hoof of one of the horses, which had kicked through the 
 front panel of the vehicle. There was no evidence that the horse 
 was a kicker, but it was proved that the panel bore marks of 
 other kicks, and that no precaution had been taken by the use of 
 a kicking-strap or otherwise, against the possible consequences of a 
 horse striking out. It was held there was evidence of negligence." 
 
 1 Sir William Jones on Bailments, pp. * Simson v. London General Omnibus 
 
 '2. "8- Company, L. E. 8 C. P. 390; see Patter- 
 
 ! Bailments, § 17. ■ son v. Kidman, 8 N. S. W. E. 488. 
 
 '^ 6 Bmg. New Cases, i, ^ 
 
PARTI.] DEGREES OP NEGLIGENCE. 37 
 
 Bovill, C.J., went the length of saying that the fact of a horse Rimson «. 
 kicking out " alone presents a case that calls for some explana- General 
 tion on the part of the proprietors." If that be so, it would 9'"°'''"^ 
 
 , ,.~. , . . , .„ Company. 
 
 be aimcult to imagine a case that realizes more nearly Dr. Minute case. 
 Wharton's mofet exacting translation of levisdma culpa, " in- 
 finitesimal negligence.'" But assuming the statement to be too 
 wide, and that the decision turned on the absence of a kicking- 
 strap, it does not seem to have been contested that "it is not 
 the practice to apply a kicking-strap to horses drawing private 
 carriages"; and that being so "is an omnibus proprietor bound ' 
 to use a higher degree of care and caution in this respect than 
 any gentleman adopts for the safety of himself and family ? " 
 This, says Bovill, C.J., " becomes a fair question for the jury." 
 In other words, there is some evidence of negligence in a case of 
 this kind, in not adopting greater precautions than the ordinary 
 business man adopts in his private concerns. The other judges, 
 or at least, Grove, J., laid principal stress on there being " marks 
 of other kicks on the omnibus." 
 
 As the other extreme, take the case where a railway company 
 had on their platform a portable weighing machine, the foot of 
 which projected about six inches above the level of the platform, 
 in which, the plaintiff, being pushed about in a crowd, caught his 
 foot, fell over, and was injured ; but it was held not negligence 
 in the company so to have had it.' 
 
 . The bank that allows a deposit of deeds in its vaults;' that Three kinds 
 receives them in the way of business as a pledge for advances ;^ liability, 
 that receives them for some temporary purpose for its own 
 advancement ;' is bound in the first case to slight diligence, the 
 absence of which is gross negligence ; in the second, to ordinary 
 diligence ; and in the third, to great diligence. Thus, to render a 
 defendant liable, it is not suiEcient to bring him within either of 
 the -classes that later writers on the Roman law have determined 
 to be the criterion in that law ; but a further inquiry is neces- 
 sary, whether, after the character of specialist, say, has been 
 found applicable to the person to be charged, the degree of his 
 default is enough to render him liable in the circumstances. 
 Whether, to recur to the case of the bank, general slackness of 
 attention must be proved, or whether proof of lack of ordinary 
 business prudence in some particular is needed; or whether, 
 
 » Manzoni v. DoDglas, 6 Q. B. D. < 2 Kent's Comm. lect. 40 (12th edit. )i 
 
 145. P- 580. 
 
 2 Comman v. EaBtem Counties Railway ^ Exactissimam diligentiam, cueto- 
 
 Company, 4 H. & N. 781. dietidce rei prcestare compellitm-;nec 
 
 » Foster v. The Kssex Bank, 17 Mass, sufficit ei tandem diligentiam adhibere, 
 
 48 ; Giblin v. M'Mullen, L. E. 2 P. C. quam suis rehvs adhibet, si alius diligen- 
 
 jzgV tior custodire poterit (D. 44, 7, 1, § 4)' 
 
38 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 The meaning 
 of groES 
 negligence. 
 
 Hinton r. 
 Dibbin : what 
 it decided. 
 
 lastly, there need only be shown the failure, in some particular, of 
 diligence of that unusual kind, which only exceptional confidence 
 bestowed on the defaulter, and raising a corresponding duty, could 
 justify being exacted. It would not suffice in either of the 
 former cases to prove merely the last ; nor would proof of the 
 first establish a case where the legal requirement was but of the 
 second degree. 
 
 Once more — in that vast class of cases in which the power of 
 steam is applied to providing for human requirement, the duty 
 to take care imposed on those using it, is far in excess of what 
 was required of those concerned with the feebler agencies of 
 former times ; and, in the opinion of very eminent judges, has 
 become so extremely exacting that it seems difficult to express 
 the amount of care required in terms of too great strictness. 
 Thus, to quote an eminent United States judge : " When carriers 
 undertake to carry passengers by the powerful but dangerous 
 agency of steam, public policy and safety require that they 
 be held to the greatest possible care and diligence";' and 
 similar and even stronger expressions are constantly to be 
 found in the judgments of both English and American judges in 
 this case.' 
 
 But while foreign jurists have attacked the theory of degrees of 
 negligence, mostly by denying the existence of culpa levissiina, as 
 marking a distinct phase, several eminent English judges have 
 been considered to have repudiated the existence of gross negli- 
 gence as a separate degree. These cases must be shortly noticed. 
 Hinton v. Dibbin' is the fir^t that requires to be examined. The 
 head-note is : " Under statute 1 1 Geo. IV. & i Will. IV. c. 68, 
 if a parcel containing any of the valuable goods enumerated in 
 sec. I be sent to a carrier for conveyance without a declaration 
 of the nature and value of such goods, and without payment or 
 engagement to pay an increased charge according to sec. 2, the 
 carrier is not liable for their loss, though it happen by the gross 
 negligence of his servants." The case was the first upon the 
 interpretation of the Carriers Act, 1830. 
 
 The decision has therefore to be considered with reference to 
 the earlier law, under which carriers were used to give notice 
 
 law," per Eail, J. ; Pennsylvania Bailro.id 
 Company «. Eoy, 102 U. S. (12 Otto) 451. 
 " He," the carrier of passengers, " is re- 
 sponsible for injuries received by passengers 
 in the course of their transportation whicb 
 might have been avoided or guarded 
 against by the exercise upon his part of 
 extraordinary vigilance, aided by the 
 highest skill " : per Harlan, J. 
 ^ 2 Q. B. 646. 
 
 ^ Per Grier, J., Phikdelphia and Eead- 
 ine; Railway Company v. Derby, 14 How. 
 (U. S.) 468, at p. 486. 
 
 = New World v. King, 16 How. (U. S.) 
 469 ; Baltimore v. AVightman, 29 Gratt. 
 431 ; Coddington v. Brooklyn, 102 N. Y. 
 66, "that nnder such circumstances the 
 defendant was bound to use the highest 
 degree of care and prudence, the utmost 
 human skill and foresight is the settled 
 
PARTI.] DEGREES OF NEGLIGENCE. 
 
 that they would not be liable for the loss of articles above the 
 amount mentioned in their notice. Most of the cases, with some 
 little indistinctness and indecision, had interpreted this limitation 
 of the carrier's liability to refer only to those cases where the loss 
 was not due to misfeasance or gross negligence.' But Parke, B., 
 had gone further in Wyld v. Pickford,^ and said — " The weight of 
 authority seems to be in favour of the doctrine, that in order to 
 render a carrier liable after such a notice it is not necessary to 
 prove a total abandonment of that character or an act of wilful 
 misconduct " (this was with reference to a dictum of Lord Ellen- 
 borough's,' " the carrier is protected from the consequences of 
 negligence or misconduct in the carriage of goods, but not if he 
 divests himself wholly of the charge committed to his care and of 
 the character of carrier "), " but that it is enough to prove an act 
 of ordinary negligence — gross negligence in the sense in which 
 it has been understood in the last-mentioned cases." The effect 
 of this would have been that, despite notices, the carrier would have 
 been held liable, like in the American courts, where he was guilty 
 of negligence. Bat the statute protected the carrier against 
 liability for negligence, " and the question was, whether this 
 included gross negligence." The Court held that it did. In the 
 course of his judgment, Lord Denman, 0. J., said — " When we find 
 ' gross negligence ' made the criterion to determine the liability 
 of a carrier who has given the usual notice, it might perhaps have 
 been reasonably expected that something like a definite meaning 
 should have been given to the expression. It is believed, how- 
 ever, that in none of the numerous cases upon this subject is any 
 such attempt made ; and it may well be doubted whether between 
 ' gross negligence ' and negligence merely, any intelligible distinc- 
 tion exists." To rightly appreciate what was here said it must be 
 borne in mind that the Act of Parliament that was being inter- 
 preted had to do exclusively with carriers — that is, with specialist 
 negligence, the levis adpa of Dr. Wharton. The only question, 
 therefore, that could come up would be whether the negligence of 
 the specialist could be so subdivided that one degree should 
 import immunity, under the protection of the Act, while a further 
 degree would imply liability because of its aggravated character. 
 The Act, however (section 8), excepted felonious acts of the carriers' 
 servants from the protection it afforded, and left the cari'iers' 
 servants liable for their personal neglect or misconduct, and the 
 decision of the Court was, that to make the protection of the 
 statute real it was necessary that all negligence should be within 
 
 1 Sleat V. Fagg, S B. & Aid. 342; 2 g m. & W. 443. 
 
 Owen V. Burnett, 2 Cr. & M. 353. ' Beck v. Ev.-vas, 16 East 247. 
 
 S9 
 
40 THE LAW OF NEGLIGENCE. [book i. 
 
 its protection, and that no refinements should be admitted. 
 Indeed, the decision by implication goes the length of admitting 
 degrees of negligence within the range of levis culpa, but declines 
 in the circumstances present to note them or to attempt their 
 discrimination. ' 
 
 Wilson V. The next case, Wilson v. Brett,' is famous for the dictum of 
 
 oUtoife" Rolfe, B.: " I said I could see no difference between negligence 
 and gross negligence ; that it was the same thing, with the addition 
 of a vituperative epithet." This dictum has been repeated again 
 and again as conclusive of the whole matter. The defendant in 
 Wilson V. Brett was a person conversant with horses, and was 
 entrusted with one by the plaintiff for the purpose of riding it 
 to show to an intending purchaser. While he was showing the 
 horse it fell down and broke its leg. An action was brought for 
 negligence. Rolfe, B., in summing up to the jury at the trial, 
 left it to them to say whether the defendant was guilty of 
 " calpable negligence " in the manner and in the circumstances he 
 rode the horse, and that he, " being shown to be a person skilled 
 in the management of horses, was bound to take as much care of 
 the horse as if he had borrowed it." Adopting Dr. Wharton's and' 
 the " classic jurists' " notation, the care the defendant was to 
 exercise was that of the specialist ; his negligence would then be 
 culpa levis. The argument was, that Rolfe, B., misdirected the 
 jury by telling them that the rule applicable was that of specialist 
 diligence, and not that of ordinary diligence, and that not culpa 
 levis but culpa lata was the class under which the defendant must 
 be brought to make him liable ; that the test applicable was that 
 of an ordinary person's knowledge, knowing nothing particular 
 about horses, not that of a person conversant with horses.^ " If," 
 says Eolfe, B., " a person more skilled knows that to be dangerous, 
 which another, not so skilled as he, does not, surely that makes a 
 difference in the liability." It would follow then that being bound 
 to exercise the skill of an expert, and, failing to do so, he would 
 be guilty of negligence, and liable for such failure, so that, whether 
 the judge had charged the jury that such failure was negligence, 
 or negligence with a vituperative epithet, in either case the term 
 would have to be explained to mean the lack of such diligence as 
 a person of competent skill would use in the circumstances. That 
 Rolfe, B., never intended his words to be taken as the expression 
 of an opinion that the term " gross negligence " did not signify any 
 distinctive degree of negligence, or, at least, that he afterwards 
 and deliberately adopted a contrary view, may be seen from sub- 
 sequent judgments of his when Chancellor and in the House of 
 
 1 II M. & W. 113. s See argument of Serjt. Byles, at p, 114. 
 
PAKTi.J DEGREES OP NEGLIGENCE. 41 
 
 Lords. Oolyer v. Finch' is an emphatic illustration of this. There 
 the subject discussed was in what circumstances a first mortgagee, Coiyer ». 
 having the legal title, but not haying possessed himself of the title ■^™°''' 
 deeds, is to be postponed to a subsequent purchaser or mortgagee. 
 The matter would i-ange itself under Dr. Wharton's division of 
 cul-pa lems, want of expert diligence. Mere negligence in obtain- 
 ing them, Lord Cranworth points out, is not enough ; there must 
 be a higher degree ; " the party claiming by title must satisfy the 
 Court that the first mortgagee has been guilty either of fraud or 
 gross negligence, but for which he would have had the deeds in 
 his possession." " What are the circumstances," the Lord Chan- 
 cellor continues, " which will amount to, or be evidence of, gross 
 negligence it is difficult to define beforehand, but I think that 
 primd facie a mortgagee who, knowing that his mortgagor 
 has title deeds, omits to call for them, or who omits to make 
 any inquiry on the subject, must be considered to be guilty of 
 such negligence as to make him responsible for the frauds 
 which he thus has enabled his mortgagor to commit." Hence 
 it is obvious that Lord Cranworth's authority is not to be 
 engaged on the side of that view which does not discriminate 
 between negligence and gross negligence apart from the circum- 
 stances of some particular case where the distinction may be 
 irrelevant. 
 
 Another case is Beal v. South Devon Eailway Company .° There Beai v. South 
 the question was whether a condition excepting from liability, way°Company. 
 save in the cases of gross neglect and fraud, was a reasonable 
 condition within the provisions of the Railway Traffic Act (17 & 
 1 8 Vict. c. 31), s. 7. The division of negligence this comes 
 under is undoubtedly the eidpa levis of Dr. Wharton. The carrier 
 is an expert, and bound to shew expert diligence. The general 
 test being thus determined, it remained to decide what was gross 
 neglect under that classification, and in what respect it differed, if 
 at all, from negligence without the epithet. In the judgment by JuiJgmeiit of 
 Crompton, J., in the Exchequer Chamber, this is fully dealt with, in the 
 " In the case of a carrier or other agent holding himself out for chamtor 
 the careful and skilful performance of a particular duty," it is said, 
 " gross negligence includes the want of that reasonable care, skill, 
 and expedition which may properly be expected from persons so 
 holding themselves out and their servants. It is said that there 
 may be difficulty in defining what gross negligence is, but I agree 
 in the remark of the Lord Chief Baron in the court below, where 
 he says, ' There is a certain degree of negligence to which every one 
 attaches great blame. It is a mistake to suppose that things are 
 
 I S H. L. C. 90s. » 3 H. & C, 337. 
 
42 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 What gross 
 negligence is. 
 
 Grill f. 
 General Iron 
 Screw Collier 
 Company. 
 
 not different because a strict line of demarcation cannot be drawn 
 between them.' The authorities are numerous, and the language 
 of the judgments various ; but for all practical purposes the rule 
 may be stated to be that the failure to exercise reasonable care, 
 skill, and diligence is gross negligence. What is reasonable varies 
 in the case of a gratuitous bailee and that of a bailee for hire. 
 Frpm the former is reasonably expected such care and diligence as 
 persons ordinarily use in their own affairs, and such skill as he has. 
 From the latter is reasonably expected care and diligence such as 
 are exercised in the ordinary and proper course of similar business, 
 and such skill as he ought to have — namely, the skill usual and 
 requisite in the business for which he receives jjayment. The 
 company therefore, properly sjpeaking, exclude their liability as 
 insurers, and not their liability for a want of reasonable care, skill, 
 and expedition. This is well illustrated by the case of actions 
 against attorneys, where the law only attaches in the case of gross 
 negligence, which a jury has always been supposed competent to 
 deal with under the directions of a judge ; and it seems to us that 
 the degree of negligence which the law points out as that which 
 is necessary to make a professional paid agent liable is not an 
 unreasonable criterion of the reasonableness of the limit to which 
 the carrier seeks to restrict his liability." 
 
 Now, though, in the above judgment, there are expressions that 
 point to different considerations, the negligence for which alone 
 attorneys are to be held liable is clearly indicated in well-known 
 cases' to be crassa negligentia ; which Lord Campbell, in the House 
 of Lords, thus describes:'' "You can only expect from him [the 
 attorney] that he will be honest and diligrait ; and if there is no 
 fault to be found either with his integrity or diligence, that is all 
 for which ho is answerable. It would be utterly impossible that 
 you could ever have a class of men who would give a guarantee 
 binding themselves, in giving legal advice and conducting suits of 
 law, to be always in the right." The distinction between gross 
 and ordinary negligence is here intelligibly intimated, if not 
 positively expressed. Gross negligence is not presumed from the 
 existence of mistake if there is no falling short in integrity or 
 diligence. Mistake, though conjoined with integrity and diligence, 
 will raise the presumption of ordinary negligence where the matter 
 with regard to which it should be displayed occurs in the ordinary 
 transactions of business. 
 
 In Grill v. General Iron Screw Collier Company,' Willes, J., 
 
 ' Pitt V. Yalden, 4 Burr. 2060 ; Baikie 
 V. ChandlesB, 3 Camp. 17 ; Godefroy v. 
 Dalton, 6 Bing. 460 ; Purves v. Landell, 
 12 CI. & Fin. 91. 
 
 103. 
 
 = 12 CI. & Fin. at p. 1 
 
 " Ij- E. 1 C. P. boo, which report is 
 both confused and confusing ; the case is 
 much better reported 35 L. J. C. P. 321. 
 
PAST I.] DEGREES OF NEGLIGENCE. 43 
 
 expresses his agreement " with the dictum of Lord Cranworth in 
 Wilson V. Brett, that gross negligence is ordinary negligence with 
 a vituperative epithet — a view held by the Exchequer Chamber : 
 Beal V. South Devon Railway Company." We have just seen 
 what the view held by the Exchequer Chamber was. The present 
 case was an action on a bill of lading to recover against the ship- 
 owner for the loss of certain goods, which he was to carry 
 "barratry of master or mariners, accidents or damage of the 
 seas, rivers, or navigation of whatever nature or kind soever ex- 
 cepted." The goods perished in a collision due to the negligence 
 of those on board the carrying vessel. At the trial a verdict was 
 entered for the plaintiff, with leave reserved to the defendants to 
 enter the verdict on the ground that the conduct of the persons 
 in charge of the defendant's ship brought the case within the 
 exception of barratry in the bill of lading. The defendant also 
 complained that the Lord Chief Justice at the trial made no dis- 
 tinction between gross and ordinary negligence, gross negligence 
 being pleaded in the replication, while the jury had no oppor- 
 tunity of . finding whether there was gross negligence or not. 
 Here, again, the diligence required of the carrier is specialist Wllles, J.'s, 
 diligence, and the negligence which had to be shewn was cidjpa sidered. 
 levis. " A person," says Willes, J., "who undertakes to do some 
 work for reward to an article must exercise the care of a skilled 
 workman, and the absence of such care is negligence." But 
 .negligence in this sense was admitted. The contention was that 
 the negligence to support the replication must be gross as dis- 
 tinguished from negligence merely. The answer in effect was 
 that negligence — i.e., ordinary negligence — having been found, 
 the liability attached ; and since, whether the negligence were 
 called gross or merely negligence without any adjunct, the term 
 would have had to be explained to the jury^ in identical terms, 
 the presence or omission of the adjective was immaterial. But 
 this is with reference to the facts in the case, not with reference to 
 the greater or less negligence required to found liability in other 
 cases. Where negligence is found to exist in certain circumstances, 
 it is immaterial whether the actual amount with regard to that case 
 is more or less, since, when the standard of liability is touched, 
 excess will not affect the result. But it is different where a com- 
 parison of circumstances is to be made. Then the same subject- 
 matter may elicit different degrees of care, just as the position of 
 those with a duty in regard to it may vary. 
 
 When, however, the point of view of the person with regard 
 to the subject-matter is fixed, there is no room for degrees of 
 
 ^ See per Montague Smith, J., at p. 614. 
 
44 THE LAW OF NEGLIGENCE. [book i. 
 
 negligence within the range of dolus on the one side or the 
 minimum that imports liability on the other. But where different 
 persons are related to the same subject-matter, it is manifest 
 that it does not necessarily follow that their relation to it is the 
 same. One of them may be liable for acts that the other may do 
 with impunity, and be excused for acts that may render a third 
 liable ; and this though all may be bound to the diligence of 
 specialists. This variety may be conveniently discriminated by 
 the terms slight, ordinary, and gross negligence. As Montague 
 Smith, J., in this very case says :' " There is no doubt that the 
 expression ' gross negligence ' is to be found in some of the 
 decisions, but it is only one mode of expressing, perhaps, that in 
 a particular case there is a less degree of care required than there 
 might be in others." That is, assuming liability to exist, it will 
 not be affected by more or less negligence ; yet it may be material, 
 where liability is not found to exist, to discrimiuate that which 
 will import liability iu one case from the degree of negligence 
 which will iinport it in another. 
 Vindictive The existence of "gross negligence" has sometimes been con- 
 
 amages. sidered of importance with reference to the giving of vindictive or 
 exemplary damages. There is no doubt that, in actions for seduction' 
 or for malicious injuries, juries have been allowed to give this de- 
 scription of damages, taking all the circumstances of the case into 
 consideration ; ' and so too in any case in which the process of the 
 Court has been abused, and outrage has been committed under the 
 forms of law.'' But in the case of negligence there is a difference, 
 and the law would not allow punitive damage unless the conduct 
 complained of was more than negligent, and amounted to gross 
 misconduct.** The source of the error is indicated by Davis, J., 
 in Milwaukee v. Arms." " Eedress commensurate to such in- 
 juries," he says, " should be afforded. In ascertaining its extent 
 the jury may consider all the facts which relate to the wrongful 
 act of the defendant, and its consequences to the plaintiff; but 
 they are not at liberty to go further, unless it was done wilfully or 
 was the result of that reckless indifference to the rights of others 
 which is equivalent to an intentional violation of them. .... 
 The tort is aggravated by the evil motive, and on this rests 
 the rule of exemplary damages. It is insisted, however, that 
 where there is 'gross negligence' the jury may properly give 
 
 \ 35 L- J- C. P. at p. 331. 4 Gregory v. Slowman, i E. & B. 360; 
 
 Berry v. Da Costa, L. R. 1 C. P. Duke of Brunswick v. Slowman, 8 C. B. 
 331 ; Terry v. Hutchinson, L. R. 3 Q. B. 317, 
 
 ^5?'t^3- . " Cleghorn v. New York Central Rail- 
 
 ' Doe V. Filhter, 3 M. & W. 51 ; Wliit- way Company, 56 N. Y. 44. 
 liam V. Kershaw, 16 Q. B. D. at p. 618, per « 91 IJ. S. (i Otto) 487 
 
 Bowen, L.J. 
 
PARTI.] DEGREES OF NEGLIGENCE. 45 
 
 exemplary damages. There are .many cases to this effect. The 
 difficulty is that they do not define the term with any accuracy." 
 When, then, gross negligence amounts to doliis, within the 
 meaning of the maxim Magna negligentia culpa est, magna culpa 
 est dolus^ then, and then only, will it be matter for exemplary 
 damages. 
 
 ^ D. 50, i6, 226. 
 
CHAPTEK IV. 
 
 LIMITS OF LIABILITY. 
 
 Accountable 
 agency 
 necsBBary 
 to found 
 liability. 
 
 The general -description of negligence that has been adopted is 
 " absence of care according to the circumstances." The breadth of 
 this generalization manifestly contemplates the formation of a 
 number of subordinate principles applicable to the special heads 
 under which liability for negligence may be grouped. To these 
 special heads, then, must be referred the more detailed considera- 
 tion of the subject. Yet certain comprehensive principles there 
 must be which mark out the scope within which these subordinate 
 principles must operate, and which specify more definitely than 
 the general definition the limits within which legal negligence is 
 alone to be sought. 
 
 In the first instance, it is clear that to found a liability for 
 negligence there must be some person, as distinguished merely 
 from some agency, to whom legal liability may be imputed. 
 The leading case is Scott v. Shepherd,' where defendant threw a 
 lighted squib into the market-house at Melbourne Port which 
 fell upon the standing of one Y., W. " instantly, and to prevent 
 injury to himself and the said wares of the said Y., took up the 
 said lighted squib from off the said standing and threw it across 
 the said market-house, where it fell upon another standing of one 
 E., who sold the same sort of wares, who instantly, and to save 
 his own goods from being injured, took up the said lighted squib 
 from off the said standing, and then threw it to another part of 
 the said market-house, and in so throwing struck the plaintiff, then 
 in the said market-house, in the face therewith, and the com- 
 bustible matter, then bursting, put out one of the plaintiff's eyes." 
 The question at issue was whether trespass or case was the proper 
 form of action ; and as to this Blackstone, J., dissented from the 
 majority of the Court. That the defendant was guilty of an 
 actionable wrong all were agreed. Grey, C.J., said: " Every one 
 who does an unlawful action is considered the doer of all that 
 ^ 3 Wils. 403, I Sm. Lead. CaE. gtb edit, 480, 
 
PARTI.] LIMITS OF LIABILITY. 47 
 
 follows ; if done with a deliberate intent, the consequences may 
 amount to murder ; if incautiously, to manslaughter (Post. 261). 
 So, too, in I Ventr. 295 : a person breaking a horse in Lincoln's 
 Inn Fields hurt a man; held, that trespass lay; in 2 Lev. 172 
 that it need not be laid scienter. I look upon all that was done 
 subsequently to the original throwing as a continuation of the 
 first force and first act, which will continue till the squib was 
 spent by bursting. And I think that any innocent person re- 
 moving the danger from himself to another is justifiable. The 
 blame lights upon the first thrower. The new direction and new 
 force flow out of the first force, and are not a new trespass. The 
 writ in the Register 95* for trespass in maliciously cutting down 
 a head of water, which thereupon flowed down to and overwhelmed 
 another's pond, shews thsft the immediate act needs not to be 
 instantaneous, but that a chain of effects connected together will 
 be sufficient. It has been urged that the intervention of a free 
 agent will make a difference ; but I do not consider W. and E,. as 
 free agents in the present case, but acting under a compulsive 
 necessity for their own safety and self-preservation." The gist of 
 all this is that so long as an injurious agency is operating through 
 the impulsion of a responsible agent, so long the liability of the 
 agent continues though the force is transmitted through a variety 
 of stages. The only, condition seems to be that none of these' 
 exercises originating power. Scott v. Shepherd has been accepted 
 as authority except in the case of Fitzsimmons v. Inglis,' where 
 the reporter remarks, "the Court slighted the authority of this 
 case ; " the principle therein expressed is, however, firmly estab- 
 lished, and it becomes important to consider who the law regards 
 as responsible people. 
 
 I. Dr. Wharton- says positively, " neither an idiot nor a maniac idiots, 
 can be a juridical cause. And the same reasoning applies to STudren too 
 persons so young and inexperienced as to be unable to exercise y"""?^*"^^ 
 intelUgent choice as to the subject-matter.'"" Messrs. Shearman disoretiou. 
 and Redfield^ are equally positive the other way. "We are un- 
 able," they say, " to find any direct authority for holding infants 
 responsible for the want of more care than might reasonably be 
 expected of their age : but, as no degree of care could be expected 
 from violent lunatics, who have, nevertheless, been held civilly 
 responsible for their trespasses, there does not seem to be any 
 sound reason for making such a distinction."" 
 
 1 c Taunt. 534. infantB under seven years of age, see i 
 
 2 Law of Negligence, § 88. Russ. on Crimes, sth edit. p. 109 ; Marsh 
 ' Dixon ». Bell, SM.&S. 198: Bacon, v. Loader, 14 C. B. N. S. 535, I Hale, 
 
 Abrid. Infant (H) ; Simpson on Infancy. Pleas of the Crown, 17-19. 
 
 pp. 42, 09; LattiJ.Booth, 3C.&K. 292; * Law of Negligence, § 121. 
 
 37 & 38 Vict, c, 62. For the law as to ' Krom v. Schoomaker, 3 Barb. 647, 
 
is 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I, 
 
 Soman law. 
 
 Weaver v. 
 Ward. 
 
 The Roman law is pretty clear. In the lex AquUicu^ there is 
 the following : — " M ideo qucerimtos, si furiosus damnum dederit 
 an legis Aquilice actio sit? M Pegasus negavit; qum enim in eo culpa 
 sit, cum sum mentis non sit ? Ht hoc est verissimum. Gessaoit igitur 
 Aquilice actio quemadmodum- si quadrupes damnum dederit, Aquilia 
 eessat, aut si tegula ceciderit. Sed et si infans damnum dedent, 
 idem erit dicendum. Qux)d si inptibes idfeceret, Laleo ait, quiafurti 
 tenetur teneri et Aquilia cum ; et hoc puto verum si sit jam injurice 
 capax. This follows naturally on the preceding fragment, which 
 lays down the law to be that legal injury may be done by a 
 person who does not intend to do harm, and is by way of an 
 erception to the rule there stated, and is based not on actual 
 intention or want of intention, but on the absence of any capacity 
 to exercise intention, however willing. The matter, then, comes 
 round to the authority of the decided cases and the principle 
 of law applicable. The cases simply follow Weaver v. Ward," 
 where the defendant set up that the plaintiff and he were skir- 
 mishing in a trainband, and that when discharging his piece he 
 wounded the plaintiff by accident and misfortune and against his 
 own will. It will be noticed that the defendant was possessed of 
 a will, and might with accountability have either done or forborne 
 the act that caused injury. On demurrer the Court said that 
 " no man shall be excused of a trespass .... except it may 
 be judged utterly without his fault. As if a man by force take 
 my hand and strike you, or if here the defendant had said that 
 the plaintiff ran across his piece when it was discharging, or had 
 set forth the case, with the circumstances, so as it had appeared 
 to the Court that it had been inevitable, and that the defendant 
 had committed no negligence to give occasion to the hurt." In 
 giving the judgment the Court incidentally illustrates what it is 
 saying by distinguishing between ^ criminal act and a civil 
 trespass by a lunatic, saying in the farmer case there is no felony 
 " if a lunatic kill a man or the like, because felony must be done 
 animo felonico, yet in trespass, which jtends only to give damages 
 according to hurt or loss, it is not so, | and therefore if a lunatic 
 hurt a man he shall be answerable in trespass." Tet it is hard 
 
 certainly decides that a lunatic may be 
 sued for an injury done to another, 
 " because the intent with which the act is 
 done is not material." But the case 
 formulates a special rule of damages for 
 the lunatic in which the intent is material. 
 The Court there says that " the damages 
 are graduated by the intent of the person 
 committing the injury. But in respect of 
 the lunatic, as he has praperly no will, it 
 follows that the only proper measure of 
 
 damag^ in an action against him for a 
 wrong IS the mere compensation of the 
 party iijjured." None of the cases as to 
 infants is the least in point, since in all 
 there is la power, though possibly an im- 
 perfect pbwer, of willine. 
 
 •? Hob. 134; Haycraft v. Creasy, 
 2 East ib4; Bac. Abr. tit. Idiots and 
 Lunatics (E) ; Eidler v, Eidler, i Eo. Abr. 
 279. ^ 
 
PARTI.] LIMITS OF LIABILITY, 
 
 49 
 
 to see why in the case of the lunatic an exception should be made 
 to the general rule of liability, that he is excused if "it may be 
 judged utterly without his fault ;" and if there be no exception, 
 why " if a man by force take my hand and strike you," I should 
 not be liable ; while if a lunatic — not in the sense of one merely 
 of defective intelligence, but of one wholly without intelligence — 
 hurt a man he shall be answerable. The ground for non-liability 
 " if it be judged utterly without his fault " in the one case would 
 avail at least equally in the other, so long as the law treats the 
 "act of God," as in the case of the carrier, as exempting from 
 a liability otherwise absolute. But if the reason given is good, 
 and the illustration is in some cases inconsistent, it would seem 
 that the illustration should bend to the reason and not contrary- 
 wise. * 
 
 That the tendency of the law is somewhat different from what Tendency of 
 it was in old times, appears from the judgment of Patteson, J., law."""^"'" 
 in the Exchequer Chamber in Molton v. Camroux;' though the 
 poiot there was whether the mere fact of unsoundness of mind 
 which loas not apparent, was sufficient to vacate a fair contract 
 executed by the grantee. The judgment points out that the 
 old doctrine was that a man could not set up his own lunacy, 
 though such as that he did not \now what he was aibout in con- 
 tracting ; and lays down the modem rule which enables a man or 
 his representative to shew that he was so insane as not to know 
 what he was about. This case may give an inkling of what is at 
 the bottom of the apparent deflection from principle in the case of 
 a "fnriosum." The term lunatic is of wide extension, covering 
 those who are partially responsible for their action — as to whom 
 liability may well exist — as well as those who are frenzied or 
 wholly incapable ; who are within the exception in Weaver v. 
 Ward,^ and may well be outside the description of " lunatics, as 
 named there in the illustration." The cases, then, do not seem to 
 conclude the matter ; and the principles which we have before con- 
 sidered, that liability has its root in some personal fault,^ points to 
 their exoneration ; while the authority of the Eoman law is clearly 
 ia the same direction. The balance of opinion would accordingly 
 seem to be in accord with the view of Dr. Wharton." 
 
 2. A person under compulsion cannot be viewed as a person Persons under 
 
 compulsion. 
 
 * 4 Ex. 17. aiTegt was abolished) held to bail, just 
 ^ Hob. 134. the same as a sane man. There is no 
 ' Holmes, The Common Law, p. 81 ; need at common law for the appoint- 
 
 Willett V. Buifalo and Rochester Com- ment of a guardian, or the nomination of 
 
 pany, 14 Barb. 585, at p. 592. any one to act in. the lunatic's place, the 
 
 * Lord Penzance's dictum in Mordaunt suit proceeds in all respects as if the de- 
 V. Mordaunt, L. B. 2 P. & D. 103, at p. fendant were sane." The case of Mor- 
 129, should be noticed. " A lunatic at daunt v. Mordaunt itself has no analogy 
 common law is liable to be sued and (until to the question now being considered. 
 
 D 
 
50 THE LAW OF NEGLIGENCE. [book i. 
 
 legally responsible. The illustration in Weaver v. Ward,' goes to 
 estabKsli tliis. " If a man by force take my band and strike you 
 .... so as it bad appeared to tbe Court that it bad been 
 inevitable, and tbat tbe defendant bad committed no negligence," 
 be sball not be liable.^ But tbe compulsion wbicb discbarges from 
 liability is not physical only ; but tbat wbicb arises from terror 
 or tbe instinct of self-preservation. We have already seen an 
 instance of this in Scott v. Sbepberd.^ 
 Aiteniative In another case, tbe consideration of which comes rather under 
 
 ^''" ■ tbe bead of contributory negligence, a coach proprietor neglected 
 
 to provide a proper coupling rein ; and a passenger was placed in 
 such a perilous position, in consequence of its breaking, that he 
 jumped off the coach and broke his leg. Lord Ellenborough* 
 directed the jury, that "it is suflBcient, if the plaintiff was placed 
 by the misconduct of the defendant in such a situation as obliged 
 him to adopt the alternative of a dangerous leap, or to remain at 
 certain peril ; if that position was occasioned by the default of the 
 defendant, the action may be supported. On tbe otber band, if 
 the plaintiffs act resulted from a rash apprehension of danger which 
 did not exist, and the injury which he sustained is to be attributed 
 to rashness and imprudence, he is not entitled to recover." The 
 question is whether he was placed in such a situation as to render 
 what he did a prudent precaution for tbe purpose of self-preserva- 
 tion. The law is settled in the same sense in America." Another 
 case is thus put : Had the plaintiff in leaping injured a person 
 going along the road in the circumstances supposed, he would not 
 be liable, for his act would be done not voluntarily, but as caused 
 by a third person's wrongful act, and in the effort to avoid injury 
 to himself." A further aspect of the same principle is given in 
 Barton v. Springfield," where the facts shewed that as the plaintiff 
 was walking along the street, she was frightened by the attempt of a 
 
 1 Hob. 134. 5 Stokes V. Saltonstall, 13 Peters, 181 ; 
 
 2 Compate Brown «. Collins, S3 N. H. Twomley ■o. Central Park Kailroad Com- 
 442, where there is a very instructive pany, 69 N. Y. 158. 
 
 judgment by Doe, J. e Holmes v. Mather, L. B. 10 Ex. 261 ; 
 
 ' 3 Wils. 403; I Sm. Leading Cases, 9th 44 L. J. Ex. 176; 33 L. T. 361 ; 23 
 
 edit. p. 480; Leame v. Bray, 3 East, 593. W. E. 364; Lowery v. Manhattan Rail- 
 
 ■• Jones 11. Boyce, i Starkie, 493 ; road Company, 99 N. Y. 158. In Wake- 
 Conlter v. American Express Compijny, man v. Robinson, i Bing. 213, the facts 
 56 N. Y. 585; in Dudley v. Smith, i shew "that the defendant in his cdarm, 
 Camp. 167, Lord Ellenborough held that pulled the wrong rein." Messrs. Shear- 
 the driver of a stage coach before pass- man and Eedfield are of opinion that on 
 ing through any place that is dangerous, this account the decision is not to be sup- 
 is bound to inform the passengers of the ported, since the defendant acted under 
 full extent of the danger, and if he does sudden terror; but even if this were so, 
 not the proprietor is liable for any injury " the accident was clearly occasioned by 
 which they might have escaped by alight- the default of the defendant " who would 
 ing. Compare Peck v. New York, &c., therefore be liable for putting hiIu^elf in 
 Railroad Company, 50 Conn. 379 ; in some such circumstances, 
 of its facts not unlike Victorian Commis- 'no Mass. 131. 
 sioners v. Coultas, 13 App. Cas. 222. 
 
PART I.J LIMITS OF LIABILITY. 5t 
 
 mau to. molest lier, and in her eagerness to escape fell into a hole, 
 that was negligently left in the side way, but of whose existence 
 the plaintiff was well aware. It was sought to disentitle her to 
 recover on the ground of contributory, negligence. The Court, 
 however, held that previous knowledge of the existence of a defect, 
 though always an important and often a decisive circumstance in 
 a case was not necessarily conclusive ; since "it is not required 
 that the traveller's thoughts should be constantly on the con- 
 dition of the way over which he passes, or its want of repair," 
 and that, in cases like the present, fright would justify a momen- 
 tary forgetfulness of the remoter danger, so as not to disentitle a 
 plaintiff to recover for the defendant's neglect.' 
 
 3. Closely akin to constrained agencies are unconscious Unconscious 
 * agents. 
 
 agencies. 
 
 What the position of an intermediate unconscious agent Thomas r. 
 between two conscious agents is, in law, is illustrated by an 
 American case, Thomas v. Winchester.^ The wife of the plaintiff 
 being ill, plaintiff purchased what was believed to be the medi- 
 cine prescribed, from a store of a druggist ; the druggist had 
 purchased it of a dealer in New York, the man in New York 
 bought it of defendant. The jar from which the medicine was 
 taken was labelled as " ^ lb. of dandelion prepared by A. Gilbert, 
 108 John St., N.Y. Jar 8 oz." It was there, and under the 
 name of Gilbert, the defendant carried on business. The con- 
 tents of the jar proved to be belladonna, and the plaintiff's wife 
 was seriously injured by taking it. The judge charging the jury 
 that if either of the intermediate druggists was guilty of negli- 
 gence in not inquiring more particularly into the contents of the 
 jar, the plaintiff was not entitled to recover. The jury found they 
 were not any of them guilty of negligence. The Court of Appeals 
 declined to decide whether the dealer from whom the plaintiff 
 immediately purchased, was justified in selling the article on the 
 faith of the defendant's label. The Court held merely, that as 
 far as the plaintiffs were concerned, it did not lie in the mouth 
 of the defendant to aver the negligence of the intermediate sales- 
 men, and thereby to avoid the consequences of his own neglect ; 
 and held that the plaintiff could recover. But if any such duty 
 to test the article sold had existed on the part of the inter- 
 
 1 Compare Beg. v. Pitts, Car. & Mar. ^ 6TS.Y. 397, and Bigelow's Leading 
 
 284. Wliere A by the wrongful act of B Cases on tie Law of Torts, p. 602. There 
 
 loses his presence of mind, and in con- are many cases which establish that the 
 
 sequence runs into danger and receives act of an unconscious agent is the act of 
 
 an injury from the act ofB, the latter is the party who sets him in motion: per 
 
 not protected even though he gave warn- Alderson, B., Langridge v. Levy, 2 M. 
 
 ing to A ; Woolley v. Scovell, 3 Man. & W. 519, at p. 525. 
 and Ky. 105. 
 
causes. 
 
 52 THE LAW OF NEGLIGENCE. [book i. 
 
 mediaries, it could not have been said that the injurious result 
 to the plaiatiff's wife would certainly have followed ; and if the 
 intermediate chemists had a duty of examination, their failure to 
 discharge the duty would have absolved all antecedent agents ; for 
 subsequently to their neglect, there would have been the inter- 
 vention of an independent volition ; for which those earlier in the 
 scale of agencies would not be called on to take measures to 
 avert. It was not the neglect of the defendant that could have 
 produced the injury; if it had only been his neglect the 
 spurious article would never have reached the plaintifE's wife ; 
 but the subsequent neglects diverted the injurious agency, that 
 would else have been quiescent, into new channels, and thus pro- 
 Sequence of duced the injury. The train that events follow seems to be — 
 A produces B, B, if rightly directed, either corrects A or produces 
 ; if negligently, it only repeats B ; C, if rightly directed, 
 corrects any error in the transit from A to B, and from B to 0, 
 and produces D : or, if negligently, it only carries on B a stage 
 further. If, then, there is no duty upon either B or C — if they 
 are mere conduit pipes — A, who sets the injurious agency in 
 operation is liable, on the ground that no volition has intervened. 
 If there is a duty of examination on B and C, it is diflBcult to see 
 any principle on which their negligence can be condoned, and A 
 be made liable, which would not, at the same time, land us in 
 obvious absurdities, for tte act of A is innocuous but for the 
 neglect of B or C, or both. The law, then, as laid down by the 
 judge in charging the jury, seems to indicate the correct rule. 
 And the jury having found that neither of the intermediate agents 
 was more than an irresponsible conduit, the decision on that 
 assumption was a right one.' ■ Brett, M.E., it is true, in a case' 
 which we shall presently have to examine somewhat closely, 
 expresses his doubts as to the correctness of the decision ; but it 
 is obvious, on reference to the authority to which he refers for 
 the facts of the case, that the direction of the judge of first 
 instance was not before him : and that his doubts are confined to 
 the decision of the Court of Appeals.^ While, on the one hand, 
 one knowingly putting on the market a death-dealing fluid 
 certainly cannot claim immunity, because he sent it through 
 many hands ;^ on the other, a person who knows the perilous 
 
 1 See, too, Brass ,,. Maitland 6 El & |. Gray, J., in Wellington v. Downer Kero- 
 470 ; Farrant v. Barnes, ii C. B. N. S. Bene Oil Company, I04 Mass. 64, 68, who 
 ^^^'u T> 1 /^ T> r> ''II"'*^ *^ druggist's liability to the case 
 
 ^ Heaven v. Pender, 11 Q. B. D. 503, where " there is no negligence on the part 
 
 at p. 514. f ^, , , , pf.tlie intermediate sellers or of the person 
 
 2 A similar view of the law to that injured " 
 taken in the text giving the ^-by to the * Per Agnew, C.J., Elkins v. McKcan. 
 view of the Court of Appeals, is taken by 79 Penn. 493 ' 
 
PARTI.] LIMITS OF LIABILITY. 53 
 
 character of a compound, which he has bought, and knowing it, 
 negligently gives the compound to a third person, destroys, by 
 his negligent act, the causal connection between the first person 
 concerned and the ultimate injury sustained.' Of course this 
 immunity, by reason of want of negligence, only holds good in 
 actions ex delicto ; in actions ex contractu the contractual relation 
 binds the defendant to the performance of his contract, whatever 
 it is, even if the wrong or injury is the work of an intermediary." 
 
 The principle that to fix liability for injuries brought about Principle of 
 through a complicated state of facts, the last conscious agency the last 
 must be sought ; and the consideration that, if, between the agency ^ency uto 
 setting at work the mischief and the actual mischief done, there I'o songht. 
 intervenes a conscious agency, which might or should have averted 
 mischief, the original setter in motion of the mischievous agency 
 ceases to be liable, afford the clues for the unravelling these cases. 
 On the other hand, it must be borne in mind, though there may 
 intervene various stages in the development of the mischief, yet, 
 if none of these is due to a conscious volition, the last conscious 
 agent continues to be liable. 
 
 In Heaven v. Pender,^ a dock owner, as incident to the use Heaven u. 
 of his dock, supplied and put up a staging so that vessels using 
 the dock might be painted and repaired there. The ropes 
 by which the staging was slung were scorched ^nd unfit for 
 use, and were supplied without a reasonably careful attention 
 to their condition. The plaintiff was a ship-painter working 
 under an employer who had a contract with the shipowner to 
 paint his ship in dock. When the plaintiff began to use the 
 stage the rope broke, the stage fell, and the plaintiff was injured. 
 He brought his action against the dock owner, but in the 
 Divisional Court it was held that as there was no contract between 
 plaintiff and defendant, no fraud on the defendant's part, and no 
 breach of a duty to tell the truth, the defendant was entitled to 
 judgment. In the Court of Appeal this judgment was reversed, 
 by Cotton and Bowen, L.JJ., on the ground that "the dock Ground of 
 owner was under an obligation to take reasonable care that at the of the 
 time the appliances provided for immediate use in the dock were cott"n and 
 provided by him they were in a fit state to be used — that is, in Bowen, L.JJ. 
 such a state as not to expose those who might use them for the 
 repair of the ship to any danger and risk not necessarily incident 
 to the service in which they were employed." 
 
 1 Carter ». Towne, 103 Mass. 507 ; L. E. 7 Ex. 96 ; Eaton v. Boston, &o,, 
 ■Wellington v. Downer Kerosene Oil Com- Railroad Company, 93 Mass. 500. 
 
 pany, 104 Mass. 64. ' n Q- B- I>. 503; 52 L. J. Q. B. 
 
 2 Burrows v. March Gas Company, 702 ; 49 L. T. 357 ; m the Divisional 
 L. E. 5 Ex. 67, Exchequer Chamber, Couit, 9 Q. B. D. 302; 51 L. J, 
 
M 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Brett, M.B.'s, 
 proposition. 
 
 Suggested 
 ground of 
 the decision. 
 
 langridge v. 
 Xeyy. 
 
 Brett, M.B,., laid down the mucli wider proposition, that "when- 
 ever one person is by circumstances placed in such a position with 
 regard to another that every one of ordinary sense who did think 
 would at once recognize that if he did not use ordinary care and 
 skill in his own conduct with regard to those circumstances he 
 would cause danger of injury to the person or property of the 
 other, a duty arises to use ordinary care and skill to avoid such 
 danger," This proposition was not concurred in by the other 
 judges, and Cotton, L.J., cites cases' which he regards as impliedly 
 negativing it. 
 
 It is submitted that the true ground on which the correctness 
 of the decision in Heaven v. Pender rests is, that the dock owner, 
 having supplied the staging, there was a duty on him to supply 
 a fit staging, and that the plaintiff was justified in relying upon 
 his discharge of his duty without further inquiry. There was 
 thus no human agency intervening between the act of the de- 
 fendant in supplying the staging and the accident. Had there 
 been a duty on the shipowner to examine, or on the ship-painter^ 
 the chain of connection would have been broken, ^The decision 
 must, therefore, be taken to imply that there was no duty on the 
 part of any one, subsequent to the dock owner, to test the staging 
 supplied ; but that when the dock owner undertook to supply 
 staging there was an obligation that the staging supplied should 
 be reasonably fit for the purpose for which it was to be used;^ 
 and those coming to use it might trust to the performance 
 of the dock owner's duty without any independent examination 
 of their own. The difficulty of the case is where to draw the line 
 between the obligation to inquire and those cases where there is no 
 such obligation; and the obligation to inquire or the want of 
 such obligation in each case marks the intervention of that new 
 conscious agency which is the test whether the right of action 
 exists in the original negligent person or is diverted. Tried by 
 this test — the non-intervention of a conscious agency keeping alive 
 the liability of the original wrongdoer — and the intervention of a 
 conscious agency limiting the search for the wrongdoer to the 
 time of its own interposition — the cases are entirely consistent. 
 
 In Langridge v. Levy,' the father of the plaintiff bought a gun 
 of the defendant for the use of himself and his sons. The 
 
 Q. B. 46s ; 47 L- T. 163 ; 30 W. R. 
 749- 
 
 ' Blackmove v. Bristol and Exeter Eail- 
 wav Company, 8 E. & B. 1035 ; Collis 
 ». Selden, L. B. 3 C. P. 495 ; Longmeid 
 V. Holliday, 6 Ex. 761, 20 L. J. Ex. 430. 
 
 ^ Randall v. Newson, 2 Q. B. D. 102 ; 
 46 L. J. Q. B. 257; 36 L. T. 164; 25 
 W, R. 313. 
 
 sons. 
 
 » 2 AI. & W. 519, 4 M. & "W. 337, 
 approved and acted on in Pilmore v. Hood, 
 5 Bing. N. 0. 97. For the principles to 
 be extracted from the Chief Baron's judg- 
 ment in Langridge and Levy, see the dis- 
 cussion of the case and the judgments of 
 Wood, V.C, in Barry o. Croskey, 2 Johns. 
 V. Hemm. 16, 22. See, too, Gerhard v. 
 Bates, 2 E. & B. 476, 22 L, J, Q. B. 365. 
 
PARTI.] LIMITS OF LIABILITY. 55 
 
 defendant falsely and fraudulently warranted the gun to have 
 been made by a celebrated gunmaker. The plaiptiff, the pur- 
 chaser's son, used it ; it exploded and injured him. On suing 
 the defendant, the plaintiff recovered on the ground that, as there 
 was " fraud and damage, the result of that fraud, not from an 
 act remote and consequential, but one contemplated by the 
 defendant at the time as one of its results, the party guilty of 
 the fraud is responsible to the party injured." The effect of the 
 fraud itself was not to impose a hability on the defendant by way 
 of punishment, but the effect must have been to put the plaintiff 
 in a worse position than he would have been in if the true state 
 of the case had been apparent, and so to bring injury upon the 
 plaintiff. That is, having the result of the professional knowledge ' 
 of the gunmaker to act on, the plaintiff was not bound himself 
 to test the gun, but might rely on the representation of the 
 vendor. If this were so, the fraud of the vendor was an expres- 
 sion larger than was necessary to state the true ground of the 
 decision of the case, which was, that the conduct of the gunmaker 
 had been sush as to absolve the plaintiff's father and the plaintiff 
 from using any independent inquiiy in the case ; and as there 
 was no call for an independent volition to intervene between 
 him and the accident, and none in fact did intervene, the 
 liability for its consequences could be inferred back to him. 
 That this is the principle underlying the decision is more apparent 
 from the next case, that of Longmeid v. HoUiday.' The defendant Loogmeid ». 
 was a lampseller, and sold a lamp called the Holliday patent lamp . ° ^ '^• 
 to the plaintiff for the purpose of being used by him and his wife.i 
 The lamp was defectively constructed, but the defendant was not 
 aware of its defects; and the jury found that he was not guilty 
 of any fraudulent or deceitful representation, but sold the lampj 
 in good faith. In using the lamp it exploded, and plaintiff's wife( 
 met with considerable injuries. The Court of Exchequer held 
 that no action lay. " It would be going too far," said Parke, B., 
 "to say that so much care is required in the ordinary intercourse 
 of life between one individual and another, that if a machine, 
 not in its nature dangerous — a carriage, for instance — but which 
 might become so by a latent defect entirely unknown, although 
 discoverable by the exercise of ordinary care, should be lent or 
 given by one person, even by the person who manufactured it, to 
 another, the former should be answerable to the latter for a sub- 
 sequent damage accruing by the use of it." The lamp, without 
 fraud, is handed from one person to another, and there is no con- 
 
 1 6 Ex. 761, 20 L. J. Ex. 430. Both for the purpose of being used by him and 
 the reports state that the evidence was that his wife." The declaration, however, states 
 tie lamp " was sold to the -plaintiff's wife that it was sold to the plaintiff himself. 
 
56 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Winterbotham 
 V. 'Wright. 
 
 George v. 
 Skivingtou. 
 
 sciousness of any defect, while the duty of inquiring is negatived. 
 So the defendant is not liable, because he is a mere conduit pipe, 
 and has not been required to exercise any independent volition in 
 the matter. 
 
 Winterbotham v. Wright' is the next case, and between this 
 and George v. Skivington^ the Divisional Court, in Heaven ■;;. 
 Pender, saw irreconcilable contradiction, and determined to follow 
 the earlier case in preference to the later. The defendant in 
 Winterbotham v. Wright had contracted with the Postmaster- 
 General to provide coaches to convey the mails. One Atkinson 
 was under contract with the Postmaster-General to supply horses 
 and coachmen for the coaches so supplied, and to use no others. 
 The plaintiff was hired by Atkinson to drive a coach supplied by 
 the defendant under his contract. In consequence of the failure 
 of the defendant to perform his contract properly, the plaintiff 
 was injured, and brought his action against the defendant. The 
 Court of Exchequer was agreed that the plaintiff could not 
 recover. Lord Abinger, and Alderson, B., on the unsatisfactory 
 ground that unless the operation of such contracts was confined 
 " to the parties who entered into them the most absurd and out- 
 rageous consequences, to which I see no limit, would ensue;" and 
 Rolfe, B., on the ground that " there was no duty to the plaintiff 
 from the defendant." But it could not be contended that the 
 mere fact of the existence of a contract between a coachbuilder 
 and a customer, presupposed the devolution of all responsibility 
 for negligence in the construction of the coach as between the 
 customer and any people injured by the use of the coach in 
 the public thoroughfares, upon the coachbuUder. If this be 
 so, then there must be a duty of inquiry upon the customer 
 to see that the coaches supplied him are fit to be used with- 
 out damage to people generally. This, then, constitutes that 
 intervention of the conscious volition, the interposition of which 
 prevents the liability being thrown further back. It was clear 
 in this particular case that no action could be maintained 
 against the Postmaster-General;' but, as a general rule, the 
 action could be brought against that person, through whose 
 intermission of the duty of examination the negligence arose 
 and the accident was occasioned. 
 
 George v. Skivington,^ so far from being contradictory of 
 Winterbotham v. Wright, is but the natural outcome of the 
 
 1 10 M. & W. 109. 
 
 2 L. E. 5 Ex. 1, 39 L, J. Ex. 8, 21 
 L. T. 495, 18W. «, 118 
 
 = Hall V. Smith, 2 Bing. 156 ; Hum- 
 phrey V. Mears, i Mann. & liy. 187. 
 
 - L. E. 5 Ex. I. See, too, Pippin v. 
 Shepherd, 11 Price, 400; Gladwell v. 
 Steggall, s Bing. N. 0. 733 ; Marshall v. 
 York, Newcastle, and Berwick Eailway 
 Company, 11 C. B. 655, 21 L. J. C. P. 34.- 
 
PARTI.] - LIMITS OF LIABILITY. 57 
 
 same principle, not indeed distinctly enunciated in that case, 
 but included in the ground stated by Rolfe, B., that there 
 was no duty on the defendant. Plaintiff purchased a chemical 
 compound from the defendant as a hair wash for his wife. 
 The chemical compound proved extremely deleterious, and the 
 plaintiff's wife was injured in her health. The Court of 
 Exchequer held an action on behalf of the wife maintainable ; 
 and this was clearly right. The plaintiff received improper 
 drugs from, and was unskilfully treated by, a person from the 
 position he held presumed to be skilful, and was injured.' The 
 character of the defendant professing a special skill, and the 
 description of the hair wash, which, being a chemical composition, 
 would be such that ord^ary persons would be unable to test, 
 even if desirous to do so, exonerated the plaintiff from the exer- 
 cise of any independent volition in the matter. Had the case 
 gone to a jury, it would have been perhaps advisable, as in the 
 case of Thomas v. Winchester, for the judge to have asked the' 
 question of the jury whether there was any duty on the plaintiff 
 or his wife to inquire into the constitution of the chemical that 
 was given them. What, however, the case, which was decided 
 on demurrer, declared is, that such a state of facts as is set out 
 in the declaration raises no necessary implication that the plaintiff 
 or his wife had a duty to investigate the goods supplied them ; but 
 that, failing a finding of the jury to the contrary, they were justi- 
 fied in not exercising their independent judgments in the matter, 
 and in trusting to the chemist who supplied them.^ 
 
 Another class of cases was cited in Heaven v. Pender, which Corby v. HUI. 
 can be reconciled on the same principle. In Corby v. Hill,' an 
 obstruction was placed on a private road leading to a house, and 
 the plaintiff, while using the road and going to the house, was 
 injured by the obstruction. The Court of Common Pleas held that 
 he could recover. The opening the road was an intimation that 
 it did not differ from the ordinary condition of similar roads ; the 
 placing the obstruction was the negligent act of a conscious agent 
 that, till counteracted by some subsequent voluntary agency, would 
 
 render the actor liable for the consequences. So, too, in Indermaur Indermaur ». 
 
 , _,, „ , Dftmes. 
 
 V. Dames.'' The premises were not m the condition 01 an ordinary 
 
 1 See per Parke, B., Longmeid ». Holli- stance prevents the case bein§ an authority 
 
 day 6 Ex. 761, at p. 767. inconsistent in principle with the con- 
 
 ^ 'Blaokinore v. Bristol and Exeter Eail- elusion." The position of a volunteer is ■ 
 
 way Company was a case mtlch discussed such that he can impose no_ greater ohli- 
 
 in Heaven u. Pender : but the majority of gation on the master than if he were in 
 
 the Court say in that case, "whether the his actual employ: Potter v. Faulkner, I 
 
 Court was right in Bkckmore's case in B. & S. 800. 
 
 treating the plaintiff as a volunteer may ' 4 C. B. N. S. 556, 27 L. J. C. P. 
 
 be a queslien. But as the ground of the N. S. 318. 
 decision is that he Was so, that ciroum- * L. K. i C. P. 274, L, B. 2 C, P. 
 
58 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Smitli v. 
 London and 
 St. Katharine 
 Docks 
 Company. 
 
 Gautret i'. 
 Egerton. 
 
 CoUiS V. 
 Selden. 
 
 safe warehouse. The wrongful act was the neglect to take some 
 step to make their condition, with regard to strangers lawfully 
 doing business there, of such safety that no greater than ordinary 
 care would be required to avoid accident. No conscious volition 
 intervened between the negligent act and the accident, and those 
 responsible for the negligence were liable. So, too, in Smith v. 
 London and St. Katharine Docks Company.' A dock company 
 provided gangways for persons having business with the ships in 
 their docks. The plaintiif passed over the gangway to a ship in 
 the dock in safety. Before he returned, the gangway had been 
 rendered unsafe by the defendants' servants, and he Was injured. 
 Assuming the plaintiff's right to be where he was (and if he had 
 no right he would come under a different principle)'' that right 
 was to be exercised unless it was shewn to be otherwise uuder 
 the ordinary conditions of using such ways. The negligent act 
 was the interfering with the condition of the gangway, and was 
 the last act of a conscious volition previous to the accident ; and 
 so imported liability to those responsible for it. Gautret v. 
 Egerton' illustrates the other side of the rule. It was sought 
 in that case to shew a duty on canal proprietors to keep the 
 bridges and paths of their canal in a safe condition for the 
 benefit of all who chose to go along them and were not hindered 
 by the canal authorities. The Court held that the declaration 
 was demurrable, because there was no allegation that they did 
 anything to make the place dangerous ; and except people have 
 business with the company, when they can require the premises 
 to be in a suitable and ordinary state, they miist take the places 
 as they find them. There was no conscious volition, and so no 
 liability. 
 
 The next case is Collis v. Selden,'' where an action was 
 brought against the defendant (apparently a fitter) for negligently 
 hanging a chandelier in a public-house. The plaintiff was in the 
 public-house — in what character it did not appear from the 
 declaration — and was injured by the fall of the chandelier. The 
 
 311 ; 35 L. J. C. P. 184, 36 L. J. C. P. 
 181 ; 14 L. T. 484, 16 L. T. 293 ; 14 
 "W. E. 586, IS W. E. 434. In Burch- 
 ell V. EickieeoD, 50 L. J. C. L. 101, it 
 was held that tlie only invitation pre- 
 sumed to be given to an infant four years 
 old is to come if he is taken care of, and not 
 unless. As Lindley, J., shortly summed 
 up that case, where a hoy of four years 
 oM had fallen through some broken rail- 
 ings, " there was no invitation to the plain- 
 tiff if he was not guarded, and if guarded 
 then there was no trap," 
 1 L. E. 3 C. P. 326 ; 37 L. J. C. P. 217. 
 
 2 Bolch V. Smith, 7 H. & N. 736. 
 
 3 L. E. 2 C. P. 371 ; 36 L. J. C. P. 191 ; 
 16 L. T. 17 ; IS W. E.. 638. In Bnlman 
 V. FurnesB Eailway Company, 32 L. T. 
 N. S. 430, a distinction was drawn between 
 the passive negligence alleged in Gautret 
 V. Egerton and the " active negligence " 
 alleged in this case : and a declaration 
 was held good on demurrer which stated 
 that plaintiff was " lawfully " in the place 
 where he sustained injury by an act of 
 " active negligence " on the part of the de- 
 fendants. 
 
 ''L.E.3C.P.49S;37L. J.C.P.233. 
 
PAKTi.J LIMITS OP LIABILITY. 59 
 
 Court held tlie plaintiff could not recover. He might have been 
 a guest, and that alone would not give him a cause of action ; ' 
 but, further, no breach of duty was shown. The proprietor 
 might, consistently with the declaration, have contracted with the 
 plaintiff for a certain kind of fitting, or that it should be put up 
 in a merely temporary manner. At any rate, there is a duty on 
 every householder to see to the state of his own premises f and 
 between the wrongful act of the fitter, assuming his act was 
 wrongful, and the injury to the plaintiff, there was the opportunity 
 for the intervention of the conscious volition of the proprietor ; 
 thus on this, if on no other ground, the plaintiff could not recover. 
 And Francis v. Cockrell ' may be cited in further confirmation of Francis v. 
 this. A stand had beeu erected by contractors for the defendant, 
 who let out seats there for hire ; the construction, however, was 
 improper and negligent, though there was no want of care on the 
 part of the defendant, and there was no evidence that if he had 
 inspected the stand he would have found the defect. The stand 
 fell : the plaintiff was injured, brought his action and recovered. 
 Hannan, J., after saying there was no distinction between the 
 liability of the defendant and that of a carrier of passengers, goes 
 on : " The passenger does not know whether the carrier has 
 himself manufactured the means of carriage or contracted with' 
 some one else for its manufacture. If the carrier has contracted 
 with some one else, the passenger does not usually know who 
 that person is, and in no case has he any share in the selection. 
 The liability of the manufacturer must depend on the terms of 
 the contract between him and the carrier, of which the passenger 
 has no knowledge, and over which he can have no control ; while 
 the carrier can introduce what stipulations and take what secu- 
 rities he may think proper. For injury resulting to the carrier 
 himself by the manufacturer's want of care, the carrier has a 
 remedy against the manufacturer ; but the passenger has no 
 remedy against the manufacturer for damage arising from a mere 
 breach of contract with the carrier." The duty of the defendant 
 to the plaintiff raised an implied warranty that due care had been 
 used in the construction of the stand. By letting out the work 
 he, as it were, subdivided his responsibilities, which in total was 
 a warranty of the whole construction, into a part peculiar to him- 
 self, that he should use due care ; and, secondly, into a part that 
 the work done by the contractor should be done with due care. 
 
 1 Southcote D. Stanley, i H. & N. 247 ; son v. Liverpool Brewery Company, 2 
 
 25 L. J. Ex. 339- . „ . *^'/4^^3ii.3i3. , ^ ^ 
 
 2 For the defective repair of " premises, ' L. E. 5 Q. B. 184 and 501 ; 39 h. J. 
 the occupier and the occupier alone is Q. B. 113 and 29 1 ; 21 L. T. 203, 23 
 primA fade liable," per Lopes, J., Kel- L. T. 466; 18 W. E. 668 and 1205. 
 
eo 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Robertson i 
 Heming. 
 
 . Law does not 
 recognize 
 expecta/tions, 
 except en far 
 as they have 
 their root in 
 property. 
 
 The neglect of the second of these was the last act » of a conscious 
 agency previous to the accident from which damage arose ; and, 
 the defendant being responsible for it, the . plaintiff rightly re- 
 covered. 
 
 The case of Robertson v. Fleming/ in the House of Lords, at 
 first sight does not seem to accord completely with this principle. 
 " I never had any doubt," says the Lord Chancellor' there, " of 
 the unsoundness of the doctrine that A employing B, a profes- 
 sional lawyer, to do any act for the benefit of C, A having to 
 pay B, and there being no intercourse of any sort between B and 
 C, if through the gross negligence or ignorance of B in trans- 
 acting the business loses the benefit intended for him by A, 
 C may maintain an action against B and recover damages for the 
 loss sustained." The principle, however, determining the right of 
 action is that every man has a property in life, liberty, estate, and 
 reputation, so that if these are violated the law gives a remedy. 
 But the law does not recognize expectations, except so far as 
 they have their root in property.'' Thus, says Comyns* : " An 
 action upon the case does not lie when there is not any temporal 
 damage : as against a woman who pretends herself single, and 
 inveigles a man into a marriage, whereby he was disturbed in 
 conscience. Nor does it lie for refusing to administer the sacra- 
 ment ; nor for not reading divine service to him and the tenants 
 of his manor. Nor for a legacy, for it is only one by the spiritual 
 law, and the benevolent intention of a testator to a legatee does 
 not raise in the legatee any legal right whatever, for the legatee 
 has received no injury to person, property, or right, apart from 
 a probability that, if the course of things had been other than it 
 actually turns out, a right would have vested in him. The law 
 draws the line at a vested right, and will not entertain expec- 
 tances of rights as importing obligations."' 
 
 The general proposition enunciated by Brett, M.R., in Heaven 
 V. Pender, " whenever one person is by circumstances placed in 
 such a position with regard to another, that every one of ordi- 
 nary sense who did think would at once recognize that if he 
 did not use ordinary care and skill in his own conduct with 
 regard to those circumstances, he would cause danger of injury 
 to the person or property of the other, a duty arises to use 
 
 Hnrdmaii v. North-Eastem Bailway Com- 
 pany, 3 0. P. D. 198, 175. Comyns's Digest, 
 art. Action, A 2. Ashby u.White,! Smith's 
 Lead. Cbs. 9th edit. 268. See, too, Odgers 
 on Libel and Slander, 2nd edit. p. 17. 
 
 » Comyns's Digest, art. Action on the 
 Ciise, B I. 
 
 " Compare Eogers v. Eajendro Dutt, and 
 otliers, 13 Moore's P. C. C. 209. 
 
 ^ Or accurately " default." 
 
 " 4 McQueen, 167. 
 
 " Lord Campbell ; and the rest of the 
 Court, consisting of Lords Cranworth, 
 AVensleydale, and Chelmsford, approved. 
 
 ^ " It is sufficient to say that no one can 
 maintain an action unless there is some 
 injurr to something to which the law re- 
 cognizes his title": per Cotton, L.J., 
 
PART I.] LIMITS OF LIABILITY. 61 
 
 ordinary care and skill to avoid such danger," has since re- 
 ceived the adhesion of Hawkins, J.,' in Thrussell v. Handyside, 
 though for the decision of the case, in the learned judge's view 
 of the facts, it was sufficient to say that a dangerous business 
 was being carried on without precaution, and injury was received 
 therefrom. But in the earlier case of Elliott v. Hall,^ the Court Elliott v. Hall, 
 seems studiously to avoid the invitation to adopt the principles laid 
 down by the Master of the Bolls. There the defendant, a colliery 
 owner, consigned coals sold by him to the buyers by rail in a 
 truck rented by him from a waggon company for the purposes of 
 the colliery. Through the negligence of the defendant's servants 
 the truck was allowed to leave the colliery in a defective state. 
 In consequence of the defect in the truck, injury was caused to 
 the plaintiff, one of the buyer's servants, who was employed in 
 unloading the coal. The Court held the plaintiff entitled to 
 recover, " quite independently of the decision of the Court of 
 Appeal in Heaven v. Pender ;" because " it was clearly part of 
 the contract for the sale of the coal to the plaintiff's employer 
 that it should be conveyed in a truck to the buyers, and it must 
 necessarily have been contemplated that, when it arrived at its 
 destination, the truck would be unloaded by the buyer's servants, 
 I think that it is plain that under these circumstances a duty 
 arose on the part of the defendant towards the plaintiff. If 
 vendors of goods forward them to the purchasers, and for that 
 purpose supply a truck or other means of conveyance for the 
 carriage of the goods, and the goods are necessarily to be un- 
 loaded from such means of conveyance by the purchaser's 
 servants, it seems to me perfectly clear that there is a duty on 
 the part of the vendors towards those persons who necessarily 
 will have to unload or otherwise deal with the goods, to see 
 that the truck, or other means of conveyance, is in good con- 
 dition and repair, so as not to be dangerous to such per- 
 sons."' This ground of decision is clear and intelligible, and 
 certainly independent of the wide-reaching proposition of Brett, 
 M.E., in Heaven v. Pender, That case has been cited in 
 reported* and unreported cases, but with the exception of 
 the dictum of Hawkins, J., the principle formulated by 
 Brett, M.E., does not, in any English case, appear to have been 
 assented to. 
 
 In America it is otherwise. In the New York Court of 
 Appeals, some years previously to the decision in Heaven v. 
 
 1 20Q.B. 359.atp.363; SrLJ.Q- B. I PerGmve,.!., 15 QB. D. at p. 319. 
 347 : 58 L. T. 344. * E.g., Hurst v. Taylor, 14 Q. B. D. 
 
 2 15 Q. B, D. 315 ; 54 L. J. Q. B. 518 ; 918. Elliott v. Hall, supra. HowBon v, 
 34 W. B. 16. Barrett, 4 Times L. B. 449, 
 
62 THE LAW OF NEGLIGENCE. [book i. 
 
 Pender, a case' was decided on very similar facts to those in 
 Heaven v. Pender, and in the same way, but without resort- 
 ing to any such proposition as that suggested by Brett, M.E. A 
 scailold was erected by the defendant upon his own premises 
 for the express purpose of accommodating workmen engaged 
 under a contract to do work on the premises. A workman of 
 the contractor, while using the scaffold, fell, by reason of its 
 negligent construction, and was killed. His representatives sued 
 for damages for his death. A nonsuit was entered at the trial, 
 and affirmed by the general term of the Supreme Court. The 
 Court of Appeals unanimously reversed the judgment, and 
 ordered a new trial, on the ground that the defendant actually 
 furnished the scaffold for the express purpose of enabling and 
 inducing the men, who were to do the work, to go upon it ; and as 
 it was erected by the defendant, was in defendant's possession, 
 and was being used on defendant's premises, and by defendant's 
 permission, for the very purpose for which it had been furnished, 
 and by the persons for whose use it had been provided, a duty 
 was raised thereby with reference to those who were rightfully- 
 using it. This almost in terms conforms to the test already 
 suggested, that between the time when the defendant last exer- 
 cised control, and the time of the occurrence of the accident, 
 there was no interval in which a new conscious agency operated 
 to the divesting of the defendant's liability. 
 American But since the decision in Heaven v. Pender' the canon of 
 
 opinion. Brett, M.R., has been influentially accepted as " accurately ex- 
 
 pressed ; "' and a disposition has been shewn to adopt the entire 
 breadth of his generalization; yet, to judge from Messrs. Shearman 
 and Redfield's book, without an adequate appreciation of what was 
 sought to be enunciated. They say,'' " As it is admirably put by 
 Mr. Horace Smith, ' The true question always is, has the defend- 
 ant committed a breach of duty apart from contract ? If he has 
 only committed a breach of contract he is liable to those only 
 with whom he has contracted ; but if he has committed a breach 
 of duty he is not protected by setting up a contract in. respect of 
 the same matter with another person.' This principle is not 
 stated positively in any decision or judicial opinion, except the 
 masterly opinion of Lord Esher in Heaven ■;;. Pender, which was 
 not concurred in by a majority of the Court." But the majority, 
 of the Court did not withhold assent from the proposition, that 
 breach of contract imports liability ; nor from the proposition, that 
 
 1 Coughtry i;. Globe "Woollen Company 3 Wabash, &e., Bailroad Company v. 
 (1874), 56 N. y. 124. See Home v. Mea- Locke, 2 Am. St. Hep. 193, at p. 199. 
 kin, IIS Mass. 326. * Law of Negligence, § ii6. 
 
 2 iiQ. B.D. 509. 
 
PARTI.] LIMITS OF LIABILITY. 63 
 
 if a man has been guilty of a torfc he is not protected from its 
 consequences by reason of having a contract in the same matter. 
 The proposition the majority of the Court would not accept, was 
 rather that the test of breach of duty towards the world at large, 
 is, whether ordinary people of ordinary prudence could foresee 
 injury as likely to arise from conduct.^ 
 
 ' The judgment of Brett, M.B., mnst be noted. At page fiog of tlie report in Judgment of 
 1 1 Q. B. D., he says : " And every one ought, hy the unioersaUy recognized rules of Brett, M.E., 
 rigid and wrong, to think so much with regard to the safety oi' others who may be i" Heaven v. 
 jeopardized by his conduct ; and if, being in such cii-cumstances, he does nut think, I'endei-. 
 ana in consequence neglects, or if lie neglects to use ordinary care or skill, and 
 injury ensue, the law, which takes cognizance of, and enforces, the rules of right and 
 wrong, will force him to give an indemnity for the injury." First, The proposition is 
 involved that negligence may arise either when a man does something and does not 
 think of the consequence of bis act; or when a man does samethiag, recognizing the 
 duty of using care, and of set purpose abstains from using such care. But the first 
 of these only is negligence ; in the second the case is infected with dolus or malice. 
 There is an imputable intentional injury. The notion of absence of intention seems 
 essential to negligence ; at least, it is so regarded by juristic writers. Secondly, 
 the proposition is implied that positive law is conterminous with " the rules of right 
 and wrong""; othenvise the proposition may or may not bo true, but is not formally 
 BO. This is manifestly not so: for example, A is brought up, clothed, educated, 
 advanced in business by B, who subsequently falls into misfortune ; is sued by A on 
 commercial transactions between them, made bankrupt, and driven into the work- 
 house. A's conduct is as base as can be, and any law " which takes cognizance of, 
 andfenforces, the rules of right and wrong" would severely punish A, but A has done 
 no act against the laws of Kngland. For the opinion of two eminent jurists on the 
 matter, see Bentham's Principles of Legislation, Hildreth's edition, chap. xii. ; The 
 Limits which separate Morals from Legislation, 60 ; and Austin's Lectures on Jurispru- 
 dence, vol. i. lect. V. 125, 3rd edit. ; " Positive law and positive morality sometimes 
 coincide, sometimes do not coincide, and sometimes conflict." 
 
 A little further on, in the same judgment, the learned judge says : "The logic of 
 inductive reasoning requires that where two major propositions lead to exactly similar 
 minor premisses, there mnst be a more remote and larger premiss which embraces 
 both of the major propositions." The language here used is at least a little confusing. 
 How can a " major proposition " lead to a " minor premiss " ? A major proposition is 
 most usually the register of past experience ; the minor premiss is the new fact which 
 is to be compared with the register; and the juxtaposition gives the comparison of 
 the fact asserted by the one with the past experience preserved by the other. If, 
 iiowever, the facts preserved by the register — that is, "the major proposition '| — are to 
 be passed under review again, the operation would rather be one of deduction than 
 induction — at least, in ordinary philosophical language. However, to test the prin- 
 ciple : — B and C may both produce 1) ; then " the logic of inductive reasoning 
 requires that there mvist be a more remote and larger premiss which embraces both." 
 Suppose this to be A. But B may produce D by means of E and F, while C may 
 procluce D by means of X Y Z — the causes in each case having nothing to do with 
 the other. To take a simple example : A European goes to the North Pole and is 
 frozen to death ; another goes to the Equator and is killed by sunstroke. An exactly 
 similar result — if this is what the Master of the Bolls means by ' leading to exactly 
 similar minor premisses ' — follows from the ' two major propositions,' or from the 
 registered results in the two cases. But the one man dies from too much cold or want 
 of warmth ; the other man dies from too much heat, or want of cold. The result is the 
 same in both cases ; bnt the producing causes could not be reduced to any larger 
 common expression." See, too, an article " Mr. John Stuart Mill and his School," 133 
 Quarterly Meview, p. 77, and Mill's Logic, Bookii. c. iii.. Of the Function and Logical 
 Value of the Syllogism. So much for the mere logical garniture of the judgment. 
 
 'the proposition itself is, " "Whenever one person is by circumstances placed in such a 
 position with regard to another that every one of ordinary sense who did think, would at 
 once recognize that if he did not use ordinary care and skill in his own conduct with re- 
 gard to those circumstances, he would cause danger of injury to the person or property of 
 the other, a duty arises to use ordinary care and skill to avoid such danger." The most 
 important term of this proposition is " danger of injury." If injury here is used as signi- 
 fyinga " legal wrong," Omne quod non jureJU injuria fieri dicitur (i Inst. I586);then 
 it is manifest that a proposition, which is no more than an assertion of the duty of one 
 
64 THE LAW OF NEGLIGENCE. [book i. 
 
 i( 
 
 ®lose to tlie principle of Heaven v. Pender, thotigli not cited 
 
 Parry «. Smith, in that case, is the case of Parry v. Smith.' It was tried by 
 Lopes, J., and reserved for special consideration. A considered 
 judgment of great value was subsequently delivered. Defend- 
 ant, a gas-fitter, was employed by the plaintiff's master to 
 repair a gas meter on his premises, and for the purpose of doing 
 BO took away the meter and made a temporary connection by 
 means of a flexible tube between the inlet pipe and the pipe 
 communicating with the house. The plaintiff having gone into 
 the cellar, where- the meter had been, in the ordinary course of 
 her employment, carrying a light, was injured by an explosion, 
 caused by the gas escaping from the connecting tube by reason 
 of the insufficiency of the connection. Lopes, J., held that : " A 
 I duty attaches in every case where a person is using or is dealing 
 with a highly dangerous thing, which, unless managed with the 
 greatest care, is calculated to cause injury to bystanders. To 
 support such a right of action, there need be no privity between 
 the party -injured and him by whose breach of duty the injury 
 was caused,' nor any fraud, misrepresentation, or concealment, nor 
 need what is done by the defendant amount to a public 
 nuisance." The expression of this rule of law seems to be sedu- 
 lously narrowed to cover merely the facts of the case on which 
 the learned judge was deciding. The principle, however, involved 
 is none other than that which governed in Heaven v. Pender, 
 There is no absolute duty to prevent gas escaping from pipes 
 under all conditions.^ Gas is only greatly dangerous in a confined 
 
 man to use ordinary care and bMI not to injure — in the legal sense — another man, is an 
 incontrovertible proposition. But by assuming the existence of the duty it begs the 
 proposition it was advanced to prove — viz., that a legal duty existed. On the other 
 liand, if " injury " is used in the popular sense in which it signifies detriment, and tlie 
 proposition is advanced that when one sees that if he does not use ordinary care and 
 skin in his own conduct, he would cause, not mere danger of detriment, but actual 
 positive detriment to the person or property of another, a legal duty arises, it cannot 
 be maintained. A and B set out in their respective vehicles to the fair. A is a little 
 ahead, and knows that if his vehicle breaks down, B will be so impeded as to be late 
 and lose his market. There is a defect in the road which requires careful driving to 
 pass. A doubts the strength of his cart, yet in his haste dashes fci-ward heedlessly, is 
 overturned, and blocks the way to B, who loses his market, and whose goods remain on 
 hand. By what law can B recover? Again, A has a document handed to him, the 
 use of which he is told to pass on to C, who looks to get great profit from the in- 
 formation it contains. A negligently spills the ink over it so that it becomes illegible. 
 Can C recover ? Or, A thoughtlessly places a-pile of snowballs- in his forecourt in sight 
 and reach of a crowd of mischievous ;youlhs, who pelt and injure a passenger coming 
 down the street. " Every one of ordinary sense who did think," could not but antici- 
 pate such a consequence ; but for all that, could the injured passenger recover ? Or 
 agajn, to test the rule with reference to property : A lets his empty houses get into 
 such bad repair that his neighbour's property is depreciated. Is he bound to the 
 alternative of expenditure of painting and glazing, or to compensate his neighbour ? 
 If he allows his windows to bo broken without heed his neighbour's empty house is so 
 much the more jeopardized, but is he liable? Compare, too, Dickson v. Ijeuter's Tele- 
 gram Company, 3 C. P. D. I, to which decision Brett, L.J., was a party. 
 
 1 4 C. P. 1). 32s ; 48 L. J. C. P. 731 ; 41 L. T. 93 ; 27 W. R. 801. 
 
 ^ Jackson v. Carshaltou Gaa Company, 5 Times L, B, 69, 
 
PAETi.J LIMITS OF LIABILITY. G5 
 
 area, while a painting stage in certain positions, however extreme 
 its dilapidation, might be entirely free from possibility of causing 
 injury, and under other circumstances might be the means of 
 causing equal injury with escaping gas. But as the one becomes 
 highly dangerous when escaping into a confined area, so the 
 other, when used in a certain way, as, for instance, in the way it 
 was used in Heaven v. Pender, becomes fraught with a similar 
 danger, and, in the absence of a duty arising on the jDart of the 
 person using it, carries with it a liability on those through whom 
 it is used in its insecure condition. 
 
 Two American cases must be noted as dealing with the question Guiilo v. Swan. 
 of responsible agency. The first is Guille v. Swan.' The defendant, 
 who had gone up in a ba],loon, alighted in plaintifi's garden. A 
 multitude of persons rushed into the garden to see defendant and 
 his balloon, trampled down the shrubs and fiowers, and otherwise 
 injured plaintiff's property. The New York Court held that the 
 plaintiff could recover for the damage done. This decision does 
 not seem sustainable, for it assumes the matter of fact, that should 
 have been submitted to the jury, as decided against the defendant 
 — that is, whether the act of the crowd in rushing into the garden 
 and doing the mischief was the natural and probable consequence 
 of the act of the defendant, and one which the defendant ought 
 to have and might have foreseen. The defendant was not mani- 
 festly responsible for all the acts of the crowd, but for those only 
 of which his was the proximate exciting cause. What the impul- 
 sions or deterrents urging or withholding persons from any definite 
 line of conduct may be cannot be matter of law. Whether a 
 subsequent act is the necessary sequence of a preceding one as 
 matter of causation, or is merely subsequent in time without 
 causal connection is not matter of law, but matter for a jury ; and 
 on the determination of this precedent question the legal con- 
 clusions as to which the judge directs the jury depend. This was 
 pointed out by Agnew, J., in the case of Fairbanks v. Kerr'' in Fairbanks c. 
 the Supreme Court of Pennsylvania, the second of the cases ^^^' 
 to be noticed. A man mounted a pile of flagging stones placed 
 in the street, by the side of the way, in readiness to be used 
 in the paving of the street, and delivered a political speech. 
 A crowd of hearers gathered about, some of whom got on a 
 heap of flagging stones, but not on the heap on which the 
 speaker was standing, and broke them. The speaker was held 
 
 1 19 Johns. 381. Atrattemptto assert but Keating, J., distinguishing the oitecl 
 a similar liability, support^by a reference case on the ground that it was a case of 
 to The Kingo. Moore, 3B.'& Ad. 184, indictment, refused to make the defend- 
 was made in Scholes v. North London ants " liable for the wrongful act of other 
 Eailway Company, 21 L. T. N. S. 835, persons." = 70 Penn. St. 86. 
 
 E 
 
66 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Victorian 
 Kailway Com- 
 missionere v. 
 Ooultas. 
 
 not liable for the breakage on the ground that it was not a 
 legal conclusion that he was liable for the breakage ; and 
 that it was a question for the jury whether the making of the 
 speech was the proximate or remote cause of the injury. We are 
 thus brought round again, in these cases, to the rule, that the 
 question of whether the intervention of a conscious or responsible 
 agency may be inferred, is a question for the judge; whether it 
 ought to be, is for the jury in each case as it arises.' 
 
 (4) The decision of the Priyy Council in Victorian Eailway, 
 Commissioners v. Coultas^ has been commonly looked on as as- 
 serting a new principle of limitation. It must therefore be con- 
 sidered with some care. The gate-keeper of a crossing over a 
 railway had negligently opened a gate over the line so that the 
 plaintiff and his wife, who were driving in a buggy, might cross ; 
 and they were already on the farther line when a train was seen 
 approaching. The gate-keeper directed Coultas to go back, but 
 he shouted to the gate-keeper to open the opposite gate and went 
 on. He got the buggy across the line so that the train passed 
 close to the back of it and did not touch it.^ The wife fainted, 
 and the medical evidence shewed that she " received a severe 
 nervous shock" which produced a miscarriage,^ and "that the 
 illness from which she afterwards suiFered was the consequence of 
 the fright." The judgment of the Privy CounciP continues, 
 " one of the plaintiff's witnesses said she was suffering from pro-, 
 found impression on the nervous system, nervous shock, and the 
 shock from which she suffered would be a natural consequence of 
 the fright. Another said he was unable to detect any physical 
 damage ; he put down her symptoms to nervous shock." 
 
 The Supreme Court of Victoria held that the plaintiff and his 
 wife could maintain an action for the injuries caused. The Privy 
 Council" reversed this judgment, on the ground that " Damages 
 arising from mere sudden terror unaccompanied by any actual 
 physical injury, but occasioning a nervous or mental shock, can- 
 not under such circumstances be considered a consequence which, 
 in the ordinary course of things, would flow from the negligence 
 of the gate-keeper. If it were held that they can,, it appears to 
 their lordships that it would be extending the liability for negli- 
 gence much beyond what that liability has hitherto been held to 
 
 \ Per Lord Cairns, C, Metropolitan 
 Railway Company v. JaclcBon, 3 App. 
 Cas. loj, at p. 197. 
 
 213 App. Cas. 222 ; 57 L. J. P. C. 
 S8 L. T. 390 i 37 W. E. 129. 
 
 ' In the report of tho case before tlie 
 Supreme Court of Victoria, it is said the 
 evidence " showed that a train came past 
 
 69; 
 
 and just scraped tho Ijirheels of the vehicle 
 in which tlie plaintiffs were " ! 12 Vict, 
 I- E. 895. 
 
 * See th^yictorianliawEeport ns above. 
 
 " Delivei'eU by^ir Eiohard Couch. 
 
 " Lord Fitzgerald, Lord Hobhouse, Sir 
 Barnes Peacock, and Sir Richard Couch. 
 
PARTI.] LIMITS OF LIABILITY. 
 
 be. Not only in such a case as the present, but in every case 
 where an accident, caused by negligence, had given a person a 
 serious nervous shock, there might be a claim for damages on 
 account of mental injury. The difficulty which often exists, in 
 case of alleged physical injuries, of determining whether they were 
 caused by the negligent act would be greatly increased, and a wide 
 field open for imaginary claims ; " and their decision is expressed 
 as being " that the first question,* whether the damages are too 
 remote, should have been answered in the affirmative, and on that 
 ground, without saying that ' impact ' is necessary, that the judg- 
 ment should have been'for the defendants." 
 
 The starting-point of this reasoning is, that nervous shock and Eeaaoning 
 mental shock are identical,^ and that they are opposed to actual ®^*°'™*^ 
 physical injury. Now, it is undoubted law that mental suffering 
 alone, unattended by any injury to the person, cannot sustain an 
 action.' "What the law understands by mental suffering may be 
 gathered firom Ahat was said in Blake v. The Midland Eailway 
 Company, by ''Coleridge, J. : " If the jury were to proceed to 
 estimate the/ relative degree of mental anguish of a widow and 
 twelve children from the death of the father of a family, a serious 
 danger might arise of damages being given to the ruin of the 
 defendants."^ The notion at the bottom of this has evidently 
 relation to the moral or intellectual sense.* The law will not 
 compensate, cannot compensate, for mental suffering in this 
 sense ; because it is not a consequence that in the long run has 
 any objective symptoms, or can be submitted to any reasonable 
 tests. If " mental suffering " is not limited to suffering caused 
 to the intellectual or moral sense, but is used, interchangeably 
 with nervous shock, to signify the same class of effect, then 
 " nervous shock " in animals, apart from physical contact, like 
 " nervous or mental shock " in human beings (for the Privy 
 Council treats the two states as co-extensive), would not give 
 ground for action. But a negligent act, apart from " impact " 
 
 1 The points reserved were : — i. Whether the oases, in the judgment reported in 
 
 the damages awarded by the jury to the Johnson v. Wells, 3 Am. E. 245, great 
 
 plaintifis or either of them are too remote part of which is a verbatim transfer of the 
 
 to be recovered. 2. Whetfier proof of judgment in Pennsylvania Eailroad Cpm- 
 
 " impact " is necessary in order to entitle pany v. Allen, 55 Penn. St. 276. ;j 
 
 plaintiffto maintain the action. 3. Whether * 21 L. J. Q. B. 233, at p. 238, as to 
 
 the female plaintiff can recover damages what the law regards as " mental snffer- 
 
 for physical or mental injuries, or both, ing," see Wyman v. Leavitt, 71 Me. 227, 
 
 occasioned by fright caused by the negli- where the question whether a fright of 
 
 gent acts of the defendant. sufiScient severity to cause a physical 
 
 * As to this as a scientific position, see disease would support an action, was pro- 
 Sir William Hamilton's Lectures on posed but not answered. Also Gulf Coast 
 Metaphysics, vol. i. lect. xv. note a, and and Santa Fe Railway Company v. Levy, 
 Appendix. 46 -A-™- R- 278. 
 
 s Lynch v. Knight, 9 H. L. C. 577, " Sir William Hamilton's Lectures, as 
 
 598, and see a very full examination of above. 
 
 67 
 
THE LAW OF NEGLIGENCE. [booki. 
 
 or actual physical contact, whicli frightens a horse and causes 
 him to bolt so that he is injured, is a ground of action.' " Mental 
 shock," then, and " nervous shock " do not coyer precisely the 
 same ground ; else we should be driven to the conclusion that 
 the law laid down that nervous shook, which would found an 
 action when communicated to a horse, would not found one when 
 it affected a human being, though the cause was in both cases 
 the same. There is, so far, no evidence of a distinction so 
 arbitrary. But, perchance, the possession and non-user or mis- 
 user of intellectual or moral faculties may differentiate the cases, 
 and take away the right of action where a human being is con- 
 cerned, and leave it where a horse is concerned. This, however, 
 is well . established not to be so." In explanation of the two 
 classes of cases, it must be borne in mind that the loss of 
 friends or fortune, or those things which are most ordinarily 
 ^igsociated .with the notion of mental shock, do not, on a com- 
 parison of. the long run of cases, produce appreciable injury to the 
 physical health ; and, where they do, would, on the grouiid that 
 thq, result is not the ordinary and reasonably to be looked-for 
 result,-_ryDt be subjects of damage, apart from the pther ground 
 of the impossibility of fixing a standard for their estimation. On 
 the other hand, the effect of terror is almost invariably to produce 
 nervous disorder ; as the judgment of the Privy Council says : 
 " The shock from which she suffered would be a natural conse- 
 quence , of thje fright J " not through the action of intelligent or 
 moral feelings, but directly and in regular sequence. And nervous 
 disorder, when manifesting itseK by a miscarriage and a long iU- 
 ness, is Somewhat ludicrously described as ' ' mental shock." A main 
 distinction maybe indicated as being that, where "mental shock" ia 
 produced, the operation on the nervous system is through a distinct 
 set of causes. The mind, the intellectual principle, is affected, and 
 may press on the health. But where nervous shock is produced, the 
 terror is merely another expression for a direct effect on the nervous 
 system — a portion of the physical organization. Yet injury which 
 a man inflicts on himself, through fright, may import an actionable 
 wrong for which damages are recoverable. Then, whether the 
 subject of terror be man or beast, where the terror is followed. 
 
 1 Blower v. Adam, 2 Tannt. 314 ; Man- In Simkin v. London and North-Westem 
 
 Chester South Junction, &o., Eailway v. Eailway Company, 21 Q. B. D. 453, there 
 
 FuUarton, 14 0. B. N. S. 54 ; Harris v. was no action, not because the horse was 
 
 Mobbs, 3 Ex. D. 2684 Wilkius v. Day, 12 only frightened, but because there was no 
 
 *Q. B. D. no; Brown ». Eastern andliid- negligence on the defendant's part in 
 
 land Eailway Company, 22 0. B. D. 391 ; frightening him. 
 
 Davis V. Charlton, 140 Mass. 422 ; Conklin " Jones v. Boyce, i Stark. 493 ; Buel «. 
 
 V. Thonmson, 29 Barb. 218, — a case where N. T. Central Bailroad Company, 31 N. Y. . 
 
 ■a horse died from sudden fright, caused by 314 ; Coulter v. The American Union Ex- 
 
 ithe explosion of a packer hetween its legs. press Company, 5 Lans. 67. 
 
PART I.] LIMITS OP LIABILITY. ' G9 
 
 by physical consequences, an action would seem to lie. If, then, in 
 the case under discussion, the wrongful and negligent act of the 
 defendant had caused the plaintiff's wife to fling herself from the 
 buggy, and a miscarriage had been produced, and a long illness 
 attendant thereon, the plaintiff could have recovered.' But, be- 
 cause the terror was so great that she fainted, instead of springing 
 out of the buggy, though identical consequences may have been 
 produced by the- defendant's act, the learned judges in the Privy 
 Council are of opinion that she cannot recover. The damages 
 are occasioned " by a nervous or mental shock." We have, how- 
 ever, seen that the mere fact of injury arising from a " nervous i 
 shock '' does not disentitle, even when the subject, besides having 
 nerves, has intelligence and moral sense. Terror occasioning a 
 nervous shock, when the consequences flowing therefrom are 
 objectively manifested, we have seen, in the case of Jones v. 
 Boyce," where a human being is concerned, and in the case of 
 Wilkins v. Day, where a horse is concerned,^ may alike give a 
 ground of action. The defect in the chain of consequences is 
 not, then, in its first link, terror, but in some subsequent one. - 
 In the case under discussion, the negligent act of the defendant 
 jMwiuced a miscarriage and a long illness, not, mark it, mere 
 anguish of mind, but actual physical incommodity. But if, in 
 natural and ordinary sequence, physical illness is produced 
 through the action of the nervous system disorganizing the 
 condition of the physical frame, it would be a strange conclu- 
 sion to be compelled to arrive at, that what, when done in 
 relation to a horse or an ox, is actionable, may be done with 
 impunity in relation to a human being.' A cause of action 
 would therefore seem to exist. 
 
 But to approach the subject from another point of view. 
 In the judgment of the Supreme Court of Victoria the following 
 case is put : " If a person were wantonly and mischievously to 
 come close behind another person, who was suffering from heart 
 or nervous disease, and discharge a gun, causing a severe shock 
 to such person's nervous system, could it be said that an action 
 would not lie for damages in respect of the physical and mental 
 injuries arising from that wanton and mischievous act?" 
 
 In Mr. Justice Stephen's " History of the Criminal Law,"" the Stohen's 
 same line of illustration is adopted, as follows: "A very slight the Orimmai 
 nervous shock might in many cases kill a person suffering under ■'^*^- 
 disease of the heart as effectually as a shot or a stab. I suppose 
 there are cases in which acts, which in health would pass un- 
 
 1 Jones V. Boyoe, i Stark. 493. See, " I Stark. 493. ' I2 Q. B. D. no. 
 
 per Mart'in, B., Wilson v. Newport Dock ' Conkliii v. Thompson, 29 Barb. 218. 
 
 Bompany, L. R. i Ex. 177, at p. 187. " Vol. iii. p. S- 
 
70 THE LAW Of NEGLIGENCE. [book i. 
 
 noticed, such as the disarrangement of a pillow, sudden waking 
 from deep sleep, or the sudden communication of bad news, might 
 cause the death of a sick person, just as a man hanging over a 
 precipice might be killed by loosening a stone or a root. In all 
 such cases the connection between cause and effect is not only- 
 definite, but, when the facts are known, it is obvious ; but they 
 are all cases in which death is caused without the infliction of 
 any such obvious definite bodily injury as seems to have been 
 required by the old law in order to make an act of homicide. 
 To shout in the ear of a sleeping man who has certain diseases 
 of the heart may be as effectual a way of killing him as a stab 
 with a knife, but, at first sight, such a death would not be 
 described as being caused by any definite bodily injury. Should 
 such a case occur in the present day, I think it would be re- 
 Haie's" Pleas garded as killing."' A passage from Hale's "Pleas of the 
 tfrown." Crown"' is then cited for the opposite view, and argues that 
 " because no external act of violence was offered, and secret 
 things belong to God," therefore " by working on the fancy of 
 another, or possibly by harsh or unkind usage," no felony is com- 
 mitted. However, Mr. Justice Stephen continues : " The great 
 improvements which have taken place in medical knowledge since 
 Hale's time, of course, make it possible in the present ^ay to 
 speak much more decisively on the question whether death has 
 been caused by a given act, or set of acts, than was formerly 
 possible. It might be impossible to say precisely whether a 
 woman's death was caused by the unkindness of her husband, but 
 where death was caused by a definite nervous shock, or the like, 
 I suppose there would be no difficulty in ascertaining the fact." 
 
 We have here, then, an opinion that to constitute a criminal act 
 in the nature of homicide actual impact is not necessary. And 
 secondly, that where the consequences of a definite nervous shock 
 may be traced, a criminal liability attaches to the person who caused 
 the shock. But, as far as criminal responsibility goes, there are 
 several decided cases for the proposition that, to raise criminal, 
 responsibility, mere physical force is not necessary, and that the 
 consequent nervous shock may be traced back to the originator.' 
 Uex V. ETans. Thus, the defendant, a husband, beat his wife and threatened to 
 throw her out of the window and to murder her ; by such threats 
 she was so terrified that, through fear of his putting his threats 
 into execution, she threw herself out of the window, and of the 
 beating, and the bruises received by the fall, died. Heathy Gibbff, 
 
 ^ Compare Digest of Criminal Law, p. 145, Illustrations (i), (2). 
 ^ Vol. 1. p. 429. 
 
 ' See the decision of the Court of CroTm Cases Reserved in The Queen v. Halliday, 
 6 Times L, P. 109. 
 
PART I.] LIMITS OF LIABILITY. 71 
 
 and Bayley, JJ., were of opinion that if slie were constrained by 
 her husband's threats of further violence and from a well-grounded 
 apprehension of his doing such further violence as would endanger 
 her life, he was answerable for the consequences of the fall as ■ 
 much as if he had thrown her out of the window himself."' And 
 this was cited and followed by Park, J., in Eex v. Hickman.' Eex «. 
 In both these cases there was antecedent physical violence. Not ^'°'™''"- 
 so, however, in Eegina v. Pitts,' where Erskine, J., summed up : KsKina v. 
 "A man may throw himself into a river under such circumistances ^'*'^" 
 as render 'it not a voluntary act, by reason of force applied either 
 to the ^ody or the mind. It becomes, then, the guilty act of him 
 who compelled the deceased to take the step." Bishop, in his Bishop's 
 " CJi'iminal Law '■" points out that the old criminal \&yr held it to Law."'"''' 
 be murder intentionally to cause the death of a human being on 
 jj&ial for his life by appearing as a witness against him and com- 
 ■'mitting perjury; and he also says, "nothing can be clearer in 
 legal principle than that in the proper circumstances mental force 
 employed to create a physical injury to an individual may be 
 punishable ; " and A fortiori may render liable to a civil action.* 
 
 Again, as far as intentional wrongs go, the law is plain, that lUuBtrated 
 actual contact (" impact ") is not necessary in order to give a right o™toespassr 
 of action for trespass; and, since in trespass the intent is immaterial," 
 it follows that " impact " is not necessary to enable a person injured 
 by negligence to recover. That being so in the case under dis- 
 'cnssion, the defendants were admittedly guilty of negligence, 
 which produced fright or nervous shock, which manifested itself 
 as " a natural consequence" in miscarriage and illness. It is 
 then exceedingly difficult to maintain Victorian Eailways Com- 
 missioners V. Ooultas by reference to principles of law extraneous 
 to the case and apart from the authority of the Court as con- 
 stituted when it was decided.' 
 
 (5) But the case may arise of the co-operation of two or more Co-operating 
 influences in producing a result injurious to some person to whom '^""^"^' 
 a duty is owing. The question then comes how far is each 
 
 ^ Eex V. Evans, 0. B. Sept. 1812, MS. Law, p. 87 ; Covell v. Laming, i Campb. 
 
 Bayley, J., cited l Bussell on Crimes, 5tli 497. 
 
 edit. p. 651. ' Compare : per Blackburn, J., Smith 11. 
 
 ^ 5 C. & P. IS'- London and South-Western Eailway Coni- 
 
 ^ C. & M. 284. pany, L. K. 6 C. P. 14, adopting -what 
 
 * Vol, i. 6th edit. § 564. And see i was said by Channel!, B.,in BIyth w. Bir- 
 Hawk. P. C. 6th edit. ch. 31, § 7. mingham Waterworks Company, 11 Ex. 
 
 5 Mognl Steamship Coiflpany v. Mo- 784. Soger v. Town of Barkhampsted, 
 
 Gregor, 15 Q. B. D. 476. 22 Conn. 289. In Huxley v. Berg, I 
 
 * Stephens v. Myers, 4 C. & P. 349 : Stark. 98, the action was by the husband 
 per Tindal, C.J. ; Addison on Torts, 4th for trespass and battery. The wife was 
 edit. p. 569 ; Bead v. Coker, 13 C. B. dead, and therefore any possible right of 
 860 ; Kegina v. St. George, 9 C. & P. action died with her ; and if it did not, 
 483 ; y. B. 21 Hen. VII. 27, pi. J, damage for personal injury to her was not 
 A.D. 1506, cited by Holmes, The Common claimed. 
 
72 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 I. Injury 
 through 
 dflfect in con- 
 dition of a 
 way, and 
 negligence. 
 
 II. Where 
 one negligent 
 act is prior to 
 the other. 
 
 Burrows v. 
 March Gas 
 Company. 
 
 liable ? To quote an instance given by Dr. Wharton : Where 
 an injury to a passenger on a highway is occasioned partly by ice, 
 with which the road is covered, and partly by a defect in the 
 structure of the road, the parties responsible for the defectiveness 
 of the road are liable, notwithstanding the fact that the ice con- 
 tributed to the injury. The ice was a condition of the injury; the 
 negligent construction of the road its cause.' 
 
 Again, one person may be negligent, and by the negligent or 
 wilful act of another the negligent act of the first may cause 
 injury to a third; then a distinction is to be taken. If the first 
 negligent act was not in its nature such that the second might be 
 looked for as a natural and probable cause, then the first negligent 
 person is not responsible.'' But if the subsequent negligence is 
 likely to follow from the antecedent negligence, then the first 
 negligent person is liable;' and the questioli will most usually 
 have to be left to the jury whether the first wrongdoer's act was 
 the proximate cause of the plaintiff's injury. But, though the 
 first wrongdoer may be liable, the second is not therefore dis- 
 charged,'' but each is liable for the total results of the joint wrong> 
 — rthat is, where the consequences are not referable to the separate 
 agency of each in their just proportions.* 
 
 The decision in Burrows v. March Gas Company" in the Court 
 of Exchequer was implicitly based on this ground. " The de- 
 fendants," said Kelly, C.B., " having been guilty of negligence, 
 by which the accident was caused, the plaintiff is entitled to main- 
 tain his action to recover compensation." But, as is pointed out 
 in a treatise of authority,' the true ground for the decision is that 
 which is taken by Cockbum, C.J., in the Exchequer Chamber. 
 " The action is not for negligence in its ordinary sense, but for 
 the breach of a contract whereby the defendants promised to supply 
 the plaintiff with a proper and sufficient service pipe from their 
 mains to a gas meter within his premises, and the question is 
 whether there has been a breach of this contract." The accident 
 arose from a defect in the pipe allowing the gas to escape, which 
 exploded when the servant of a third person negligently took a 
 lighted candle into the room where the escape was. Dr. Bigelow, 
 
 ' City of Atchison «. King, 9 Kan, 550. 
 
 " Carter v. Towne, 103 Mass. 507 ; Hiif- 
 nasle v. N. Y. Central Kailway, 55 N. Y. 
 608. The Eoman law on this point is : — 
 Si imlneratus fuerlt servvs non martifere 
 negligentia autcm perierit, de vvlnerato 
 actio erit, non de occiso (D. 9, z, 30, § 4). 
 Clark V. Chambers, 3 Q. B. D. 327 ; 47 
 L. J. Q. B. 427 ; 38 L. T. 454 ; 26 W. K. 
 613. Collins 13. Middle Level Commis- 
 sioners, L. K. 4 C. P. 270 ; 38 L. J. C. P. 
 236 ; 20 L. T. 442 ; 17 W. B. 929. 
 
 " Lane v. Atlantic WorkSj iii Mass. 
 140. 
 
 * Lake v. Milliken, 62 Me. 240. ^ 
 
 ^ Co. Litt. 232 a. Sutton v. Clarke, 6 
 Taunt. 29 ; The Bernina, 12 P. D. 83, at / 
 p. (;3, per Lindley, L.J. / 
 
 « L. E. s Ex. 67, L. B. 7 Ex. 96 ; 39 
 L. J. Ex. 33, 41 L. J. Ex. 46 ; 22 L. T. 24, 
 26 L. T. 31S; 20 W. E. 493. Oil City 
 Gas Company v. EobinsoD, og Penn. 
 St. I. 
 
 =■ Bigelow, Law of Torts, p, 611. 
 
PAETi.j LIMITS OF LIABILITY. 73 
 
 after pointing out that the negligence in the case was not joint 
 but successive, states the true principle on which to determine the 
 , existence or not of liability to be " not whether the defendant's 
 conduct afforded the means for the intervening party to do the 
 act which resulted in the injury, but whether the plaintiff can 
 prove that the defendants' conduct caused the damage." 
 
 Again, the negligences may be concurrent ; then, unless the iii. Where 
 injuries caused by the concurrent acts can be plainly separated, aots°are'^™' 
 when each would be liable only for what he caused,' each wrong- concurrent. 
 doer is liable jointly or severally for the whole damage.^ The 
 case just cited ^ also lays down that " it is no defence for a person 
 against whfli'tn negligence, which caused damage, is proved to prove 
 that witheiut fault on his part the same damage would have re- 
 sulted from the act of another." And this is certainly good sense. 
 If I had not injured you someone else would, is scarcely an available 
 defence, either in criminal or civil law. 
 
 To revert to the first instance given on this point. If both the The Bnie. 
 defect of the road and the existence of the ice were due to 
 responsible agents, then we see that an action is maintainable 
 against either. But the fact of only one of the two being due 
 to a responsible agent cannot lessen his liability; though the 
 difference between responsible and irresponsible agency may 
 make all the difference, in those who can be proceeded against ; 
 so that it may be taken as a rule that when ' an act of a re- 
 sponsible agent, in ordinary circumstances and not interrupted by 
 causes independent of the actor's will, directly tends to produce , 
 the event in question in the natural sequence of events, the agent 
 who thus sets it in motion is liable for those of its consequences 
 that may be reasonably anticipated naturally to arise. Or, to vary 
 the expression : if a responsible agency, in conjunction with 
 irresponsible agencies, jointly produces an effect which would not 
 ia ordinary course have been produced without the co-operation 
 of the responsible agency, then the responsible agent is liable 
 for the effect thus produced; and the responsible agent continues 
 liable for the consequences of the natural sequences of his act, 
 but not for more than the consequences of such natural sequences, 
 . until the occasion for the intervention of some other responsible 
 agency arises ; when a new responsible agent having been intro- 
 duced with a capacity to will, the liability of the former responsible 
 
 ^ Nitro-phosphate Company v. London River Railroad Company, 38 N. Y. 260 ; 
 
 and St. Katharine's Docks, 9 Ch. D. which, however, does not t6uoh the propo- 
 
 503 ; 39 L. T. 433 ; 27 W. E. 267. eition ; since there is no attempt to allege 
 
 2 Slater ». Merserean, 64 N. Y. 138 ; even that the same injury would have re- 
 Byrne V. Wilson, r5 Ir. C. L. E. 332. suited apart from the negligence of the.de- 
 
 ' Slater v. Mersereau, 64 N. Y. atp. 147. fendant. 
 " On the authority of Webster v. Hudson 
 
7i THE LAW OF NEGLIGENCE. [book i. 
 
 agent ceases.' For the operations of Nature, purely as such, it is 
 manifest no one can be legally accountable : the tendency of 
 heavy bodies to fall, of liquids to flow, of fire to bum, and, 
 generally, of the forces of Nature to follow out the laws of 
 Nature, imposes liability on no one; unless so far as these ten- 
 dencies are interfered with and their natural course accelerated 
 or diverted by responsible agency.'' All human action must be 
 taken with reference to the operations of Natiure, and in subser- 
 vience to their laws ; the ordinary and accustomed workings of 
 Nature form the conditions under which alone human action is 
 possible ; and, imputing liability to no one, form the basis from 
 which all imputability must arise. Yet a further distinction 
 must be taken between those operations of Nature which are 
 occasioned by the elementary forces of Nature unconnected with 
 the agency of man or other cause, and those which owe their 
 injurious influence on man either in whole or in part to the 
 agency of man, whether in acts of commission or omission, of 
 nonfeasance or of misfeasance, or in any other way that imposes 
 a new motion on the operation of their natural forces. 
 Eemarksof "The rain which fertilises the earth, and the wind which 
 
 iii°Niige™u! "enables the ship to navigate the ocean," says Cockbum, C.J.,' 
 Smith. (£ aj.Q g^g much within the term act of God, as the rainfall which 
 
 causes a river to burst its banks, and carry destruction over a 
 whole district, or the cyclone that drives a ship against a rock 
 or sends it to the bottom. Yet the carrier, who by the. rule is 
 entitled to protection in the latter case, would clearly not be able 
 to claim it in case of damage occurring in the former. For here 
 another principle comes into play. The carrier, is bound to 
 protect goods committed to his charge from loss or damage, and 
 if he fails herein he becomes liable, from the nature of his con- 
 tract. In the one case he can protect the goods by proper care, 
 in the other it is beyond his power to do so." The liability 
 that arises in the case of the rain or the wind is, however, not a 
 liability arising from the operations of Nature. In themselves, 
 the fall of rain and the blast of wind bring liability to no one ; 
 liability arises where duties have been undertaken that involve 
 guardianship against these elements, and it is from the failure to 
 discharge these duties that negligence is imputed. As to the 
 
 1 See Marble v. City of Woroester, 70 Ex. 217 ; Smith v. Fletcher, L. E. 7 Ex. 
 
 Mass. 395. 305 ; Exchequer Chamber, L. E. 9 Ex. 
 
 s May I) Bnrdett, 9 Q. B. loi ; 16 64; Boss v. Fedden, L. E. 7 Q. B. 661 : 
 
 L. J. Q. B. 64 ; Card v. Case, 5 C. B. 622 ; Hardman v. Norlh-EaRtem Bailway Com- 
 
 17 L. J. C. P. 124 ; Smith v. Kenrick, 7 pany, 3 C. P. D. (C. A ) 168 
 
 C. B. SIS ; Baird v. "Williamson, 15 C. B. » Nugent v. Smith, i C. P D 42'? 
 
 N. S 376 ; Eylands v. Fletcher, L. fi. 3 435 ; 45 L. J. C. P. 679 ; 34 L. T.' 827 | 
 
 H. of L. 330; Carstairs v. Taylor, L. E. 6 25 W. E. 117. *^' ■i'* ""/ > 
 
PART I.] LIMITS OF LIABILITY. 75 
 
 other class of natural agencies, James, L.J.,' thus expresses 
 himself : " The ' act of God ' is a mere short way of expressing 
 this proposition. A common carrier is not liable for any acci- 
 dent as to which he can shew that it is due to natural causes 
 directly and exclusively, without human intervention, and that 
 it could not have been prevented by any amount of foresight, 
 and pains, and care, reasonably to have been expected from 
 him." But as the liability of common carriers for negligence is 
 greater than that of any other class', what applies to them 
 d, fortiori holds good in all other cases of negKgence.^ All What 
 purely natural forces being thus excluded, a responsible agency responsible 
 for the purpose of inferring liability, comprehends all those with '^^'"'y- 
 capacity to exercise moral choice that is — with certain exclusions, 
 which have been already* noticed — all human beings, and none 
 but them. 
 
 We are now to inquire- more fully, how long, and in what Proximate 
 circumstances, the law imputes responsibility for the consequences oause!™"'" 
 of a wrongful act or negligence. The stsirting-point in the 
 determination of these inquiries is most usually the maxim In 
 jure non remota causa sed proodma spectatwr ; with Lord Bacon's 
 paraphrase : ' "It were infinite for the law to consider the causes 
 of causes and their impulsions one of another, therefore it con- 
 tenteth itself with the immediate cause, and judgeth of acts by 
 that without looking for any further degree." What is a proxima 
 causa, or immediate cause, in law is a matter dependent largely 
 on the facts of the individual case ; and, therefore, any definite 
 statement of the general principle to which the cases are to be 
 referred would seem unattainable. It is accordingly advisable to 
 go through the principal cases* which develop the rule of law with 
 far greater clearness than any mere exposition would do. As far 
 back as the time of James I.* it was recognized law that if a 
 horse escape from a field through a gap in a fence, permitted 
 by the negligence of the defendant, and come to injury, the 
 owner could recover ; but the law was again thus expressed by 
 
 ^ Nugent V. Smith, i C. P. D. 423, at should happen for the first time ; it is 
 
 p. 444. In Mtro-phosphate Company v. enough that it is extraordinary, and such 
 
 St. Katharine's Docks Company, 9 Ch. as could not reasonahly he anticipated. 
 
 D. 515^ 516, Fry, J., says: "I do not That appears to me the view which has 
 
 think that the mere fact that a pheno- been taken in all the cases, and notably by 
 
 menon has appeared once, when it dees Lord Justice Mellieh in the recent case of 
 
 not carry with it or import any probability Nichols v. Marsland," 2 Ex. D. 5. 
 
 of a Tecurrence — when, in other words, it ^ Coggs v. Bernard, z Ld. Eaymond, 
 
 does not imply any law from which its re- 909, 918 ; i Sm. Lead. Cas.gth edit. 201. 
 
 currence can he inferred — places that ' Bao. Max. Eeg. I. 
 
 phenomenon out of the operation of the * For a collectioij' of cases on the law 
 
 rule of law with regard to the act of God. generally on this /Subject, see Vicars v. 
 
 In order that the phenomenon should fall Wiloocks, 2 Smith's Lead'. Cas. 9th edit, 
 
 within that rule, it is not in my opinion 577. 
 
 necessary that it should be unique, that it ' Holbach v. Warner, Cro. Jac. 665. 
 
76 THE LAW OF NEGLIGENCE. [book i. 
 
 Eootii V. the Court of King's Bench in the case of Rooth v. Wilson,' where 
 
 ' ^°^' a gratuitous bailee sued for damages incurred from the death of 
 
 a horse caused by the neglect of the defendant to fence, and also 
 where, under similar circumstances of neglect, a horse was killed 
 by the fall of a haystack on defendant's land.' But the first case 
 where a general principle is laid down to govern in all cases 
 where injury results not immediately and obviously arising out 
 
 Davis V. of the wrongful act, is Davis v. Garrett.* Defendant's barge had 
 
 deviated from* its accustomed course without any justifiable cause, 
 and whilst it was so out of its course, in consequence of stormy and 
 tempestuous weather, the sea communicated with the lime which 
 formed the cargo, which thereby became heated, and caused the 
 barge to catch fire. The master was compelled, for the preser- 
 vation of himself and the crew, to run the barge on shore, 
 where both the lime and the barge were entirely lost. Tindal, C. J., 
 pointed out that it was obvious legal consequences must be the 
 same, whether the loss was immediate, as by the sinking of the 
 barge at once by a heavy sea, when she was out of her course, 
 or whether it happened by a connected chain of causes pro- 
 ducing the same ultimate event. The objection of the defendant 
 was, that there was no natural and necessary connection between 
 the wrong of the master in taking the barge out of its course 
 and the loss itself. The Chief Justice thus lays down the prin- 
 ciples to govern in these cases : " No wrongdoer can be allowed 
 to apportion or qualify his own wrong, and as a loss has actually 
 happened whilst his wrongful act was in operation and force, 
 and which is attributable to his wrongful act, he cannot set 
 up as an answer to the action the bare possibility of a loss if 
 his wrongful act had never been done. It might admit of a 
 different construction if he could shew not only that the same 
 loss might have happened, but that it Tmcst have happened, if the 
 act complained of had not been done." 
 
 Walker r.Goe. Walker V. Goe* is the next case to refer to. The head-note 
 thus summarizes its leading facts. An Act enabling Navigation 
 Commissioners to grant a lease of a canal contained a clause as 
 
 ^ 5'f '^^ ^^- ^ -^'i ?.9; tenant's cattle from straying. Erskinef. 
 
 - (1828) Powell V. Salisbury, 2 Y. & J. Adeane, L. R. 8 Cli. 756 ; 42 L J Ch 
 391. (1873) Lawrence ». Jenkins, L. R. 835 ; 29 L. T. 234. He must keep his 
 K y. a. 274. J. here is an obligation for cattle on his land, but is not bound to 
 the owner of minerals so to fence that the prevent his neighbour's catUe from stray- 
 horses or cattle of the owner of the sur- ing. Hilton v. Ankesson 27 L T 
 face are not iniured through falling into 519. > / • • 
 excavations. Groucott ». WiUiams, 32 i (1830) 6 Bing. 716, approved and fol- 
 Xi. J. y. B. 237. But there is no implied- lowed in Lilley v. Doubleday 7 Q B D 
 obhgation on the part of a lessor to keep 511 ; Smeed v. Foord, i El & El 602. 
 up the fences of closes which the landlord * (1858) 3 H. & N. 39c' In the Ex- 
 retains in his own hands, and which abut chequer Chamber, 4 H. &N ^co • 28 L J 
 upon the tenant's land, to prevent the Ex. 184. • oj 1 
 
PAETI.J LIMITS or LIABILITY. 77 
 
 follows : In case the lessees during the term shotild permit the 
 navigation to be out of repair, the Commissioners " are hereby 
 authorized and required to give notice thereof to such lessees, and 
 in such notice to specify the particular repairs which ought to be 
 done ; and the Commissioners may, by such notice, require that 
 such repairs should be commenced, proceeded with, and finished 
 within reasonable periods to be named by the Commissioners. 
 And in case the lessees shall neglect to commence, &c., such 
 repairs, &c., then it shall be lawful for the Commissioners, and 
 they are hereby authorized, to take possession of the tolls, &c., 
 and to cause such repairs to be done under their own direction, 
 and to pay the necessary expenses of making such repairs out of 
 the said tolls." The lease having been granted in pursuance of' 
 the Act, during its continuance one of the locks of the canal 
 became out of repair, but the Commissioners, though they knew 
 of the want of repair, gave no notice of it to the lessee, though 
 a sufficient time had elapsed for the giving of such notice. A 
 barge entered the canal while the lock was so out of repair, but 
 was prevented from getting out again by the falling in of the lock. 
 It was held by the Court of Exchequer, and affirmed by the 
 Exchequer Chamber, that no action lay by the owner of the 
 barge against the Navigation Commissioners. Pbllock, C.B., in 
 the Court of Exchequer said : "To say that the damage could 
 be the consequence of the wrongful act or omission is, in. our 
 judgment, to assert a false proposition of law. The surmise is, 
 if the notice had been given the repairs would have been done 
 and the lock would not have fallen in, and so not giving notice 
 caused the lock to fall in. As we have said, this is not proved, 
 but it is not the proximate, necessary, or natural result of not 
 giving notice. The not giving of notice is not sufficient to bring 
 about the result, the giving of it would not be sufficient to 
 hinder it," and Wightman, J., in delivering the judgment of the 
 Exchequer Chamber, thus deals with the same point; " It is 
 argued that if notice had been given the repairs would have been 
 done, and if they had been done the lock would not have fallen 
 in. Suppose, however, the Commissioners had given notice, it 
 does not follow that the lessee would have repaired, and if he 
 did not the Commissioners were not bound to repair. Therefore 
 the falling in of the lock cannot be considered as the natural 
 and necessary consequence of the omission of the Commissioners 
 to give the lessee notice to repair." 
 
 The two above-quoted cases give, therefore, the true aspect of Conclusion, 
 what is a natural and probable consequence. On the one hand, 
 it is not sufficient in order to escape liability to shew that the 
 
78 THE LAW OF NEGLIGENCE. [book i. 
 
 same consequence might have happened without the negligence 
 that, happening with it, founds the liability. On the other 
 hand, it is not sufficient, in order to affix liability, to shew that 
 the negligence and the injury that might flow from it did exist, 
 without shewing that the injury would in ordinary course flow 
 from the negligence/ 
 
 Cases relating to horses receiving injury by straying through 
 Lee V. Riley, broken fences have been already given. In Lee v. Riley' a more 
 complicated state of facts existed. Defendant's duty was to 
 repair the fences of a field where he kept a mare. This duty he 
 neglected, and the mare got through a gap in the fence into a 
 field where the plaintiff had a horse. The plaintiff's horse was 
 kicked by the defendant's mare, and so injured that he had to 
 be slain. The plaintiff was held entitled to recover his value, 
 on the ground that the foundation of the action was the negli- 
 gence of the defendant in omitting properly to keep up this 
 fence, and that it was through this negligence that the plaintiffs 
 mare strayed from her own pasture ; and that it was impossible 
 her owner could know how she would act when coming suddenly 
 in the night-time into a field among strange horses. The dis- 
 tinction drawn by the Court to distinguish this from those cases 
 where the question of ferocious or vicious disposition was raised' 
 was, that in those cases a knowledge is presumed, from the 
 natxu-e of animals, as to their probable conduct; but, in the 
 present case such knowledge was impossible. This distinction 
 appears very flimsy and unsatisfactory. If an animal is marir- 
 suetce natwrce, and gives an " unexplained kick," the owner is not 
 liable,* on the ground, apparently, that the general disposition of 
 the animal is such that the owner can, without negligence, assume 
 that it will not act in a ferocious manner. But if he may assume 
 that, surely he cannot reasonably be held liable when the assump- 
 tion proves unwarranted, and when nothing would have led him 
 to suspect that the act was possible. " It was impossible," says 
 Erie, O.J., "that her owner could know how she weuld act;" 
 then, being mansmtce naturce, the owner was discharged from 
 more than ordinary precautions. The true ground of the dis- 
 
 ^ See remarks at the end of judgment fonoe which separated the plaintifPs and 
 
 of Pollock, C.B., in Harrison v. The Great defendant's fields, irrespective of any ques- 
 
 Northern Railway Company, 3 H. & 0. tion of negligence on the part of the de- 
 
 231, 238 at the bottom of the. page. fendants. 
 
 2 (i86s)i8C.B.N.S.722;34L.J.C.P. 3 Cox «. Burhidge, 13 C. B. N. S. 430. 
 
 212; 12L.T.N. S.388; I3W.E.7SI- I1 Read «. Edwards, 17 C. B. N. S. 245. 
 
 Ellis V. The Loftus Iron Company, L. R. * Cox v. Burhidge, 13 C. B. N. S. 430. 
 
 10 Q. B. to; 44 L. J. C. P. 24, the defend- See, per Erie, J., 434. The questioa here 
 
 ant was held liable in trespass for the in- is, whether the owner of an animal man- 
 
 juries done by his horse in biting and sueta natiirce is liable for an ur ined 
 
 kicking the plaintiffs mare throagfa a kick. 
 
 t. 
 
PART I.J LIMITS OF LIABILITY. ' 79 
 
 tinction between this and the other cases seems to be that the 
 defendant had been guilty of an act of negligence, a result of 
 which was that his mare trespassed on the land of his neighbour, 
 and, while a trespasser, did an injury that would certainly have 
 been avoided if the defendant had not been negligent, and injury, 
 too, not so remotely connected with that negligence as to be 
 viewed as other than a consequence probably arising out of it, in 
 a case where only irresponsible agencies were involved. The 
 defendant's mare being a trespasser through the defendant's 
 negligence, a presumption arises that the defendant is liable for 
 all acts done during the trespass, unless they are such that, 
 looking to the nature of the trespassing animal, they could be 
 said not to be natural or probable consequences of its disposition ; 
 and though, when a horse is in a place where it has a right to 
 be, any disposition to lack that it may suddenly manifest does 
 not import a liability on its owner ; ' when the horse is where it 
 should not be, and kicks, the kicking is not so far remote from what 
 is to be expected from the natural disposition of horses but that 
 the injury may be said to follow in the natural and obvious 
 sequence from the original wrongful act that allowed the horse 
 to get where an opportunity of doing injury is given. 
 
 In the next case. Hill v. New Eiver Company,^ an open ditch Hiu v. New 
 ran along the highway made by commissioners of sewers in the ^11^, °'^' 
 construction of a sewer, and was insufficiently fenced and protected. 
 The New Eiver Company caused a stream of water to spout on 
 the highway to a height of. about four feet above the level of 
 the road. This jet was left unguarded by the servants of the 
 company. The plaintiff's carriage was being. driven along the 
 highway between the spouting stream and the ditch ; the horses 
 took fright at the spouting stream and, swerving aside, fell into 
 the ditch. The defendants resisted the plaintiff's claim on the 
 ground that the unfenced excavation was the catisa proxiyna; but 
 the Court' was of opinion that the spouting water was really 
 the causa cav^ans of the accident, and that but for the negligence 
 of the defendants the accident would not have happened ; that 
 being so, they were responsible for its consequences. 
 
 Collins V. Middle Level Commissioners is a curious case.* An Collins ». 
 Act of Parliament authorized commissioners to construct a cut commis.^^* 
 with proper gates and sluices to keep out the waters of a tidal sioners. 
 river, and a culvert under the cut for the purpose of draining the 
 lands of the plaintiff and others on the east side of the cut. The 
 
 * Hammack v. White, 11 C. B. N. S. ' Mellor, Lush, and Hannen, J J. 
 
 588 ; 31 1;; J. 0. P. 129 ; s L. T. ff. S. * (1868) L. E. 4 C. P. 279 ; 38 L. J. C. P. 
 
 676 ; 10 Wi^E. !3o. 236 ; 20 L. T. N. S, 442. 
 
 2 (1868) iF% T.N.S.3os;9B.&S.303. 
 
80 THE LAW OF NEGLIGEITGE. [book i. 
 
 Act of Parliaxnent required the culvert to be kept open at all 
 times. In consequence of negligent construction the waters of 
 the river flowed into the cut and, bursting the western bank, 
 flooded the adjoining lands. The plaintiff closed the lower end of 
 the culvert and thus prevented a considerable extent of damage ; 
 but the occupiers of the lands on the west side removed the 
 obstruction, and so caused a large addition to the water on the 
 plaintiS"s land. The defendants contended that the increase being 
 caused by the wrongful act of those who removed the obstruction 
 which the plaintiff had rightfully placed there, the defendants 
 were not liable for the enhanced damage. The Court,' however, 
 held otherwise, upon two grounds. First : The culvert by Act of 
 Parliament was to be kept open at all times ; consequently, those 
 who removed the obstruction were no more wrongdoers than those 
 who placed it there. But, second : Assuming that those removing 
 the obstruction were wrong, " the primary and substantial cause 
 of the injury was the negligence of the defendants ; and it is not 
 competent to them to say that they are absolved from the conse- 
 quence of their wrongful act by what the plaintiff or some one else 
 did." The second ground seems somewhat too broadly expressed. 
 If the owners on the west had wantonly removed the obstruction, 
 and apart from the Act of Parliament, then their conduct could 
 scarcely be regarded as a natural or probable consequence flowing 
 from the negligent act. Their act takes its colour irom the con- 
 sideration that they were owners, and " imagining that if the 
 neighbouring lands on the east were also overflowed the injury to 
 themselves would be diminished."" 
 Smith «. In Smith v. London and South-Western Eailway Company' 
 
 South°We"tern *^® Company's servants had cut the grass and trimmed the 
 Eidiway banks and hedges at the side of the line, and then raked the 
 
 cut grass and hedge trimmings into heaps near the liae, and 
 there left them for a fortnight in extremely hot weather. The 
 heaps became very dry and inflammable, and were set on fire 
 by sparks from one of the company's engines. A high wind 
 prevailed at the time: 'the flre burnt up the adjoining hedge, 
 passed over a stubble field and a public road, and destroyed the 
 plaintiff's cottage about two hundred yards from the line. On 
 the question whether there was any evidence to go to the jury, 
 Brett, J., in the Court of Common Pleas, thought there was not, 
 
 1 Montague Smith and Brett, JJ. i Salk. 13 ; Vaughan v. Menlove, 3 Bing. 
 
 2 Per Montague Smith, J., L. R. 4 C. P. N. C. 468. Compare, Webb v. Rome, &o., 
 at p. 287. Eailway Company, 49 N. Y. 420; also 
 
 ' L. K S C. P. 98, in the Exchequer the opinion of Christi.ancy, J., in Hoyt D. 
 
 Chamber, L. E. 6 C. P. 14 ; 39 L. J. C. P. Jeffers, 30 Mich. 200, cited in Wharton, 
 
 68, 40 L. J. C. P. 21 ; 21 L. T. N. S. 668, Law of Negligence, « i <:i:, 
 23 L. T. N. S. 678 ; TuibeiTill v. Stamp, ^^ 
 
PARTI.] LIMITS OF LIABILITY, 81 
 
 for "no reasonable man could have foreseen that the fire would 
 consume the hedge and pass across a stubble-field and so get to 
 the plaintiff's cottage at the distance of two hundred yards from 
 the railway, crossing a road in its passage." Bovill, O.J., and 
 Keating, J., held there was : " Under ordinary circumstances it 
 may be that hedges are not expected to ignite ; but, if there be 
 collections of grass and hedge trimmings near them in a very diy 
 and inflammable condition, and these by some means become 
 ignited, it may fairly be presumed that the hedges will be in 
 danger, and who is to say where the danger will stop ? It is not, 
 however, for us to decide whether the injury complained of was a 
 probable consequence of the conduct of the defendants' servants." 
 The dissent of Brett, J., is to the proposition that, admitting the 
 negligence that produced the fire, the destruction of the cottage 
 at a distance of two hundred yards was a natural and probable 
 consequence of the fire. The two other judges decided that the 
 conduct of the servants of the company in leaving the dry heaps 
 by the side of the railway so long was evidence of negligence, and 
 that what are probable consequences from negligence are matters 
 for the jury. The judges of the Exchequer Chamber adopted this 
 latter view. 
 
 In the argument in the Exchequer Chamber much stress was Judgments 
 laid by the defendants on the dictum of Bramwell, B., in Blyth Exchequer 
 V. Birmingham Waterworks Company ' : "It would be monstrous C'^'""'"''"- 
 to hold the company liable for negligence because they did not 
 foresee an event that was so remote from probability that for 
 many months it could not be found out what was the cause of 
 the injury to the plaintiff's premises." This Channell, B., in 
 giving judgment, in succession to Bramwell, B., explained thus : 
 " I quite agree that where there is no direct evidence of 
 negligence, the question what a reasonable man might foresee is 
 of importance in considering the question whether there is 
 evidence for the jury of negligence or not, and this is what was 
 meant by Bramwell, B., in his judgment in Blyth v. Birmingham 
 Waterworks Company ; but when it has been once determined 
 that there is evidence of negligence the person guilty of it is 
 equally liable for its consequences, whether he could have foreseen 
 them or not." And this opinion was adopted by Blackburn, J., 
 in his judgment : " What the defendants might reasonably 
 anticipate is," said he, " only material with reference to the 
 question whether the defendants were negligent or not, and 
 cannot alter their liability if they were guilty of negligence." 
 
 ' 1 1 Ex. 781, 785; 25 L. J. Ex. 212, way Company, 4 H. & N. 781 ; 29 L. J. 
 214. Comman v. Eastern Counties Bail- Ex. 94. 
 
 F 
 
82 THE LAW OF NEGLIGENCE. [book i. 
 
 " If the negligence were once established, it would be no answer 
 that it did much more damage than was expected. If a man 
 fires a gun across a road, where he may reasonably anticipate 
 that persons will be passing, and hits some one, he is guilty of 
 negligence, and liable for the injury he has caused ; but if he 
 fires in his own wood, where he cannot reasonably anticipate that 
 any one will be, he is not liable to any one whom he shoots, 
 which shows that what a person may reasonably anticipate is 
 important in considering whether he has been negligent ; but if 
 a person fires across a road when it is dangerous to do so and 
 kills a man who is in the receipt of a large income he will be 
 liable for the whole damage, however great, that may have 
 resulted to his family and cannot set up that he could not have 
 reasonably expected to have injured any one but a labourer." 
 On this all the Court' was agreed. Blackburn, J., however, 
 doubted " whether since the trimmings were on the verge of the 
 railway on the company's land, if the quickset hedge had been in 
 its ordinary state they might not have been burned only on the 
 company's premises, and done no further harm, and whether the 
 injury therefore was not really caused by the hedge being dry, so 
 that it caught fire, and by the fire thus spreading to the stubble 
 field and thence to the plaintiff's cottage." The decision of this 
 case goes far to establish that when negligence has once been 
 shown to exist it carries a liability for the consequences arising 
 from it whether they be greater or less until the intervention of 
 some diverting force, or until the force put in motion by the 
 negligence has itself become exhausted.^ 
 BaiUffs of There would seem, however, difficulty in asserting any such pro- 
 
 r. Trinity position in view of one aspect of the next case. Bailiffs of Eomney 
 House. Marsh v. Trinity House.' Through defendants' negligence a ship 
 
 belonging to them groimded upon a shoal or sand-bank within three- 
 quarters of a mile of the plaintiff's wall. There it became un- 
 manageable, and was carried upon the wall, which it broke down, 
 and where it was left for some time, each tide doing slight injury 
 to the wall. By breaking the vessel up and thereby sacrificing 
 valuable property that she had on board, the injury to the wall 
 subsequent to the original injury might have been prevented. 
 By not taking this course, and leaving the vessel doing damage 
 to the plaintiff's wall till measures to save the valuable property 
 
 ' ConBisting of Kellv, C. a Martin, B., 96 N, Y. 664, where a man recovered for 
 
 Biamwell, B. Channel!, B., Blaokhuru, J., injuries suffered from adefeot in a highway, 
 
 PiKott B and Lush, J resulting, months after, in a spinal disease 
 
 - The American case of Louisville Eai - 3 ],, r g^ ^^ ;^ Exchequer Cham- 
 way Company» Mannine, Sylnd. 351, 13 her, L. E. 7 Ex. 247 ; ^o L. J. Ex 16^ 
 very similar in facts, and identical in con- 41 L.J. Ex. 106 ■ 22 L T aaF,- tSW -r' 
 elusion. See, too, Ehrgott v. New York, 869. ' ^''- '"^ ' ^2 l^- l • 446 , 18 W. R. 
 
PARTI.] LIMITS OF LIABILITY. 
 
 83 
 
 could be taken, a great saving of property was made. The de- First point. 
 fendants' main contention was, that their negligence was not the 
 proximate cause of the injury; for that a series of natural 
 causes over which they had no control, and which could not be 
 calculated on, intervened ; such as the shifting of the wind, its 
 violence, and the violence of the tide.^ But the Court held that 
 the defendants were liable, Kelly, G.B., saying : " The rule of 
 law is, that negligence to render the defendants liable must be 
 the causa cavsans, or the proximate cause of the injury, and not 
 merely a catisa sine qua nm." The defendants appealed, but the 
 Exchequer Chamber upheld the decision as " the damage caused 
 was stated to have been the inevitable consequence of the ship 
 striking the bank througt the defendants' negligence." So far 
 the case is merely a re-statement of the propositions that the mere 
 operation of natural agencies is to be looked upon as the insepar- 
 able accompaniment of human actions, and that their greater or 
 less degree of fluctuation does not relieve human agency unless 
 their deflection from the accustomed order is so great as to pro- 
 duce that phenomenal disturbance called " the act of God."^ 
 The second point, however, is of more importance. As to the Second point. 
 damage done to the plaintiff's wall while the ship remained there 
 the Court of Exchequer at once ordered judgment to be entered 
 for the defendants on the ground " that it must be assumed, for 
 the present purpose, that the ship was, without negligence, thrown 
 into a position where it injured the plaintiff's wall. Under these 
 circumstances there was no duty to do more than use reasonable 
 care and skill in removing it. There was no duty to sacrifice 
 the vessel in the plaintiff's interests." No cross appeal was 
 entered on this point, so that the matter was not mooted before 
 the Exchequer Chamber. Setting aside for the moment the The question 
 question of how the matter presented itself to the Court on the °°"^' ^^^ ' 
 pleadings, it is not apparent why the injury to the wall was not 
 regarded as the natural consequence of the negligence of the 
 defendant's servants under the first count. The negligence being 
 established, the rule laid down by Channell, B.," would come into 
 operation. Where theije is evidence of negligence the person 
 guilty of it is equally liable for its consequences, whether the 
 Court have foreseen them or not. There does not seem to be 
 any interruption in the chain of consequences ; if it were a 
 necessary consequence, rendering the defendants liable, that the 
 
 ' lonides v. UniverBal Marine Insur- Ex. D. i, 46 L. J. Ex. 174, 3^ L. T. 725, 
 
 ance Company, 14 C. B. N. S. 259; 32 2SW. E. 173. River Wear Commissioners 
 
 L. J. C. P. 170. v. Adamson, 2 App. Cas. 743 ; 47 Ij- J. 
 
 = See ante, p.! II ; and, in addition to Q. B. 193 ; 37 L. T. 543. 
 
 cases there cited : Nicolle v. Marsland, 2 ' Ante, p. 81. 
 
84 THE LAW OF NEGLIGENOE. [book i. 
 
 ship should drive against the wall, it seems a no less necessary 
 one that damage should result to the wall when the ship was 
 there, and if the shipowners were liable for the first impact, why 
 not for the subsequent damage ? This, it may be said, is a ques- 
 tion of fact, and the Court, on the hearing of the argument of the 
 special case, was entitled to assume, and did assume, that the 
 damage was not a continuous act of damage ; but if the Court 
 did this they would probably have pointed out some reason for 
 the consideration, or noticed it in some way ; but, from all that 
 appears, the fact of a cessation of the original agency is not only 
 not found but not even noticed. The decision seems to be the 
 same as if in Smith v. London and South- Western Railway Com- 
 pany, the company had been held liable for the damage done to 
 the stubble field, but not to the cottage, because a road intei-- 
 vened between it and the cottage. The fact that the ship rested 
 on the wall till the rise of the tide caused her to move abou\ 
 again, does not constitute a cessation of the efiects of the negli- 
 gence ; since the flow and the ebb of the tide is merely, the 
 operation of an invariable natural agency that must be looked 
 on as an inseparable concomitant of human operations, and 
 by which human responsibility is in no case affected. But, 
 secondly, it is assumed that the ship was on the wall without 
 negligence. The declaration stated that " by reasonable care and 
 diligence the defendants might have prevented the vessel from 
 doing and continuing to do the said further injury ; but that the 
 defendant did not use such care and diligence." Kelly, C.B., 
 giving judgment, said, " It is impossible to contend that there 
 was any negligence on ,the part of the defendants in not breaking 
 up the ship und&r the circumstances of the case. It appears 
 there was valuable property on board, which they could not save 
 otherwise than by taking it out before the ship was broken up. 
 The matter therefore resolves itself into the question whether 
 there is any duty to break up and sacrifice valuable property for 
 the purpose of preventing it doing damage where it lies." The 
 decision was, that there was no duty to do more than use reason- 
 able care and skill in removing it. 
 
 The considerations weighing with the Court were probably 
 those pointed out in Adamson v. River Wear Commissioners,' 
 that property adjoining a spot where the public have a right to 
 carry on trafiic is subject to the liability of injury through the 
 conduct of the trafiic ; and where injury occurs the owner of the 
 injured property must bear his own loss, unless he can establish 
 that some other person is in fault and liable to make it good. 
 
 1 2 App. Cas. 743 aupra; Tillett v, Ward, lo Q. B. D. 17. 
 
PARTI.] LIMITS OF LIABILITY. 85 
 
 The case of Wilson v. Newbeny' was decided on demurrer. It Wilsons. 
 ■was an attempt to establish a duty on the defendant to prevent '^^^^^y- 
 the clippings of his yew trees, which were poi'sonous to cattle, and 
 actually caused the death of the plaintiff's horses by eating of them, 
 from being placed upon land other than that occupied by the 
 defendant. The analogy sought to be established was with the 
 case of Fletcher v. Rylands,^ but the Court refused to recognize 
 any such analogy, and the more so as, by the terms of the 
 declaration, the duty sought to be established was not only to 
 prevent the clippings from escaping on to his neighbour's land, 
 but was so broadly expressed as to cover the case of their being 
 placed there by a stranger. 
 
 Some valuable considerations as to what constitutes an ordinary 
 and natural sequence of an act are to be found in Sharp v. Powell.^ Sharp «. 
 Defendant's servant, in breach of the Police Act (2 & 3 Vict. °^^ ' 
 c. 47, s. 54), washed a van in the public street ; the waste 
 water ran down the gutter towards a grating leading to a sewer 
 some few yards off. The grating was frozen over, and the water, 
 after flowing for some way, froze also. The plaintiff's horse, 
 while being led along the road, slipped on the ice and broke his 
 leg. At the trial the plaintiff was nonsuited, and the Court of 
 Common Pleas upheld the decision of the judge at the trial on 
 the ground^ that " the act of the defendant was not the ordinary 
 or proximate cause of the damage to the plaintiff's horse, or 
 within the ordinary consequences which the defendant may be 
 presumed to have contemplated or for which he is responsible." 
 Grove, J., then goes on to say: "The expression the 'natural' 
 consequence, which has been used in so many cases, and which I 
 myself have no doubt often used, by no means conveys to the 
 
 > L. B. 7 g. B. 31 ; 41 L. J. Q. B. 31 ; the factswere otsciire, and the declaration 
 
 25 L. T. 69s i 20 W. 11. Ill; Lawrence v. did not shew in what part of the defend. 
 Jenkins, L. E. 8 Q. B. 274 ; 42 li. J. Q. B. ant's land the yew trees grew, nor how the 
 147; 28 L. T.' 406; 21 W. E. 577. In clippings came on the land of the plaintiff. 
 Firth V. Bowling Iron Company, 3 C. P. D. As to damage done by yew-trees planted 
 2SS ; 47 L. J. C. P. 358 ; 38 L. T. 568 ; and grown with the knowledge of the de- 
 
 26 W. B. 558, defendants were bound to fendants on the borders of their lands, 
 fence their land, which they did by means whereby the plaintiff's horse was poisoned : 
 of wire rope. The rope wire composing Crowhurst v. Burial Board of the Parish 
 the rope decayed, and pieces fell to the of Amershani, 4 Ex. D. S ; 48 L. J. E-v. 
 ground, where thev lay hidden in the 109; 39 L. T. 355; 27 W.R. 95. There is 
 grass of the adioining pasture of the no evidence of negligence in a railway com- 
 plaintiff. The plaintiff's cow, grazing in pany continuing to use the fastenings on a 
 his field, swallowed some of the pieces, gate in which there was nottiog iiitrinsi- 
 and died in consequence. On the authority oally dangerous, and which had been nine 
 of Hurdman «. North-Eastern Eailway Tears in use without accident: Great 
 Company (3 C. P. D. 168) the defend- Western Eailway Company v. Davies, 39 
 ant was held liable. Lindley, J., in L. T. 475. t t t c 
 giving judgment said :— The only case 2 l. jj,. 3 H. L. 330; 37 L. J. Jix. i&i. 
 cansinK any doubt in our minds was WiU ^ lh. 7 C. P. 253 ; 41 ^- i-^-i-- 95 ; 
 son V. Newbery. But, after consideration, 26 L. T. 436 ; 20 W . K. 584. 
 
 we think it distinguishable for the reason ■• Per Grove, J., L. li. 7 C. P. at p. 
 
 that the decision was given on demurrer ; 259., 
 
8« THE LAW OF NEGLIGENCE. [book i. 
 
 mind an adequate notion of what is meant ; ' probable ' would 
 Consideration perhaps be a better expression." The original act of the defendant 
 of the case. ^ washing his van in the public street was clearly wrongful ; and 
 if the water had at once formed a puddle and frozen, and the acci- 
 dent had followed on the spotTvhere the negligence had been com- 
 mitted the plaintiff would probably have been held entitled to 
 recover. But when the water had flowed away from the pkce of the 
 negligence, and had run into the channel provided for waste water, 
 the effect of the negligence had been exhausted. The negligence 
 had ceased to operate, as, in the ordinary state of things, water 
 would be expected to flow there, and provision was made for its 
 flowing away. But, by another cause, an impediment was inter- 
 posed to the flow of the water ; and the question then arose 
 whether there was any duty on the defendant, after seeing that 
 the water placed on the public road by his wrongful act had 
 flowed away, to trace it along its course. The Court held that 
 there was no such duty ; but that when the water had got into its 
 natural course the consequences of his wrongful act ceased. This 
 implies that the mere act of throwing water down the gutter was 
 lawful ; if otherwise, the effect of the wrongful act would have 
 been continuous, and the decision probably different. 
 Sneesbyw. Sneesby v. Lancashire and Yorkshire Eailway Company' illus- 
 
 lancashire trates the other side of the rule, where, through complicated 
 
 and Yorksliu-e . ' i it -ii i 
 
 Eailway circumstances, the original wrongful act was held still to work 
 
 Company. liability. There was admitted negligence on the part of the 
 servants of the defendant company in moving down trucks from 
 a siding while cattle were crossing the line, whereby the plaintiff's 
 cattle were separated from the drovers, frightened, and dispersed. 
 The principal portion of the cattle was recovered. Some of them, 
 however, which were not recovered, got upon another railway 
 through a defect in the fence of a garden or an orchard, and 
 which, though in fact on the defendants' railway, for the pur- 
 poses of the case was treated as if it had been the railway of some 
 other company, or as if the straying cattle had fallen down an 
 unguarded quarry. The question at issue was, whether the death 
 of the cattle was not too remote from the original negligence, 
 which caused them to stray," to affect the defendants with liability. 
 On the point, then, what is an immediate cause in the meaning of 
 the maxim, In jure non remota causa s&d proxima spectatur, the 
 Blackburn, J ,'s exposition of Blackbum, J., is too valuable to be omitted. " The 
 the law. rule,'' says that learned judge, "is somewhat difficult to apply; 
 
 but in a case like the present this much is clear, that so long as 
 
 ■ 1 (1874) L. E. 9 Q. B. 263, in Court 69, 45 L- J- Q. B. i ; 30 L. T. 492, 33 L. T. 
 of Appeal, I Q. Bi D, 42 ; 43 L. J. Q. B. 372 ; 24 W. B. 99, 
 
PARTI.] LIMITS OF LIABILITY. 
 
 87 
 
 the want of control over the cattle remains, without any fault of 
 the owner, the causa proxivia is that which caused the escape, for 
 the consequences of which he who caused it is responsible. 
 Suppose, for instance, in former times, a reclaimed falcon were 
 frightened and escaped, the natural consequence would bo that 
 it would be lost altogether, and the person who negligently- 
 frightened it would be liable. The natural and proximate conse- 
 quence was that it would not be got back at all. So if you have 
 lost control of cattle and cannot get them back under your con- 
 trol till they have run into danger and are killed, the death is 
 a natural consequence of the negligence which caused you to 
 lose control of them. It is the most natural consequence of 
 cattle being frightened, that they should go galloping about and 
 get into a dangerous posttion, and, being in the neighbourhood of 
 ■railways, should get on the line and be run over by a passing 
 train, whether that of the defendants or not is immaterial. When 
 once it is established that the cattle were driven out of the con- 
 trol of the plaintiff by the defendants' negligen6e, and that the 
 control could not be recovered till they were killed, the liability 
 of the defendants is beyond dispute." 
 
 Lord Cairns, 0., in the Court of Appeal, puts the matter more I-ord Cairns's 
 shortly in affirming the Queen's Bench : " Everything that oo- ^"""""y- 
 curred or was done after that (i.e., after the cattle were frightened 
 and infuriated) must have been taken to have occurred or been 
 done continuously." The liability is, therefore, made dependent, 
 not on the nearness of the wrongful act, but on the absence of 
 power to divert or avert its consequences, and continued through 
 its various consequences till the first impulse either spends itself, 
 as by the death of the cattle, or is diverted by some independent ~ 
 agency intervening. 
 
 In Pearson v. Cox' injury was caused to a passer along a Pearson i-. Cox. 
 public footpath by a " straightedge,'.' a plasterer's tool, falling 
 from the window of a house that was being built adjacent to the 
 footpath. For a considerable time during the progress of the 
 works the building was fenced from the footway by an outer 
 hoarding or scaffolding, ^fter the outer work was finished the 
 hoarding was removed and the plasterers continued their work 
 inside. One of the plasterers, walking along a plank, caused it 
 to spring, and so threw the straightedge out of window. The 
 Court was of opinion that there was in these circumstances no 
 evidence of liability. The accident happened on the public high- 
 way, where, as we have already seen, the duty of the defendant is 
 Hot to be guilty of negligence ; but on which a plaintiff must bear 
 
 1 (1877) 2 C. P. D. 369 ; 36 L. T. 49S. 
 
88 THE LAW OF NEGLIGENCE, [book i. 
 
 any loss befalling him, unless he can establish that some person 
 is in fault and liable to make good his misfortune. The con- 
 sequences, then, which in such circumstances a defendant has to 
 guard against, are such as " could reasonably be foreseen." In 
 the case in question, since there was no evidence that the accident 
 could reasonably have been foreseen, and since the general know- 
 ledge of the judges did not apprise them that it was a thing the 
 probability of which must be known to all the world, so that the 
 jury must be taken to have known it without evidence, there 
 could be no recovery. In other words, there was no reasonable 
 and probable connection between the defendant's act and the 
 accident, and so no legal sequence. 
 Clark t). In Clark v. Chambers' Oockbum, C.J., inquires into the con- 
 
 sequences arising from unlawful actaj negligences, or omissions 
 of duty, to which the liability of a defendant should be confined ; 
 and while acquiescing in the doctrine laid down in the previous 
 case as applicable to the circumstances of that case, seems to 
 intimate a doubt as to the soundness of the general principle 
 there laid down. The defendant was in the occupation of 
 premises abutting on a private road, which were used for athletic 
 sports. As people in carts and vehicles were used to station 
 themselves along the private road, and thus to look over the 
 fence into the grounds, the defendant put up a barrier to prevent 
 them. This barrier was made by a hurdle set up lengthways 
 next the footpath, then two wooden barriers armed with spikes, 
 commonly called chevaux de. frise, then an open space through 
 which a vehicle could pass, then another large hurdle set up 
 lengthways, which blocked the rest of- the road. The space 
 between the two divisions of the barrier was usually left open for 
 vehicles to pass to any of the other premises down the road. 
 But, when sports were going on, a pole was carried from one part 
 of the barrier to the other, and so the road was efiectually blocked. 
 On the evening of the accident the plaintiff was visiting one of 
 the houses down the private road ; in returning, coming back 
 along the middle of the road, it being very dark, the plaintiflF felt 
 his way safely through the opening in the centre of the barrier, 
 and then turned to the footpath, intending to walk along there 
 the rest of the way. It appeared that, in the course of that day, 
 or the day previous, some one had removed one of the clievavx de 
 frise hurdles and placed it in an upright position across the foot- 
 path. The plaintifi" had not gone more than a few steps when his 
 eye came into collision with one of the spikes, the effect of which 
 was that the eye was forced from the socket. It did not appear 
 
 1 3 Q. B.D. 3*7 ; 47 L. J. Q. B. 427 ; 38 L, T. 454 ; 26 W. E. 613. 
 
PAETi.J LIMITS OF LIABILITY. 
 
 by whom the chevaux de /rise hurdle had been removed, but it 
 was expressly found by the jury that this was not done by the 
 defendant or by his authority. It was admitted that what the 
 defendant did in erecting the barrier was unauthorized and 
 wrongful, and that the plaintiff was lawfully using the road. 
 The defendant's contention was, that as the immediate cause of 
 the accident was not the act of the defendant but that of the 
 person who removed the chevaux de /rise and placed it across the 
 footway, the defendant could not be held liable for what was the 
 act of another. The Court,' on a review of the cases, sustained 
 the right of the plaintiff to recover ; but there is an apparent in- 
 disposition to state any formula that should embrace the principle 
 that governs them. However, after quoting the -judgment of 
 Bovill, C.J., in Sharp u'Powell,^ Oockbum, C.J., says : " At the cockbmn, 
 same time, it appears to us that the case before us will stand the ^fnt'^ofthe 
 test thus said to be the true one. For, a man who unlawfully l»w. 
 places an obstruction across either a public or private way may 
 anticipate the removal of the obstruction by some one entitled to 
 use the way as a thing likely to happen ; and, if this should be 
 done, the probability is that the obstruction so removed will, 
 instead of being carried away altogether, be placed somewhere 
 near : thus, if the obstruction be to the carriage-way, it will very 
 likely be placed, as was the case here, on the footpath. If the 
 obstruction be a dangerous one, wheresoever placed, it may, as 
 was the case here, become a source of damage, from which, should 
 injury to an innocent party occur, the original author of the 
 mischief should be held responsible. Moreover, we are of opinion 
 that if a person places a dangerous obstruction in a highway or 
 in a private road over which persons have a right of wayj he 
 is boimd to take all necessary precaution to protect persons 
 exercising their right of way, and that if he neglects to do so he 
 is liable for the consequences." Though Oockbum, 0. J., recog- The law 
 nizes that the facts of Clark v. Chambers can be brought within "^'^^sBed. 
 the rule laid down in Sharp v. Powell, he seems to think that 
 the principle underlying such cases as Scott v. Shepherd,' and 
 Dixon V. Bell,' is different and wider. But Scott v. Shepherd was 
 first a decision upon a mode of pleading, and secondly an authority 
 that when there has been no power for the intervention of human 
 agency but a mere instinctive act of preservation, the liability of 
 the original wrongdoer is not displaced. Sharp v. Powell is a 
 decision that when the natural effects of a wrongful act have 
 exhausted themselves, an effect that might equally have been 
 
 1 Cockburn, C.J,, and Manisty, J. ' 2 W. Bl. 892 ; 3 Wils. 403. 
 
 2 L. R. 7 C. P. 253. < S M. & S. 198. 
 
 89 
 
90 THE LAW OF NEGLIGENCE. [book i. 
 
 expected to follow a rightful as well as a wrongful act shall not 
 be presumed to be wrongful merely for the purpose of consti- 
 tuting a liability. There the same result would have followed 
 from a rightful as from a wrongful act. It was quite lawful for 
 the defendant to send water down the gutter : there was no duty 
 from the plaintiff to the defendant, who was bound to look out 
 where he might reasonably expect the effect of the water to be 
 found. There was no wider principle laid down in Scott v^ 
 Shepherd than in Sharp v. Powell. The difference in the two 
 was merely that they illustrated difierent aspects of the same 
 rule ; nor does Dixon v. Bell lay down a principle of any wider 
 scope. As Lord Ellenborough intimated, the case was on the 
 very verge dividing liability from non-liability — an extreme case. 
 The act of the defendant was negligent in not removing the 
 means of mischief before entrusting the instrument to an agent 
 incapable of diverting the independent responsibility of the 
 original wrongdoer. Prom the tone of Cockburn, C.J.,'s remarks, 
 however, it might be concluded that the apparent probability or 
 improbability that the child should point the gun at another child, 
 and that it should go off and do the injury, were the points to 
 which attention should be directed for ascertaining whether the 
 negligence was near or remote. But this is clearly not so ; as is 
 apparent from a study of the judgment of Blackburn, J., in the 
 Exchequer Chamber, in Smith v. London and South-Western Eail- 
 way Company.' There are two stages to be considered in im- 
 puting liability. First, the act of the defendant must be such that 
 damage arises as its natural and ordinary consequence ; and that 
 imposes the liability ; if the consequences following from the act 
 are not natural and ordinary, then the liability for negligence 
 does not arise. Secondly, when the act is once established as a 
 negligent act, then the consequences following therefrom are 
 referable to the original act of negligence and become parts of 
 the negligence for which the defendant is liable, irrespective of 
 any question of their greater or less probability of. occurrence, 
 with reference only to their direct emanation from the act which 
 a previous decision has noted as actionable negligence. The 
 limit of tlje defendant's responsibilities is not reached till it can 
 be pointed out that some agency has intervened that either has 
 or might have diverted the act into a fresh channel ; and so that 
 in the ordinary course, and proceeding on the ordinary assump- 
 tion that every one acting in the course of the matter had done 
 what was to be expected in the circumstances, the act actually 
 
 1 L. E. 6 C. P. 14. 
 
PARTI.] . LIMITS OF LIABILITY. 
 
 91 
 
 happening would have been diverted or defeated.' Thus, if a 
 fire were at a great distance, but every probability pointed to its 
 destroying plaintiff's property, who, however, did not trouble to 
 move for the preservation of his goods, he would be disentitled 
 to recover for the loss, just as much as if he had done some act 
 which sacrificed them ; so also he would be disentitled to recover 
 from the person who set the destructive agency in motion, if the 
 intervention of any person between him and the person suing 
 could have been reasonably and properly looked to to avert the 
 consequences, which person, however, refrained to act.'^ 
 
 In the Supreme Court of the United States the rule we have American rule, 
 been considering was discussed in Milwaukee Eailway Company ix. 
 Kellogg,^ where it is said: "The true rule is, that what is the 
 proximate cause of an injury is ordinarily a question for the 
 jury. It is not a question of science or of legal knowledge. It 
 is to be determined as a fact in view of the circumstances of 
 fact attending it. The primary cause may be the proximate 
 cause of a disaster, though it may operate through successive 
 instruments, as an article at the end of a chain may be moved on 
 a force applied to the other end, that force being the proximate 
 cause of the movement, or, as in the oft-cited case of the squib 
 thrown in the market-place (2 Bl. R. 89 b). The question always 
 is, Was there an unbroken connection between the wrongful act 
 and the injury — a continuous operation ? Would the facts 
 constitute a continuous succession of events so linked together 
 as to make a natural whole, or was there some new and inde- 
 pendent cause intervening between the wrong and the injury ? 
 It is admitted that the rule is difficult of application. But it is 
 generally held that, in order to warrant a finding that negligence, 
 or an act not amounting to wanton wrong, is the proximate cause 
 of an injury, it must appear that the injury was the natural and 
 probable consequence of the negligence or wrongful act, and that 
 it ought to have been foreseen in the light of the attending 
 circumstances." It may admit of some doubt whether Smith «. 
 London and South-Western Railway Company does not lay dowrt 
 
 ^ The case of Cowell «. Mumford, 3 poeition of the dog was not proved, was 
 Times Law Reports l, would seem at first under the Act 28 & 29 Vict. c. 60, s. i, 
 sight inconMstent with this. The defend- the words of which are; "The owner of 
 ant's dog attacked the mare of the plain- every dog shall he liable in damages for 
 tiffi while plaintiff was driving her in a injury done to any cattle or sheep byhis 
 gig. The mare fell, and was injured, as dog." The damages being thus limited 
 was also the gig, the plaintiff, and his to injury done to the mare, 
 clothes. Bowen, L.J., held that the ^ See the instance given by Wharton, 
 plaintiff could only recover for the damage § 155, as to petroleum stores near a rail- 
 done by the dog to the mare. This way. 
 
 though it does not appear from the report, ^ 94 U. _S. (4 Otto) 469. SoheSfer v. 
 
 was probably on the ground that the only "Washington City, &c., Eailroad Company, 
 
 right of action where scienter of the dis- 105 tJ. 8. (15 Otto) 249. 
 
92 THE LAW OF NEGLIGENCE. [book i. 
 
 a somewhat wider rale than is here expressed — the phrase, " in 
 
 the light of the attending circumstances," is ambiguous, and may 
 
 mean merely those circumstances antecedently apparent — in which 
 
 sense it narrows the effect of the English decision, or it may 
 
 mean those subsequently manifested, and which must be looked 
 
 upon as potentially existent at the time of the negligence; when 
 
 it would be co-extensive with, and aptly express, the English 
 
 rule. 
 
 Messrs. shemr- The rule to be derived from the American cases, as given 
 
 EediiSd's by Messrs. Shearman and Eedfield, is free from this ambiguity. 
 
 statement of j^ jg u ^jj^t a person guiltv of negligence should be held respon- 
 
 the American ' '^ a j ,.7 i l t -a 
 
 rule. sible for all the consequences which a prudent and experienced 
 
 man, fully acquainted with all the circumstances which in fact 
 existed, whether they could have been ascertained by reasonable 
 negligence or not, would have thought at the time of the negli- 
 gent act reasonably possible to follow if they had been suggested 
 to his mind.'" 
 Consideration The rale we have hitherto been considering deals only with 
 S'kny mfe-* tort; in contract the liability has been considered to be more 
 enoe in the definitely marked.^ There, as a general rule, the primary and 
 it has to deal immediate result is alone to be looked to. Thus, in the case of 
 with CO tracts, ^o^.payment of money, no matter what the inconvenience sus- 
 tained by the plaintiff may be, the measure of damage is no more 
 than the interest of the money.' With regard to the limitation 
 of liability in the case of contract, there is consequently not the 
 difficulty that arises in cases of torts. The law is largely to be 
 Hadiey v. referred to the leading case of Hadley v. Baxendale,* where the 
 Court said : " We think the proper rule, in such a case as the 
 present, is this : where two parties have made a contract which one 
 of them has broken, the damages which the other party, ought 
 to receive, in respect of such breach of contract, should be such 
 as may fairly and reasonably be considered eil^er arising naturally 
 — i.e., according to the usual course of things from such breach 
 of contract itself, or such as may reasonably be supposed to have 
 been in the contemplation of both parties at the time they made 
 the contract — as the probable result of the breach of it,— Now, if 
 the special circumstances under which the contract was actually 
 made were communicated by the plaintiffs to the defendant, and 
 thus known to both parties, the damages resulting from the 
 breach of such a contract, which they would reasonably contemplate, 
 would be the amount of injury which would ordinarily follow 
 from a breach of contract under these special circumstances so 
 
 § 29. Compare Lowery v. Manhattan ' Per Willes, J., Fletcher ». Taylenr 
 
 Bailway Company, 99 N. Y. 158. 17 C. B. 29. 
 
 ^ Mayne on Damages, 4lh edit. p. 9. * 9 Ex. 341. 
 
PABTi.] LIMITS OF LIABILITY. 
 
 93 
 
 known and communicated. But, on the other hand, if these 
 special circumstances were wholly unknown to the party breaking 
 the contract, he, at the most, could only" be supposed to have had 
 in his contemplation the amount of injury which would arise 
 generally, and in the great multitude of cases not affected by 
 any special circumstances from such breach of contract. For 
 had the special circumstances been known, the parties might 
 have specially provided for the breach of contract by special 
 terms as to the damages in that case, and of this advantage it 
 would be unjust to deprive them." 
 
 This exposition was intended to settle the law,' and has been 
 adopted both here and in America. In a later case^ it has been Summarized 
 summarized into three inquiries, as follows : — " First, whether the Inquiries 
 damage is the necessary consequence of the breach ; secondly, 
 whether it is the probable consequence ; and, thirdly, whether it 
 was in the contemplation of the parties when the contract was 
 made. Those two last are rather questions of fact for a jury, 
 than of law for the Court to determine." 
 
 The point whether there is any difference between the measure Enie the same 
 
 £3 ' j.j.ij.1 r n "ii iu contract 
 
 of damage m contract and the measure or damage m tort was and tort. 
 distinctly raised in The Netting Hill,' where Lord Esher, M.B., The Netting 
 with the concurrence of the rest of the Court, denied the existence ' " 
 of any different principle whatever. That was an action for 
 damages caused by collision at sea, where an attempt was made 
 to obtain damages for loss of market. The Court in deciding 
 against the claim followed The Parana,^ where it was held that 
 " in all such speculative uncertain cases damages ought not to be 
 recovered." The explanation of the existence of an opinion 
 that the rule in contract is narrower than that admitted in tort 
 may be due to the fact that the cases admit of being grouped 
 under two heads ; first, where physical injury is done to property ; 
 which is the more common head of a claim in tort ; secondly, 
 where there is a failure to do something in respect of which 
 there is a duty with regard to property ; which most often 
 happens where there is a contract. In the former case the 
 injury actually happens, and can be appraised q,ccurately. In 
 the latter case the injury is merely the defeating an ex|)ectation. 
 But actual injury bears its own evidence on its face; while if 
 
 1 Per Pollock, C.B., Wilson v. New- London and South-Western Railway Com- 
 port Dock Company, L. H. i Ex. 189. pany, L. K. 10 Q. B. iii,iiiMclVIahon v. 
 'ITie leading case in America is Griffin v. I'iefd, 7 Q. B. D. 591 ; 50 L. J. Q. B. 
 Colver, 16 N. Y. 489 ; Sedgwick's Lead. 852 ; 45 L. T. 381. 
 Cas. on the Measure of Damages, p. 269. » 9 P. D. 105 ; S3 L.J. P. 56; 51 L. T. 
 Western Union Telegraph Company v. 66 ; 32 W. B. 764. 
 Hall, 124 U. S. (17 Dayis^ 444- ■• 2 P. D. 1 18 ; 36 L. T. 388 j 25 W. E. 
 
 ^ Per Brett, L. J., ijnestioiung Hobbs v. 596. 
 
94 THE LAW OF NEGLIGENCE. [book i. 
 
 a defeat of the intentions of a person, were the ground of legal 
 damage without reference to some external standard, the most 
 indefinite and imaginary claims could be advanced, without any- 
 check except counter imagination. In this latter case, then, the 
 law, whether in contract or tort, limits the liability more definitely 
 than in the former case ; in which liability attaches to manifested 
 injury naturally arising, and irrespective of extent. But since the 
 extensive liability that belong to the former class of cases most 
 often takes its rise from torts, the liability has become associated 
 with tort ; while the more indefinite claims are referable chiefly 
 to contract, hence the notion of a stricter limit where, in fact, 
 there is only a greater probability of more indefinite claims. 
 Games. The law as to injuries received in playing games must be noticed. 
 
 Lex AqtMia. In the lex Aquilia there are several passages referring to this. 
 The broad rule discriminates ingenui from servi, games glorice 
 causa et virtutis from games of sport merely, like that of ball, 
 Bi quis in colluctatione vel in pancratia ml pugiles dum inter se 
 exereentur alius alium occiderit, cessat Aquilia, quia glorice causa et 
 idrtutis, non injurice gratia iddetur damnum datum. Hoc autem 
 in servo non procedit, quoniam ingenui solent cfirtare ; in filio 
 famUias vulnerato procedit. Plane si cedentem vuJneravit, erit 
 Aquilim locus, aut si non in certamine servum occidit, nisi si 
 domino committente hoc factum sit; tunc enim Aquilia cessat? 
 The lex Aquilia does not apply to public pugilistic combats, or 
 to wrestling matches, in which a freeman is wounded. But if a 
 slave is wounded while engaged in such sports the exception does 
 not operate, since only freemen are accustomed to contend in them. 
 Games, like the game of ball, are difierent. Here all may play, 
 and injury received in consequence of participation brings no 
 liability with it. Cum pila complures luderent, quidem ex his 
 servulum cum pilam percipere conarctur, impulit, servum ceddit et 
 crus /regit ; qitxerebatur, an dominus sermdi lege Aquilia cum eo 
 cujus impidsii eeciderat agere potest. Bespondi non posse, cum casu 
 magis quam culpa videretur factum.^ This diiference is to be 
 explained by the consideration that the game of ball was a mere 
 game, and not glorice catisa et virtutis. The underlying principle 
 is, that injuries received while engaged in sports or exercises 
 occasion no liability where they are accidental and sustained in 
 the course of the exercise or sport. If, however, the games were 
 of a kind that the law considered not befitting a slave to take 
 part in, those who played at these games with slaves and injured 
 them were liable for the injury. If the games were not of this 
 sort, a slave was in the same position as a freeman. In any case, 
 > D. 9, 2, 7, 4. _ 2 D. g. 2_ 52, 4. 
 
PARTI.] LIMITS OF LIABILITY. 
 
 95 
 
 the protection only availed during the progress of the game, and 
 in regard to injuries that were natural consequences of it. With 
 the passages already set out must be taken a third — Own 
 dramenta ardentia transilirent duo, concurrcrunt mrAoqioe cecid- 
 erunt et alter flamma consumptus est ; nihil eo nomine potest agi, si 
 non intellegitur, uter ah utro eversus sit} In this case — arising out 
 of the practice at Rome at the feast of the Paliliae of jumping 
 over heaps of burning straw and hay — there is, in the one case, 
 either absence of evidence of how the event came about, or else 
 contributory negligence ; in the other, the collision is not a 
 natural consequence of taking part in the game, and, therefore, he 
 who does the injury is liable in respect of it. But exercises, 
 even those glorice causa et virtutis, must only be practised in the 
 proper place. Sed si per*lusum ja/yidantibios servus fuerit occisus, 
 AquilioB locus est? But, on the other hand, if, while they are 
 being lawfully practised, and in the place appropriate for them, 
 injury is caused, there is no liability unless the act causing the 
 liability were an intentional one. Sed si cum alii in campo jacu- 
 larentur servus per eum locum transierit, Aquilia cessat, qv/ia non 
 debuit per camptim jaculatoriuvi iter intempestive facer e, qui tamen 
 data opera in cum jaculatus est, utique Aquilia tenehitur ;^ and a 
 quotation from Paulus is added — nam lusiis quoque nexitis in culpa 
 est* In crossing the campus jaculatorius, the slave would be 
 guilty of contributory negligence. This, however, would not 
 excuse a wilful injury. 
 
 A curious case is stated by Ulpian :' — Item Mela scribit, si cum uipiau's case. 
 pila quidam luderent vehementius quispilapercussa in tonsoris manus 
 earn dejecerit et sic servi, quern tonsor hdbebat, gula sitprcecisa adjecto 
 cultello ; in quocumque eorum culpa sit, eum lege Aquilia teneri. 
 Procidus in tonsore esse cidpam ; et sane si tibi toTidebat uhi ex con- 
 suetudine ludebatur vel ubi transit2cs frequens erat, est quod ei 
 imputetur ; quamvis nee illud male dieatur, si in loco periculoso 
 sellam habenti tonsori se quis commiserit, ipsum de se queri debere. 
 
 The law of England does not differ from the civil law. law of 
 
 " The law," says Dr. Bigelow," " as to injuries received in to"|ames.''^ 
 games and sports was, and (as far as the games are lawful') doubt- 
 
 1 D. 9, 2, 4S, § 3. of the work, &o., describes the material of 
 
 2 D. 9, 2, 9, § 4. it as " collected out of the Keports of the 
 
 3 X). 9, 2, 9, § 4. Common Lawe ; of this realme, and of the 
 i D. g^ 2, 10. statutes in force, and out of the painfull 
 " D. 9, 2, II pr. workes of the re vei-end judges, Sir Antho- 
 " Leadins; Cases on the Law of Torts, nie Fitzhathert, Sir Robert Brooke, Sir 
 
 229,citingPulton, DoPaceKegis, p. 7, de- William Stanford, Sir James Dyer, Sir 
 scribed as " A work of the beginning of the Edward Coke, Knights, and other learned 
 
 seventeenth centuiy." There is a copy of writers of our lawes." 
 this work in the Inner Temple Library, ' The determination ot wnat are lawiui 
 in black letter, bearing date 1609; the title- games is of some interest; and may ex- 
 page of which, after specifying the scope cuse a note. In the proclamation of 
 
96 
 
 THE LAW OP NEGLIGENCE. 
 
 [book I. 
 
 less still is tlius : ' If two or more do agree together to run at 
 tilt, joust, barriers, or to play at backsword, bucklers, football, or 
 such like, and one of them doth beat, bruise, or wound another, 
 the party grieved shall not have an action of trespass, of assault, 
 and battery against the other ; for that it was a combat by con- 
 sent, and put in practice to try their strength, valour, or agility, 
 and not to break the peace. But if the same day or some other 
 after that the pastime is at an end and they departed asunder, 
 one will assault or beat another in respect of some wrong con- 
 ceived to be received in the time of the said play, then an action 
 for trespass, of assault and battery, may be pursued by him that 
 is so beaten, against the trespasser.' " 
 
 The distinctions taken here are between lawful and unlawful 
 games, and between injuries received while engaged in lawful 
 games, and injuries subsequently inflicted. 
 
 In Boulter v. Clark,' Parker, O.B., in an action for assault and 
 battery, held that fighting being unlawful, the defence that the 
 plaintiff consented to fight would be no bar to the action. But 
 in BuUer's " Nisi Prius,"^ citing Dalton,^ it is laid down that if two 
 
 bited all unlawful games to bee used upon 
 Sundayes only as beare and bull baitings 
 interludes, and at all times in the meaner 
 sort of people, b^ law prohibited, bouling." 
 The proclamation is given at length in 
 2 Somers's Tracts, 54 (Scott's edition). 
 Unlawful games are penalized by the 
 statute 33 Hen. VIII. 0. 9, " An Acte for 
 mayntenance of Artyllarie and debarringe 
 of uiilauful games." The object of which 
 was to promote the practice of archeiy, 
 which, through the invention of "many 
 and sondrie newe and crafty games and 
 playes," "ys sore decayed, and dayly is 
 lyke to be more mynished." This Act 
 was in extension of an earlier Act, 11 
 Hen. IV. c. 4, which prohibits the follow 
 ing games as unlawful — "balls as well 
 handball as football and other games called 
 coits, dice, bowling, calls, and other such 
 unthrifty games." See 8 & 9 Vict. c. 109, 
 and 26 & 27 Vict. c. 125. The subject is 
 treated in Comyns's Digest, art. Justices 
 of Peace (B 42) : Game — Unlawful Sports 
 and in Dalton's Country Justice, c. 46. 
 See, too, Strutt's English Sports and Pas- 
 times, 2nd edit. 1810. 
 
 1 At Abingdon, 1747 ; Bull. N. P. 16. 
 Compare James v. Campbell, 5 C. & P. 
 377, where two persons lighting at a parish 
 dinner, one of them unintentionally gave 
 a third person two black eyes. 
 
 2 P. 16. 
 
 ' Cap. 22. I am unable to find the re- 
 ference. The chapter in the Country Jus- 
 tice on " Games and Plays " is 46. Chapter 
 22 is about Cattle, 
 
 James I,, dated the 24th of May 1618, 
 and called the Book of Sports, what are 
 lawful games is indicated. This pro- 
 clamation, says Hallam (Constitutional 
 History, 8th edit. vol. ii. chap, viii.p. 55), 
 was a renewal of that issued in the late 
 reign, that certain feasts or wakes might be 
 kept, and a great variety of pastimes used, 
 on Sundays after Evening Service. It is 
 said to have originated in an order made 
 by Richardson, C.J., at the request of the 
 justices of the peace, for suppressing these 
 feasts. The Privy Council, at the in- 
 stance of Archbishop Laud, reproved the 
 judge, and directed him to revoke his 
 order. Kennet, p. 71 ; Rush, Abr. ii. 
 166. The proclamation "which," says 
 Hallam, was " perfectly legal and accord- 
 ing to the spirit of the late Act " (i Car. I. 
 c. i), " followed on one of the preceding 
 year published in Scotland, and ordained 
 that as for our good people's lawful recrea- 
 tion our pleasure likewise is, that after the 
 end of Divine Service, our good people be 
 not disturbed, letted, or discouraged from 
 any lawful recreation, such as dancing — 
 eitlier men or women — archerie for men, 
 leaping, vaulting, or any other such harme- 
 lesse recreation ; nor from having of May 
 games, Whitson ales and Moms dances, 
 and the setting up of Maypoles, and other 
 sports therewith used, so as the same be 
 had in due and convenient time without 
 impediment or neglect of Divine Service ; 
 and that women shall have leave to cany 
 rushes to the Church for the decoring^il 
 it, according to their old custome ; out, 
 withall, we doe here accompt still as prohi- 
 
PART I.J 
 
 LIMITS OF LIABILITY. 
 
 97 
 
 by consent play at cudgels and one hurt the other it is no battery. 
 Stephens' regards this as inconsistent with previous decisions. It 
 may be reconciled, however, on the assumption that cudgel play- 
 ing was a lawful game, whereas fighting would be in any event 
 a breach of the peace, as to which there would be no privilege. 
 Very like what, we have seen, was the Eoman law is laid down in 
 Comyns's Digest^: " If a soldier in a muster discharge his gun and 
 another go across, whereby he inevitably and against his will hurts 
 him, it is not a battery in law." But he must set out the circum- 
 stances, and make it appear that he was not in any fault, for it is 
 not enough to shew it was casualiter etper inforhonium contra volun- 
 tatem suam? If one is injured while looking on, the defendant is 
 primd facie liable ; * and where several persons were engaged in 
 playing at ball in the pn*blic highway and a traveller was acci- 
 dentally hit, the game not being a lawful one in such a place, 
 not only was the person whose negligence caused the accident 
 held liable in trespass, but also all those who were of the party.* 
 
 ^ On Nisi Prlus, vol. i. 211. 
 
 2 D. Battery (A). See Moody v. Ward, 
 13 Mass. 299. 
 
 ' Weaver v. Ward, Hob. 134.' 
 
 " Underwood v. Hewson, Bull. N. P. 16. 
 
 » VosbuTglij;. Moalc,S5 Mass. 453. In 
 Ball, Lead. Cas. on Torts, p. 423, is the 
 following: — "The defence of leave and 
 licence also arises where the parties were 
 engaged in any lawful games. In such a 
 case, indeed, tlie plea has a somewhat 
 different signification ; for obviously it is 
 not any specific blow which is authorized, 
 but a series of acts, some one of which, by 
 misadventure, may result in a blow to one 
 or other of the parties. See Christophor- 
 8on V. Bare, 11 Q. B. 447 (sic), where the 
 
 assault complained of was a blow from a 
 cricket-ball, the parties having been en- 
 gaged in a game together." As reported 
 in II Q. B. 473, Christopherson D. Bare is 
 a special demurrer to a plea of leave and 
 licence to a declaration in trespass, charg- 
 ing that the defendant assaulted plaintilf^ 
 imprisoned him, and kept him in prison for 
 the space of one month and twenty-five 
 days. There is no mention of cricket or 
 any other game throughout the report, 
 unless the remark of Coleridge, J., in giv- 
 ing judgment can be so regarded. " If the 
 V plea had been only not guilty, the defend- 
 ant might have shewn that the act was 
 done in the course of sport between the 
 parties and by the plaintiflfs leave." 
 
CHAPTER V. 
 
 ONUS OF- PROOF. 
 
 Many of the most difficult questions of law are to be solved by 
 the answer to the question, On whom is the omis of proof ? since it 
 not imfrequently happens that beyond evidence of the fact of the 
 occurrence of an accident, there is no available evidence to shew 
 how or when or why the injury sued on was caused. In some of 
 the circumstances where this is found, the mere happening of the 
 accident suffices to put the defendant to disproof of his liability. 
 But in many cases, again, this is not sufficient ; but affirmative 
 evidence has to be given charging the plaintiff; while in almost 
 all cases the onus at times fluctuates during the progress of the 
 cases, sometimes being on one party, sometimes on the other. 
 The principles governing in each of these instances we are now 
 to investigate. 
 General rule The general rule of law is, that " the party seeking to recover 
 compensation for damage must make out that the party against 
 whom he complains was in the wrong. The burthen of proof is 
 clearly upon him, and he must show that the loss is to be attri- 
 buted to the negligence of the opposite party. If at the end he 
 leaves the case in even scales, and does not satisfy the Court 
 that it was occasioned by the negligence or default of the other 
 party he cannot succeed."' We have now to consider under what 
 circumstances a primA facie case of negligence may be raised, 
 calling for an answer on the part of the defendant without any 
 further proof of actual default on his part than is involved in the 
 mere happening of the injurious event. What, in other words, 
 is the legal import of the phrase res ipsa loquitur?^ 
 
 The two branches of the inquiry into the meaning of res ipsa 
 loquitur — i.e., the consideration of what is not sufficient to raise 
 a presumption of negligence — and the consideration of what is 
 sufficient to raise a presumption of negligence are treated respec- 
 
 ' Per Lord Wensleydale, in Morgan v. Sim, ii Mi?. P. C. C. •?o7 at p qii 
 ' Broom's Legal Maxims (6th edit.) 298. f • j • 
 
 of law. 
 
99 
 
 PARTI.] ONUS OF PEOOF. 
 
 tively in the leading cases of Hammack v. White' and Byrne v 
 Boadle.' 
 
 Hammack v. White is the leading authority for those cases Hammack v. 
 which group themselves under the former branch of the subject. ^*'"''- 
 The defendant was riding a horse, that he had bought at 
 Tattersall's the day before, at a slow pace in Knsbury Circus to 
 try it. The horse seemed restless, but the defendant was holding 
 the reins tightly, omitting nothing he could do to avoid the 
 accident. The horse, however, swerved from the roadway on to 
 the pavement, where the deceased was walking, knocked him 
 down and injured him fatally. An action was brought under 
 Lord Campbell's Act. The Court' thought such a state of facts 
 did not disclose sufficient to render the defendant liable. If it 
 had been shewn that the' defendant knew the horse to be vicious 
 and unmanageable that might fix him with liability. Primd 
 fade, a man found riding on the footpath was in the wrong, but 
 the witness that proved that shewed that he was there against 
 his will. "I am of opinion," said Erie, O.J., "that a man is 
 not to be charged with want of caution because he buys a horse 
 without having had any previous experience of him. There 
 must be horses without number ridden every day in London 
 of whom the riders know nothing. A variety of circumstances 
 will cause a horse to become restive ; the mere fact of restive- 
 ness is not even primd fade evidence of negligence." It appears 
 from the foregoing statement that the circumstances of the • 
 accident in this case afforded sufficient evidence to raise a pre- 
 sumption against the defendant. But the same witness who 
 deposed to the fact of the defendant being on the footpath, also 
 deposed to the fact that he was there unwillingly, and thus dis- 
 placed the presumption that had- been raised. The only question 
 then was regarding the effect of restiveness in a horse unaccom- 
 panied by any other fact implying negligence ; and the decision 
 of the Court in effect was, that the use of horses for riding and 
 driving being recognized, and certain places being proper for 
 them to be used in, while their natural dispositions is uncertain, 
 it was not to be supposed that those who rode them should 
 guarantee against the effects of the waywardness of their disposi- 
 tions.'' That with horses in fact the law was no different from 
 
 1 (1862) II C. B. N. S. 588; 31 Ex. 13; 9 L. T. N. S. 450; 12 W. E. 
 
 L. J. C. P. 129; 10 W. B. 230; s 279. 
 
 L. T. N. S. 676 ; see Manzoni v. Douglas, '' Erie, C.J., Williams, Willes, Keating, 
 
 6 Q. B. D. 145 ; per Lindley, J. Un- JJ. 
 
 avoidable accident is not actionable, Davis * Ths rationale of the law is investi- 
 
 V. Sannders, 2 Chitty, 639 ; Wakemau v. gated in Brown v. Collins, 53 N. H. 442. 
 
 BobinsoD, i Bin?. 213. The conclusion is that the plaintiff must 
 
 ^ (1863) 2 H. & C. 722; 33 L. J. come prepared to shew either that the 
 
Soadle. 
 
 100 THE LAW OF NEGLIGENCE. [book i. 
 
 what it was with other animals, iimnsuetce- naturce;. unless the 
 owner have knowledge that they are of a fierce or vicious temper 
 he is not liable for an injury caused by an outbreak of natural 
 disposition. 
 Byrne v. In Byrne v. Boadle,' a barrel of flour fell from a warehouse over 
 
 a shop which the defendant occupied, knocked the plaintiff, who 
 was walking along the public highway, down and injured him. 
 It was contended that these facts did not disclose any evidence 
 of negligence, as the doctrine of presumptive negligence only 
 applied in cases like that of two trains upon the same linesj both 
 being the property and under the management of the same com- 
 pany,- and the law will not presume a man guilty of a wrong. The 
 Court,' held that "it is the duty of persons who keep barrels in 
 a warehouse to take care that they don't roll out ; and such a 
 case would, beyond all doubt, afford primd facie evidence of negli- 
 gence." The distinction between this and the former case seems 
 to be that here the cause of the injury was inanimate, in the 
 former case animate. A man who has barrels on his premises is 
 bound to put them in such a position that they will not fall out 
 on the highway ; if they do, as they have no powers of motion in 
 themselves, the very fact of movement argues negligence ; but a 
 man who has a horse is also bound to take care that he does not 
 do damage ; since the horse has a power of motion of his own, 
 which it is not necessary for the owner in all cases to provide 
 against. The motion of the horse may arise from its own im- 
 pulse, for which the owner is not liable ; therefore, while in the 
 case of the barrel it is enough to show that it moved fi-om its 
 position and caused injury; in the case of the horse mere move- 
 ment unexplained will not warrant the same conclusion.^ A dis- 
 tinction was sought to be drawn in the next case, that of Scott v. 
 
 intention waa unlawful or that the defen- railway, the fact of its having given way 
 
 dant was in fault ; for if the injury was will amount to primd fade evidence of 
 
 unavoidable and the jlefendant free from its insufficiency, and thus evidence may 
 
 blame he will not be liable. become conclusive from the absence of any 
 
 1 2 H. & G. 722; 33 L. J. Ex. 13; proof on the part of the company to rebut 
 9 L. T. N. S. 450 ; 12 W. E. 279 ; White it. However, the plaintiffs did not rest 
 II. France, 2 C. P. D. 308; Lyons v. their case solely on the fact of the falling 
 Bosentbal, II Hun. 46. _ in ofthe embankment, but called witnesses 
 
 2 Skinner». London, Brighton, and South to give their opinion as to the cause of 
 Coast Railway, 5 Ex. 787 ; Carpue ». the injury. It was objected that their 
 London, Brighton, and South Coast Eail- evidence amounted to tlieory and con- 
 way Company, $ Q. B. 747. jecture, and that the jury ought not to 
 
 3 Pollock, C.B., Bramwell, Channell, and have been permitted to act upon it. To 
 Pigott, BB. this it may be answered that although 
 
 * In Great Western Eailway Company the circumstances which occasioned the 
 
 of Canada v. Baird, i Moo. P. C. C. N. S. accident were facts to be proved, yet the 
 
 loi, Lord Chelmsford giving judgment, causes which produced this state of cir- 
 
 at p. 116, says: "There can be no doubt cumstances were necessarily matters of 
 
 that where an injury is alleged to have opinion and judgment." 
 arisen from the improper construction of a 
 
PARTI.] ONUS OF PEOOF. 
 
 101 
 
 London and St. Katharine Docks Company,' between the lawscott» 
 applicable to the facts as proved there and those found in Byrne v i?^-,r°?^'"^^ 
 
 -_,-,, - Tit,. «/ ' est. Jlatnarmo 
 
 Jioaale, on the ground that the place zn which the accident Docks 
 occurred was not a public highway, but a dock, the property gf ^™^™^" 
 the company, where the public had no right to walk. The 
 plaintiff was an officer of Customs, and, being ordered on duty 
 from one part of the docks to another, on his way from one door- 
 way of a warehouse to another, he was knocked down by six bags 
 of sugar falling upon him. The Court was agreed as to the 
 principle of law to be applied to the case, but there was a 
 difference of opinion as to its application to the facts.' The Principle as 
 principle of law was thus formulated by Erie, C.J.: " There must [y Erie'aJ. 
 be reasonable evidence of negligence. But when the thing is 
 shewn 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 defendants, that the accident arose from want 
 of care." ' This principle would appear to cover the two cases of 
 Hammack v. White and Byrne v. Boadle." There must be reason- 
 able evidence of negligence, and the mere occurrence of an injury 
 is sufficient to raise a pi-imd facie case : (a) when the injurious 
 agency is under the management of the defendant ; (&) the acci- 
 dent is such as, in the ordinary course of things, does not happen 
 if those who have the management use proper care.^ Over inani- 
 mate things this duty of care is absolute. Over animate it only 
 goes to guard against injury from their customary habits. 
 
 The difficulty in drawing the line in these cases was further ex- Biiggs r. 
 emplified in Briggs v. Oliver." A packing-case, belonging to the 
 
 ' In the Exchequer Chamber, 3 H. & L. T. N. S. 442, wliere plaintiff was 
 
 *-'■ 596 i 34 L- J- Ex. 220 ; 13 L. T. N. S. injured by a jolt occasioned by the train 
 
 148; 13W'. E. 410. A very Bimilar case in which he was passenger going against 
 
 was WooHey v. Scovell, 3 Man. & Ry. 105, two stationary bnffers in such a way that 
 
 where goods were being thrown from an plaintiff was thrown forward and injured, 
 
 upper story, and a warning having been Evidence was given ihat the train ought 
 
 given, the plaintiff still thought he had to have been brought up to the buffers 
 
 time to get past, but was injured in the without a jolt. It was held that such 
 
 attempt. It was held that where A. by the being the case the mere fact of the 
 
 viTongMactolB.losesMspresenceofmind, accident happening was evidence to go 
 
 and in consequence runs into danger and to the jury, 
 receives injury from the act of B., B. is "* Siipra. 
 
 not protected on the ground that he warned ^ Tuttle v. Chicago Eailway Company, 
 
 A. just before the accident. 48 Iowa 236. 
 
 2 Crompton,Bylefl,Blackbum,andKeat- » (1866) 4 H. & C.'403 ; 35 L. J. Ex. 
 
 in?, JJ., held that plaintiff could recover. 163 ; 14 W. B. 658 ; 14 L. T. N. S. 412. 
 
 Erie, C. J., and Melfor, J., while assenting See Higgs v. Maynard, 12 Jur. N. S. 705, 
 
 to the proposition df law, thought the where a ladder falling through a window 
 
 plaintiffhadnotbronghtbimself within it. was held not evidence of negligence, as 
 
 ^ This rule was the ground of the "not necessarily an event occurring in 
 
 decision in Burke ?;. Manchester, Shef- the course of the defendant's business " (?). 
 
 field, and Lincolnshire Railway, 22 Another ground for the decision was that 
 
102 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Dissent of 
 MaTtin, B. 
 
 Discussed. 
 
 defendant, was put against the wall of his premises, and his servant 
 was watching it. This packing-case fell on the plaintijBF, and 
 injured him, from its own weight, and from having been insecurely 
 propped. The Court was divided in opinion, Pigott and Bramwell, 
 BB., holding these facts evidence of the defendant's negligence, on 
 the ground that " Packing-cases carefully placed in a proper posi- 
 tion do not naturally tumble of their own accord. And we have 
 no right to assume that the fall of this packing-case was caused 
 by the act of some one who was not the defendant's servant. 
 Martin, B., dissented, on the ground that the fallacy? which 
 appears to me to underlie these cases is that the plaintiff is to 
 be excused from proving negligence, because the person who 
 really knows whether there is negligence or not, is the defendant's 
 servant. Here the defendant noight have called him : it is not 
 to be assumed that he would have committed perjury, nor is it 
 for the defendant to disprove negligence." The dissent of 
 Martin, B., appears due to a misconception of the meaning of 
 Erie, C.J.j's dictum in Cotton v. Wood,' which he quotes, that 
 where the evidence is equally consistent with the existence or 
 non-existence of negligence, it is not competent to the judge to 
 leave the question to the jury. But this is only so if the inferences 
 are equally consistent with the facts proved. The Court must 
 assume that every inference of fact that a jury might legitimately 
 draw has been drawn, and must add such inferences to the other 
 facts of the case. Where there are two inferences equally consistent 
 with the facts proved, one of them cannot reasonably be drawn 
 to the prejudice of the other. The plaintiff, therefore, fails. But 
 where though either of two inferences might be drawn, one involv- 
 ing negligence is more reasonable or likely than the other, then the 
 case cannot be taken away from the jury.^ It is not sufficient to 
 exonerate a defendant merely to point out that the facts proved 
 are susceptible of another conclusion than that of negligence ; it 
 must also be shewn that, of the two inferences that can be 
 drawn, there must be a probability of the inference that acquits 
 him either equal to or greater than that which points to neg- 
 ligence. Martin, B., appears to have adopted the view that it is 
 sufficient, if it is consistent with the evidence, that there was no 
 negligence. But this, it is submitted, is a wrong view of the 
 law, and would narrow responsibility very unduly ; besides being 
 inconsistent with the cases. 
 
 " the ladder was not shewn to have been 
 under the managenient of the defendant 
 or his servants." See, too, Pearson v. Cox, 
 2 C. P. D. 369. 
 1 8 C. B. N. S. 568 ; supra. 
 
 \ Flannery «. Wfterford and Limerick 
 Eailway Company, Ir. E, n C. L. 30; 
 Smith V, First National Bank, 99 Mass. 
 605 ; Searles v. Manhattan Eailway Com- 
 pany, loX K. Y, 661. 
 
PART I.] ONUS OF PROOF. 
 
 103 
 
 The remarks of Willes, J., in giving judgment, in Smith v. WiUes, J.,'s 
 Great Eastern Railway Company/ seem to be in point. " It is the^iawT °^ 
 not enough," he says, " to shew that damage may have occurred f*™'*!! "• G^ieat 
 through the negligence of the defendants' servants, even coupled way Compauy. 
 with the suggestion that no sufficient explanation was given of 
 the injurious agency. The plaintiff must shew something which 
 the defendants might have done, and which they omitted to do, 
 before they can be held responsible for the misfortune that 
 happened." And the same learned judge, in Czech v. General In Czech v. 
 Steam Navigation Company," happily illustrates the way which N™°™tiou^*™ 
 the presumption of negligence may be raised or not raised by a Company, 
 set of facts, differing only in one particular. " If a shipment of 
 sugar," says he, " took place under a bill of lading, such as the 
 present one, and it was pf'oved that the sugar was sound when 
 put on board, and had become converted into syrup before the 
 end of the voyage, if that was put as an abstract case, I think 
 the shipowner would not be liable,' because there may have been 
 storms which occasioned the injury, without any want of care on 
 the part of the captain or crew ; the injury alone, therefore, 
 would be no evidence of negligence on their part. But if it 
 were proved that the sugar was damaged by fresh water, then 
 there would be a strong probability that the hatches had been 
 negligently left open, and the rain had so come in and done the 
 injury, and though it would be possible that some one had 
 wilfully poured fresh water down into the hold, this would be so 
 improbable that a jury would be justified in finding that the 
 injury had been occasioned by negligence in the management of 
 the ship." 
 
 Welfare v. London and Brighton Eailway Company* is an •Welfare ». 
 extreme instance of an accident which was held not to constitute Brighton 
 jprimd facie evidence of liability. The plaintiff went to fie c^j^^^^' 
 defendants' station to make inquiries about the departure of their 
 trains, and was told by a porter to look at a time-table hanging 
 up under a portico in the station. While there a plank and a 
 roll of zinc fell through a hole in the roof and injured him. The 
 Court* was unanimous that he could not recover, both on the Judgment, 
 ground that the plaintiff had not shewn that the accident had 
 
 ^ (1866) L. B. 2 C. P. 4, at p. 9 ; 36 Cnrran v. Warren Chemical Company, 36 
 
 L. J. C. P. 22; 15 L. T. N. S. 246; IS N. Y. 153, is also an antliority that the 
 
 W. B. 131. mere fact of injury occurring on a person s 
 
 = L. B. 3 C. P. 14 ; 37 L. J. C. P. 3 ; premises raises no presumption of wrong 
 
 17 L. T. N. S. 246 ; 16 W. K. 130. against him. It is otherwise if the injured 
 
 ' I.e., under a bill of lading which con- person is on the highway and injured by 
 
 tained an exception from liability for something falling from premises : Clare v. 
 
 "breakage, leakage, or damage." National City Bank, i Sweeny, 539. 
 
 * L. E. 4 Q. B. 693 ; 38 L. J, Q. B. " Cookburn, C. J., Mellor, Lush, Black- 
 
 241 ; 20 L. T. N. S. 743 ; 17 W. R. 105 ; bum, JJ. 
 
104 THE LAW OP NEGLIGENCE. [book i. 
 
 happened through the defendants' servant, and also on the broad 
 principle that the mere occurrence of the accident did not wan-ant 
 the inference of negligence. Blackburn, J., said: "In this case 
 no duty is cast on the railway company to insure that no plank 
 shall fall. Their duty is to take reasonable care to keep their 
 premises in such a state as that those whom they invite there shall 
 not be undu.ly exposed to danger. No doubt the case might occur 
 where, knowing the state of the premises, the company could not 
 send a man on the roof to repair it without necessarily incurring 
 great danger of the roof falling down, and, if the premises are 
 out of repair to this extent, it would be a breach of duty to send 
 a man upon the roof during the hours when persons would be 
 frequenting the premises. But then, in order to make out such 
 a case, something more must be shewn than the mere fact that the 
 accident occurred. In this case there was a total absence of 
 evidence to shew that the premises were really dangerous so as 
 Exammod. to make the company responsible.'" In examining this decision 
 we note that, though the first requisite of Brie, C.J.,'s rule in 
 Scott V. London and St. Katharine Docks is met, as for the pur- 
 poses of the decision, the injurious agency is assumed to be under 
 the management of the defendants' servants, the accident was not 
 such as, in the ordinary course of things, would be likely to happen. 
 " When a person desires to have the roof of a building repaired, Tie 
 employs some one, not only to repair the roof, but to see to its 
 condition, and to see how far it will support him or his workmen in 
 doing the necessary work." And therefore, in the absence of any- 
 thing else, as, for instance, the fact that the man was unacquainted 
 with his business, or that the roof was rotten, the accident could 
 not be expected to happen in the ordinary course of things. And, 
 lastly, there was nothing in the evidence to shew that the com- 
 pany had, or could have, any knowledge of its insecurity. The 
 presence of the workmen was an indication that they were attend- 
 ing to the condition of the roof, and it was not to be inferred from 
 their attention to its condition that they were guilty of negligence 
 in respect of it. There was, indeed, a duty to use reasonable and 
 ordinary care, but no duty absolutely to prevent the falling of 
 anything from the roof. Mere evidence of something falling did 
 not satisfy the conditions necessary to raise a iprimd fade case. 
 
 1 If the person receiving damage visits from a pipe in upstairs premises and 
 
 the premises with a knowledge of their con- damaging the goods of the occupier of the 
 
 dition, the fact ofhis so receiving damage lowerportion of thehouse, actual negligence 
 
 is not sufficient evidence of want of reason- being negatived, does not imply a duty on 
 
 iihle care to justify leaving the case to the the tenant of the upstairs premises to keep 
 
 jury : Manchester, Sheffield, and Lincoln- in the water at his peril : Boss v. Feddon, 
 
 shire Railway Company v. Woodcock, 25 J,. E. 7 Q. B. 661 ; see, too, Stevens v. 
 
 L. T. 333. The fact of water flowing Woodward, 6 Q. B. D. 318. 
 
PAKTI.J ONUS or PEOOF. 105 
 
 There was needed soniething to suggest the want of reasonable 
 and ordinary care. The Court's decision amounts to the assertion 
 that the occurrence of an unusual accident on a defendant's own 
 premises, without more, is not suflScient to raise this.' 
 
 The Pri\y Council next had the question of what constitutes Moffatt «. 
 primd facie evidence of negligence in the case of Moffatt v. Bateman,^ * ^"'*"" 
 on appeal from the Supreme Court of Victoria. The plaintiff was 
 a decorator and gardener in the service of the defendant, and was 
 driven by the defendant in his buggy some distance to paper some 
 rooms for him. In the course of driving, the horses and the front 
 wheels of the carriage separated from the hinder wheels, possibly 
 from coming in contact with the branch of a tree laid across the 
 road ; and plaintiff was injured. The majority of the Supreme 
 Court of Victoria was of opinion the plaintiff could recover on 
 the authority of the principle laid down in Scott v. London and 
 St. Katharine Docks Company ; though indeed, the bearing of 
 that case on the present seems at first sight, at any rate, not a 
 little remote. They held that certain facts had been, proved 
 from which inferences might legitimately be deduced that there 
 was evidence to justify a verdict either for plaintiff or defendant, 
 according as the jury accepted the version of one or the other. 
 Williams, J., dissented.' Lord Chelmsford, in delivering the Lord 
 judgment of the Privy Council," thus distinguished Scott -y. a^tt^'f^es 
 London and St. Katharine Docks Company: " Undoubtedly in f<=o'' '■• ^ 
 
 , -, , .J. London and 
 
 that case' there was the strongest pnmd facie presumption or St. Katharine 
 negligence, because it is not in the ordinary course of things that company. 
 loaded bags should fall out of a warehouse on a person below. 
 But this case is very different. There is nothing more usual than 
 for accidents to happen in driving without any want of care or 
 skill on the part of the driver, and, therefore, no primd facie pre- 
 sumption of negligence having been raised, it was necessary for 
 the plaintiff to give afiBrmative evidence of there being gross 
 negligence on the part of the defendant occasioning the accident." 
 Some expressions in this statement of the distinction between the 
 
 ^ See per Bramwell, B., in Lay v. been foreseen, ought to have been antioi- 
 
 MidlandEailway Company, 30 L.T. N. S. pated, that the man who madethe fence 
 
 529, at p. 531. " What may happen now ought to have foreseen the possible result 
 
 after this accident it is impossible to say. of so making it, and that if he had not 
 
 Whether the defendants onght or ou^ht been negligent he would have foreseen it, 
 
 not henceforth to preclude the possibility is really absolute downright nonsense," 
 
 of children tumbling themselves through see 34 L. T. N. S. 30. 
 
 in this way, maybe a question ; but up to ^ (1869) L. K. 3 P. C. 115 ; 22 L. T. 
 
 the time when this child tumbled through, N. S. 140. 
 
 in this unusual manner, no one ever heard * He cited Templeman v. Haydon, 12 
 
 it suggested that such a thing could or C. B. 507, a case apparently decided more 
 
 would happen. Now, however, that it has on the effect of the Count;^ Courts Act than 
 
 happened it may possibly be the duty of involving any legal principle, 
 
 the company to after this fence. But to * Lord Chelmsford, Sir James Colvile, 
 
 sav that this occurrence ought to have Sir Joseph Napier, Lord Justice Giffard. 
 
106 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Distinctioa 
 considered. 
 
 Keamey ». 
 London, 
 Srigbton, and 
 South Coast 
 Eailv/ay 
 Company, 
 
 case that was being adjudicated on and Scott v. London and St. 
 Katharine Docks Company are a little ambiguous. In one sense, 
 at any rate, it is in the ordinary course of things that loaded bags 
 should fall when being packed in a warehouse if those who have 
 the management do not use proper care — i.e., bags hoisted up 
 and down are very liable to fall if care is not used ; and it 
 is because there is this likelihood that the duty of care is imposed, 
 and the liability attaches on its neglect. If the accident were 
 not in the ordinary course of things — that is, if the proper busi- 
 ness of the defendant could be carried on without the probability 
 of an accident being present to the mind — then it seems from the 
 authorities ' that no liability would arise from the mere happening 
 of the accident ; but if the accident occurred in the ordinary course 
 of things — that is, if the proper business of the defendant could 
 not be earned on without the probability of such an accident being 
 present to the mind unless care was used — those who had the 
 management were bound to use proper care to exonerate them 
 from liability. It was in the ordinary course of things, in the 
 business of a dock company, that bags should fall while being 
 raised or lowered in warehouses, but since it was in the ordinary 
 course of things, the duty of care arose : then, care being taken, 
 it was iiot in the ordinary course of things that the bags should 
 fall — i.e., with proper care used, the probability of the fall of a 
 bag would be reduced almost to nothing. Hence the primd facie 
 liability arose. With regard to the case under consideration it 
 was in the ordinary course of things — i.e., the probability of an 
 accident could not be guarded against, and must be present to 
 the mind even supposing proper care used — that the thousand and 
 one incalculable incidents of a journey might produce an accident. 
 And, therefore, without something further, the mere occurrence 
 of an accident, the mere happening of that which, in the nature 
 of things, could not be provided against, even with care, did not 
 raise a primd facie case of negligence. In other words, if the 
 exercise of care obviates danger, then care should be used, 
 and if an accident occurs there is primd facie evidence of 
 negligence. If the use of care would not obviate the probability 
 of accident, then the happening of the accident could not be used 
 to found a liability. 
 
 The principle res ipsa loquitur was next applied to what was 
 described as " certainly as weak a case as can well be conceived," 
 in Keamey v. London, Brighton, and South Coast Eailway 
 Company.^ As plaintiff was passing under a railway bridge a 
 
 ' Welfare U.London, Brighton, and Sonth = L. R. 5 Q. B. 411- 39 L J Q B. 
 
 Coast Railway Company, L. E. 4 Q. B. 200 ; 22 L. T. 886 ; 18 W. R. 1000. ' In 
 093 ; Higgsw.Maynard, 12 Jur.N. S. 703. the Exchequer Chamber, L. E. 6 Q. B. 
 
pahti.] onus OF PROOF. 
 
 107 
 
 brick fell from the perpendicular wall on which one of the girders 
 of the bridge rested and injured him. Hannen, J., directed the 
 juiy that if they thought the bare cu'cumstance of a brick falling 
 was not evidence of negligence, they would find for the defendant. 
 The jury found for the plaintiflF, and the majority of the Court' 
 upheld the verdict ; on the ground that the company, who con- 
 structed the bridge, were bound to construct it in a proper 
 manner, and to use all reasonable care and diligence in keeping 
 it in such a state of repair that no damage from its defective 
 condition should occur to those who passed under it ; and the 
 fact that a brick was loose and fell afforded primd facie a pre- 
 sumption that the defendants had not used reasonable care and 
 diligence. Hannen, J., dissented, on the ground that it lay on 
 the plaintiff to shew that the facts were such, that by an in- 
 spection anybody might have seen that the brick was about to 
 fall down. The Exchequer Chamber'' unanimously aflBrmed the 
 judgment of the Queen's Bench. The case comes very close Considered, 
 indeed to the principle acted upon in Welfare v. London, Brighton, 
 and South Coast Railway. In argument in the Queen's Bench 
 the distinction taken s^ems to have been that in that case the 
 man who caused the accident " was not shewn to have been guilty 
 of any negligence, or to have been in the employ of the defend- 
 ants." A sounder distinction seems to be that in Welfare's 
 case the accident happening on the company's own premises, in 
 respect of a matter in no way connected with the course of their 
 business, and which it was the recognized practice to entrust to 
 persons not the defendants' own servants, in the absence of direct 
 negligence the defendants should not be charged. In the present 
 case the defendants, by constructing their bridge over a highway, 
 became liable to keep the bridge and every part of it in such 
 a state of repair that no damage should arise from its defective 
 condition ; and damage, having arisen from its defective condition, 
 raised a presumption of negligence that must be rebutted. 
 It has been distinctly held in America that the happening of 
 an accident by reason of something falling from a building upon 
 a street and injuring persons lawfully there, is negligence in the 
 absence of explanatory circumstances, and the burden is on the 
 owner to shew the use of ordinary care.' And again, where a 
 passenger on a highway was injured by a hot cinder falling from 
 defendants' locomotive, it was held, that since the plaintiff was 
 merely exercising his natural rights, the presumption was that 
 
 759; 40 L. J. Q. B. 285 ; 24 L. T. 913 ; Clcasbr, BB., Willes, Byles, and Keat- 
 
 20 W. R. 24. ing, JJ. 
 
 ' Cookburn, C.J., and Lush, J. ^ Mullen v. St. John, 57 N. Y. 
 
 " Kelly, C.B., Martin, Channel!, and 567. 
 
108 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Bird r. Great 
 Northern 
 Kail way. 
 
 Flannery v. 
 Waterford and 
 Limerick 
 Hallway 
 Company. 
 
 the defeadant would not have interfered with him if he had 
 exercised due cai-e.' 
 
 In regard to railway companies, it has been contended that 
 the occurrence of a railway accident is, in itself, primd fade 
 evidence of negligence, and Bird v. Great Northern Eailway" 
 has been cited as establishing that proposition. The decision in 
 that case, however, was merely that the occurrence of an acci- 
 dent was not sufficient evidence of negligence, for which the 
 defendant was liable to entitle the plaintiff to a verdict without 
 anything more ; and in argument, Carpue v, London and Brighton 
 Eailway Company' being cited as establishing the proposition 
 that the occurrence of the injury itself is pi-imd facie, proof of 
 negligence. Pollock, O.B., is reported as saying, " That depends 
 on the nature of the accident, as, for instance, if it arises from a 
 collision of different trains on the same line, then it may be so. 
 Here it was otherwise, the accident was of a nature consistent 
 with the absence of negligence." 
 
 The judgment of Palles, C.B., in the Irish case of I'lannery v. 
 Waterford and Limerick Railway Company," well deserves study 
 
 1 Lowery ». Manliattan Eailway Com- 
 pany, 99 N. Y. 158. 
 
 ^ 28 Ij. J. Ex. 3. In a case only re- 
 ported in the "Weekly Notes," it was 
 held that the mere statement of witnesses 
 of their opinion that a platform was dan- 
 freroua, was not any evidence for a jury. 
 Eigg V. Manchester, Sheffield, and Lincoln- 
 shire Eailway Company : " Weekly Notes," 
 1866, p. 225. In Harrison w. North- 
 Eastern Eailway Company, 29 L. T. 844, 
 22 W. E. 335, it was held that there is no 
 duty upon a railway company which allows 
 people to cross their line, but in no definite 
 track, to use care to protect them. This 
 case may perhaps more properly be con- 
 sidered with such cases as Bolch v. Smith, 
 7 H. & N. 736, Pickard v. Smith, 10 
 C. B. N. S. 470, and the rest of that class. 
 In Lewis v. London, Chatham, and Dover 
 Eailway Company, L. E. 9 Q. B. 66, it 
 was held that calling out the name of a 
 station is not an invitation to alight ; and 
 Cockle V. London and South -Eastem 
 Eailway Company, L. E. 7 C. P. 321, was 
 distinguished on the ground that in that 
 case fliere was clear evidence that the 
 train had been brought to a final stand- 
 still, and that the passengers were to get 
 out at that place or not at all : per Black- 
 burn, J., Bridges v. North London Eailway 
 Company, L. E. 7 H. of L. 213. 
 
 » 5 Q. B. 747; 13 L. J. Q. B. 133. As 
 to Carpue v. Lopdon and Brighton Eailway 
 Company, Brett, J., says in Hanson v. 
 Lancashire and Yorkshire Eailway Com- 
 pany, 20 W. E. 297, 298 : "'Lord Den- 
 man's ruling in that case was a ruling 
 
 at Nisi Priun, not reviewed by the Court, 
 and I find this in reference to it in Hodges 
 on Bailways, 4th edit. 531 l ' Although in 
 one case it was ruled otherwise by Lord 
 Denman, it seems now to be clearly estab- 
 lished that in order to render the company 
 liable for negligence, it is necessary to 
 give affirmative proof of negligence on 
 their part ; and it is not sufficient merely 
 to prove the occurrence of an accident, and 
 to rely on that as primd facie evidence 
 of negligence. In some cases res ipsa 
 loquitur, the accident may be of such a 
 nature as that negligence may be presumed 
 from the mere occurrence of it. But when 
 the balance is even, the onus is on the 
 party who relies on the negligence of the 
 other to turn the scale. This is, I think, 
 a correct exposition of the law." 
 
 •* Ir. E. II C. L. 30. As to the duty of 
 a railway company to examine trucks, 
 see Eichardson v. Great Eastern Eailway 
 Company, i C. P. D. 342, reversing Court 
 of C. P., L. B. 10 C. P. 480. In Mullen 
 V. St. John, 57 N. Y. 567, the fall of a 
 building into the street was held presump- 
 tive evidence of neglect of proper care on 
 the part of the owner. In Lehman i'. 
 Brooklyn, 29 Barb. 234, a child was fonnd 
 in a well, in a sidewalk, two or three feet 
 from the flagging. The well was provided 
 with a cover, having a lid opening on 
 hinges. Held not presumptive evidence 
 of negligence against defendant, the owner 
 of the well. In Stokes v. Saltonstall, 13 
 Peters 181, in accordance with Christie 
 V. Griggs, 2 Campb. 679, held in an action 
 against a stage-coach proprietor, the fact 
 
PARTI.] ONUS OF PROOF. 
 
 on this point. The plaintiif was injured through some empty- 
 waggons next the engine in the train in which she was travelling 
 getting off the line. No evidence was given as to the canse of 
 their leaving the rails, but it was stated that they were not likely 
 to get off the line. The question was, whether these circum- 
 stances constituted evidence fit to be submitted to the jury that 
 the injuries were caused by defendants' negligence. " The obli- 
 gation of the defendants," said the Chief Justice, " was to use all 
 due and proper care and foresight, and to provide for the safe 
 conveyance of the plaintiff. Everything connected with the con- 
 veyance was under their exclusive management. The case, then, 
 is one in which negligence of any one of three classes would, if 
 sufficiently connected with Jihe injuries, be sufficient to maintain 
 the action : firstly, negligence in the supervision or maintenance 
 of the permanent way at the point where the waggon left the 
 line ; secondly, negligence in the supervision or maintenance of 
 the waggon itself; thirdly, negligence in the driving of the 
 engine. Negligence in any one of these three particulars would 
 be an obvious explanation of the waggon leaving the line. On 
 the other hand, the circumstance of the waggon leaving the line 
 is not inconsistent with inevitable accident nor with the malicious 
 act of a third party ; but it will not, I apprehend, be contended 
 that the latter assumption, involving as it does a criminal offence, 
 ought to be made in the absence of any evidence pointing in 
 that direction. I take it, therefore, that the problem to be solved 
 involves a choice between at least two states of fact, in one of 
 which the defendants would be irresponsible. ... I assume, in 
 favour of the defendants, that the alternative of inevitable accident 
 
 is not only a possible but a reasonable one Where, although 
 
 a reasonable inference against the plaintiff might be drawn, yet 
 the inference the other way would also be reasonable, the case is 
 for the jury, and (although some of the propositions in decided 
 cases upon this subject are not as clearly expressed as might be 
 desired) I have a strong opinion that to impute to any judge an 
 intention to lay down the opposite doctrine is to misconstrue his 
 language. If I am right in this, the sole question in the case is, 
 whether the jury might have legitimately drawn from the facts 
 proved the inference that the waggon left the rails in consequence 
 of defect in the wheel, defect in the rail, or mismanagement 
 of the engine. No doubt, in determining whether this inference 
 
 that the coach was upset, and the plaintiif the level, to take reasonahle precautions 
 injured, raised a presumption of negligence to warn people Using the crossing of the 
 or want of skill in the driver. In Giray v. approach of trains. The Court refused to 
 North-Eastern Railway, 48 L. T. 904, it disturb a verdict where there was con- 
 was held to be the duty of a railway com- flicting evidence whether a whistle was 
 pany whose line crosses a public road on blown. 
 
 109 
 
110 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Daniel r. 
 Metropolitan 
 Railway 
 Company. 
 
 of fact might reasonably be drawn, we, although not jurors, must 
 avail ourselves of our knowledge of the ordinary aiiairs and inci- 
 dents of life. Without this knowledge we cannot determine, as 
 we are bound to do, whether a particular inference can reasonably 
 be drawn.' Now, applying my own experience of railway travelling, 
 I find it impossible to say that it is in the ordinary and accustomed 
 course of things that a waggon should leave the rails when all reason- 
 able precautions are taken. To state that such an occurrence 
 happens in the usual and normal state of things, without negli- 
 gence, is to state that the inevitable result of waggons leaving 
 the rails when travelling at a high rate of speed — viz., the de- 
 struction of the entire train and the loss of the lives of numbers 
 of the passengers, are ordinary incidents of raalw,ay travelling — 
 nay, of railway travelling conducted with due care. I emphati- 
 cally refuse to be a party to such a proposition. I believe such 
 an occurrence to be exceptional. That it can happen with, due 
 care is, according to my experience, no doubt possible, but 
 extremely improbable. If I required, which I do not, evidence 
 in support of this view, I find it in the testimony of the defend- 
 ants' fireman, that empty waggons are not .likely to get off the 
 line." 
 
 Daniel v. Metropolitan Eailway Company^ is a decision of the 
 
 ^ lu Shepherd v. Midland Eailway Com- 
 •pany, 25 L. T. N. S. 879, the Court of 
 Exchequer drew the inference of negli- 
 gence from the presence of ice on a plat- 
 form, on which the plaintiff slipped and 
 was injured. Pigott, B., said : " It is a 
 question of degree. If there had heen 
 only a very small piece of ice in a place 
 where the railway servants had no oppor- 
 tunity of seeing it, there may have been 
 no negligence ; but when we have a layer 
 of ice three-quarters of an inch thick, and 
 extending half across the platform, there 
 was plenty of opportunity for them to have 
 seen it, and to have removed it." In 
 argument, the case of a piece of orange- 
 peel on the platform was suggested as 
 not suggesting negligence on the part of 
 the company, and the same leai-ned judge, 
 said : " It may have been negligence if 
 the orange-peel had been allowed to re- 
 main a long time upon the platform with- 
 out being swept up. " In Ayles v. South- 
 Eastern Eailway Company, L. E. 3 Ex. 
 146 ; 37 L. J. Ex. 104, where various 
 companies had running powers over «, 
 line of railway, it was presumed that a 
 train that caused an accident belonged to, 
 or was under the control of, the company 
 owning the line. 
 
 » (1871) L. R. S H. of L. 45: 40 L. J. 
 C. P. 121 ; 24 L. T. 815 ; 20 W. R. 37. 
 In CIi£f V. Midland Eailway Company, 
 
 L. B. 5 Q. B. 2S74 22 L. T. 382; 18 W. E. 
 456, it was held no evidence of negligence 
 that a railway company had left off 
 keeping a gate-keeper at a level cross- 
 ing, and had not exercised powers they 
 had obtained tu make a new road, and 
 to discontinue the level crossing. In 
 North-Eastem Eailway Company v. 
 WanlesB, L. E. 7 H. of L. 12 ; 43 L. J. 
 Q. B. 185 ;, 30 L. T. 27s ; 22 W. E. 561, 
 lord Cairns, C, said : " It appears to me 
 that the circumstances that the gates at 
 this level crossing were open at this pai^ 
 ticular time, amounted to a statement, and 
 a notice to the public that the line at that 
 time was safe for crossing, and that any 
 person who, under those circumstances, 
 went inside the gates with the view of 
 crossing the line, might very well have 
 been supposed by a jury to. have been in- 
 fluenced by the circumstances that the 
 
 gates were open The question is, 
 
 might not a jury fairly consider that his 
 being there at all was owing to the negli- 
 gence of the railway company? It ap- 
 pears to me that there was evidence to go 
 to the jury." See a similar case, per 
 Stephen, J., Clarke v. Midland Eailway 
 Company, 43 L. T. 381. A child of four 
 years and a half old was found on a level 
 crossing with its foot cut off by a passing 
 train. This was held evidence that the 
 accident was caused by the negligence of 
 
PARTI.] ONUS OF PEOOF. m 
 
 House of Lords, wHoh, as Lord Westbury said, " will greatly 
 tend ultimately to bring the liability of railway companies to a 
 position in which it may be found to be more consistent with law 
 and less with feeling and excitement than it has hitherto been." 
 Contractors, not under the control of the defendants, were con- 
 structing a work for another corporation under an Act of Parlia- 
 ment, and, in the course of construction, were placing heavy iron 
 girders upon the walls running along the line of railway. A 
 girder overbalanced and fell on a passing train and injured a 
 passenger ; by whom the defendants were sued.' It was contended 
 that, as the company was liable for the wrongful acts or wilful 
 neglect of their servants, so they were liable for the acts and 
 negligence of persons not in their employ by which travellers on 
 their line were injured. The Court of Common Pleas maintained 
 the liability of the defeadants, but the Court of Exchequer 
 Chamber reversed its decision. The difference between the two 
 was, the Court of Common Pleas assumed an obligation on the 
 railway company, and committed, as Lord "Westbury said, "a 
 complete petitio 'pnncipii" since the contractors were under the 
 liability, and the question was, whether in law the railway company 
 had a right to rely on the contractors to fulfil it. The Exchequer 
 Chamber unanimously held that they had, and the House of 
 Lords unanimously affirmed the judgment* Although the decision 
 of the Court of Common Pleas was reversed, on the considerations 
 pecuKar to the case, the general principle that should be applied General 
 to test liability where negligence is alleged, as laid down by gSted^by 
 Willes, J., has been often cited and approved. "It is necessary ^'"®^' ""^^ 
 for the plaintiff to establish by evidence circumstances from which 
 it may fairly be inferred that there is reasonable probability that 
 the accident resulted from the want of some precaution which the 
 defendants might and ought to have resorted to : and I go further 
 and say that the plaintiff should also shew with reasonable cer- 
 tainty what particular precautions should have been taken." '^ 
 The decision of the Common Pleas turned upon another proposi- 
 
 the Company, there being no fence, as tuted evidence of negligence to leave 
 
 provided by 8 & 9 Vict. c. 20, s. 61 ; totbejnry: Patohell «. Irish North-West- 
 
 Williams v. Great Western Eailway Com- em Eailway Company, 6 Ir. R. C. L. 
 
 pany, L. K. 9 Ex. 157; 43 L. J. Ex. 117. 
 
 105. See, too, Ellis v. Great Western ^ In Skelton v. London and North- 
 
 Bailwav Company, L. K. 9 C. P. SSI ; Western Eailway Company, L. E. 2 C. P. 
 
 43 L. '3. C. P. 304; Wilby v. Midland 631, Willes, J., held that the mere failure 
 
 Eailway Company, 35 L. T. 244. In an to perform a sell-imposed duty is not 
 
 Irish case, there was an equal division of actionable negligence, 
 
 opinion as to whether the presence of cattle 2 " We entirely agree with the law laid 
 
 on a line of railway, and evidence that a down by the Conrt below " : per Blackburn, 
 
 gate which should have been kept locked J., in the Exchequer Chamber, L. E. 3 
 
 had been unlocked on other occasions, and C. P. at p. S93. See Hayes 11. Michigan 
 
 also that the post to which it should have Central Eailway Company, III U. S. (4 
 
 been locked was loose at the time, consti- Davis) 228, at p. 241. 
 
112 THE LAW OF NEGLIGENCE. [book i. 
 
 tion that tad reference to the interposition of contractors and the 
 conditions of their working, with reference to work that may- 
 be dangerous ; the negation of their views, as to which, leaves 
 the more general position unaffected. Lord Westbury said : 
 "If it were necessary to go into it, which I think it is not, 
 it is plain to my understanding that the accident in this case 
 arose from circumstances of which the railway company could not 
 have been aware, circumstances which it belonged entirely to the 
 province of the contractors to observe and regulate ; that it arose 
 from the unusual circumstance that a peculiar motive power — 
 namely, that of a small steam engine— had been substituted for the 
 first time in moving the girders, which did not move them with a 
 sufficiently regular and gradual motion. It was therefore an un- 
 defined and unknown contingency which, even if you put the 
 contract out of the question, it could not have entered into the 
 minds of the railway company to foresee as possible and therefore 
 to guard against.'" 
 Province of The difficulty of discriminating the functions of judge and 
 
 respectiTOfy!!^ jury respectively was the occasion for a long controversy, in the 
 course of which many and conflicting views were propounded. 
 The general rule was laid down by Willes, J., in the Exchequer 
 Chamber, giving judgment in the case of " Eyder v. Wombwell,"^ 
 where the question' was, whether articles supplied by the 
 plaintiff to the defendant, an infant, were necessaries, in the 
 following terms : — " The first question is, whether there was 
 any evidence to go to the jury that either of the above articles 
 was of that description ? Such a question is one of mixed law 
 and fact. In so far as it is a question of fact, it must be deter- 
 mined by a jury, subject, no doubt, to the control of the Court, 
 who may set aside the verdict, and submit the question to the 
 decision of another jury; but there is in every case — not merely on 
 those arising on a plea of infancy — a preliminary question which 
 is one of law — namely, whether there is any evidence on which 
 the jury could properly find the question for the party on whom 
 the onm of proof lies. If there is not, the judge ought to 
 withdraw the question from the jury, and direct a nonsuit, if the 
 onus is on the plaintiff, or direct a verdict for the plaintiff, if the 
 onus is on the defendant." This seems to have been generally 
 accepted as a correct statement of the law. Its application has 
 Two views, been a matter of greater difficulty ; and two distinct views grew 
 up, according as judges were impressed with the frequently 
 unjust decisions of juries in favour of injured people against 
 
 1 There are some very valuatle and striking remarks of the Lord Chancellor, too long 
 to quote, on the same point, at pp. 54, 55, of the Reporte. 
 = L. K. 4 Ex. 32, at p. 38 ; 38 L. J. Ex. 8 ; 19 L. T. N, S. 491 ; 17 W. K. 167. 
 
PARTI.] ONUS OF PROOF. 113 
 
 wealthy corporations, or with the necessity of protecting the 
 individual, even often at the cost of considerable injustice, 
 against the negligent tendencies of powerful bodies, whose 
 wealth and influence often led them to acts of absolute oppres- 
 sion. The former view is thus stated: — "Where the facts are One view: 
 certain, where there is no other material fact to be inferred from common sense 
 them, either as causing them or as resulting from them, and the ^°^ *''® J"'*se- 
 question is not one for experts, but for that common sense which 
 is common to all of us in a greater or less degree, the matter is 
 for the judge." The other view is, that where the question of The other 
 the liability of the defendant " appears to be a matter of ordinary qlfeTtlon of 
 reasoning, which the jury, as ordinary reasoni^ig men of the common^seuse 
 world, might properly and justly have arrived at, it is for the 
 
 After a multitude of decisions, inclining sometimes one way, Bridges u. 
 sometimes the other, according to the composition of the Court to luiiway 
 which each individual case was referred,' the case of Bridges Oo^P^iy- 
 V. North London Railway Company^ came before the House of 
 Lords. Deceased was a passenger in the last carriage of a 
 train going from Broad Street to Highbury Station. Before 
 coming to the Highbury Station there is a tunnel for some short 
 distance, down which there is a continuation, though narrower, of 
 the station platform. On the occasion in question the night was 
 dark and misty, the train did not draw up at the platform, but 
 the carriage in which the deceased was, continued in the tunnel 
 after the train had stopped at the platform. The deceased, who 
 was short-sighted, got out on hearing the porter call the name of 
 the station, but the carriage in which he was, being not alongside 
 the platform but, still in the tunnel, and opposite a heap of dry 
 rubbish, that sloped down from the end of the narrower portion 
 of the platform, which was in the tunnel, he fell, broke his leg, 
 and sustained internal injuries from which he died. The servants 
 of the company subsequently called to passengers to keep their 
 seats; but this was not until another passenger, who was in 
 the next carriage to that in which the deceased was, had got 
 out. Hearing a groan he went into the tunnel, and found the 
 deceased there and injured. Mr. Justice Blackburn was of 
 opinion that there was no evidence of negligence to leave to a 
 
 1 Siner v. Great Western Railway Com- dence of negligence to go to the jury ; but 
 
 pany, L. U. 3 Ex. 150 ; 4 Ex. 117, is a he said if a rule was granted, it would ho 
 
 sample of tlie one class of decisions. Foy certain, in that Court, to be discharged, 
 
 V. London, Brighton, and South Coast Bail- and therefore it was refused " : per Cairns, 
 
 way Company, 18 C. B. N. S. 225, of the L.C., in Bridges v. North London Eail- 
 
 olher class. " As 1 understand the obser- way Company, L. E. 7 H. of L. at p. 
 
 vations of the L. C. J. (Cockburn), he 239. t t /-> n 
 
 would himself hare been of opinion, with " L. E. 7 H. of L. 213 ; 43 L. J. Q. H. 
 
 a certain qualification, that there was evi- 151 ; 30 L. T. 844; 23 W. E. 62. 
 
 H 
 
114 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I, 
 
 jury ; the Queen's Bench sustained his ruling ; in the . Court of 
 Exchequer Chamber four judges' were of opinion that the non- 
 suit was right, and that there was no evidence to go the jury ; 
 three^ were of a different opinion. The judges were called in to 
 advise the House of Lords, and they ^ were unanimous that there 
 was evidence of negligence which ought to have been left to the 
 jury, and this opinion was sustained by the House. The decision 
 was one, however, carefully confined to the facts of the case, the 
 Lord Chancellor (Cairns) saying, " I tmst the case may be found 
 useful in future as negativing the idea that under circumstances 
 such as I have described, a case is to be withdrawn from the 
 jury and the mind of the jury not to be further exercised 
 upon it." 
 Brett, J.A.,'s In Eobson V. North-Eastern Eailway Company, Brett, J.A.,^ 
 Juiriaiddown thus stjates what he conceives to be the effect of this decision : 
 in Bridges' "The judgment of the House of Lords put an end to a long 
 controversy, not as to the law, but as to the mode of dealing 
 with these cases. Some of the judges seem to have been of 
 opinion that these cases should as much as possible be withdrawn 
 from the jury, and that the Court ought to say what was reason- 
 able for the passenger to do. The House of Lords held, that as 
 the carrying of railway passengers was conducted in the ordinary 
 affairs of life the jury was the proper tribunal to decide." * 
 
 Amphlett, J.A., however, giving judgment in the Court of 
 Appeal, in the case of Jackson v. Metropolitan Eailway Company," 
 and supported by Cockbum, C.J., took a different view of the effect 
 of the decision, and said : "It is now settled .... that the 
 question, whether in cases of this sort negligence can be inferred 
 from a given state of fact, is itself a question of fact for the 
 jury, and not a question of law for the Court or the presiding 
 judge." The controversy that was thus likely to arise as to the 
 precise effect of the decision, in Bridges v. North London 
 Eailway, was extinguished by the Lord Chancellor (Cairns) in 
 Metropolitan Eailway Company v. Jackson," in the House of 
 
 AmpMett^ 
 J.A.,'s and 
 Oockburn, 
 C.J./a view. 
 
 1 Viz., Bramwell, Channell, Pigolt, and 
 Cleasby, BB. 
 
 2 Kelly, C.B., Willes and Keating, JJ. 
 ' Pollock, B., Denman, J., Brett, J., and 
 
 Kelly, O.B. ; Martin, J., was also sum- 
 moned, but had retii-ed from the bench 
 before the decision was given. 
 
 " 2 Q. B. D. 8s, 89 ; 46 L. J. Q. B. 50 ; 
 3S L. T. S3S ; 25 W. E. 418. Eose v. 
 North-Eastern Eailway Company, 2 Ex. 
 D. 248 ; 46 L. J. Ex. 374 ; 35 L. T. 693 ; 
 25 W. K. 205. 
 
 ' In the House of Lords, in Metropolitan 
 Eailway Company v. Jackson, Lord Black- 
 
 hum, referring to this rule, said ; " I quite 
 agree that this consideration ought never 
 to he lost sight of, but I cannot think it 
 decisive. The utmost extent to which 
 your lordships' decision in Bridges' case 
 can be fairly pressed is, that in such 
 cases the judges should be cautious before 
 they say that the jury could not legitima- 
 tely draw the inference which in fact they 
 did draw, and to this I agree " : 3 App. 
 Cas. at p. 209. 
 
 = 2 C. P. D. 12s, at p. 127. 
 
 '3 App. Cas. 193 ; 47 L.J. C. P. 303 ; 
 37L. T. 679; 26 W.R.I 75. 
 
PARTI.] ONUS OF PEOOF. 
 
 115 
 
 Lords ; m which he formulated the principle oa which Bridge's 
 case had been decided. " I am bound to say," he says, " that I Lord Oaims, 
 cannot look at the case of Bridges as in any degree establish- ^o'uto^^u' 
 ing the proposition which it appeared to Lord Justice Amph- ■>^ay Company 
 lett to establish— viz., that whethqr in cases of this sort negli- dis'^eSsfrim 
 gencecanbe inferred from any given state of facts, is itself a ^^^™Jfa^^ by 
 question of fact for the jury, or as establishing the proposition AmpWett, 
 which it appeared to the Lord Chief Justice to establish — Cookbm-n, c.J. 
 namely, that the jurors are the proper judges whether if 
 once any negligence is proved, the accident which has occurred 
 is to be connected with such negligence, as its cause or as 
 materially contributing thereto. Your Lordships in the case of 
 Bridges did not lay down, and I am satisfied your Lordships did 
 not mean to lay down, any new rule upon this subject. It is, 
 indeed, impossible to lay down any rule except that which at 
 the outset I referred to — namely, that from any given state of 
 facts the judge must say whether negligence can legitimately be 
 inferred, and the jury whether it ought to be inferred." 
 
 Although Bridges v. North London Eailway was discussed, Metropolitan 
 and the rule governing the decision in that case was more oJmpany^.. 
 explicitly enumerated in Metropolitan llailway Company v. Jackson. 
 Jackson, the real question in Metropolitan Railway Company v. 
 Jackson was whether, in order to warrant the leaving the case 
 to the jury, it was sufficient merely to prove negligence in the 
 course of the affairs that resulted in the accident, or whether it 
 was fiirther necessary that the negligence should bear some 
 actual and immediate relation to the injury that was stistained. 
 The facts were as follows : — The respondent took a third-class 
 ticket from Moorgate Street to Westbourne Park. The com- 
 partment into which he got gradually filled up, till at King's 
 Cross all the seats were occupied. At Gower Street Station 
 three persons beyond the number for whom accommodation was 
 provided in the carriage, forced themselves in, and had to 
 stand. At Portland Road the three extra passengers still re- 
 mained standing in the compartment, the door of which was 
 opened and then shut. Just as the train was starting from 
 Portland Road there was a rush, and the door of the compart- 
 ment was opened a secOnd time by persons trying to get in. 
 The respondent then partly rose and held up his hand to pre- 
 vent any more persons coming in. After the train had moved 
 a porter pushed away the people and slammed the door to, just 
 as the train was entering the tunnel. At that very moment 
 the respondent, by the motion of the train, fell forward, and 
 put his hand upon one of the hinges of the carriage door to 
 
116 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Snle in Jack- 
 son's case — 
 that the 
 evidence of 
 negligence 
 must be con- 
 nected with 
 the accident. 
 
 saye himself, and thus Ms thumb was caught and injured." The 
 fact of there being negligence at Gower Street was practically 
 admitted. At any rate, the intrusion of the three extra pas- 
 sengers was sufficient to have warranted the case being left to 
 the jury had the accident resulted at Gower Street. In the 
 Courts below it seems to have been argued that the intrusion 
 of the three unauthorized persons at the Gower Street Station 
 afforded primd facie evidence of negligence on the part of the 
 company's servants. The Lord Chancellor (Cairns) thus treats 
 the case in his judgment in the House of Lords : " I do not find 
 any evidence from which, in my opinion, negligence could 
 reasonably be inferred. The negligence must in some way 
 connect itself, or be connected by evidence, with the accident. 
 It must be, if I might invent an expression founded upon a 
 phrase in the civil law, incuria dans locum injvmce. In the pre- 
 sent case there was no doubt negligence in the company's 
 servants in allowing more passengers than the proper number to 
 get in at the Gower Street Station, and it may also have been 
 negligence if they saw these supernumerary passengers, or if they 
 ought to have seen them at Portland Road, and not to have then 
 removed them ; but there is nothing, in my opinion, in this 
 negHgence which connects itself with the accident that took place. 
 If, when the train was leaving Portland Eoad, the overcrowding 
 had any effect on the movements of the respondent ; if it had 
 any effect on the particular portion of the carriage where he was 
 sitting, if it made him less a master of his actions when he stood 
 up or when he fell forward, this ought to have been made matter 
 of evidence ; but no evidence of the kind was given." As to the 
 two points of negligence that were mainly relied on in the 
 Divisional Court and the Court of Appeal— first that there was 
 no attempt made to remove the extra passengers, and second 
 that there was an uncontrolled action on the part of a number of 
 persons on the platform,^ the answei's given in the House of 
 Lords were as to the first, that it appeared in no way connected 
 with the accident ; as to the second, that the action of the 
 porter and its effectiveness negatived the fact of any such uncon- 
 trollable action. The rule to be extracted from the case seems 
 then to be, that although there may be evidence of negligence in 
 the conduct of the defendants in some part of their relations to 
 the plaintiff, that in itself is not sufficient to entitle the plaintiff 
 
 ' This statement of facts is substantially 
 that in Lord Cairns's judgment. 
 
 ^ In the Irish Court of Appeal it has 
 been directly decided that the presence of 
 an excited, riotous or drunken crowd on a 
 
 platform was not in itself a state of things 
 that a railway company was to be held 
 Rcconntable for : Gannon v. Midland Great 
 Western Railway of Ireland, L. K. Ir. 6 
 C. L. 199. 
 
PABTi.] ONUS OF PROOF. 117 
 
 to have his case submitted to the jury ; but the evidence of 
 negligence must be so connected with the accident as having 
 more or less contributed to produce it. Lord Blackburn thus 
 sums up the case :' " The reasoning by which it is sought to say 
 that the jury might legitimately connect the fact that the plain- 
 tifE's thumb was in the hinge of the door at Portland Road with 
 the negligence at Gotuer Street seems to me a good example of 
 what Lord Bacon means in his maxims when he says, ' It were 
 infinite for the law to consider the causes of causes and their 
 impulsion one of the other.' " 
 
 Bridges v. North London Railway Company decided that 
 where there are facts from which negligence can be inferred the 
 jury must have the opportunity of drawing that inference. The 
 Metropolitan Eailway Company v. Jackson then 'defined the 
 negligence that is to be inferred as being negligence, having a 
 causal connection with the accident. The Dublin, Wicklow, and Dublin, 
 Wexford Railway Company v. Slattery'' — the. third and last of andWexford 
 this group of negligence cases, decided by the House of Lords — c°^''^^y „ 
 established that where facts, from which negligence can be Siattery. 
 inferred, are given in evidence, their effect cannot be neutralized 
 by other evidence contradictory of them, but the whole must 
 be left to the jury to draw what inference it may please f 
 subject, of course, to an application to the Court in banc to 
 set aside the verdict as not being " such as reasonable men 
 might find."" 
 
 The decisi6n in Dublin, Wicklow, and Wexford Railway 
 Company v. Siattery was arrived at after an extraordinary 
 division of opinion amongst the judges before whom it 
 came. The case was an Irish one ; the jury found for 
 the plaintiff, damages ;^I20S. A motion to set aside this 
 verdict was discharged by three judges of the Irish Court 
 of Common Pleas.' On appeal, the judges in the Irish pivieion of 
 Exchequer Chamber were equally divided," while in the opinion. 
 House of Lords the decision of the Irish Court of Common 
 
 * 3 App. Cas. at p. 210. ' The Pennsylvania case of Citizens' 
 
 " 3 App. Cas. IISS; 39 L. T. 365: Passenger Bailway Company v. Foxley, 
 
 27 W. K. 191, affirming 10 Ir. E. C. L. 107 Penn. St. 537, lays down the same 
 
 256. For a case -where a man, in a posi- proposition. 
 
 tion of safety, seeing a train approaching, *' Metropolitan Eailway v. Wright, I 
 
 left his safe place to cross the railway line, App. Cas. 152, where, per Lord Halsbury, 
 
 and being injured, was held disentitled to the rule in Solomon v. Bitton, 8 Q._B. D. 
 
 recoTcr, Wright v. Great Northern Kail- 176, should be altered by the substitution 
 
 way Company, L. R. Ir. 8 C. L. 257 ; in of the word " might" for " ought to." 
 
 this case a point was that members of the ' Monahan, C.J., Keogh, Morris, JJ. 
 
 jury from their independent knowledge of « Whiteside, C.J., Deasy, B., Barry, J., 
 
 the place of the accident suggested facts thinking the judgment ought to be re- 
 
 of negligence which might have warranted versed; while Palles, C.B., Fitzgerald, 
 
 their verdict. and Dowse, BB., were for affirming it. 
 
case. 
 
 118 THE LAW OF NEGLIGENCE. [book i. 
 
 Pleas was affirmed, by five' of the law Lords to three ^ in favour 
 
 of reversing it. 
 
 Facts of the The head note of the case thus states the facts : — S. went to 
 
 the Dublin and Kingstown Railway Station to accompany a 
 
 relative who was going by the up train to Dublin. It was 
 
 necessary to cross the line in order to get the ticket. S. went 
 
 through a gate down a pathway, and across the line in front of 
 
 the train going to Dublin, which was then slowly approaching the 
 
 station from Engstown. The time was night. There were 
 
 notice boards warning persons not to cross the line at that point, 
 
 but there was evidence that the railway servants never interrupted 
 
 any person who did cross the line there. S. crossed in safety, he 
 
 obtained a ticket for his relative, who, with two friends, was 
 
 standing on the bank by the side of the up line. The train to 
 
 Dublin had in the meantime arrived, and was standing stOl. S. 
 
 having got the ticket began to re-cross the line, being then not 
 
 in front of the Dublin train, but behind it : in consequence of 
 
 which that train prevented him seeing anything on the down line 
 
 from Dubhn, and he moved on. As he was going on the down 
 
 line (which ran from Dublin to Kingstown), the down express 
 
 train caught him and he was killed. It was a rule of the railway 
 
 that the express train should always sound a whistle on approaching 
 
 the station, and the driver of that train swore that he had whistled 
 
 twice, and some other servants of the railway company swore 
 
 that they had heard the whistling. The friends of S. had, in the 
 
 evidence for the plaintiff, sworn that they were in 'a situation to 
 
 hear the whistle if it had sounded, and that they had not heard 
 
 it ; and one of them, who could see the down train approaching, 
 
 swore that he heard the " rumbling" of the approaching train, but 
 
 heard no whistle. The question was, whether on these facts the 
 
 judge ought to have withdrawn the case from the jury or not ; as 
 
 The view of to this there were two views. The view of the majority, upholding 
 
 the vStion" ^^^ decision of the Irish Court of Common Pleas — that whenever 
 
 f**th^^"°^^^ evidence has been given from which legal negligence may be 
 
 inferred, and other evidence is subsequently given inconsistent 
 
 with the first, the decision as to which is the more credible must 
 
 always rest with the jury, and the duty of the judge is confined 
 
 to pointing out to the jury the rules that should guide them in 
 
 their findings, and the consequences that would respectively attach 
 
 to them. 
 
 • The view of the minority, on the other hand, was, that 
 
 1 The Lord Chancellor (Cairns), and " Lords Hatherley, Coleridge, and 
 
 Lords Penzance, O'Hagan, Selborne, and Blackburn. 
 Gordon. 
 
PARTI.] ONTTS OF PBOOP. 219 
 
 when the evidence, assuming it to be true, shews a state of The view of 
 things in which no reasonable person could be expected to say t^e TOiu°ation~ 
 that the negligence of the defendants, without any concurrence "f evidence is 
 of negligence on the plaintifi's part, was established, there is no jurywheretin 
 evidence to be submitted to a jury, and the judge should direct theXe°tiiere 
 the jury to find for the defendants. ""^^^ ^e a 
 
 The negligence on the part of the railway company in difference of 
 Slattery's case was, the alleged omission to whistle as the express it "''"'^ *''°"' 
 train came up to the station. As to this, two witnesses for the 
 plaintiff said they did not hear the whistle ; while nine witnesses 
 for the railway company swore to the fa,ct of the whistling. It 
 was agreed on all hands that whether there was whistling or not 
 was a question that must be submitted to the jury; and that 
 the remedy for wrongful verdict was to move for a new trial on 
 the ground that the verdict was against the weight of evidence. 
 
 But the chief difference of opinion in the House of Lords 
 turned on the question whether the conduct of the deceased had 
 not so clearly proved him the author of his own injury that there 
 was no evidence of the defendants' negligence to go to the 
 
 To establish that, if this were so, the matter might be removed 
 from the jury, Lord Blackburn cited the case of Skelton v. London Skeiton v. 
 and North-Western Railway Company,' to shew that the judge North-"^ *° 
 might direct a verdict on the ground of the plaintiff's want of ^^if^^™ 
 reasonable care. In that case, however, the Court held that the Company, 
 only act of negligence alleged against the company — that of not 
 fastening the gate — was not neghgence — i.e., was not in itself 
 of such a character as to call upon the defendants at all. The 
 case, therefore, is not one where the defendants' negligence and 
 its effect on the accident were brought into any relation whatever The actual 
 with the act of the plaintiff. It was merely the ordinary case of §^e°g '"'' ^ 
 a plaintiff not giving evidence enough to raise a primd facie 
 presumption against the defendants ; it goes no further than to 
 shew that in a case where no negligence of the defendants was 
 established, the Court commented on the negligence of the 
 plaintiff that brought about the accident.' He also cited the 
 opinion of Brett, J., advising the House of Lords, in Bridges 
 
 ' L. R. 2 C. P. 631 ; 36 L. J. C. V. 249 ; is, however, diepnted by Blackburn, J., 3 
 
 16 L. T. N. S. 563; IS W. E. 925. In App. Cas. at p. 1211. And areferenoe to 
 
 this ease Willes, J., cites Wyatt v. Great the judgment of Cockburn, C.J., 6 B. & S. 
 
 Western Railway Company, 6 B. & S. 709, at p. 77, will make it clear that the 
 
 34 L. J . Q. B. 204, as an authority that decision in that case was merely on 8 &f 9 
 
 the Court is bound to consider the question "Vict. c. 20, 8. 47, aa importing a legisla- 
 
 of contributory negligence in deciding tive prohibition. 
 
 whether there is any evidence to go to '^ See per Lord Penzance, 3 App. Cas. 
 
 the jury of the defendants' liability. This at p. 11 78. 
 
120 
 
 THE LAW OP NEGLIGENCE. 
 
 [book I. 
 
 Brett, J.,'b 
 opinion in 
 Bridges V. 
 North London 
 Eailway 
 Company; 
 
 His direction 
 in accordance 
 with it in 
 Eadley v. 
 London and 
 North- 
 Western Eail- 
 way Company 
 overruled by 
 the House of 
 Lords, 
 
 Brett, J.,'s 
 view con- 
 sidered. 
 
 V. North London Eailway Company, where, after saying that 
 before directing the jnry in terms, the judge first determines 
 whether the plaintiff had heen injured by the defendant ; then 
 whether the injury was the result of negligence ; he goes on to 
 say, the third question the judge should ask himself is — " Are 
 there acts in evidence upon which, if unanswered, men of 
 ordinary reason and fairness might fairly say that the plaintiff 
 had not in a manner contributed to the accident, done anything 
 or omitted to do anything which a person of ordinary skUl under 
 the same circumstances would not have done or would have 
 done ?" and instanced it as showing that it was the opinion of 
 the learned judge that a judge could withdraw the case from the 
 jury on the proposition he there lays down. But in Radley v. 
 London and North-Westem Eailway Company,' Brett, J,, having 
 directed the jury in accordance with that view of the law, was 
 held by the House of Lords, Lord Blackburn assenting, to have 
 made a statement of the law " contrary to the doctrine established 
 in the case of Davies v. Mann ^ ; " and the case was ordered to 
 be sent down for a new trial. If then the judge had removed 
 the case from the jury on evidence being given of such acts, the 
 Court in hanc would be constrained to order a new trial, as 
 acts of the character indicated — viz., those showing want of 
 ordinary skill — ^would not necessarily import liability. But the 
 inquiry in all such cases is, could the defendant, by the exercise 
 of ordinaiy care and diligence, have avoided the mischief 
 which happened; and if he could, the plaintiff's negligence 
 will not excuse him (the defendant)." The question, therefore, 
 always implies a balance of considerations. There must first be 
 evidence of negligence on the part of the defendant ; then the 
 defendant may shew, either by calling witnesses or out of the 
 plaintiff's own case — not that the plaintiff has been guilty of 
 negligence, for the plaiutiff is entitled to say, I may be just as 
 negligent as I please, that does not excuse your injuring me ; 
 you — the defendant — must, in addition, show that you were 
 ordinarily prudent and careful in what you did, and that with 
 ordinary care and diligence you could not avoid injuring me. 
 That is, a negligent plaintiff is not therefore to be made the 
 victim of a recklessly negligent act. In short, what the defendant 
 has to show is, that the negligence of the plaintiff was such as 
 produced the accident, despite the exercise of ordinary care and 
 diligence on the part of the defendant. The proof, then,, of 
 certain facts, however condemnatory of the plaintiff, is not 
 
 ' I App. Gas. 7S4. ' lo M. & W. 546. 
 
 ^ Kadley v. London and Novth-Western Eailway Company, i App. Cas, at p. 759. 
 
PART I.J ONUS OF PROOF. 12i 
 
 sufficient ; he is entitled to all this :' what changes the onus is 
 the finding that the effect of his acts could not be avoided by the 
 ordinary care of the defendant. And, as Lord Blackburn says,^ 
 " If there is some further inference of fact which may be drawn 
 from the undisputed facts, it is still for the jurymen to say 
 whether they will draw that inference." A drunken man falls 
 asleep in the middle of the road ; the defendant drives over him. 
 The evidence shews that the road is wide and straight, that the 
 horses are spirited, and the driver skilful. The judge on these 
 facts could not nonsuit,' because there is evidence of contributory 
 negligence, for to determine that, beyond the actual facts, an 
 inference from them must be drawn — ^that the defendant used 
 ordinary care and diligence — not a fact, but an inference from facts. 
 Test it in this way, if counsel in an accident case, with a view to 
 prove contributory negligence, were to ask — Did the defendant 
 use ordinary care and diligence ? On objection taken, the 
 question would assuredly be disallowed, as being in terms the very 
 question the jury were to determine. But contributory negligence 
 cannot be established without proof of the proposition, " that 
 though the plaintiff may have been guilty of negligence, and 
 although that negligence may in fact have contributed to the 
 accident, yet if the defendant could in the result by the exercise 
 of ordinary care and diligence have avoided the mischief which 
 happened, the plaintiff's negligence will not excuse him." As an 
 integral portion of this proposition is an inference from facts, as 
 we have seen, it must be for the jury.* Assuming, however, 
 Brett, J.,"s statement of the law to be correct, the view of Lord 
 Blackburn as to the shifting of the onus would certainly be borne 
 out by it.* If, then, when some act of omission was done or 
 omitted, in a manner contributing to the accident, the plaintiff, 
 by the very occurrence, would be disentitled to recover, in 
 precisely the same way as he would be disentitled if some small 
 yet material element were absent in an otherwise conclusive case. 
 A something would have been imported into the case which 
 acted as a disqualification, and prevented the evidence of the 
 
 1 Bird V. Holbrook, 4 Bing. 628, " is a ' See per Coleridge, J., in Clayards v. 
 decisive authority against the general Dethiok, 12 Q. B. 439, at p. 445._ 
 proposition that misconduct, even wilful * Per House of Lords, including Lord 
 and culpable misconduct, must necessarily Blackburn, in Hadley v. London and North- 
 exclude the plaintiff who is guilty of it 'WestemEailwayCompany,! App.Cas.7s4. 
 from the right to sue ": per Lord Denman, * The American law on the point, is 
 CI., giving judgment in Lynch B.Nurdin, very unsettled, different States adopting 
 I Q. B. 29, at p. 37 ; but as to the authority different views ; Tolraan v. Syracuse Eail- 
 of Bird V. Holbrook for the main proposi- road Company, gSN. Y. 98 ; 50 Am. E. 
 tion incurred therein, see Jordin v. Crump, 649 ; Bums v. Chicago and Milwaukee 
 8 M. & W. 782 ; Degg v. Midland Bail- Railway Company, 58 Am. E. 227. In a 
 way, I H. & N. 773 ; 26 L. J, Ex. 171. note at p. 229, the divergent American 
 
 " 3 App. Cas. p. 1201. decisions are classified and contrasted. 
 
122 THE LAW OF NEGLIGENCE. [book i. 
 
 defendant's negligence taking effect. But even then the admitted 
 facts might be susceptible of ambiguous and equally probable 
 inferences. As to this, however, presently. To state the position in 
 another way : Brett, J.,'s view was that proof of an act con- 
 tributing to the accident displaced the negligence proved by the 
 ' plaintiff against the defendant; but we have seen' that this is 
 
 not so. It is only the first step in the process ; since as against 
 the defendant the plaintiff has a right to be negHgent ; and the 
 omis is only shifted when it is shown that the plaintiff has been 
 so negligent that the defendant, with ordinary care and diligence, 
 could not avoid the accident. The second step is a comparison 
 between the negligence of the plaintiff and the conduct of the 
 defendant. If the negligence is not admitted, it must be found by 
 the jury. If it is admitted, then the bearing of the defendant's 
 conduct upon it must still refer it to the decision of the jury. Thus, 
 in any case, it is for them if the negligence is contributory. 
 Bearing of But the question of contributory negligence is not necessarily, 
 
 dnVfe^poiSr ^^^ merely incidentally, involved. The question in Slattery's case 
 was really whether, when evidence has been given which by itself 
 would raise the presumption of negligence, but which afterwards, 
 by reason of other evidence, has its force diminished, can, under 
 any circumstances, be considered as obliterated, so that the judge 
 is warranted in removing it from the jury. It was contended by 
 the dissentient jadges in Slattery's case that where the contra- 
 dictory evidence could be- regarded as admitted the effect was to 
 obliterate the evidence that shewed negligence. But though the 
 facts of the manner of crossing and the approach of the train 
 were admitted in Slattery's case, the conclusions drawn from the 
 admitted facts were not admitted. On the one hand, the conclu- 
 sion was, that Slattery was guilty of negligence ; on the other, 
 that he got into his perilous position through the neglect of the 
 engine-driver to whistle and give him proper warning. So that, 
 though the bare facts were admitted, the conclusion from them 
 being consistent with either of two states of fact, one of which 
 the one side adopted, the other the other, and some evidence 
 having been already given which threw the onm of disproof on 
 the defendants, and thus raised a presumption, however slight, in 
 favour of the plaintiff, the question had to be left to the jury. 
 Where both evidence and conclusions from evidence are admitted, 
 in that case there can be nothing to leave to the jury ; but this is of 
 rare occurrence, since where the facts are admitted the inferences are 
 disputed, where the inferences are admitted then the facts are not.' 
 
 ' Eadley v. London and Kortli-'WeBtern the principle that the onm of proof may 
 
 Eailway, i App. Cas. 754. shift from time to time, cites the casea on 
 
 ^. Lord Blackburn, in order to establish hills of exchange and 'Harvey v. Towers, 
 
PART I.] 
 
 ONUS OF PROOF. 
 
 123 
 
 The conclusions then to be drawn from Slattery's case are : It is Conclusions 
 competent to, and the duty of, the iudge to say whether there is ^"" siattery'i 
 evidence to go to the jury on any issue. But it is not competent 
 for him to say that any one issue is proved more than any other, 
 and to withdraw the case from the jury. Farther, that where 
 there are either facts or conclusions from facts in dispute the 
 decision of them is for the jury. 
 
 The effect of the decision in Dublin, Wicklow, and "Wexford Davey «. 
 Railway Company v. Slatterj-,^ was canvassed in Davey v. London and s™ th- 
 and South-Western Railway.^ The facts, as stated by Lord Western 
 Loleridge, C. J., were : the plaintiff " caused the accident by ' 
 walking straight into a train that he might have seen." On this 
 evidence at the trial the judge nonsuited the plaintiff; a rule was 
 subsequently obtained on the ground that, " if there is evidence 
 of negligence or a breach of duty by the defendants without 
 which the accident would not have happened, there is a case for 
 the jury; and it is well settled that evidence of contributory 
 
 Eailway, 
 
 6 Ex. 656, in particular. That was an 
 action by an indorsee against tlie acceptor. 
 The defendant pleaded that the accept- 
 ance was obtained by fraud and that there 
 was never any consideration for the in- 
 dorsement. It was held that although 
 the allegation of want of consideration 
 was necessary to render the plea pood, 
 proof of the fraud casts on the plaintiff the 
 omuo of proving consideration. Lord 
 Blackburn argues from this that if the 
 fraud had been undisputed the onus would 
 equally have been shifted ; and that the 
 law as there enunciated rests on a general 
 principle applicable to Slattery's case. It 
 is clear that if the fraud had been undis- 
 puted it would not have been necessary, as 
 inthatcase,toleave any question to thejury; 
 and also that by not disputing fraud the 
 defendant could not be in a better position 
 than he would be in if he disputed it. But 
 Alderson, B., in his judgment, shews that 
 the reason of this is something peculiar to 
 the pleading on cases on bills of exchange, 
 and does not involve any general principle 
 of the kind alleged. He says: " At first 
 it would seem unnecessary in a plea like 
 this to aver that the plaintiff gave no 
 consideration, if that fact is to be inferred 
 from proof that the bill was obtained by 
 fraud. But when the whole record is 
 considered, that is not the correct view. 
 The declaration contains an averment that 
 there was an indorsement of the bill to 
 the plaintiff ; that is an ambiguous ex- 
 pression, and may mean either an indorse- 
 ment simpUciter to part with the possession 
 of, or an indorsement for, a valuable con- 
 sideration. If, therefore, fraud alone is 
 pleaded, that does not negative the aver- 
 ment in the declaration taken in the latter 
 
 sense, and the plea would be bad, because 
 consistent with the fact of the indorsement 
 having been made for a valuable con- 
 sideration. It consequently becomes neces- 
 sary to add that the bill was not passed to 
 the plaintiff for valuable consideration, 
 and so fix the sense on which the indorse- 
 ment mentioned in the declaration is to be 
 understood, then, if the plaintiff intends 
 to say that the averment moans that there 
 was an indorsement to him for value, he 
 must say so in his replication ; and he 
 must prove it, because he has in fact made 
 the averment in his declaration." But 
 none of this reasoning applies to a case of 
 negligence. In his declaration the plaintiff 
 asserts negligence ; when he has given 
 evidence of it, the defendant has to destroy 
 the case made out. If the defendant shews 
 that the plaintiff has been negligent, this 
 by no means conclusively helps him, for 
 the plaintiff' may say, 1 know that I have, 
 but I have given evidence that goes to 
 show you are the cause of my injury, and 
 if so, as far as the cause of action goes, I 
 am entitled to have a jury determine the 
 matter. Till you have shewn that you are 
 not the cause my case stands, for the 
 only averment in my declaration was that 
 you had been guilty of negligence ; I have 
 given evidence in support of that, and have 
 taken no further burthen on myself, direct 
 or indirect. 
 
 ^ 3 App. Cas. 1155 ; Tolman v. Syra- 
 cuse Bailway Company, 98 N. T. 198 ; 50 
 Am. E. 649. 
 
 2 II Q. B. D. 213, C. A. 12 Q. B. D. 
 70; 52 L. J. Q. B. 58; 52 L. J. Q. B. 
 665 ; 49 L. T. 739. Reading and Co- 
 lumbia Railway v. Ritchie, 102 Fenn. St. 
 425. 
 
124 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Judgment 
 of Lord 
 Coleridge, CJ, 
 
 Benmau, J., 
 concurs ; 
 Manisty, J., 
 doubts. 
 Divisional 
 Court affirmed 
 in the Court 
 of Appeal ; 
 Baggallay, 
 L.J,, dissents. 
 
 negligence, however strong, cannot entitle a judge to withdraw 
 the case from the jury." The Divisional Court discharged the 
 rnle, and Lord Coleridge, C.J. (one of the dissentient judges in 
 Slattery's case), laid down the law in the following terms: — " It 
 is for the plaintiff to shew, before he can recover, that there was 
 negligence on the part of the defendants, and that such negligence 
 caused the injury to the plaintiff. In the present case the 
 plaintiff must therefore make out two things : first, thait the de- 
 fendants, through their servants, did or omitted to do something 
 which a reasonably careful person would not have done or omitted 
 to do ; and, secondly, that the plaintiff's injury was thereby 
 occasioned. It has certainly been determined in several cases, 
 which have not been overruled as far as I am aware, that if the 
 plaintiff, in attempting to establish his case, not only does not 
 shew any act of omission of the defendants from which the acci- 
 dent arose, but, on the contrary, does shew that he himself caused 
 the damage, then his case fails, because he proves affirmatively 
 that he himself is the author of his own wrong. If, therefore, by 
 the uncontradicted facts, on the truth of which the plaintiff must 
 rest his own case, it is shewn that the damage to the plaintiff 
 was caused by himself, it seems to me that the learned judge was 
 right in nonsuiting the plaintiff, because he failed in sustaining 
 the onus which he was bound to sustain — viz., of shewing that 
 the injury resulted from the defendant's acts." 
 
 Denman, J., concurred in this; but Manisty, J., had doubts 
 whether the question whether the railway company had taken 
 reasonable precautions was not for the jury. On appeal, the 
 decision was sustained by Brett, M.E., and Bowen, L.J. ; Bag- 
 gallay, L.J., dissenting. The dissent of Baggallay, L.J., was 
 based upon an illustration used by Lord Cairns in giving judg- 
 ment in Dublin, Wicklow, and Wexford Eailway Company v. 
 Slattery' : "If a railway train, which ought to whistle when 
 passing through a station, were to pass through without whistling, 
 and a man were, in broad daylight, and without anjiihing, either 
 in the structure of the line or otherwise, to obstruct his view, to 
 cross in front of the advancing train and to be killed, I should 
 think that the judge ought to tell the jury that it was the folly 
 and recklessness of the man, and not the carelessness of the 
 company which caused his death." The Lord Justice seems to 
 have been of opinion that the case shewed both negligence on 
 the part of the defendants, and an absence of contributory negli- 
 gence on the part of the plaintiff. The majority of the Court, 
 
 3 App. CaB. at p. 1166. 
 
PART I.J ONUS OF PROOF. 123 
 
 however, was of opinioii that no negligence of the defendants 
 had been shewn. 
 
 Bowen, L.J., thus dealt with the illustration from Lord Cairns' s Judgment of 
 speech in Slatteiy's case : " The question for the House of Lords witurefereuoe 
 was, whether the learned judge at the trial should have nonsuited '« Lord 
 or not ; and that question divided itself into two parts : First, iiiuBtration. 
 whether there was evidence of negligence in the railway company 
 to go to the jury ; secondly, whether, even assuming there was 
 such, that was negligence which could have caused the accident, 
 or whether there was not such clear contributory negligence on 
 the part of the plaintiff as rendered it impossible for a reasonable 
 person to suppose the accident was caused by anybody except the 
 plaLatiff himself. Now, the observations of Lord Cairns in that 
 case, it will be observed, arise solely on this second branch. Lord 
 Cairns thought that, on the admitted facts, it could not be said 
 that there were not two views open to the plaintiff's conduct, and 
 the reason he thought so was because the plaintiff was a person 
 who was simply crossing, in the night-time, a station where the 
 trains ought to whistle when they were passing such crossing in 
 the night-time, and on the ground that the facts there did admit 
 of two reasonable views, Lord Cairns thought that the judge 
 ought not to have nonsuited. If the facts here had been exactly 
 as they were in that case, one would have come to the same con- 
 clusion in the present case, but it is because I think they do not 
 fall within the facts of that case, but, on the contrary, do not 
 leave open two views which can be reasonably taken of the 
 plaintiff's conduct that I think the judge was right in nonsuiting." 
 
 So much, then, was necessary for the decision of the case. 
 Brett, M.R., in giving his judgment, took occasion to reiterate Brett, m.e., 
 his views as to the burthen of proof in cases where contributory yiewsTarto'^ 
 neglie'ence is alleged. He said : "In such an action as this the burthen of 
 
 o o o ^ ^ proof m cases 
 
 burthen of proof lies entirely upon the plaintiff. There are two where con- 
 things for him to establish, one is aflSrmative and the other negligence 
 negative. It is for the plaintiff to shew that the accident which ^iiss^"*- 
 happened to him was caused by a negligent act of the defendants, 
 or of those for whose negligent acts the defendants are liable, 
 and that that accident was produced as between him and the 
 defendants, solely by the defendants' negligence, in this sense, 
 that he himself was not guilty of any negligence which con- 
 tributed to the accident ; yet, if the plaintiff also was guilty of 
 negligence which contributed to the accident, so that the acci- 
 dent was the result of the joint negligence of the plaintiff and 
 of the defendants, then the plaintiff cannot recover, it being 
 understood that if the defendants' servants could, by reasonable 
 
126 
 
 THE LAW OP NEGLIGENCE. 
 
 [book : 
 
 Wakelin v. 
 London and 
 South-Western 
 Eailway 
 Company. 
 Brett, M.B,, 
 repeats liis 
 view in the 
 Court of 
 Appeal, 
 
 But ia over- 
 ruled in the 
 House of 
 
 Lords. 
 
 care, have avoided injury, the plaintiff, although he was negligent, 
 then the negligence o£ the plaintiff would not contribute to the 
 accident." 
 
 In the subsequent case of Wakelin v. London and South- 
 Western Eailway Company,' where the facts proved were that 
 the husband of the plaintiff was found dead on the defendants' 
 railway, near a public footpath, and nothing of the particulars of 
 his death were known, Brett, M.R., in the Court of Appeal, 
 again expressed his opinion that: "The plaintiff was not only 
 bound to give evidence of negligence on the part of the defend- 
 ants which was a cause of the death of the deceased, but was 
 also bound to give primd facie evidence that the deceased was 
 not guilty of negligence contributing to the accident ; and that 
 by reason of the plaintiff having been unable to give any 
 evidence of the circumstances of the accident, she had failed in 
 giving evidence of her primd facie case."^ In the House of Lords, 
 however, the correct view was determined to be that the plaintiff 
 was required to give evidence only on the first head, that the 
 accident was through the negligent act of the defendants. Lord 
 Watson' pointed out that no proposition inconsistent with this had 
 been adopted by the House of Lords in Slattery's case. " I am 
 of opinion," he said, " that the ontis of proving affirmatively that 
 there was contributory negligence on the part of the person 
 injured, rests, in the first instance, upon the defendants, and that 
 in the absence of any evidence tending to that conclusion, the 
 plaintiff is not bound to prove the negative in order to entitle 
 her to a verdict in her favour. That opinion was expressed by 
 Lord Hatherley and Lord Penzance in the Dublin, Wicklow, and 
 Wexford Railway Company v. Slattery."* I agree with these 
 noble Lords in thinking that whether the question of such con- 
 tributory negligence arises on a plea of ' not guilty,' or is made 
 the subject of a counter issue, it is substantially a matter of 
 defence. And I do not find that the other noble Lords who took 
 part in the decision of Slattery's case said anything to the. 
 contrary. In expressing my own opinion I have added the 
 words ' in the first instance,' because, in the course ^ of the trial, 
 the onus may be shifted to the plaintiff so as to justify a finding 
 in the defendants' favour, to which they would not other- 
 wise have been entitled. Lord Blackburn concurred with Lord 
 Watson.* The question of evidence has been embarrassed by 
 
 ^12 App. Gas. 41 ; 56 L. J. Q. B. 229 ; 
 SSL.T.709;3SW.B. 141. 
 
 ^ This is settled law in Maine: State 
 V. Maine Central Eailioad Company, 76 
 Me. 357. 
 
 ^ 12 App, Cas, 41, at p. 48 ; Johnson v. 
 
 Hudson Eiver Company, per Duer, J., 5 
 Duer, 21 ; Crafts v. Boston, 109 Mass. 
 519; Eeynolds ». Kew York Central, 58 
 N. Y. 248. 
 
 * 3 App. Cas. 1 169, 1180. 
 
 ' The Lord Chancellor (Halsbuiy) 
 
PARTI.] ONUS OF PEOOF. 127 
 
 a frequent result in these cases, that while the plaintiff has been 
 striving to prove negligence he has indicated facts which would 
 shew contributory negligence. In this event, before he could 
 recover, he would not merely have to shew affirmatively the 
 negligence of the defendants, but some facts to answer the impli- 
 cation of negligence on his part, also arising from his evidence. 
 This, however, would be but an accident. The onus on the The accepted 
 plaintiff is to shew that the defendants' negligence caused the ™'^" 
 accident, and where the plaintiff gives evidence of a state of 
 things equally consistent with the wrong being caused by his own 
 negligence or by the negligence of the defendants, he has not 
 proved his case.' Save in this connection the plaintiff has 
 nothing to do with disproof of contributory negligence as the 
 foundation of his case.^ 
 
 arrived at a conclusioa by the aia of two set aside, the Court is not hound to submit 
 well-known legal maxims, jBi qui affirmat the case to the jury, but may direct a ver- 
 non ei qui negat incumhit probatio, ". the diet for the defendant : Groodlett v. Louia- 
 plaintiffis bound to establish his case," and ville Kailroad, 122 U. S. (15 Davis) 391. 
 in pari delicto potior est conditio defen- Evidence of a habit of carefulness is in- 
 dentis, " if the joint negligence of both is competent : Chase v. Maine Central Bail- 
 shown the plaintifi' fails." road Company, 77 Me. 62. 
 
 1 The rule in the United States is, ^ Holland b. North Metropolitan Tram- 
 where the^evidence given at the trial with ways Company, 3 Times Law E. 245 ; per 
 all the inferences that the jury could Manisty, J., "Davey'soase isnolonger an 
 justifiably draw from it is insufBcient to authority on this point ; " Coyle v. Great 
 support a verdict for the plaintiff— i.e.. Northern Railway Company of Ireland, 
 that such a verdict, if returned, must be 20 L. E. Ir. C. L. 409. 
 
CHAPTER VI. 
 
 CONTKIBUTOEY NEGLIGENCE. 
 
 Eule of the 
 Boman \a,vr. 
 
 Two theories 
 in English 
 law. 
 
 /%%% 
 
 The rule of the Roman law on contributory negligence is short 
 and explicit : Q%wd quis ex culpa sua damnum sentit Twn intelligitur 
 damnum sentire:^ (The harm I bring upon myself I must bear 
 myself.) This is illustrated by a decision of Paulus : JEi, qui 
 irritatu suo feram lestiam ml quammmque aliam quadrupedem in 
 se proritaverit, itaque damnum ceperit, neque in ejus dominum 
 neque in custodem, actio datur? < 
 
 But the question, What is the harm I briag upon myself? 
 admits of the widest differences of interpretation. Two separate 
 views have been expressed, and have, each in its time, received 
 judicial sanction : First, that the plaintiff must satisfy the jury 
 that the injury which is complained of was caused solely by negli- 
 gence for which the defendant is answerable.' 
 
 The second contention may be summed up in two propositions : 
 First, the plaintiff, though guilty of negligence, is not disentitled 
 to recover if the defendant might have prevented the injury by the 
 exercise of ordinary care.'' Secondly, the defendant, though guilty 
 
 ' Dig. so, 17, 203. Compare D. 9, 2, 9, 
 § 4, D. 9, 2, II, pr. D. 9, 2, 28, pr. D. 
 9, 2, 31, pr. the Lex Aguilia. 
 
 2 Sent. Eec. I. 15 § 3. The actio in 
 dominum is the actio de pauperie which 
 is applicable if an animal has done damage 
 to another contra naturam sui generis. 
 D. 9, § I, I, § S, 6. The actio in custo- 
 dem is the Aquilian action. 
 
 ^ See a,seiies of cases, Vanderplank v. 
 Miller (iSaSI. Moody &M. 169 ; Pluokwell 
 n. Wilson ^032)1 5 C. & P. 375 ; Luxford 
 V. Large, 5 C. & F. 421 ; Hawkins v. 
 Cooper (1838), 8 C. & P. 473 ; Martin v. 
 Grresft'Nortnem Railway Company (1853), 
 16 C. B. 179 ; this case goes rather on the 
 ground of acquiescence m a wrong direc- 
 tion : per Brett, J., addressing the House 
 of Lords in Bridges's case, L. E. 7 H. of L., 
 213, at pp. 232-3; also when charging the 
 jury in Eadley i\ London and North- 
 Western Eailway Company, i App. Cas. 
 755 ! ag^iii the same judge in the Court of 
 
 Appeal, as M.E., in Davey v. London and 
 South- Western Eailway Company, 12 
 Q. B. D. 70, at p. 71, with the following 
 addendum : " Solely by the defendants' 
 negligence in this sense, that he himself 
 was not guilty of any negligence which 
 contributed to the accident, because even 
 though the defendants were guilty of neg- 
 ligence which contributed to the accident, 
 yet if the plaintiff also was guilty of neg- 
 ligence which contributed to the accident 
 so that the accident was the result of the 
 joint negligence of the plaintiff and of the 
 defendants, then the plaintiff cannot re- 
 coyer, it being understood that if the de- 
 fendants' servants could by reasonable care 
 have avoided injuring the plaintiff, although 
 he was negligent, then the negligence of 
 the plaintiff would not contribute to the 
 accident." • 
 
 * Smith V. Pelah (1747), 2 Str. 1264; 
 Bird V. Holbrook (1828), 4 Bing. 6z8 ; Ven- 
 nall V. Garner (1832), i Cr'omp. & M. 21 ; 
 
PART I.J CONTRIBUTORY NEGLIGENCE. 
 
 129 
 
 of negligence, is not liable to the plaintiff if the plaintiff might have 
 prevented the injury by the exercise of ordinary care.' This, in 
 effect, makes the question of liability to turn on a finding of fact 
 which of the two parties, plaintiff or defendant, was guilty of the 
 last act of negHgence previous to the injury — that is, the last act 
 without which the accident would not have happened.^ 
 
 The case usually referred to as that which first definitely for- Bntteifleidi-. 
 mulated the rule of law is Butterfield v. Forrester.' It was an ac- ^°"'«^*«''- 
 tion for obstructing a highway, whereby the plaintiff, who was riding 
 violently, rode against the obstruction and was injured. Bailey, J., 
 at the trial, directed the jury that, if a person riding with reason- 
 able and ordinary care could have seen and avoided the obstruction, 
 and if they were satisfied that the plaintiff was riding along the • 
 street extremely hard and without ordinary care, they should find 
 for the defendant ; which they accordingly did. A rule was 
 moved for on the authority of a passage in Buller's " Nisi Prius : " 
 " If a man lay logs of wood across a highway, though a person 
 may, with care, ride safely by, yet, if by means thereof my horse 
 stumble and fling me, I may biing an action." But it was 
 refused by the Court of King's Bench, Lord EUenborough, 0. J., statement of 
 thus laying down the rule : " One person being in fault will not LordEUep- 
 dispense with another's using ordinary care for himself. Two l'°™"Si'. t;.J. 
 things must concur to support this action, an obstruction in the 
 road by the fault of the defendant, and no want of ordinary care 
 to avoid it on the part of the plaintiff." This was approved and 
 adopted by the Court of Exchequer in Bridge- v. Grand Junction Bridg'e ». 
 Railway Company:'' Parke, B., saying: "The rule of law is laid tiorKaUway 
 down with perfect correctness in the case of Butterfield v. For- Company 
 
 ^ Till Statement of 
 
 rester ; and that rule is, that, although there may have been the rule by 
 negligence on the part of the plaintiff, yet, unless he might by ' 
 the exercise of ordinary care have avoided the consequences of 
 
 Marriott v. Stanley (1840), i M. & G. = (1809) 11 East 60. In giving judfc- 
 568, I Scott N. R. 392 ; Smith v. Dobson ment in The Berniua (2), 12 P. D. ^8, 
 (1841), 3 M. & Gr. 59, 3 Scott N. E. 336, at p. 70, Lord Esher, M.E., says : " The 
 the Court refused, on the motion of the rule of Iaw_ was laid down with perfect 
 defendant, to grant a new trial on the correctness in 1809, in the case of Butter- 
 ground that the juiy had reduced the dam- field V. Forrester, and the rule is, that 
 age because they thought that the plaintiif although there may have been negligence 
 was partly in fault; Springett v. Ball, 4 on the part of the plaintiff, yet unless he 
 F. & F. 472, with an exhaustive note of might by_ the exercise of ordin:.ry care 
 the earlier cases. have avoided the consequences of the 
 
 1 Flovrer». Adam (1810), 2 Taunt. 214, defendant's negligence he is entitled to 
 a case that admirably illustrates the reason recover." 
 
 of the rule of law as to contributory neg- ■* (1838) 2 M. & W. 244. InHolden v. 
 
 ligence : Lack v. Seward (1829), 4 C. Livei-pool New Gas and Coke Company, 
 
 & P. 106 ; Woolf V. Beard, 8 C. & P. 3 C. B. i, negligence on the part of the 
 
 373 ; Sills V. Brown {1840), 9 C. & P. plaintiff was held an admissible defence 
 
 601 '; Eaisin v, Mitchell, 9 6. & P. 613. under the plea of not guilty. Dakiu v. 
 
 2 Tuff w. Waiman, 5 C. B. N. S. 585 ; Brown, 8 C. B. 92 : a plea denying liabilit_y 
 Walton V. London, Brighton, and South for the consequences of negligence is 
 Coast BailwayCompany,Har.&Buth. 424. bad. 
 
 I 
 
130 
 
 Adopted by 
 the Court of 
 Uommon 
 Pleas, 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Bigby V. 
 Hewitt and 
 Greenland v, 
 Chaplin, 
 
 the defendants' negligence, he is entitled to recover ; if by ordinary- 
 care he might have avoided them he is the author of his own 
 wrong;" and the Court of Common Pleas, two years later,' adopted 
 the same rule, by refusing a new trial on the ground of misdi- 
 rection, in directing the jury in an accident case that they had to 
 say whether the plaintiff had been so deficient in reasonable and 
 ordinary care that he had brought the accident upon himself. 
 And in the case of Davies v. Mann,^ cited probably more often 
 for the peculiarity of the facts than for any additional clearness 
 it gives to the exposition of the rule of law, the case of Butter- 
 field and Forrester is declared once more to lay down the rule of 
 law with perfect correctness. 
 
 The cases of Eigby ■;;. Hewitt' and Greenland v. Chaplin,' in 
 which judgment was given in the Court of Exchequer on the 
 same day, are important in the illustration of the law of contri- 
 butory negligence. In the former, the plaintiff was a passenger 
 on the top of an omnibus which was struck by the defendant's 
 omnibus, both omnibuses going with great speed. The conse- 
 quence was, that the omnibus on which the plaintiff was, not 
 being able to be drawn up, and continuing its career, ran against 
 some obstacle, and the plaintiff was thrown off with considerable 
 violence. Eolfe, B., directed the jury to ascertain whether the 
 mischief arose from the negligence of the driver of the defendant's 
 omnibus. This was objected to, and a new trial was moved for on 
 the ground that the direction should have been that if the mischief 
 was, in part, occasioned by the misconduct of the person driving 
 the omnibus on which the plaintiff was, the defendant would not 
 be responsible. The Court, however, held that, " generally speak- 
 ing, where an injury arises from the misconduct of another the 
 party who is injured has a right to recover from the injuring 
 party for all the consequences of that injury." The latter case, 
 Greenland -w. Chaplin, is very analogous, yet renders the law, as 
 laid down in Hewitt v. Eigby, more distinct. A steamboat, be- 
 longing to the defendant, negligently ran against a steamboat on 
 board which the plaintiff was a passenger, in consequence of 
 
 ' In 1840, in Marriott v. Stanley, i 
 Scott's N. E, 392, I M. & G. 568. 
 
 " (1842) 10 M. & "W, 546. The ques- 
 tion IS, " Whether the defendant, by ordi- 
 nary care and slsill, might have avoided 
 the accident? " Dowell v. General Steam 
 Navigation Company, 5 E. & B. 195, 
 Where a vessel is run down by night, and 
 there is evidence that there has been ne- 
 glect of Admiralty regulations in not dis- 
 playing a light, such negligence, if not 
 the" immediate cause of the accident, does 
 not disentitle from recovering damages 
 
 against the injuring vessel. Movrison v. 
 General Steam Navigation Company, 8 
 Ex. 733, In Mayor of Colchester v. 
 Brooke, 7 Q, B. 339, it was held that the 
 fact that a nuisance is constituted by pro- 
 perty of the plaintiff, is no excuse for negli- 
 gently injuring it. And in Dimes v. Petley, 
 15 Q. B. 276, a private individual cannot 
 justify damaging the property of anotheron 
 the ground that it is a nuisance to a piihlio 
 right, unless it does him a special injury, 
 
 3 (1850) s Ex, 240; 19 L. J, Ex. 291. 
 
 « 5 Ex. 243. 
 
PARTI.] COETRIBUTOEy NEGLIGENCE. 131 
 
 which an anchor was displaced, fell over, and broke the plaintiff's 
 leg. Pollock, C.B., directed the jury that if they thought that 
 there was negligence in the stowage of the anchor, or that the 
 accident arose from the plaintiff being in a part of the vessel 
 where he ought not to have been, they ought to find for the 
 defendant. The jury found as facts that neither the one nor the 
 other o£ those matters in reality existed. The motion for the new 
 trial was made on the ground that the verdict was against the 
 evidence; but the Court refused a rule, Pollock, C.B., saying: 
 " I may add that, on consideration, I am of opinion that the law 
 as laid down by me in this respect was not correct. I entirely 
 concur with the rest of the Court that a person who is guilty of 
 negligence, and thereby produces injury to another, has no right 
 to say ' Part of that mischief would not have arisen if you your- 
 self had not been guilty of some negligence.' I think that where 
 the negligence of the party injured did not, in any degree, con- 
 tribute to the immediate cause of the accident, such negligence 
 ought not be set up as an answer to the action ; and certainly I 
 am not aware Ihat, according to any decision which has ever 
 occurred, the jury are to take the consequences and diyide them 
 in proportion according to the negligence of the one or the other 
 party." ' 
 
 The question, What amount of negligence disentitled the What amount 
 plaintiff to recover? was the subject of consideration for the disen«tk8°t™6 
 Exchequer Chamber in Tuff v. Warman.^ The plaintiff's barge pi»'"'jf *" 
 was proceeding down the river with two men on board, one of '^"ff '■• 
 whom was at the helm ; but no look-out was kept. A steamer on ' " 
 
 her right side, and taking such precautions that, if the barge had 
 done the same, would have avoided any collision, ran into the barge 
 and caused the injuries for which redress was sought. The jury 
 found, on the direction of the judge, that the defendant, by his 
 negligence, directly caused the injury. Objection was taken to 
 the summing-up, that the judge left to the jury whether the 
 plaintiff, by his negligence, " ^i7'ec% " contributed to the mis- 
 fortune ; and it was contended for the defendants that whether 
 he directly or indirectly contributed was immaterial, if he con- 
 tributed to it by his negligence at all. In the Court of Common Judgment of 
 Pleas, Cockbum, O.J., said: "The true question in these cases ja°tjieo^i,rt ' 
 is, whether the damage having been occasioned by the negligence of Common 
 of the defendant the negligence of the plaintiff has directly con- 
 tributed to it ; and I think that in this case, if the defendant 
 could have made out negligence on the part of the plaintiff that 
 
 1 See Smith v. Dohson, 3 M. & G. 59 ; = 2 C. B. N. S. 740, S C. B. N. S. 585 ; 
 3 Scott's N. B. 336. 27 L. J. C. P. 322. 
 
132 THE LAW OF NEGLIGENCE. [book i. 
 
 would have been an answer to the action. The way in which it 
 was put on the part of the defendant was this, that by his own 
 negligence in omitting to keep any look-out, the plaintiff con- 
 tributed to the accident. If that had been established to the 
 satifaction of the jury, the plaintiff would have been directly 
 contributory, and the defendant would have been entitled to 
 otCressweli.J. a verdict." Oresswell, J., concurs in the result, but cites the 
 wor^s of Lord Campbell giving judgment in Dowell v. General 
 Steam Navigation Company,' adopting the view expressed in 
 Davies ■;;. Mann^ as his reason for arriving at his conclusion. 
 Of Williams, J. Williams, J., also based his concurrence on the same decision, 
 and added : "I dissent entirely from the proposition urged by 
 Mr. Collier, that the plaintiff is disentitled to recover if his 
 negligence is either proximately or remotely connected with the 
 accident. But I feel great difficulty in dealing with the question 
 whether the negligence was proximate or remote, and I certainly 
 feel great difficulty in getting rid of that question of law by 
 Judgment of leaving it to the jury." In giving the judgment of the Exchequer 
 Ohamber Chamber,' Wightman, J., said : " It appears to us that the 
 Wightman ^J. pi'oper question for the jury in this case, and indeed in all others 
 of the like kind, is whether the damage was occasioned entirely 
 by the negligence or improper conduct of the defendant, or 
 whether the plaintiff himself so far contributed to the misfortune 
 by his own negligence or want of ordinary and common care and 
 caution, that but for such negligence or want of ordinary care 
 and caution on his part the misfortune would not have happened. 
 In the first case the plaintiff would be entitled to recover, in the 
 latter not, as but for his own fault the misfortune would not 
 have happened. Mere negligence or want of ordinary care or 
 caution would not, however, disentitle him to recover unless it 
 were such that but for that negligence or want of ordinary care 
 the misfortune ooidd* not have happened ; nor, if the defendant 
 might, by the exercise of care on -his part, have avoided the con- 
 sequences of the neglect or carelessness of the plaintiff." 
 Discussion. It is to be noted that the decision of Cockburn, C.J., is based 
 
 1 S E. & B. 195 ; 26 L. J. Q. B. 59. i App. Caa. 757, the word is "icould," 
 
 2 loM, &W. S46. not "could." 'The word "icould" also 
 s Wightman, Erie, Cromplon.JJ.jWat- occurs in the Law Journal Reports, 27 
 
 son, Bramwell, and Channel!, BB. L. J. C. P. 322, and in the Jurist, 5 Jur. 
 
 * In Walton y. London, Brighton, and N. S. 222. This last report is by far the 
 
 South Coast Railway, Harr. & Suth. at p. best of those reporting the case in the Ex- 
 
 430, Willes, J., quotes this as ■" icould not chequer Chamber. The word "could" 
 
 have happened " ; and further on, in the is obviously a mistake; common sense 
 judgment, takes exception to the use of the , satisfies us that what the Court intended 
 
 word " could " for" would." And where to negative, was not possibility, what could 
 
 the same passage is cited in the arsument have happened ; but probaMlity, what 
 
 in Eadley v. London and North-Westem would have happened. 
 Railway Company, in the Honse of Lords, 
 
PARTI.] GONTRIBUTOEY NEGLiaENOE. 133 
 
 on an assumed finding of the jury that the plaintiif had not 
 omitted to keep a look-out, and that therefore he had not con- 
 tributed to the injury. If the finding had been the other way, 
 and the jury had found that the plaintiff had omitted to keep a 
 look-out, it would seem that Oockbum, C.J., would have been 
 prepared to enter a verdict for the defendants. This must then 
 have been on the ground that any negligence on the part of the 
 plaintiff would disentitle him to the verdict. He says : " I think 
 that in this case if the defendant could have made out negligence 
 on the part of the plaintiff, that would have been an answer to 
 the action. If that had been established to the satisfaction of 
 the jury (i.e., that by his own negligence in omitting to keep any 
 look-out, the plaintiff contributed to the accident) the plain- 
 tiff would have been directly contributory, and the defendant 
 would have been entitled *to a verdict." But the other judges 
 most clearly do not hold this opinion ; since Williams, J., thus 
 summarized the principle of Dowell v. General Steam Navi- 
 gation Company,' on which they acted : "If the negligence or 
 default of the plaintiff was in any degree the proximate cause 
 of the damage, he cannot recover, however great may have been 
 the negligence of the defendant, but that if the negligence of 
 the plaintiff was only remotely connected with the accident, then 
 the question is, whether the defendant might not, by the exercise 
 of ordinary care, have avoided, it." The question on which 
 WilHams, J., doubted was, "What is meant by the negligence of 
 the plaintiff being proximately or directly contributory, or only 
 remotely connected with the accident." And the special difficulty, 
 in his view, was that this question of whether the negligence was 
 proximate or remote was for the jury. This, then, is inconsistent 
 with the judgment of Oockburn, O.J. The jury find, first, the 
 negligence of the defendant, then the negligence of the plaintiff, 
 then whether the negligence of the plaintiff was proximately or 
 remotely the cause of the accident — not, of course, in so many 
 words, but this is the effect of their finding when fully expressed. 
 In the view of Oockbum, O.J., when negligence had been estab- 
 lished against the plaintiff he was thereon disentitled to recover. 
 The question of proximity or remoteness does not enter into his 
 judgment. But it is - this very question which perplexes 
 Williams, J. The judgment of the Exchequer Chamber is, how- 
 ever, clear in establishing that the plaintiff's negligence is such 
 that, " but for that negligence or want of ordinary care and 
 caution, the misfortune ' woidd not'^ have happened." 
 
 In the subsequent case of Walton v. London, Brighton, and 
 
 ' 5 E. & B. 195. " See previous page, note 4. 
 
134 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 1. 
 
 Willes, J.'s, 
 view of Tuff 
 V. Warmau. 
 
 Eadley v. 
 London and 
 North- 
 Western 
 Baihray 
 Company. 
 
 South Coast Eailway Company,' Willea, J., described the case of 
 Tuff ^. Warman as deciding that the use of the. words " directly 
 causing " was not wrong, as indicating that, in cases where there 
 had been negligence on the part of the plaintiff, the question was 
 whether that was the direct cause of the accident or proximately 
 contributed to it. The learned judge also touches on the subject 
 of Williams, J.,'s doubt by saying: "It ought to have been left 
 to the jury to say whether there was negligence on the part of 
 the plaintiff. If there was evidence on the part of the plaintiff, 
 the further question arises whether that negligence was the 
 proximate or direct cause of the accident." 
 
 But what make up the constituents of contributory negligence 
 was definitely settled by the case of Eadley v. London and North- 
 western Railway Company." The plaintiffs, colliery owners, had 
 a siding adjoining the defendants' line, which was crossed by a 
 bridge, and on which the defendants were in the habit of con- 
 veying the plaintiffs' trucks from their line, the plaintiffs removing 
 them thence as they thought fit. The defendants brought to the 
 plaintiffs' siding and left there after working hours trucks of 
 the plaintiffs, one of which was loaded with a broken truck to 
 such a height that it would Hot pass under the bridge. More 
 than twenty-four hours afterwards, but before work was resumed 
 at plaintiffs' works, the defendants, after dark, pushed on to the 
 siding other trucks of the plaintiffs, and pushed the loaded trucks 
 up to the bridge, by which means the train of trucks was arrested^ 
 The defendants' servants, not being aware of the cause of the 
 obstruction, pushed the train of trucks forward with so much 
 force that the loaded truck knocked down the bridge.' The 
 plaintiffs brought an action against the railway for negligence. 
 At the trial, Brett, J., told the jury: "You must be satisfied 
 that the plaintiffs' servants did not do anything which persons of 
 ordinary care, under the circumstances, would not do, or that they 
 omitted to do something which persons of ordinary care would 
 do. It is for you to say entirely as to both points, but the law 
 is this : The plaintiffs must have satisfied you that this happened 
 by the negligence of the defendants' servants, and without any 
 contributory negligence of their own — in other words, that it was 
 solely by the negligence of the defendants' servants. If you 
 think it was, then your verdict will be for the plaintiffs. If you 
 think it was not solely by the negligence of the defendants' 
 servants, your verdict must be for the defendants." The jury 
 
 1 Harrison &Eutherfiird'sEeports, 424. ' The foregoing statement is copied 
 
 2 L. E. 9 Ex. 71 ; in Ex. Ch., L. B. 10 from the head-note to the report in L. K. 
 Ex. 100 ; in H. of L., i App. Cas. 754 ; 46 9 Ex. 71. 
 
 L. J. Ex. 573 ; 35 L. T. 637; 25 W.K. 147. 
 
PARTI.] CONTRIBUTORY NEGLIGENCE. 135 
 
 thereupon stated they thought there was contributory negligence 
 on the part of the plaintiffs, and the judge directed that the 
 verdict should be entered for the defendants, with leave to move. 
 A rule for a new trial was made absolute by the Court of 
 Exchequer,' on the ground that there was no evidence of con- 
 tributory negligence, and also on the ground that the judge had 
 misdirected the jury ; the Exchequer Chamber'' reversed this on 
 both points. On appeal to the House of Lords,^ the judgment of 
 the Exchequer Chamber was reversed an& the judgment of the 
 Court of Exchequer restored, on the ground that the judge mis- 
 directed the jury. Lord Penzance, who delivered the leading Lord Pen- 
 opinion in the House of Lords, declared the law to be contained ^nt ad''iitea 
 in two propositions: "The first proposition is a general one, to™*®^°"^° 
 this effect, that the plaintiff in an action for negligence cannot 
 succeed if it is found by tte jury that he has himself been guilty 
 of any negligence or want of ordinary care which contributed to 
 cause the accident. But there is another proposition equally 
 well established, and it is a quahfication upon the first — namely, 
 that though the plaintiff may have been guilty of negligence, and 
 although that negligence may in fact have contributed to the 
 accident, yet, if the defendant could in the result, by the exercise 
 of ordinary care and diligence, have avoided the mischief which 
 happened, the plaintiff's negligence will not excuse him." 
 
 In America it was sought to limit contributory negligence by Doctrine of 
 . requiring that, before the plaintiff should be disentitled to recover n^gi^noe'"^ 
 by reason thereof, it should be shewn that his own negligence 'J^°™®^°* *''® 
 contributed " in a material degree"^ to the accident. But in the Courts. 
 Supreme Court of Pennsylvania a direction to the jury to that 
 effect was held wrong,' and the correct doctrine was laid down 
 to be, that if the negligence of the party contributed in any 
 degree to the injury he cannot recover. " This," said Paxson, J., ^"^j^™*'^^ 
 "is a safe rule, easily understood, aaid cannot well be frittered 
 away. But, if we substitute the word ' material ' for the word 
 ' any,' we practically abolish the rule, for a jury can always find 
 a way to avoid it." The vastly preponderating weight of 
 American legal opiaion is found in favour of this view. 
 
 But, passing from this point, much of the difficulty in fixing Ambiguous 
 what is contributory negligence arises from the ambiguous use of ^^^ase "con- 
 the notion, " contributing to the injury." This may indicate any l^^l'^P^^?, 
 of the whole set o£ antecedents necessary to produce the effect, or 
 
 1 Bramwell and Amphlett, BB. A * This rule, which is firmly eetatlished 
 written judgment wne given. in Illinois, is referable to the judgment in 
 
 2 Blackburn, Mellor, Lush, Brett, and GalenaBailway Company W.Jacobs, 20 111. 
 Archibald, J J. ; dissenting, Denman, J. 478. See per Pollock, C.B., ante, p. 131- 
 
 3 Lord Penzance, Lord Cairns, C, Lord " Monongahela City v. Fisher, m 
 Blackburn, and Lord Gordon, Penn. St. 9. 
 
13G 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Import of the 
 rule of law 
 as to " con- 
 tributory 
 negligence." 
 
 Conclusion. 
 
 that one of tliem which marks their final completion and the actual/ 
 calling into being of the effect. The perception, that is, that any 
 negligence in the particular matter contributes, that is, leads up 
 to, or is an element in, the final regult, or one of the conditions of 
 it, has engendered a confusion with the meaning more proper to 
 its relations with this subject, where only the notion of its forming, 
 what we have already designated as, the cause, in contradistinction 
 to the conditions, is involved. The causa sine qud non of an 
 accident is not that on which depends the legal imputability of 
 the accident. The liability depends not on that, but on the causa 
 efficicns.^ In fact, the law of contributory negligence may be 
 tried by the same test that we have already applied to the deter- 
 mination of the question of negligence,^ that when an injury is 
 done we must, for the purpose of fixing liability, trace it to the 
 last responsible agent who, either seeing the negligent conse- 
 quences or negligently refusing to see them, has put into motion, 
 either negligently or intentionally, a series of material forces by 
 which the injury was produced. And to constitute a responsible 
 agent there must be an accountable human will. Viewed in this 
 light, the law of contributory negligence is but the recognition 
 under special circumstances of a principle running through the 
 whole law of negligence — that where any responsible agent is 
 placed in such a position with regard to the person or property 
 of any one possessing rights that want of ordinary care on the 
 part of such responsible agent would, according to the accustomed 
 course of events, produce injury to either person or property, a duty 
 arises to use ordinaiy care, so that when injuiy happens from the 
 absence of ordinary care an actionable wrong is the result. The 
 only peculiarity in the case of contributory negligence is that it 
 proceeds on the assumption that both plaintiff and defendant 
 have been guilty of some breach of duty ; and the inquiry is 
 limited to which of the two, by exei^cising ordinary care, might 
 last have prevented the occurrence ; while' in a case of ordinary 
 negligence the inquiry is whether the, defendant was guilty of 
 want of ordinary care, and, if so, whether, after his neglect, any 
 other agency whatever had or might have diverted the course of 
 the operations. We then conclude that contributory negligence 
 is but a case of negligence, not dependent on any different rule 
 of law, but pre-supposing the limitation of the general question . 
 
 (Analjt. Post. II. xi. p. 94, a 21-36). 
 Grote's Aristotle, vol. 1. p, 354. The 
 second of these might bo the contribution 
 of the plaintiff to the result, but would not 
 preclude his recovering, if the third, the 
 efficient cause, was the negligence of the 
 defendant. 
 ^ See p. 90. 
 
 The Aristotelians recognized four 
 kinds of causes : — i. rb tI ^v eli>at — the 
 essence, the formal cause ; 2. rb rlvav 
 ivTiiiv ApiyKij toBt' etvai — the necessitating 
 conditions, the material cause ; 3. ^ r£ 
 wpuTop ixivriae — the proximate mover, the 
 efficient cause ; 4. to tIvos lyeKa — that 
 for the sake of which, the final cause 
 
PAiiTi.] COi^TRIBUTOEY NEGLIGENCE. 137 
 
 of negligence to an inquiry to whicH of two persons its final 
 impulsion should be imputed. 
 
 The rule of law that contributory negligence disentitles the 
 injured person to recover is, by force of the principle, on which we 
 have seen the rule is based, limited to those cases where there is a 
 causal connection between the plaintiff's negligence and the injury. 
 The ground of the decision in Scott v. Shepherd was that the 
 act of the intermediate persons who threw the squib was involun- 
 tary and unpremeditated, and without distinct and independent 
 volition, and therefore, as the act was instinctive, the actual 
 proximate agent of the injury was not the responsible agent.' The 
 same reason operates to take from acts done in certain states of 
 mind, or by certain classes of people, the character of responsi- 
 bility ; and enables the doers of such acts to recover, notwith- 
 standing their conduct, if *divested of the exceptional conditions Exceptional 
 surrounding and colouring it, would impute contributory negli- '"'^®^" 
 gence to them. For example : Persons who, in a sudden emer- Sudden terror, 
 gency, are distracted by terror, and thus, between two courses, 
 choose the wrong one, are not disentitled to recover.^ This is 
 plain ; for the very state of incapacity to judge calmly, which is 
 the provocation to the improvident act, is produced by the (by 
 hypothesis) negligent act of the defendant. And to hold that the 
 plaintiff is disentitled to recover in such a case would be to hold 
 that the defendant, having aggravated his negligence by those cir- 
 cumstances of terror which deprived the plaintiff of his power of 
 avoiding the consequences, or which, irresistibly by the plaintiff, 
 drove him upon the danger, could set up the state of terror pro- 
 duced by his wrongful act as a protection against the consequences.^ 
 The principle is thus laid down by Johnson, J., in the New 
 York Court of Appeals' : " There can be no rule of law which 
 imposes it as a duty upon one, over whom danger impends by the 
 negligence of another, to incur greater danger by delaying his 
 efforts to avoid it until its exact nature and measure are ascer- 
 tained. The instinctive effort on the part of the plaintiff to avoid 
 the danger did not relieve the defendant from responsibility." 
 
 In the Court of Appeals of New York there was a striking case' 
 
 1 The liability by common law "extends that such an one " is not necessarily neg- 
 to consequential injuries by whomsoever ligent." Central Eailroad v. Crosby, 58 
 sustained, as long as they are of a character Am. E. 463. 
 
 likely to follow, and which might reason- " Jones v. Boyce, i Stark. 493, 495. 
 
 ably have been anticipated as the natu- * Coulter ». The American Merchants 
 
 ral and probable result under ordinary Union Express Company, II Sickles 585, 
 
 circumstances of the wrongful act " : Mc- 588, following Buel v. New York Central 
 
 Donald K.Snelling, 96 Mass. 290, at p. 295. Eailway Company, 31 N. Y. 314. 
 
 2 Jones V. Boyce, I Stark. 493. The ^ Eckert v. Long Island Railway Com- 
 case of an engineer remaining at his post, pany, 43 N. Y. 502; approved, Linnehau 
 and so injured, scarcely comes under this v. Sampson, 126 Mass. 506. In Donahoe 
 principle. Yet it has been held in America v. Wabash Eailway Company, S3 Am. E. 
 
138 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 imputed to 
 effort to save 
 human life. 
 
 Eckert v. 
 Long Island 
 Eailway 
 Company 
 discussed. 
 
 Negligence not Oil this part o£ the law, in which the Court laid down a rule that 
 it would not impute negligence to an effort to preserve human 
 life. A little child of three or four years old got on the railway 
 track in East New York as a train of cars was coining along at 
 a rate of speed estimated, by the plaintiff's witnesses, at from 
 twelve to twenty miles an hour ; by the defendants', at not over 
 seven or eight. The plaintiff's husband, seeing the danger of the 
 child, ran on the track, threw the child clear, but was himself 
 caught by the train and killed. The jury found negligence on 
 the part of the defendants. An exception was taken, on the 
 ground that the deceased's negligence contributed to the injury. 
 The majority of the Court of Appeal held that the deceased 
 "owed a duty of important obligation to the child to rescue it 
 from its extreme peril, if he could do so without incurring great 
 danger to himself." But two of the Court' dissented, on the 
 ground that "principles of law cannot yield to particular cases;" 
 that the act of the deceased was " a voluntary act, the perform- 
 ance of a self-imposed duty, with full knowledge and apprehen- 
 sion of the risk incurred." ^ 
 
 It is clear that, if the defendants were not guilty of negligence, 
 the plaintiff could not have recovered; Their negligence, in the 
 case, seems to have been the going at too great speed through a 
 town. This being so, the decision may perhaps be supported 
 on the ground of " instinctive humanity." Some of the ex- 
 pressions in the judgment of the majority of the Court would 
 seem to point to the conclusion that the act of intervention must 
 be in circumstances where the intervener can act " without 
 incurring great danger to himself." But this is assuredly a wrong 
 test. By the negligence of the defendants human life is 
 endangered. " The duty of important obligation," which the 
 judges held to have been owing by the deceased to the chUd, 
 did not become less by the greater imminency of the danger, 
 but rather greater. The justification of the act is, that the negli- 
 gent act of the railway has caused that natural and necessary 
 state of mind in the bystanders which prompts an act of humanity 
 that is either instinctive or obligatory; ' and the conduct of the 
 
 594, the principle is stated : " It is only when the railroad company hy its own 
 negligence created the danger that a, third person can voluntarily expose himself 
 to peril in an effort to rescue such person and recover for an injury he may sustain in 
 the attempt." ^ Allen and Foulgci-, JJ. 
 
 2 In Cook V. Johnson, 55 Am. E. 703, it was held that one injured while exposing 
 himself to danger in order to save his property was guilty of contributory negligent; 
 and d, fortiori if he were endeavouring to save any one else's. 
 
 3 "To preserve one's life is, generally speaking, a duty ; but it may be the plainest and 
 highest duty to sacrifice it": per Lord Coleridge, C.J.,in The Queen v. Dudley, 14 Q.B.D. 
 273, 287. The caution given hy an eminent legal writer (Holmes, The Common Law, 
 p. 148]— "Moral predilections must not he allowed to influence' our minds in settling 
 legal distinctions" — must most specially be observed in a case like Queen v. Budley, 
 
PARTI.] CONTRIBUTOEY NEGLIGENCE. 139 
 
 railway company's servants having produced this state of mind, 
 the company is not allowed to set up as matter of exoneration 
 what would not have happened without fault, and thus avoid 
 responsibility for an act of which the wrongful act of its servants, 
 their negligence, has been the direct immediate cause. If the 
 act of the deceased were instinctive, it comes under the class 
 of cases to which we have already alluded ; if it were deliberate, 
 its justification must be sought on some such ground as the 
 existence of a duty' cast on the deceased by reason of the 
 default of the defendants. If they had not been in default, 
 
 Eeference to United States v. Holmes, i Wall Jr. i, will shew that it is by no means 
 tlie ill-oonsidered and ludicrous decision that it would appear to be from the Lord Chief 
 Justice's reference to it; and Story, J., no contemptible authority, writes: "Principles 
 going much deeper into human feelings and morals and rights have not insisted on 
 such an overwhelming sacrifice of personal preference. If two men are on a plank at 
 sea, and it cannot save both, but iUmay save one, it has never yet been held that in a 
 common calamity and struggle for life either party was bound to prefer the other's life 
 to his own. If a ship is capsized at sea, and the shi])'s boat is sufficient to save a part 
 of the crew only, is there a known duty to prefer a common deslruotion of all to the 
 safety of a part? If the crew of a foundered ship are dying from hunger at sea, are all 
 to perish, or may they not cast lots for life or death to preserve the rest ? These cases 
 lire put merely to shew that, in a common calamity, the law does not look to mere 
 heroism, or chivalry, or disinterested sacrifices. If it has furnished no rule for such 
 cases, it is because they are incapable of any, for necessity has no law " : Story, Bail- 
 racnts, p. 251. As to Lord Coleridge's question, "Who is to be the judge of this sort of 
 necessity?" the answer might not unreasonably be — the same as in every other case of 
 fact — the jury, who would say whether the situation and circumstances justified the 
 act ; and at the moment, as in many other circumstances — e.g., shooting a burglar — 
 , the man would act at his peril. 
 
 The writer before cited, Mr. Justice Holmes, discussing certain doctrines in which 
 he contends the law subordinates consideration of the individual to that of the public 
 well-being, says : " The first of these is, that even the deliberate taking of life will not 
 he punished when it is the only way of saving one's own. This principle is not so 
 clearly established as the next to be mentioned ; but it has the support of very great 
 authority. If that is the law, it must go on one of two grounds, either that self-prefer- 
 ence is proper in the case supposed, or that, even if it he improper, the law cannot pre- 
 vent it by punishment, because a threat of death at some future time can never be 
 a snfiBcienlly poweitful motive to make a man choose death now in order to avoid the 
 threat. If the former ground is adopted, it admits that a single person may sacrifice 
 another to himself, and. A fortiori a people may." Blackstone, i Commentaries, p. 123, 
 divides the rights of individuals into absolute and relative — absolute, being "such as 
 would belong to their persona merely in a state of nature, and which every man is en- 
 titled to enjoy, whether out of society or in it ; " but relative rights result from these, 
 "so that to maintain and regulate these is clearly a subsequent consideration." If so, 
 how can it be argued, apart from morality, that there is a legal obligation to abstain 
 from sacrificing a life for the preservation of one's own ? In the United States Art. IX. 
 of Amendments to the Constitution, "The enumeration in the Constitution of certain 
 rights shall not be construed to deny or disparage others retained by the people," 
 would seem to apply to such a case where society, unable to render assistance, ma;;^ be 
 disentitled to impose obligations. However that may be, noiie of these considerations 
 is touched upon in the judgment of the Queen's Bench Division, which,_ though a 
 binding authority here, if ever discussed in other systems of law may not improbably 
 be described, in the words the judgment uses with regard to United States v. Holmes, 
 as " hardly an authority satisfactory to a Court in this country," and that without im- 
 pugning the actual decision. See an article, " Homicide by Necessity, " Law Quarterly 
 
 Eeview, voL i. p. 51. , , „,, ,.^ , . . ■ r 1 
 
 ^ The moral duty may be clear enough. The difBculty arises in passing irom moral 
 to legal principles. The child could not have maintained an action against the 
 plaintiffs husband for not rescuing it ; therefore there was no legal duty which re- 
 quired him to put himself in the position he did, but his act, without legal sanction, was 
 voluntary and if so, how could he recover, except on the ground that the defendants' 
 negligence estopped them from setting up the plaintifiF's act ? _,<^ 
 
 a 
 
140 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Woods ». 
 Oaledoiiian 
 Eailway 
 Company. 
 
 Scotcli vieTv 
 that the whole 
 is question for 
 the jury. 
 
 Persona of 
 unsound mind, 
 drunk, blind, 
 or deaf. 
 
 Husband and 
 wife. 
 
 the consequences by wliicli the injury results would not have 
 befallen. 
 
 A Scotch case, Woods v. Caledonian Eailway Company,' raised 
 a very similar point. A young woman was killed while endea- 
 vouring to drag her companion out of danger from an approahing 
 train. Counsel for the defenders asked the judge to direct the 
 jury that, if the young woman encountered a seen danger, she 
 was iaot entitled to recover, even though her object was to rescue 
 her companion. On the other hand, the pursuer's ease was put 
 as high as — that though the deceased was acting with great reck^ 
 lessness, and was guilty of what, in other circumstances, would 
 have been contributory negligence, yet, if she was engaged in an 
 effort to save life and, through alarm and her perturbed and 
 excited feelings, became insensible to her own danger, she was 
 hot legally negligent, so that an acti(m could not be brought. 
 There was independent negligence on the part of the railway 
 company. On a bill of exceptions and motion for a new trial, the 
 Second Division of the Court of Session refused to lay down either 
 proposition or to formulate one, but held that the whole question 
 was rightly left to the jury as to whether there was contributory 
 negligence, and was not matter for direction in point of law. 
 
 Further, it is obvious that the mere fact of the injured person 
 being of unsound mind,^ or drunk,^ or blind,* or deaf* does not • 
 of itself deprive of the right to recover in the event of injury. 
 But it is quite another matter if the person under infirmity 
 acts so as himself to produce the peril from which he suffers. 
 Thus it has been held to be negligence for a deaf person to drive 
 an unmanageable horse across a railway track when a train was 
 approaching.^ So, too, if intoxication contributes to the injury, 
 the plaintiff cannot recover.' 
 
 The negligence of the husband at common law was imputable 
 to the wife'; or, at least, where the negligence of the husband 
 
 1 23 So. L. R. 798. 
 
 ' JPati quis injuriam, etiam si non 
 sentiat, potest : facere nemo nisi, qui scit 
 se injuriam facere etiam si nesaiat cut 
 faciat: D. 47, 10, 3, § 2. 
 
 ' " If a man is lying drank on tlie road, 
 another is not negligently to drive over 
 him. If that happened, the drunkenness 
 would have made the man liable to the in- 
 jury, but would not have occasioned the 
 injury " : Coleridge, J., in Clayards v. De- 
 thiok, 12 Q. B. 439, 445. 
 
 * Davenport v. Euokman, 37 N. Y. 568 ; 
 Smith V. Wildes, 143 Mass. 556. 
 
 5 R. V. Walker, i C. & P. 320; Reg. v. 
 Lonpbottom, 3 Cox C. C. 439. 
 
 " Illinois Central Eailway Company v. 
 
 Buckner, 28 111. 299. In M'Kechnie «. 
 Couper, 24 So. L. R. 252, thongh the in- 
 jured man w.is deaf, and so did not hear 
 the defender coming in his cart behind him, 
 yet he was held entitled to recover because 
 the defender had not himself taken pre- 
 cautions on the principle of Davies v. 
 Mann ; but the decision may also be put 
 on the groimd that it is the duty of the 
 driver of a carriage to pull up and avoid a 
 passenger, irrespective of the question of 
 deafness : Anderson v. Blackwood, 23 Sc. 
 L. E. 227. •^ 
 
 ' Maguire «. Middlesex Railway Com- 
 pany, 115 Mass. 239, 240. 
 
 8 Peck V. New York, &o., Railway Com- 
 pany, so Conn. 379. 
 
PABTi.] CONTRIBUTOEY NEGLIGENCE. 141 
 
 had contributed to the injury to the wife, there could be no 
 recovery of damages ; for the damages assessed for the wife would 
 be recovered for the husband/ But now, under the Married 
 Women's Property Act, 1882,^ a married woman can sue alone, 
 as though she were a single woman, for torts done to herself, and 
 the damages recovered by her become her separate property. All 
 question of imputability in this case is therefore avoided. 
 
 A curious contention was advanced in Garmon v. Bangor,' Garmon ». 
 where plaintifE sued for an injury received through defect of a one It tW^^^'^^ 
 highway, of which he was aware, but of which his son, who was people had 
 driving him, was ignorant, and through this ignorance the injury defect, bSt ° 
 happened. It was sought to make the knowledge of the plaintiff caSby^ 
 the knowledge of the son, so that the plaintiff should be disen- *''^ °."'^^' ■"'" 
 
 ■ ITT. j^i- • »., was igDuraDt, 
 
 titled by reason 01 the imputation of contributoiy negligence, but acting for the 
 the Court refused its assent to so novel a principle, and was of "^^ ' 
 opinion that' the defendant was not prejudiced by a direction 
 that, if the plaintiff did not inform his son of the defect, it was 
 for the jury to determine whether he was guilty of neglect or 
 want of ordinary care in neglecting so to inform him ; and, if so, 
 he was not entitled to recover, since the driver would be bound 
 to use ordinary care, and, in that point of view, his knowledge of 
 defects would be important to be considered, but that the know- 
 ledge of the owner of the team could have no influence upon his 
 conduct. 
 y In considering the question of the imputability of the negli- imputability of 
 gence of parents or guardians to young children, the cases of * parents^ou"* 
 fathers suing in their own names for injury to their children and guardians to 
 
 . » . . • 1 r. T young oUildreii. 
 
 masters suing tor injury to apprentices must be nrst moved out i. Fathers and 
 of the way. In these cases the negligent adult sues, not for the ™°their owu° 
 infant, but on his own behalf ; and it would be contrary to all °9'"^,^- 
 example to allow one of sound mind and understanding to, profit classes of 
 
 ■ by a negligence of which he is partially the cause.'' These cases (f.) wiiere the 
 are quite clear ; the difficulty only arises where the damages are '^^^ "^^^^^ '^ 
 
 ^ sought for the benefit of the young child injured. A twofold negligence, 
 division of the cases under this head maybe made — into those pei-sons having 
 where the child personally is guilty of what in an older person ohKre^ ^^^ 
 would be negligence, and those where the persons having charge guilty of 
 of a child have negligently placed the child, or permitted it to be, 
 in a position in which it sustained injury.' 
 
 ^ Newton v. Hatter, 2 Ld. Raym. 1208 ; '^ Gardner v. Grace, i F. & F. 359. 
 
 Dalton V. Midland Counties Railway Com- " The doctrine of contributory negligence 
 
 pany, 13 C. B. 474. does not apply to an infant of tender age. 
 
 ^ 45 & 46 Vict. c. 75, s. I, sub-s. 2. To disentitle the plaintiff to recover, it 
 
 s 38 Me. 443, niust be shewn that the injury was occa- 
 
 * Glassey©. Hestonville, &c., Railway sioned entirely by his own negligence"^ 
 
 Company, 57 Penn. St. 172. perObannell, B. 
 
142 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 (i.) Where the 
 child itself is 
 guilty of 
 negligence. 
 
 Htingan v. 
 Atterton. 
 
 Lynch v. Nurdin' is the most often cited case of a child acting 
 in such a way as would constitute negligence in an older person. 
 Defendant negligently left a cart unattended ; the platatiffj a 
 child of seven, got upon the cart in play ; another child incautiously 
 led the horse on, and the plaintiff was thereby thrown down 
 and hurt. It was here held that the plaintiff could recover, on 
 the ground, as explained by Parke, B., in a subsequent case,^that 
 the plaintiff had taken as much cars as could be expected from a 
 child of tender years — in short, that the plaintiff was blameless, 
 and consequently that the act of the plaintiff did not affect the 
 question. To guard against a natural, perhaps, but illicit ex- 
 tension of this principle, in a subsequent case it was laid down 
 that the mere fact of an accident occurring to a very young child 
 will not raise a presumption of negligence any more than in the 
 case of an adult.' There must be negligence in the defendant : 
 the fact that injury has resulted, and to a child himself incapable 
 of negligence, will not import the negligence of the defendant, 
 which is the sole ground of liability. 
 
 The often-quoted case of Mangan v. Atterton* is at variance 
 with the cases of which Lynch v. Nurdin is the leading authority. 
 The defendant there exposed a machine for crushing oil-cake in 
 the street, and without superintendence. The plaintiff, a boy of 
 four years old, was coming past the machine from school in 
 company with his brother, aged seven, and, by direction of his 
 brother, put his fingers in the cogs and got them crushed. The 
 Court held that an action was not maintainable : Martin, B., on 
 the ground that, admitting negligence, the negligence " was too 
 remote a cause of the mischief" to make the defendant liable; 
 " the accident was directly caused by the act of the boy himself." 
 Bramwell, B., said : " The defendant is no more liable than if he 
 had exposed goods coloured with a poisonous paint and the child 
 had sucked them. It may seem a harsh way of putting it, but, 
 suppose the machine had been of a very delicate construction, 
 and had been injured by the child's fingers, would not the child, 
 in spite of his tender years, have been liable to an action as a 
 tort feasor ? This shews that it is impossible to hold the 
 defendant liable." 
 
 A case cited in Mangan v. Atterton as an authority for the 
 
 1 I Q. B. 29 ; 4 P. & D. 672. Lay v. 
 Midland Bailway Company, 34 L. T. K S. 
 
 30- 
 
 2 Lygo V. Newbold, 9 Ex. 302, 305. 
 
 ^ Singleton v. Eastern Counties Kailwav 
 Company, 7 C. B. N. S. 287. Williams 
 V. Great Western Bailway, L. K. 9 Ex. 
 157, is veiy similar to Singleton's case ; 
 
 but here a neglect to fence on the part of 
 the railway company was shewn, and the 
 
 Plaintiff was held entitled to recover, 
 'aylor v. Delaware and Hudson Canal 
 Company, 113 Penn. St. 162. 
 
 *^- ^- ' ^^- ^39 ; 3S L- J- Ex. 161 ; 
 14W. R. 771; 14L.T.N. S.411. 
 
PART I.J CONTEIBUTOEY NEGLIGENCE. 143 
 
 decision was Hughes v. Macfie* — also a decision of the Court Hughes v. 
 of Exchequer. The defendants placed the shutter of their cellar *'"*'''• 
 against the wall of a public street, and the dress of a child, 
 who was playing in the street and jumping off the shutter, 
 caught the corner of the shutter, which fell upon and injured 
 him. It was ruled that the defendants were not liable to an 
 action by the child, on the ground that an adult could have 
 maintained no action, as he would have voluntarily meddled 
 for no lawful purpose with that which, if left alone, would not 
 have hurt him ; and the fact of the plaintiff being of tender 
 years made no difference. 
 
 These cases, then, broadly state a proposition that a child, when Maugan «. 
 a trespasser, differs in no respect as to liability from an adult. • Hughr")'!"'^ 
 
 But in Lynch v. Nurdin ^ the plaintiff's improper conduct in ^^^^^°°'^' 
 inoanting the cart was a trespass to the defendant's chattel, and 
 there the decision was that the plaintiff could recover, on the 
 ground that " he merely indulged the natural instinct of a child 
 in amusing himself with the empty cart." The child, acting with- 
 out prudence or thought, has, however, shewn these qualities in 
 as great a degree as he could be expected to possess them." 
 
 This is in accord with many American cases in which a 
 question has been left to the jury whether the conduct of the 
 infant plaintiff in trespassing had been the result of fault or 
 negligence on his part, or whether it was the result of childish 
 instinct and thoughtlessness.' The caution required is according 
 to the maturity and capacity of the child, and this is to be de- 
 termined in each case by the circumstances of the case,* and 
 would be for the jury. And so, too, Mangan v. Atterton may be 
 supported by considering the fact that the instrument causing 
 the injury was exposed for sale in the market-place, and it may 
 well be that the exposure under such circumstances would not 
 raise the presumption of negligence which would be necessary in 
 order to fix the defendant with any liability. But the doctrines 
 laid down by the Court go far beyond this. Admitting negli- 
 gence, says Martin, B., the negligence is too remote a cause of 
 the mischief. And Bramwell, B., goes the length of putting the 
 case of the exposure of goods with a poisonous paint, or of a 
 a very delicate machine injured by the child's fingers, and regards 
 the owner of the goods as an injured party if they are meddled 
 with ; and this on the hypothesis that negligence may be attri- 
 
 = Birge v. Gardiner, 19 Conn. 507, Sog ; 
 Daley v. Norwioh and Worcester Bailway 
 Com; 
 
 Wal 
 Bing. 628." " 358. 
 
 ^ 33 L. J. Ex. 177. 
 
 ^ I Q. B. 29. As to the assumed doctrine 
 that the fact that the injured person is Company, 26 Conn. 591, 592 
 technically a trespasser is a defence in a * Railroad Company a. Gladmon, IJ 
 
 case of injury, see Bird v. Holbrook, 4 Wal. 401 ; Bauch v. Lloyd, 31 Penn. St. 
 
144, THE LAW OF NEGLIGENCE. [book i. 
 
 buted to the defendant. This seems an extension of the doctrine 
 in Weaver v. Ward,' " no man shall be excused of a trespass (for 
 this is the nature of an excuse and not of a justification, prout 
 si bene licuit), except it may be judged utterly without Ms faidt. 
 As if a man by force take my hand and strike you, or if here 
 the defendant had said that the plaintiff ran across his piece 
 when it was discharging, or had set forth the case with the cir- 
 cumstance so as it had appeared to the Court that it had been 
 inevitable, and that the defendant had committed no negligence 
 to give occasion, to the hurt." 
 
 It will thus be seen that one of the ingredients in Weaver v. 
 Ward is that the defendant had committed no negligence to give 
 occasion to the hurt. It seems to be proceeding a step beyond 
 what is justified by that case to hold that an act is an actionable 
 trespass although the negligence of the plaintiff partly contri- 
 buted to it, since the last clause of the report is a special limita- 
 tion to those cases " where the defendant had committed no 
 negligence to give occasion to the hurt." 
 
 If, then, the act of placing goods on a highway is negligent, 
 the authority of Weaver v. Ward does not cover it. But an 
 extension must be made of what is there laid down. Now, a 
 highway is dedicated to the public with reference to the ordinary 
 capacity of those traversing it to take care of themselves.^ ('No 
 greater obligation to care is imposed on people using a public 
 highway than is incumbent on them in other ordinary relations 
 of life ; and it is well established, notwithstanding what was said 
 in Hughes v. Macfie and in Mangan v. Atterton, that the conduct 
 of an infant of tender years is not to be judged by the same rule 
 as that of an adult.M A state of things, then, that would not be 
 negligent in regard to adults might be negligent with regard to 
 young children; since greater precautions must be taken for 
 their safety ; and admitting that placing a dangerous instrument 
 on a highway may not be negligent with regai-d to adults, a 
 different standard being adopted with children, it does not follow 
 
 1 Hob. 134. In 25 Henry VI. 11 b, it v. Curtis, 100 Mass. 512, 514. To the 
 ■was said, per "Wansford, J., that trespass same effect is Martin v. Ward, 24 So. 
 lies against an infant though only four L. E. 586, where the Lord Justice Clerk 
 years of age. Brook, Abr. Corone, pi. 6, said : " I know of no case in which a child 
 however, states this with a qucere. has been run over in a public thoroughfare 
 
 2 Little children have a right to go into in which the defence has been successfully 
 the streets of a city for air and exercise, stated that the child had no business to 
 and, if reasonable provision is made for be there and ts get in the way of the 
 their safety, are under the protection of vehicle." 
 
 thelaw against wrongdoers who disregard s i^ addition to Lynch v. Nurdin and 
 
 their rights. Whether the provision made the other authorities above cited, see the 
 
 for the care of the plaintiff was reasonable American cases, Eailroad Company «. 
 
 under the circumstances, and whether Gladmon, 15 Wal. 401, and Eailroad 
 
 reasonable care was taken of him, must Company v. Stout, 17 Wal 657 Also 
 
 be left for a jury to determine: Mulligan Jewson v. Gatti, 2 Times L. B 441 
 
PART I.] CONTEIBUTORY NEGLIGENCE. 145 
 
 that the same act may not be negligent where they are concerned. 
 Again, cases like Bird v. Holbrook' go to shew that it is not 
 every trespass even which disentitles the trespasser to recover for 
 injuries received "by him in trespassing. And Clarke v. Cham- 
 bers ^ definitely lays down the law that a man who leaves in a 
 public place along which persons, and amongst them children, have 
 to pass a dangerous machine, which may be fatal to any one who 
 touches it, without any precaution against mischief, is not only 
 guilty of negligence, but of negligence of a very reprehensible 
 character, and not the less so because the imprudent and un- 
 authorized act of another may be necessary to realize the mischief 
 to which the unlawful act or negligence of the defendant has 
 given occasion.^ 
 
 This being so, we are in a position to test the illustration with Bmmweii, B.,'s 
 which Bramwell, B., supports his judgment in Mangan v.^^^^^\i^ 
 Atterton. If young children are constantly going up and down Aiteiton. 
 m a street and are likely to suck pamt, notwithstandmg which 
 articles with poisonous paint are exposed in the street, it would 
 seem that those who sustain injury might possibly recover, on the 
 ground that such an act was the result of childish instinct and 
 thoughtlessness. Again, with regard to placing a delicate 
 machine in the street. The person who so puts it there would 
 do so subject to the risk that it ran from the habits and manners 
 of those using the street. If it were broken by a child who 
 was not legally capable of negligence by reason of its tender age, 
 the conduct of the proprietor in putting it in an exposed position 
 would disentitle him to recover, although, if a child equally in- 
 experienced were to do a similar injury where the other party was 
 not chargeable with any default, an action could be maintained 
 on the grounds indicated in Weaver v. Ward. But in the former 
 case an action for trespass is not .maintainable, because the 
 alleged trespass was the result of his own wrongful and negligent 
 act, which would not be condoned by an act in other circumstances 
 a legal trespass. The act of the defendant suing in trespass 
 would, in that case, be — like that put in Weaver v. Ward, 
 " where the plaintiff ran across the piece when discharging" — 
 not even a technical trespass by reason of the contributory act, 
 for the injury would be caused by reason of negligently running 
 
 ■' 4 Bing. N. C. 628. " The case last put raises a doubt as to 
 
 / 2 3 Q. B. D. 327. 339. the authority of Lynch v. Nnrdin." But 
 
 ■• In Lygo V, Newbold, 9 Ex. 302, in the case put there is no negligence on 
 
 Aldersori, B,, at p. 305, says : "It seems the part of the " person who rides in his 
 
 strange that a person who rides in his oawiage." If it were negligence to ride 
 
 carriage without a servant, if a child re- in a carriage without a servant, and the 
 
 ■ceives an injuryhy getting up behind for the accident happened in consequence, the 
 
 purpose of having a ride, should be liable facts in Lynch v. Nnrdin might be paral- 
 
 for the injury." And Pollock, C.B., adds: leled. 
 
146 THE LAW OF NEGLIGENCE. [book i. 
 
 counter to a natural instinct, the operation of which should have 
 Conclusion, been anticipated. The weight both of authority and of reason 
 seems to be against the legal doctrines propounded in Mangan v. 
 Atterton ; although, notwithstanding the remarks made in Clarke 
 V. Chambers, it is in no case definitely overruled, and on the facts 
 may, as we have seen, be supported. 
 Bailey v. Neai. The case of Bailey v. Neal ' is decided in accordance with these 
 principles. A heavy street roller with reversible shafts was left 
 standing in a street, duly secured by a strong rope, which would 
 have held it immovable. The plaintiff, a child of nine and a half, 
 and another child meddled with it. The other child cut the rope, 
 and plaintiff's fingers were crushed in the wheels of the 
 reversible shaft. On the ground that the defendant had not been 
 guilty of any negligence — the shaft having been secured — the 
 plaintiff was nonsuited. The two propositions apparently being 
 assumed — (i) that if the defendant had been negligent in 
 leaving the roller, though the negligence was not the cause of 
 the injury, the plaintiff could recover; (2) that contributory 
 negligence of the plaintiff would not affect this right. A 
 distinction seems to have been taken between leaving the roller 
 on the highway in a negligent state — that is, with its shafts 
 unfastened — and placing it there, unlawfully, in a safe condition. 
 From the point of view that contributory negligence is not to be 
 attributed to children in certain circumstances, it would, at first 
 sight, appear immaterial in what condition the machine was 
 placed on the highway if its being there arose from negligenca 
 This, however, is not so. It is one thing to impute liability 
 when the intervening agency that set^ the mischief at work is the 
 mere ordinary thoughtlessness and ignorance of children, who 
 might be expected to play with an object like a roller left in 
 their way ; and it is quite another to contemplate the deliberate 
 cutting of a strong rope — an act that is scarcely an ordinary and ' 
 , natural incident attendant on the neighbourhood of young 
 children. 
 deci^i'nT ' ^^® American decisions are by no means uniform. For 
 
 example; in the case of Railroad Company v. Stout ° where a 
 child of six years of age was injured through playing with a turn- 
 table on the premises of the defendant railway company, the 
 Supreme Court of the United States laid down that if the 
 situation of the turn-table was such that children would pro- 
 bably resort to it, and if children had in fact resorted to it 
 within the knowledge and observation of the officers of the 
 company, there was a duty on the company to take pre- 
 
 1 5 Times L. E. 20. 2,7 yfgj_ gj^. 
 
PART I.J CONTKIBUTORY NEGLIGENCE. I47 
 
 cautions in the matter, the neglect of which exposed them to 
 liability. 
 
 On the other hand, in Connecticut, in the elaborately • 
 argued case of Nolan v. New York Eailway Company ' another 
 view is presented. There a child of seven was attracted on a 
 railway line by something he saw. The State Court held 
 that the age of the child injured had no effect to raise a duty 
 where otherwise none existed — that, with regard to duties, 
 children, women, and men are upon the same footing. The 
 distinction was drawn between the cases where certain duties 
 require a greater or different degree of care to infants than 
 adults, and precautionary measures having for their object the 
 protection of the public, which, as a rule, have reference to all 
 classes alike. 
 
 The true view seems to be that expressed by Henry, C. J., in Weight of 
 Schmidt v. Kansas City Distilling Company,^ that an owner of '"''^"''^''y- 
 property must not place temptations upon it to allure any one 
 to a dangerous place upon his premises, nor yet place dangerous 
 thiags so near a public street or highway as to endanger persons 
 thereon. That being so, the fact that young children are in the 
 habit of resorting to the neighbourhood must be an element in 
 determining what is alluring,' and what safeguards should be 
 adopted. At any rate, this is the doctrine of the Court of 
 Appeal case of Jewson v. Gatti,'' where "a little girl" wasjewaonf. 
 leaning against a railing, looking into a cellar where workmen *^''"''' 
 were engaged in scene-painting, when the rail gave way and she 
 fell into the area and was iojured. On an action being brought 
 the plaintiff was nonsuited, but the Divisional Court and the 
 Court of Appeal set this aside and ordered a new trial, Lord 
 Esher, M.E., saying: "There was painting going on in the 
 cellar, and it must have been known that this would attract 
 children ; and then a bar was put up, ostensibly for the purpose 
 of protection, against which children would naturally lean while 
 looking down into the cellar where the painting was going on. 
 That was almost an invitation, certainly an inducement, to the 
 children to lean against the bar while looking down into the 
 cellar." 
 
 There is great difficulty in the application of any such 
 principle; for example, in Klix v. Nieman,' a child fell intoKlixs. 
 an unfenced pond, which was found to be dangerous to the 
 
 ' 53 Conn. 461. in its natural state : Evansville v. Griffin, 
 
 ^ 59 Am. B. 16 ; there is an exhaustive 50 Am. R. 783. 
 
 note to this case, at p. 23. To the same * 2 Times L. E, 441 ; in the Divisional 
 
 effect is Klix v. Nieman, 60 Am. E. 854. Court, at p. 381. Angus v. Findlay, 24 
 
 * An allurement seems some attraction Sc. L. E. 237. 
 
 added to land, not the mere effect of land ° 60 Am. E. 854. 
 
148 THE LAW OF NEGLIGENCE. [book i. 
 
 lives of children living in the neighbourhood and who might 
 be attracted thereto for amusement or otherwise. The Court 
 negatived any duty to fence, on the authority of Hardcastle v. 
 South Yorkshire Eailway^ and Hounsell v. Smyth f and no other 
 decision would have seemed tenable. A possible principle is 
 that the duty to children and adults in this respect is substantially 
 the same, only that, in the case of children, trespassers in pui-suit 
 of attraction' are allowed wider limits of deviation than in the 
 case of adults. In the present case the decision might have 
 been supported on the ground that from all that appeared the 
 land was in its natural condition. 
 Extent of tho The next point is to inquire to what - extent this special 
 S°ants'°" "^ protection of infants goes. As to this there does not appear to 
 be any definite English rule. The whole question is, however, 
 dealt with in an American case of authority, Nagle v. Allegheny 
 Valley Railroad Company.'' It was conceded in that case that if 
 the boy for whose death damages were sought, and who was 
 between fourteen and fifteen, was regarded as an adult, he had 
 been guilty of rashness which would have defeated the action. 
 It was contended that he was of such tender years as not to be 
 responsible for his negligence. The Court negatived the con- 
 tention that this question could be answered by referring it to a 
 Hule laid down jury, Saying : "It would give a merely shifting standard, affected 
 Ali^gfmy ^J *^® sympathies or prejudices of the jury in each particular 
 ■R^'f^^ii case. This is not a question of fact for the jury — it is a question 
 
 (Jompany. of law for the Court ; nor is its solution difficult. The rights, 
 duties, and responsibilities of infants are clearly defined by the 
 text-writers, as well as by numerous decisions. Upon so plain a 
 question it is sufficient to refer to i Sharswood's Blackstone, p. 43 S , 
 where we learn that fourteen is the age of discretion in males, 
 and twelve in females ; that at fourteen an infant may choose a 
 guardian, and contract a lawful marriage. His responsibility to 
 the criminal law is equally well settled. Under seven years of> 
 age an infant cannot be 'guilty of felony, for then a felonious 
 discretion is almost an impossibility in nature. But at eight years 
 old he may be guilty of felony: Dalt. Inst., ch. 147. Between 
 the ages of seven and fourteen, though. an infant shall he priTrid 
 facie adjudged to be doli incapax, yet if it appears to the 
 Court and jury that he was doli oapax, and could discern between 
 good and evil, he may be convicted and suffer death; after 
 fourteen an infant is responsible for his crime to the same extent as 
 an adult. We have thus seen that the law presumed that at fourteen 
 
 ■ 1 4 H. & N. 67 ; 28 L. J. Ex. 139; 7 a See per Cookburn, O.J., Corby v. 
 
 W. E. 326 ; 32 L. T. 297. Hill, 4 C. B. K S. 562. 
 
 2 7 0. B. N. S. 731. 1 88 Peun. St. 35. 
 
PARTI.] OONTEIBUTORY NEGLIGENCE. 149 
 
 years of age an infant has sufficient discretion and understanding 
 to select a guardian and contract a marriage, is capable of har- 
 bouring malice and of taking human life under, circumstances that 
 constitute the offence murder. It therefore requires no strain to 
 hold that at fourteen an infant is presumed to have sufficient capa- 
 city and understanding to be sensible of danger and to have the 
 power to avoid it ; and this presumption ■ ought to stand until it 
 is overthrown by clear proof of the absence of such discretion 
 and intelHgence as is usual with infants of fourteen years of age." 
 A modern Scotch case' seems to countenance the imposition of 
 a similar test of age : though in that case a " child" was defined 
 by the Factory and Workshop Act,^ s. 1 1, "to mean a person 
 under the age of fourteen," and reference to general law was un- 
 necessary. On the other hand, in Grizzle v. Frost,' the " young 
 person " injured was sixteeft years of age. But the work she was 
 set to was in connection with dangerous machinery, with the use 
 of which she was quite inexperienced, and as to which there were 
 statutory restrictions on employment. The case thus harmonizes 
 with the other cases, when it is borne in mind that knowledge of 
 dangerous machinery requires greater intelligence than mere 
 knowledge how to avoid ordinary dangers, or that the character of 
 •the particular work rebuts the presumption of capacity to avoid 
 the dangers of it. 
 
 It would seem, then, that in these cases there is a species of Summing up 
 graduated scale. If the child engaged in work, from which 
 injury happens, is so young that it cannot know the character 
 of contributory negligence, it would seem that, as matter of 
 law, it could recover, whenever the defendant is in default in 
 the observance of due care and caution ; but where the child may 
 understand, it must be for the jury to say in the ascending scale 
 of age and imputability, whether any particular act which may be 
 looked at as negligent — and would be looked at as negligent if 
 done by an adult — is negligent ; not in the abstract, but by refer- 
 ence to a standard of the capabilities of young persons of the 
 age, and in the surroundings, of the plaintiff. This principle 
 seems to be extended even further in the case of young people 
 working at dangerous machinery, so that a jury may find that 
 through immaturity of judgment they were exposed to risks 
 beyond the measure of their capacity to appreciate. 
 
 The Court of Appeal went on the same ground in Crocker v. 
 
 I Sharp V. Paokhead Spinning Com- was not taken ; and thirdly, the sheriff- 
 
 pany, 12 E. 574. In Carty v. NiokoU, Buhstitute found contributory negligence 
 
 6 R. 194, a different rule was applied ; as a fact. 
 
 but there what amounted to a statutory ' 41 Vict. c. 16, Bs. II, 12, 26, 96. 
 
 authorization to do the work was ur^ed ; ^ ^F.&V. 622, at Nisi Frius, before 
 
 eecondly, the point of non-accountability Cockburn, C.J. 
 
150 THE LAW OF NEGLIGENCE. [book i. 
 
 Banks/ where a girl o£ seventeen had been in the employment of a 
 soda-water manufacturer for some time, when she was injured by 
 the bursting of a soda-water bottle, which she was engaged at a 
 machine in filling. The machine had an automatic guard during 
 the period of filling and corking the bottles, but as soon as it be- 
 came necessary to take the bottle from the machine the guard 
 dropped. Masks were provided for use at this time, but the plain- 
 tiff did not put hers on, and in consequence was injured. The ques- 
 tion was, whether she was guilty of contributory negligence. She 
 had sworn at the tx'ial that she did not know the danger, or that it 
 was necessary to wear the mask at that particular period. The 
 Court of Appeal" based their opinion on this, holding " it was not 
 negligence for a girl of her age, to put on the mask if she did not 
 know that she was bound' to do so at that period of the opera- 
 tion."^ There is probably no other case than Crocker v. Banks, 
 where this view has been taken in the case of a young person 
 seventeen years old. 
 (ii.) Where the Secondly, where the persons having charge of a child have 
 that rfThoae^in negligently placed the child or permitted it to be in a position in 
 cmi^ °^ ""^ which it sustained injury. 
 
 Waite ». The leading case is Waite v. North-Eastern Eailway Company, 
 
 Eanway''^''™ i^i t^e Exchequer Chamber.* This was an action on behalf of an 
 Compimy. infant by his next friend. The infant, which was five years of 
 age, was with its grandmother, who took a half-ticket for the 
 child and a ticket for herself to travel by the defendants' line, but 
 as they were crossing the railway the child was injured by a 
 passing train. The jury found that the defendants were guilty of 
 negligence, and that the grandmother was guilty of negligence, ' 
 which contributed to the accident,, but there was no negligence 
 on the part of the infant plaintiff. A verdict was entered for the 
 plaintiff, with leave to move. In the Queen's Bench, verdict was 
 entered for the defendant without calling on them to argue on 
 the ground that the infant was identified with its grandmother. 
 In the Exchequer Chamber, Cockburn, C.J., thus expressed the 
 principle by which the case was governed : " When a child of 
 such tender and imbecile age is brought to a railway station, or to 
 any conveyance for the purpose of being conveyed, and is wholly 
 unable to take care of itself, the contract of conveyance is on the 
 implied condition that the child, is to be conveyed subject to due 
 and proper care on the part of the person having it in charge. 
 
 I 4^?*' ^?- 324- Commissioners, 25 Sc. L. R. 239. See, 
 
 s?f = ^-^i^'^n'^;^-. , .,. too, Molntjre «. Buchanan, 14 Q. B- 
 
 » The Scotch Courts take the same (Ontario) 581. 
 
 general view, but apparently are not in- * E. B. & B. 719 ; 28 L J Q B 2';8 i 
 
 clined to be so liberal as the English Court 7W, R. 311. ••■«•• j s 
 of Appeal : Forbes v. Aberdeen Harbour 
 
PARTI.] CONTEIBUTORY KEGLiasNCE. 151 
 
 Such care not being used where the child has no natural capacity 
 to judge of the surrounding circumstances, a child might get into 
 serious danger from a state of things which would produce no 
 disastrous consequences to an adult capable of taking care of him- 
 self." Lindley, L. J., subsequently' thus more succinctly expressed 
 the same judgment : " The defendants had a right to expect that 
 proper care would be taken of the child ; and if such care had 
 been taken, there would have been no accident." 
 
 Very similar to this in principle is the case of Burchell v. Burohell ». 
 Hickisson,^ which illustrates the branch of the rule providing for H'^^^^™- 
 a child not actually taken into danger, but permitted to remain 
 there. The plaintiff, a boy of four years old, went with his sister 
 to defendant's house. A few steps, protected on either side by 
 railings, led up to the front door. One of the rails at the topmost 
 step had been for some 'time broken away, leaving a gap, across 
 which ropes had been interlaced but had worn away. The plain- 
 tiff was told to stop at the bottom of the steps while the sister 
 went in the house. He, however, came up the steps, and falling 
 through the gap into the area below, was injured. Lindley and 
 Lopes, JJ., held that the plaintiff could not recover, on the ground 
 that defendant never invited such a person as the plaintiff to come 
 unless he was taken care of ; and if he was in charge of others, 
 there was no concealed danger — that is, there was no duty from 
 the defendant to the plaintiff which had been violated, and con- 
 sequently no negligence.^ The distinction that may be pointed 
 out between this case and Lay v. Midland Eailway Company'' is 
 that in Lay v. Midland Railway Company the bridge which was 
 found by the jury to be dangerous, was a bridge for use by the 
 public, and the plaintiff had consequently a right to be there ; 
 while in the other case the plaintiff had no right to be where he 
 was when he met with the accident. Had the gap been in the 
 railings abutting on the street, the decision would probably have 
 been different. 
 
 This class of cases exemplifies the rule that where a new cause 
 has intervened between the fact accomplished and the alleged 
 cause, the actionable wrong arises.* Tor example : In Waite's 
 case, the defendants were negligent, and the child suffered injury ; 
 but the act of the grandmother intervened, and thereby disentitled 
 the child to recover. But it does not follow that the mere inter- 
 vention between the wrongful cause and the injurious consequence 
 
 1 TheBenima(2), I2pr. D.s8, atp. 93. Hardcastle v. South Yorkshire Eailway 
 
 =! 50L.J. Q. B. 101. Company, 4 M.&N. 67. See omie, p. I47) 
 
 ' There is no legal obligation to fence as to where there is an allurement, 
 
 an excavation, unless it be so near a pub- * 34 L. T. N. S. 30, 
 
 lie road as to constitute a public nuisance : " Insurance Company v. Tweed, J Wal. 
 
 Hounsell v. Smyth, 7 C. B. N. S. 731 ; 44, 52. 
 
152 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Abbott t'. 
 Macfie. 
 
 Injury from 
 
 joint 
 
 negligence. 
 
 Absence of 
 control. 
 
 of acts produced by the volition of animals or liuman beings, 
 necessarily makes the result so remote that no action can be main- 
 tained. The test is to be found, not in the number of interven- 
 ing agents, but in their character and in the natural and probable 
 connection between the wrong done and the injurious consequence. 
 So long as it aflSrmatively appears that the mischief is attribut- 
 able to the negligence as a result which might reasonably have 
 been foreseen as probable, the legal liability continues.' 
 
 In Abbott V. Macfie,'' the Court said : " If he [the plaintiff] was 
 playing with Hughes so as to be a joint actor with him, he can- 
 not maintain this action ; if not, we think he can, as his injuries 
 would then be the result of the joint negligence of Hughes and 
 the defendant." It is clear that if the negligence were the joint 
 negligence of Hughes and the defendant, and the plaintiff was 
 free from negligence, the plaintiff could recover against both, or 
 either. But assuming that the defendant was guilty of negli- 
 gence, and plaintiff and Hughes were playing together, the right 
 of the plaintiff to maintain an action must depend upon the nega- 
 tion of the principle we have been affirming — that contributory 
 negligence of an infant has not the same effect as in the case of 
 an adult ; and upon the determination of the question whether the 
 number of intervening agents in their character was such as to 
 prevent the result that followed being such as might reasonably 
 and probably have been foreseen as likely to arise out of the 
 negligent act. 
 
 The cases we have hitherto examined are cases where the child 
 may be regarded as under the control of an older person at the 
 time of the happening of the accident, or injured under circum- 
 stances where no duty had been violated by the defendant. There 
 still remains the case where the absence of control is the cause of 
 the child sustaining injury. 
 
 The only reported English case is at Msi Prius.^ It appeared 
 that defendant was driving when the plaintiff, aged* three years 
 and a quarter, ran out into the road, was knocked down, and run 
 
 1 McDonald ». Snelling, 96 Mass. 296. 
 In America it was held tliat where ii child 
 of seven was out walking with his father, 
 and, stepping aside to clasp in sport a 
 post forming part of a bridge they were 
 crossing, fell through a hole in the plank- 
 ing into the water and was drowned, 
 there was no evidence of contributory 
 negligence, either on the part of the child 
 or its parent. GuUine v. Lowell, 144 
 Mass. 491 ; also note to the same case, 59 
 Am. E. 104. On the general question 
 whether, assuming contributory negli- 
 gence of a parent, an infant is barred, 
 
 there is considerable difference of opinion. 
 The Pennsy Iranian Courts answer it in the 
 negative, Smith v. O'Connor, 48 Penn. St. 
 21 8 ; Erie Company v. Schuster, 113 
 Penn. St. 412; S.C. 57 Am. E. 471, and 
 note 474. So, too, in Ohio Eailroad Com- 
 pany V. Snyder, 18 Ohio, 399. On the 
 other hand, see Fitzgerald v. St. Paul, 
 &o., Eailroad Company, 43 Am. E. 212. 
 
 ^2 H. &C. 744; 33 L. J. Ex. 177; 9 
 L. T. N. S. S13; 12 W. E. 315. 
 
 ^ Gardner v. Grace (1858), i F. & F. 
 359. This case was several years be- 
 fore Mangan v. Atterton. 
 
PARTI.] CONTRIBUTORY NEGLIGENCE. 153 
 
 over. Ctainnell, B., said, " The doctrine of contributory negli- 
 gence does not apply to an infant of tender age. To disentitle 
 the plaintiff to recorer it must be shewn that the injury was 
 occasioned entirely by his own negligence." 
 
 The point that there was any such duty on the parent, the 
 neglect of which would disentitle the infant to recover, does not 
 seem to have been taken ; and there does not appear to be any 
 reported English case in which it has been mooted. 
 
 There is a multitude of American cases, and the doctrines laid American 
 down by them very materially vary, ''*^^^' 
 
 It is held in New York, Massachusetts, Indiana, and perhaps 
 Illinois, that an infant is personally chargeable with any negli- 
 gence, or other fault of its guardian, whereby it is exposed to an 
 injury.' 
 
 In Vermont, ConnectJfeut, Pennsylvania, and Ohio" the whole 
 doctrine that the negligence of a parent or guardian is to be im- 
 puted to a child is distinctly repudiated, and it is held that such 
 negligence is not to be considered in an action brought by the 
 child.' 
 
 The conclusion of the learned authors of the above-cited work Messrs. shear- 
 is, that " it is now settled by the overwhelming weight of fieWs view of 
 authority that a child is held, so far as he is personally concerned, *^® '*^- 
 only to the exercise of such degree of care and discretion as is 
 reasonably to be expected from children of his age."'' In the 
 former editions of Messrs. Shearman and Eedfield's work, there 
 was added, " though if his own act directly brings the injury upon 
 him, while the negligence of the defendant is only such as ex- 
 poses the child to the possibility of injury, the latter cannot re- 
 cover damages." But in the last edition" this clause is omitted, 
 and it is now stated that " it was held in some English cases that 
 if a chUd's own act directly brings the injury upon him, while 
 the negligence of the defendant is only such as exposes the child 
 to the possibility of injury, the latter cannot recover damages. 
 But these decisions have been condemned in England, and are 
 directly opposed to the current of American cases." " 
 
 ^ The leading case for tliia view is Hart- would expect of its age. If you say tliat 
 
 field «. Roper, 21 Wend. 6iS- *he child did what an ordinarily careful 
 
 2 Shearman and Eedfield, Law of Negli- child would have done, then it is not neg- 
 
 genco § 77. ligence ; and if the hoy failed to adopt the 
 
 s TJj^. s yg. means known to him to be effective in pro- 
 
 * Ibid.% 73. In a very late New York tecting him against danger, and was in- 
 case, Moehus V. Hermann, 108 N. Y. 349, jured thereby, the plaintiff cannot recover." 
 where a child under seven years of age was This was sustained by the Court. See, 
 run over, the direction given was: "The rule too, Collins «. South Boston Railroad Com- 
 of vigilance applies to children as well as pany, 142 Mass. 301. " 4th edit. 1888 
 to adults, but a child of immature years, « Birge v. Gardiner, 19 Conn. 507 ; 
 whilst bound to exercise care, is held to Brown w. European, &c.. Railroad Oom- 
 no proper degree of forethought than you pany, 58 Me. 384. 
 
154 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Suggested 
 principle. 
 
 Considered. 
 
 It is an intelligible principle that since young cliildi'en are 
 not capable of contributory negligence in the sense in which 
 adult persons are, the duty of adults towards them should be 
 commensurate with their own feebleness and inability to safe- 
 guard themselves.' There is no injustice in requiring people in 
 their dealings with young children to avoid being negligent at all ; 
 and to fix them with liability if they are negligent, notwithstanding 
 that the children's own negligence^ contribute to the injury.' 
 
 A person negligently flings a fire-brand ; it may fall harmless ; 
 then, though the act is wrongful, there is no damage ; if it fall into 
 a basket of hay and ignite it, the measure of damage is the value 
 of the hay, which is inconsiderable ; but if the brand fall among 
 valuable silks and satins and ignite them, the measure of damage 
 is the value of the goods destroyed. In this case the same act 
 done in the same circumstances may impart very diiFerent con- 
 sequences. There seems no valid reason why an act of negligence— 
 that is, without legal consequences when affecting one class of the 
 community — should not bear a very different aspect when done 
 with regard to another. 
 
 A child has independent legal rights even against its father or 
 guardian, in cases where the property of the child is injured.^ It 
 would seem contrary to principle, then, that where the child 
 receives a personal injury the negligence of the father could be 
 set up as a bar against recovery. A distinction may, however, be 
 drawn between injuries resulting from the parent negligently 
 omitting and negligently committing certain acts. It has been 
 said that the parent is, by common law, under no legal obligation, 
 as contra-distinguished from a moral obligation, to safeguard his 
 child. Assuming this to be the case (which by the way would 
 involve a very strong argument against the doctrine of identity), 
 there are yet cases where the parent's actual negligence causes 
 injury to the child, and where no legal principle denies the child's 
 right of action by his next friend. The parent is guilty of 
 negligence if the child is injured by the joint negligence of the 
 parent and a third person. If the negligence had been joint 
 negligence of persons unconnected with the child, the child could 
 maintain an action against both or either of the wrongdoers.' 
 There seems no reason then why the parent's negligence should 
 exonerate from the consequences that would otherwise follow 
 except on the consideration that the duty of the parent not to be 
 
 ' Compare the Scotch cases, Grant v, 
 Caledonian Eailway Company, g M. 258 ; 
 Morran «. Waddell, 1 1 E. 44. 
 
 2 9 Viner's Abr. Enfant, H. 6, Actions 
 how they must be sued : Morgan v. Mor- 
 
 gan, I Atkyns, 489 ; Eversley, Domestic 
 Relations, pp. 572 et seq. 
 
 * Burrows v. March Gas Company, L. K. 
 SEx, 67, 71. 
 
PARTI.J CONTRIBUTOEY NEGLIGENCE, 155 
 
 negligent is so overpoweringly greater than in an ordinary case. 
 The case of Waite v. North-Eastern Eailway Company' is not an 
 authority to the contrary ; for that case was decided on the ground 
 of contract, and is to be supported on the ground of the contract that 
 was there made. However, in the ordinary case of a young child 
 playing in a street, where, according to an American decision,^ 
 young children have a right to be for air and exercise, no 
 question of contract intervenes. But the case suggested by 
 Lord Campbell, C.J., in the Queen's Bench, in Waite v. North- 
 Eastern Railway Company, of a baby only a few days old, 
 carried in the nurse's arms, and injured through negligence, to 
 which the nurse had contributed, seems to raise all the diffi- 
 culties of an extreme statement of the facts that should import 
 liability. The decision in Waite's case was, that the duty to 
 such an infant arose out of contract ; and determined that the 
 only contract that could be implied was, that the railway com- 
 pany allowed the child on the premises only on the condition 
 that all due care should be exercised by the child's custodian. 
 Even in the case of contract, the "identification" on which, in 
 Waite V. North-Eastern Railway Company, Lord Campbell bases 
 his decision is not "complete." For the child, by next friend, 
 can clearly maintain an action for negligence against the nurse. 
 The immimity of the railway company, in the words of Cockbum, 
 O.J., in the Exchequer Chamber, "is due to the fact that there 
 is an implied condition that the child is to be conveyed, subject 
 to due and proper cai'e on the part of the person having it in 
 charge." Eliminating, then, this contracttial relation, there seems 
 no reason why the child should not have an action against the 
 joint tort feasor with its nurse in a case where the nurse is 
 canying the child across a road and is run down and the child 
 injured, her negligence contributing, with that of the negligent 
 driver, to produce the result. They are both negligent, and 
 their co-operating act works an injury to the child, which it can 
 certainly recover for against the one or the nurse with whom its 
 identity has been asserted. Again, for the wilful act of the 
 parent or guardian — e.g., throwing the child down a well — the 
 child, suing by next friend, upon every ground of reason and 
 principle, could recover ; so, too, for negligence relating to pro- 
 perty.' What distinction, then, can be drawn as to person? 
 
 1 El. Bl. & El. 719; 28 L. J. Q. B. 258; it was held not negligence as matter of 
 JW.B,. 311. law on the parents' part, but to be a 
 
 2 Mulligan «. Curtis, 100 Mass. 512, question of fact for the jury, depending 
 514. In Bliss V. Bouth Hadley, 14S Mass. on how much the street was used, and the 
 91, where a child of eight was sent with a intelligenoo and experience of the elder 
 child under two years old into a street for child. 
 
 air and exercise, and the baby was injured, ' Supra. 
 
156 THE LAW OP NEGLIGENCE. [book i. 
 
 And if the child could have an action for the negligence of the 
 father or guardian, contract apart, there seems no reason why 
 there should not be an action against the person whose negligence 
 co-operated with the parent in producing the injury ; nor yet 
 against that person singly. 
 / Proceeding one step further, if the father is guilty of positive 
 negligence — of the neglect of some care or precaution through 
 which the child suffers injury, and the child has an action 
 against him — on what ground can the alleged duty of the father 
 be placed, the neglect of which disentitles the child to have an 
 action? If the child is injured through the contributory 
 negligence of the father, it is manifest that the father is not 
 
 1 entitled to recover for loss of services ; for his own act brought 
 about the loss for which he seeks to recover. But why should 
 the child be identified with him ? Not because of the father's 
 moral duty, which, however strong, does not import a legal 
 obligation ; while no legal obligation, to which the disability can 
 be referred, is evident. 
 Conolusiou. In principle, then, there seems to be no reason why the child 
 
 should be disentitled by reason of the parent's negligence, in 
 placing it or permitting it to be in a position in which it has 
 sustained injury. Iri America, indeed, there are conflicting 
 decisions on the point;' while in England the point does not 
 seem to have been directly decided, at least in any reported case,^ 
 probably because juries have taken the matter into their own 
 hands in cases where the defendant has been negligent, and 
 negatived the issue of contributory negligence. 
 
 The conclusions above arrived at, negativing the existence of 
 a doctrine of imputability in the case of parent or guardian 
 and child, where the element of contract does not intervene, 
 derives support from the decision in the case of The Bemina.' 
 
 ' Lynch v. Smith, 104 Mass. 52. boy of ten to be abroad after dark is for 
 
 Bahrenburg ». E. K., N. Y. Court of the jury (Lovett v. Salem and South 
 
 Appeals, 1876, cited in Wharton, Law of Danvers Eailway Company, 91 Mass. 557), 
 
 Negligence, § 312, note 2. Hai-tlield v. coupled with the statement which may be 
 
 Eoper, 21 Wend.6i5;thegreaterpartoftbe ventured on without authority that such 
 
 judgment in this case is ou the assumption a provision to a young man of twenty 
 
 that the defendant was not negligent. possessed of common intelligence has no 
 
 Mangam v. Brooklyn City Eailway Com- effect whatever": Holmes, The Common 
 
 pany, 36 Barb. 230 ; Wright v. Maiden Law, p. 128. 
 
 and Melrose Eailway, 86 Mass. 283 ; Munn = See, however, Austin v. Great Western 
 
 V. Eeed, 86 Mass. 431. The Massachusetts Eailway Company, L. E. 2 Q. B. 442, 
 
 decisions have been thus summed up: where contributoiy negligence on the part 
 
 _" If a child of two years and four months of the mother was held not to disentitle 
 
 is unnecessarily^ sent unattended across and an infant to recover where the injury arose 
 
 down a street in a large cily, he cannot oiit of an implied contract, 
 
 recover for a negligent injury (Callahan " (C. A.) 12 P. D. 58; 56 L. J. P. 38; 56 
 
 V. Bean, 91 Mass. 401) ;' that to allow a L. T. 450 ; 35 W. E. 214 ; (in H. of L.) 13 
 
 boy of eight to be abroad alone is not neces- App. Cas. i {sub nom. Mills v. Armstrong) ; 
 
 Eary negligent (Carter v. Towne, 78 Mass. 57 L. J. P. 65 ; 58 L. T. 423 ; 36 AV. E. 
 
 567) ; ana that the effect of permitting a, 870. 
 
PARTI.] CONTRIBUTOEY NEGLIGENCE. 157 
 
 Previously to that decision the case of Thorogood v. Bryan/ Thorogood ». 
 though often acquiesced in, if rarely approved,' and occasionally ^'^e^Benfina. 
 dissented from," had still been generally followed as an authority, 
 binding tribunals below the rank of a Court of Appeal, for tEie 
 » proposition that a passenger is identified with thff^ driver of the 
 vehicle in which he is, although the driver is not his servant, 
 but the servant of third parties ; and while this was law, an. 
 ^insuperable obstacle would appear to have been presented to 
 the recovery in the case of a child injured through the contri- 
 butory negligence of a nurse or guardian when under the ac- 
 tual control of such nurse or guardian. This decision was, 
 however, definitely overruled by the Court of Appeal in The 
 Bemina,* on the ground that " the proposition maintained in it was 
 essentially unjust and inconsistent with other recognized proposi- 
 tions of law," and that ~fiie doctrine of identification, as laid down 
 in Thorogood v. Bryan, is " quite unintelligible," " and leads to 
 results which are wholly untenable — e.g., to the result that the 
 passengers would be liable for the negligence of the person 
 driving them, which is obviously absurd." The facts in Thorogood 
 V. Bryan were : The deceased got out of an omnibus, in which he 
 was a passenger, while the omnibus was in motion, and without 
 waiting for it to draw up to the kerb, and the omnibus of the 
 defendant coming up very fast at that moment, the deceased was 
 unable to get out of the way of it, and was run over and killed. 
 The decision of the Court of Common Pleas was, that the plaintiff 
 " chose his own conveyance, and must take the consequence of 
 any default of the driver whom he thought fit to trust." The 
 decision of the Court of Appeal in The Bemina is, that this is not 
 law. If, then, the plaintiff is not identified with the driver 
 when there is at least a determination of the will that he should 
 go rather than refrain from going in the conveyance, it would 
 seem that much less would there be any doctrine of imputability 
 when the conduct of the plaintiff" had been altogether without 
 self-determination, as in the case we have been considering of 
 very young children. 
 
 The law, then, may now be taken to be laid down in the Propositions of 
 eight propositions enunciated by Lord Esher, M.R., in his ji°e. ^ °'' 
 judgment.' 
 
 (l) If no fault can be attributed to the plaintiff, and there is 
 
 1 8C B lis * i2Pp. D. 58. 
 
 2 Child v. Heara, L. K. 9 Ex. 176; ' Per Lord Hersohell, C.J.: "I concur 
 Armstrons v. Lancashire and Yorkshire with the judgments of the learned judges 
 
 Railway Company, L. B. 10 Ex. 47. in the Court below, and speciallv with the 
 
 ^ The Milan Lush. 388 ; Adams v. very exhaustive judgment of the Master 
 
 Glaseow and ' South- Western Eailway of the Bolls " (Mills d. Armstrong— The 
 
158 THE LAW OF NEGLIGENCE, [book i. 
 
 negligence by the defendant, and also by another independent 
 person, both negligences partly directly causing the accident, the 
 plaintiff can maintain an action for all the damages occasioned to 
 him against either the defendant or the other wrongdoer. 
 
 (2) If in the same case the negligence is partly that' of the 
 defendant personally, and partly that of his servants, the plaintiff 
 can maintain an action either against the defendant or his 
 servants. 
 
 (3) If in the same case the negligence is that of the ' 
 defendant's servants, though there be no personal negligence by 
 the defendant, the plaintiff can maintain an action either against 
 the defendant or his servant. 
 
 (4) If in the same case the negligence, though not that of the 
 defendant personally, or of a servant of the defendant, consists in 
 an act or omission by another, done or omitted to be done, in the 
 way in which it is done or omitted to be done by the order or 
 direction or authority of the defendant, the plaintiff can maintain 
 an action either against the defendant or the person personally 
 guilty of the negligence. 
 
 (5) If although the plaintiff has himself, or by his servants, 
 ^ been guilty of negligence, such negligence did not directly partly 
 
 '^ . cause the accident ; as if, for example, the plaintiff or his servant 
 having been negligent, the alleged wrongdoers might by reasonable 
 care have avoided the accident, the plaintiff can maintain an 
 action against the defendant. 
 
 (6) If the plaintiff has been personally guilty of negligence, 
 which has partly directly caused the accident, he cannot main- 
 tain an action against any one. 
 
 (7) If) although the plaintiff has not been guilty of negligence, 
 his servants have been guilty of negligence which has partly 
 directly caused the accident, the plaintiff cannot maintain an 
 action against any one. 
 
 (8) If, although the defendant or his servant has, or have been, 
 guilty of negligence, the plaintiff or his servant could by reason- 
 able care have avoided the accident, the plaintiff cannot maintain 
 an action against any one.' 
 
 I°«i6 House In the House of Lords, which affirmed the decision of the 
 Bramweiico" Court of Appeal, Lord Bramwell, though concurring in the 
 g^odt B^an' decision on the case before the House, in a written opinion, which, 
 "jg^t.™ tJie however, was not delivered, supported the decision in Thorogood 
 
 1 "It follows," says Lord Esher, M.E., tains the law on this matter perhaps not 
 
 at the c ose of a long judgment m which exhaustively, and that the proposition con- 
 
 the Enghsh and American decisions are re- tained in Thorogood v. Bryan is not to be 
 
 viewed — " that the propositions stated at added to them," 
 the commencement of this judgment con- 
 
 I 
 
PART I.J CONTRIBUTORY- NEGLIGENCE. I59 
 
 V. Bryan on the pleading.' The declaration was, that the defend- 
 ant, by her servant, so carelessly drove and directed the carriage 
 and horses, that, by the negligence and improper conduct of her 
 servant in that behalf, they ran against the deceased and knocked 
 him down, &c., and by reason of the premises he died. The plea 
 was " not guilty." Upon that issue > it was for the plaintiff to 
 prove that the deceased was killed by a negligent act in the 
 defendant's driver; but this was not done by shewing that he was 
 killed by a negligent act of the defendant's driver, and another 
 negligent act in the driver of the vehicle in which he was 
 riding. Lord Herschell doubted whether, even as a pleading Lord Hei-scheii 
 point, it would have been good if the facts were properly averred. ^°"'>'^'^- 
 Since, in the case of a collision between two vehicles, if a person 
 unconnected with either were injured, and were to sue either 
 wrongdoer in respect of 'the injury, the defendant would not be 
 able to maintain a defence that, but for the negligence of another 
 person, the accident would not have happened ; and the case of 
 a passenger in no way differed. 
 
 The j adgment of the House of Lords, however, was based on Groulids ot 
 the broad ground of disapprobation of the doctrine of " identifi- of t^e^l^se' 
 cation," " which," says Lord 'Herschell, "appears to me to beg °* ^°'"''^' 
 the question, when it is not suggested that this identification 
 results from any recognized principle of law, or has any other 
 effect than to furnish that defence, the validity of which was the 
 very point in issue." 
 
 Lord Bramwell, in his opinion, puts several test cases, which he 
 considers are involved in the proposition affirmed by the House of 
 Lords — viz., that a passenger is not identified with those in 
 charge and control of the vehicle in which he is being carried in 
 respect of their negligence, so as to be disentitled to recover for the 
 negligence of third persons, in conjunction with that of those in 
 charge and control of the vehicle which produced the injury. 
 " K," says he, " the passenger can maintain the action, why 
 cannot the owner of the carriage for injury to it?" Plainly, 
 because he is in default. His duty was to provide a suitable 
 vehicle ; and, as against third persons, if he had servants, servants 
 who would not be guilty of negligence ; if he himself took charge 
 he had to see that he himself was free from negligence. He has 
 chosen to act in the engagement of servants ; it is but fair, as 
 against the person, that he should not recover when, but for his 
 default in the engagement of them, or at least for theirs, when he 
 had engaged them, he sustains injury, which, had he not had 
 negligent servants, would not have happened. If, as Lord 
 
 1 Sub rum. Mills v. Armstrong, 13 App. Cas. i, mpra. 
 
160 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Bramwell says, the maxim Qui faeit pe7< cdiv/m facit per se does 
 not apply, the allied maxim Bespondeat superior would seem to 
 do so. The same reasoning would apply where the owner is a 
 passenger. The law contemplates him as driving his own vehicle ; 
 if he prefers to do it by deputy there seems every reason why he 
 should answer for the hand he uses instead of his own as if it 
 were his own. " Suppose," says Lord Bramwell, again, " the 
 owner's wife is a passenger, and injured, can she maintain such 
 an action ? " If a passenger, undoubtedly,' for, as against her, 
 the defendant has a duty not to be negligent, and whether the 
 man's wife, or his visitor, equally there seems an action against a 
 third person guilty of negligence. The basis of the action is that 
 the defendant has been negligent. That other causes have enhanced 
 the damage seems in no degree in point. Had the injured person 
 contributed he could not recover, because he was negligent, 
 unless the other cause is outside of those natural and probable 
 Test proposed events that may be anticipated. The solvent proposed by Lord 
 Watson. Watson for all these diflSculties is the inquiry. Do the servants in 
 
 charge of the vehicle look for orders to the person claiming for 
 injuries in respect of which they are contributory ; or has he any 
 further right to interfere with the conduct of the vehicle, except, 
 perhaps, the right of remonstrance when he is driving, or threatens 
 to do something that is wrong and inconsistent with their safety ? 
 It has now been held that the proper question for the jury in 
 this class of case must amount to, Did the negligence of those 
 in charge of the vehicle, other than that in which the plaintiff 
 was, in whole or in part, cause the accident ? If the jury find it 
 did, then the verdict must be for the plaintiff.^ 
 
 The American cases had, previously to Mills v. Armstrong, most 
 generally adopted the line of decision marked out in that case.' The 
 Pennsylvania^ Courts, however, adopted a modified form of the role 
 in Thorogood v. Bryan ; for, while rejecting the doctrine of the 
 identification of the passenger with his own vehicle, they con- 
 sidered that, since the policy of the law fixes responsibility upon 
 a different principle in the case of one carrying the injured person 
 as a common carrier from what it does in the case of one who 
 does not stand in that relation to the person injured, where that 
 relation exists, the paramount duty of the common carrier should 
 be insisted on in the interests of public policy before, and to the 
 exclusion of, any liability of one whose obligation to take care the 
 
 American 
 cases. 
 
 1 45 & 46 Vict. c. 7S, B. I. Weldon v. 
 Winslow, 13 Q. B. D. 784 ; S3 L. J. Q. B. 
 528;5ii'.T.643;33W.B.2i9. 
 
 " Mathews v. London Street Tramways 
 Company, 58 L. J. Q. B. 12. A curious 
 
 case is Nicholls v. Great Western Eail- 
 way Company, 27 Q. B. (Ontario) 382. 
 
 * See note to Borongh of Carlisle v. 
 Brisbane, 57 Am. B. 483, pp. 488, 
 
PARTI.] CONTRIBUTORY NEGLIGENCE. ICl 
 
 law does not so highly regard. Their conclusion is thus expressed : 
 " It would be altogether more just to hold liable him who has 
 engaged to observe the highest degree of diligence and care, and 
 has been compensated for so doing, rather than him upon whom 
 no such obligation rests, and who, not being compensated for the 
 observance of such a degree of care, acts only on the duty to 
 observe ordinary care, and may not be aware even of the presence 
 of a party who might be injured."' It is not at once apparent 
 why, when two persons join in injuring a third, one of them 
 should be excused, for no lack of fault in himself, but because 
 the other happens to be under a higher obligation, which may 
 be the best of reasons for accentuating that other's liability, 
 but can be none for extinguishing his own. Such a principle, by 
 introducing a comparison of rights and wrongs, would seem greatly 
 to complicate the theory of liability without any compensatory 
 advantage. It does not seem to have been prominent in the 
 consideration of the judges in Pennsylvania that the more onerous 
 liability, which they suggest as the sole liability, exists inde- 
 pendently of the tort, and that the effect of the adoption of 
 their suggested principle would be merely to discharge from 
 responsibility one class of wrongdoers. 
 
 In cases outside those involving the relation of common carrier 
 the Courts of Pennsylvania reject the rule in Thorogood v. Bryan. 
 Thus, in Borough of Carlisle v. Brisbane,^ the Supreme State 
 Court follows Chapman v. New Haven Railway Company,' and 
 holds that one who is injured by the joint negligence of a private 
 person with whom he is riding by invitation, anO^a third person, 
 is not chargeable with the negligence of the driver. But, while 
 rejecting it in its general application, this case affirms it iu the 
 more special bearing just noticed. This aspect of the rule is 
 peculiar to Pennsylvania, and probably will not be more extensively 
 adopted. 
 
 1 Lockhart v. Lichtenthaler, 46 Penn. St. 15 1. 
 
 2 113 Penn. St. 544- ' '9 N. Y. 34. 
 
CHAPTEE VII. 
 
 moritit^ cum 
 
 LOED CAMPBELL'S ACT 
 
 (9 & 10 Vict. c. 93, amended by 2J & 28 Vict. c. 95). 
 
 Actio personalis Tbe common law maxim, Actio personalis moritur ciom persond^ 
 is not applied in the old authorities to causes of actions on 
 contracts ; but to those in tort which are founded on malfeasance 
 or misfeasance to the person or property of another ; which latljer 
 are annexed to the person and die with the person, except where 
 the remedy is given to the personal representative by the statute 
 law.^ Thus no executor or administrator could maintain an action 
 for the loss of the life of his testator or intestate; and this for two 
 reasons — ^first, because the law provides remedy for such mischiefs 
 only as affect legctl rights ; and a man has not such a legal right 
 in the life of his parent, or of his child, as he has in his own; 
 the relation between parents and their children giving rise merely 
 to what moralists call "imperfect obligations;" — and second, 
 because it was considered impossible to form an estimate of the 
 value of human life either to a man himself or to others con- 
 nected with him.' 
 
 In America the course of decision seems to have been the 
 same ; though there are not wanting decisions in which it is 
 contended that no such principle is to be deduced from the 
 common law.'' 
 
 The earliest authority for the law as thus laid down is 
 said to be Higgins v. Butcher.^ Plaintiff's wife died of an 
 assault and battery by the defendant, for which plaintiff brought 
 
 Tanfield, J., gave as the reason of the 
 
 History of 
 the law. 
 Higgins V. 
 Sutcher, 
 
 an action for damages. 
 
 ' As to the maxim aud its import, see 
 Broom's Legal Maxims, 6th edit. p. 855, 
 and tbe cases there referred to ; Com. Dig. 
 Administrator, B 13, Covenant, B ' i ; 
 Bacon's Abridgement, Executors and Ad- 
 ministrators, N ; Mason v. Dixon, Sir 
 William Jones 173 ; Morley v. Polhill, 2 
 Ventr. 56 ; Wheatley v. Lane, i Will. 
 Saunders 239 ; I Williams on Executors, 
 8th edit. p. 796. 
 
 ^ Per Lord Abinger, C.B., Baymond 
 V. Kitch, 2 C. M. & E. 597. 
 
 ' See per Parke, B., Armsworth v. 
 South-Eastern Eailway, 1 1 Jur. 758. 
 
 '' See the cases cited in the defendant's 
 argument in Osborn v. Gillett, L. E. Ex. 
 88 ; and in Sullivan v. Union Pacific Eail- 
 road, 3 Dill. 334. 
 
 " Yelv. 89. 
 
PARTi.J LORD CAMPBELL'S ACT. jgg 
 
 Court for their judgment that the plaintiff could not recover: 
 " If a man beat the servant of J. S. so that he dies of that 
 battery, the master shall not have an action against the other for 
 the battery and loss of service, because, the servant dying of 
 the extremity of the battery, it is now become an offence to the 
 Crown, being converted into a felony, and that drowns the par- 
 ticular offence and private wrong offered to the master before, 
 and his action is thereby lost."' The leading case, however, is 
 the Nisi Prius ruling of Lord Ellenborough in Baker v. Bolton,^ Baker v. 
 where plaintiff sought to recover damages for loss of his wife's ■^°"°°" 
 services ; but the jury were directed that " the damages as to the 
 plaintiff's wife must stop with the period of her existence," for 
 the reason that " in a civil court the death of a human being 
 cannot be complained qf as an injury." This decision seems to 
 have been followed ia all cases without question till 1873, when 
 in Osborn v. Gillett,^ a case of master and servant, Bramwell, B., Oeboni». 
 dissented from the judgment of the Court, that where that '''"^"' 
 relation exists a master cannot maintain an action for injuries 
 which cause immediate death. 
 
 By 9 & 10 Vict. c. 93, the common law was so far limited 9 & 10 Viet, 
 that an action was given against a person who by his wrongful "" ^^' 
 act occasioned the death of another. 
 
 By section i of that statute it is enacted that " whensoever the 
 death of a person shall be caused by wrongful act, neglect, or 
 default, and the act, neglect, or default is such as would (if death 
 had not ensued) have entitled the party injured to maintain an 
 action and recover damages in respect thereof, then and in every 
 such case the person who would have been liable if death had not 
 ensued shall be liable to an action for damages, notwithstanding 
 the death of the person injured, and although the death shall 
 have been caused under such circumstances as amount in law to ^ 
 felony." 
 
 By section 2, " every such action shall be for the benefit 
 of the wife, husband, parent, and child of the person whose 
 death shall have been so caused, and shall be brought by, and 
 in the name of, the executor and administrator of the person 
 deceased," and in every such action the jury may give such 
 damages as they may think proportioned to the injury resulting 
 from such death to the parties respectively for whom and for 
 whose benefit such action shall be brought ; and the amount so 
 recovered, after deducting the costs not recovered from the 
 defendant, shall be divided amongst the before-mentioned parties 
 
 1 As to this, see White v. Spettique, = L. E. 8 Bx, 88 ; 42 L. J. Ex. 53 ; 28 
 13 M. & W. 603. L. T. 197 ; 21 W. E. 409. 
 
 2 (1808) I Campb. 493. 
 
164 THE LAW OF NEGLIGENCE. [book i. 
 
 in such sliares as the jury by their verdict shall find and direct. 
 This section was amended by 27 & 28 Vict. c. 95, s. i, which 
 provided that where no action was brought within six months 
 by the representative, then an action may be brought by persons 
 for whose benefit such action would have been brought if it had 
 been brought by the personal representative. By section 2, it is 
 provided that the defendant may pay money into court in one 
 sum without specifying the shares into which it is to be divided. 
 
 By section 3 of the principal Act (9 & lO Vict. c. 93) "not 
 more than one action shall lie for and in respect of the same 
 subject-matter of complaint," and " every such action shall be 
 commenced within twelve calendar months after the death of 
 such deceased person.'"' 
 
 Section 4 requires the plaintiff on the record to deliver full 
 particulars of the person or persons on whose behalf any action 
 shall be brought and of the nature of the claim made ; and 
 section 5 defines the word parent as used in section 2 as 
 including respectively father and mother, grandfather and grand- 
 mother, stepfather and stepmother ; and the word child as 
 including son and daughter, grandson and grand-daughter, and 
 stepson and step-daughter. 
 ' legal pi-in- The first point that arose under the Act was to determine by 
 
 mMmg th?' what legal principles the right to compensation should be governed 
 vensJion^' ^^^ determined. In the earliest reported case under the Act, 
 under the Act. Armsworth V. South-Eastern Eailway Company,' this question 
 Parke, B.,'s occupied the attention of Parke, B. He is reported as saying: 
 Armswortliv. " Tou cannot estimate the value of a person's life to his relatives. 
 Ia,iiway'^°'^™ ^o ^um of money could compensate a child for the loss of its 
 Company. parent; and it would be most unjust if, whenever an accident 
 occurs, juries were to visit the unfortunate cause of it with the 
 utmost amount which they think ' an equivalent for the mischief 
 done.' Here you must estimate the damage by the same principle 
 as if only a wound had been inflicted. Scarcely any sum could 
 X30mpensate a labouring man for the loss of a limb, but yet you 
 don't in such a case give him enough to maintain him for life • 
 and in the present case you are not to consider the value of his 
 existence as if you were bargaining with an annuity office, for in 
 that view you would have to calculate all the accidents which 
 might have occurred to him in the course of it, which would 
 be a very difficult matter. I therefore advise you to take a 
 reasonable view of the case, and give what you consider a fair 
 .compensation." 
 
 The main principle that seems tp be laid down thus far is that 
 ' (1847) n Jur. 758. 
 
PARTI.] LORD CAMPBELL'S ACT. 165 
 
 the compensation is to be governed by a consideration of what 
 the man himself would be entitled to if he were alive and suing, 
 and not his representatives. This, then, would involve a com- 
 pensation for pain and suffering, but would exclude a payment 
 for wounded feelings due to the death. In many cases — as, for 
 instance, when the deceased worked for a weekly wage — ^it would 
 be identical with the loss of wages, with a deduction to meet the 
 contingency of the means of earning wages being defeated by 
 other circumstances, but plus the pain and suffering during a 
 long illness and expenses. In cases of instant death it would 
 admit the loss of wages as far as the survivors had expectation of 
 benefit from them only, subject, as before, to contingencies that 
 might have prevented their being earned. In cases where the 
 deceased was in possession of an income from invested property, 
 it would seem to give compensation for pain and suffering, biit 
 for nothing further. The case of a man with a fixed annual 
 income — a pension, say — terminable by death alone, could not 
 possibly be met " by the same principle (of assessing damage) as 
 if only a wound had been inflicted," as far as the death affected 
 the surviving relatives. The test suggested was therefore ob- Parke, B.,'s 
 viously inadequate, as far as it professed to be positive, in so much q^ate. 
 as it did not clearly discriminate between the principle of damages 
 applicable under the Act and the general principles of damages in 
 the case of actions for personal injuries, and between the different 
 position the plaintiff is placed in when suing for the death of 
 another under the Act, and the case of a plaintiff in an ordinary 
 action of personal injury suing foi^ damages to himself, with regard 
 to the kind of damage that they respectively sustain. In its 
 negative aspect it indicates that the loss to the survivors in the 
 inclusive meaning of the term, embracing as well the sentimental 
 affections as the pecuniary interests, could not be the right 
 principle, and thus tends to eliminate one uncertain element. 
 The inclusion of sentimental regards as matter for compensation 
 was, however, contended for, in the next reported case, by Sir 
 Frederick Thesiger before Pollock, O.B.,'' in the Court of Ex- 
 chequer; but the- Lord Chief Baron there rejected evidence 
 tending to shew circumstances that accentuated the loss, but did 
 not go to pecuniary loss. " It is," said he, " a pure question of 
 pecuniary loss, and nothing more, which is contemplated by the 
 Act, no matter who or what the survivors may be." " The P^oi^ioe^'O.B./s 
 meaning of this enactment is this : — If a man's life be valuable Giiiiard ». 
 
 ,.„.,, „, , . , -J. T.- i .!„ Lancashire and 
 
 to his family by reason of his possession of an annuity, nis lamuy Yorkshire 
 have now a right to say, ' We have lost the life on which this ^^^^^^y 
 
 ^ Gtilliard v. Lancashire and Torkehire Bailway Company (1848), 12 L. T. N. S. 356. 
 
166 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Modified in 
 Pym V. Great 
 Northern 
 Bail way 
 Company. 
 
 Blake ». 
 Midland 
 Bailway 
 Company. 
 Direction of 
 Parke, B. 
 
 annuity hung,' and they may claim compensation for that loss, 
 but nothing more; they cannot enter into the question of the 
 shock to their feelings.'" 
 
 This opinion was to some extent subsequently qualified by 
 Pollock, O.B., in Pym v. Great Northern Eailway Company, 
 where he says : — " I am not prepared to say that what is imputed 
 to me in Gilliard v. Lancashire and Yorkshire Eailway Company 
 is correct law — namely, that the statute enables the family ' to 
 recover that which the deceased would himself have sued for 
 had the accident not terminated fatally ' ; probably the case of a 
 tenant for life of a large landed property was not within my 
 contemplation. I agree, however, in the doctrine that the damage 
 must be given for pecuniary loss alone." 
 
 The two cases we have -already considered were rulings at 
 Nisi Prius: the question of what elements were to enter into 
 the assessment of damage under Lord Campbell's Act was raised 
 before the Court of Queen's Bench in Blake v. Midland Eailway 
 Company.^ At the trial, Parke, B., told the jury that " he 
 thought there was great diflSculty in fixing any measure but that 
 of pecuniary injury, but that, if they considered the plaintiff 
 entitled to any compensation for the bereavement she had sus- 
 tained beyond the pecuniary loss, they were to make their estimate 
 accordingly." As a mode of estimating the pecuniary' loss, the 
 learned judge suggested to the jury to take as much of the 
 annual income as a wife living with her husband, and main- 
 tained according to her station in life, might be supposed to 
 enjoy, and, considering this as an annuity, to reckon its value 
 at so many years' purchase as it was worth reference being made 
 to the ages of the husband and wife ; then to deduct any sums 
 the wife might be entitled to by reason of the death of the 
 husband, and to award the balance as compensation under the 
 statute. It was objected that allowance was not made for con- 
 tingencies which might lessen the annual amount supposed to be 
 enjoyed by the wife during the husband's lifetime; and the 
 learned judge admitted these should be considered, although they 
 were very difficult to estimate. The jury found a verdict for the 
 plaintiff. A new trial was moved for, on the ground, first, that 
 the damages, if calculated on pecuniary loss alone, were excessive, 
 and that the jury had not been directed with sufficient exactness : 
 
 1 Sir Frederick Tbesiger, in sLewing 
 cause in Blake «. JUidlaiid Eailway Com- 
 pany, remarked on this ruling of the Chief 
 Baron : " The learned judge entertains 
 views which may probably be deemed 
 peculiar on the subject of compensation 
 for personal suffering. When at the bar, 
 
 his lordship, as counsel for the plaintiff in 
 Carpue u. London and Brighton Eailway 
 Company, avowedly withdrew from con- 
 sideration as a subject of damages the 
 bodily suffering which the plaintiff had 
 undergone." 
 = (1852) 18 Q. B. 93 ; 21 L. J. Q. B. 233. 
 
PART I.] LORD CAMPBELL'S ACT. 167 
 
 secondly, that they should have been expressly directed to take 
 nothing into consideration in the assessment of damages but actual 
 pecuniary loss. A considered judgment was delivered by Coleridge, Judgment o{ 
 J. He clears away the di£Sculty of those cases not provided for BrndTa™'" 
 by the rule as originally laid down by Parke, B.,' where the ^'^f'^^.^^yj 
 deceased suffered in a long illness, and where, if the measure of 
 damages was what would have been a fair compensation " to 
 the deceased, damages would have been recoverable for the pain 
 and suffering, by the observation : " This Act does not transfer 
 a right of action to the representative, but gives to the repre- 
 sentative a totally new right of action on different principles."^ 
 The measure of damages is defined to be, " not the loss or suffering 
 of the deceased, but the injury resulting from his death to his 
 family." The conclusion of the Court was " that the learned 
 judge at the trial ougtt more expUcitly to have told the jury 
 that in assessing the damages they could not take into consideration 
 the mental suffering of the plaintiff for the loss of her husband, 
 and that, as the damages certainly exceeded any loss sustained by 
 her admitting of a pecuniary estimate,^ they must be considered 
 excessive." 
 
 The next point that was raised was whether the pecuniary Question 
 loss accruing to the plaintiff from the death for which he sued damages must 
 must arise from an actual legal obligation, or whether it was j^^^°''^^g? *° 
 sufficient to shew a reasonable expectation of pecuniary benefit, from actual 
 In Franklin v. South-Eastern Eailway Company,^ the plaintiff, who tion, or 
 was old and infirm, had received assistance from his son to the ^ggonabie 
 extent of ^s. 6d. a week. The son was killed by the negligence expectation 
 
 "^ . , of pecuniary 
 
 of the defendants, and the father brought an action for compensa- benefit shouia 
 tion for his death. Bramwell, B., left to the jury whether the ^ntiin^f' 
 plaintiff had a reasonable expectation of any, and what, pecuniary |°"i'^^^*^'®™ 
 benefit from the continuance of the life of the deceased. The Company, 
 jury foimd for the plaintiff. On the argument of a rule that was 
 obtained to shew cause why there should not be a new trial, the 
 Court delivered a considered judgment making the rule absolute, but 
 on the ground that the damages were excessive alone. On the 
 
 1 Armsworth v. South-Eastern Eailway ' The Scotch law, which was referred 
 Company, 1 1 Jur. 758. to in the argument, is different from the 
 
 2 In Senior v. Ward, I E. & E. 385, English, and admits of a solatium for 
 at p. 393, Lord Campbell, delivering the wounded feelings, and also, it would appear, 
 judgment of the Court, said : " We con- for the pain and suffering inflicted on the 
 ceive that the Legislature, in passing the deceased : Bvsk. Inst. 592, note 13 ; Bell's 
 statute on which this action is brought, in- Principles of the Law of Scotland, p. 749; 
 tended to give an action to the representa- Bow v. Brown, 6 D. 534 ; Neilson v. 
 tives of a person killed by negligence Kodgers, 16 D. 525 ; Howat or Auld 
 only where, had he survived, he nimself, v. Shai^, 2 E. 191 ; M'Master 0. Cale- 
 at the common law, could have main- donian Eailway Company, 23 Sc. L. B. 
 tained an action against the person guilty 181. 
 
 of the alleged negligence." ■• (1858) 3 H. &N, 21 1, 4 Jur. N. S. 565. 
 
168 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Bramall v. 
 Lees. 
 
 Dalton V. 
 
 South-Basteru 
 
 Eailway. 
 
 fnueral and 
 mouTuiug 
 expenses not 
 allowed. 
 
 Duckworth v, 
 Johnson. 
 
 question as to what was the right direction, the summing up of the 
 judge at the trial was upheld. Pollock, C.B., said : " We do not 
 saythat it was necessary that actual benefit should have been derived 
 — a reasonable expectation is enough ; and such reasonable ex- 
 pectation might well exist though, from the father not being in 
 need, the son had never done anything for him." 
 
 The view adopted in this case had previously been acted upon 
 by the same Court in the very much stronger case of Bramall v. 
 Lees.' A chemist by mistake for tincture of rhubarb sent 
 laudanum, which was administered to a child, and caused death. 
 The child was only twelve years old. At the trial of the action 
 brought, in consequence, under Lord Campbell's Act, it was 
 proved that at the time of the administration of the laudanum 
 the child was Uving at home getting nothing, and was pecuniarily 
 a burden to its parents. The plaintiff, however, obtained a 
 verdict ; Crompfcon, J., at the trial, having expressed doubts as 
 to whether the plaintiff could recover, a rule was moved for, 
 and granted, as stated by Pollock, C.B., " not so much on the 
 doubt the Court entertain, as from the importance of the question, 
 and there having been, undoubtedly, a view taken by the learned 
 judge which, I believe, he does not now entertain." The rule was, 
 however, afterwards abandoned.^ 
 
 The Common Pleas, in Dalton v. South-Bastern Railway,^ ex- 
 pressed its " entire concurrence " with the judgment of the Court 
 of Exchequer in Franklin v. South-Eastern Railway Company, 
 that " legal liability alone is not the test of injury in respect 
 of which damages may be recovered under Lord Campbell's Act." 
 As to a further question, whether the expenses of the funeral 
 and mourning should be allowed, the Court said : " The subject- 
 matter of the statute is compensation for injury by reason of 
 the relative not being alive ; and there is no language in the 
 statute referring to the cost of the ceremonial of respect paid 
 to the memory of the deceased in his funeral or in putting on 
 mourning for his loss." 
 
 The question of " reasonable expectation " was again before the 
 Court of Exchequer in Duckworth v. Johnson.' A father sued 
 for damages for the death of his son, aged fourteen years, caused 
 by the defendant's negligence. Two years and a half before the 
 
 1 29L. T. 0. S. III. 
 
 2 29 L. T. 0. S. 166. 
 
 3 (1858)40. B.N. S.296;27L. J. C.P. 
 227. 
 
 « (1859) 4 H. & N. 653 ; 29 h. J. 
 Ex. 25. Condon v. Gre.it Southern and 
 Western Eailway Company, 16 Ir. C. L. R. 
 415, is a very similar case, A widow 
 sued for damages upon the death of her 
 
 son, a boy of fourteen, who had never 
 e.arned wages, but whose capabilities were 
 valued at sixpence a day. The Irish 
 Court of Exchequer held that the pro- 
 bability of his earning more and devoting 
 part of his earnings to his mother is 
 evidence to go to the jury upon the ques- 
 tion of damages ; also that his past filial 
 conduct is evidence. 
 
PARTI.] LORD CAMPBELL'S ACT. 169 
 
 accident tbe boy earned 4s. a week, but at the time he was 
 killed lie was not in any employment. A verdict was given 
 for plaintiff. The Court refused a new trial, on the ground that 
 the question of value to the father was a matter to be submitted 
 to the jury. In this case the test is stated as being whether 
 there is " some evidence of a prospect of benefit." Bramwell, B., 
 however, expressed reluctance to leave so wide an issue to the 
 jury, " for, if the jury are solely to judge in such matters in 
 every case where a child is killed, it will be difficult to prevent 
 them from giving damages by way of solatium, whereas, if the 
 plaintiff is compelled to give evidence of the value of the child's 
 services and the cost of maintaining him, it might keep the 
 matter straight and prevent injustice being done."' 
 
 In Pym v. Great Nqrbhern Railway^ the facts proved at the Pym »• Great 
 trial shewed that the deceased was a man of considerable saiiway. 
 landed property, which, by his death, went in greatest part to his 
 eldest son. The property was thus left undiminished by his 
 death, though the method of its distribution amongst his 
 surviving relatives was altered. An objection was taken, that 
 since, had death not ensued from the effects of the accident, 
 deceased could have had no right of action against the defendants Eight of action 
 in respect of a pecuniary loss, arising only on his death, the continuancB 
 action could not be maintained by his representatives, whose right '^^^^^ ^ 
 was a mere continuance of that which would have accrued to the 
 deceased if he had lived. This was thus met by Cockburn, C.J., 
 giving judgment in the Court of Queen's Bench : " The condition 
 that the action could have been maintained by the deceased if 
 death had not ensued, has reference not to the nature of the loss 
 or injury sustained, but to the circumstances under which the 
 bodily injury arose, and the nature of the wrongful act, neglect, 
 or default, complained of. Thus, if the deceased had, by his own 
 negligence, materially contributed to the accident whereby he lost 
 his life, as he, if still living, could not have maintained an action 
 in respect of any bodily injury, notwithstanding there might have 
 been negligence on the part of the defendants, the present action 
 could not have been supported." " But supposing the circum- 
 stances of the negligence to have been such that if death had not 
 ensued, the deceased might have brought an action in respect of 
 any injury arising to him from it; we are of opinion that his 
 representative may maintain an action in respect of an injury 
 
 1 Chapman v. Eothwell (1858), E. B. & E. 168, as far as relates to Lord Campbell's 
 Act, is merely a decision on a pleading point as to whether plaintiff, suing as adminis- 
 trator, conld recover without express allegation of pecnniary damage. 
 
 2 (1862) 2 B. & S. 7S9, 4 B. & S. 396; 31 L. J. Q. B. 249, 32 L. J. Q. B. 377 ; 
 6 L. T. N. S. 537 ; 10 W. R. 737, 11 W. E. 922. 
 
170 THE LAW OF NEGLIGENCE. [book i. 
 
 arising from a pecuniary loss occasioned by the death, althougli 
 
 that pecuniary loss would not haye resulted from the accident tg 
 
 the deceased had he lived." ' 
 
 Right of action But, assuming there was a right of action, it was contended 
 
 benefit of a, that, as the deceased was possessed of a fortune, which would not 
 
 class but of 133 diminished by his death, but which passed to the class of 
 
 inaividuals. . •' ' ^ 
 
 relatives whom the statute meant to protect, there was no loss 
 caused by his death. The short answer to this, as given in the 
 Exchequer Chamber, was, that the remedy was given, not to a 
 class, but to individuals, and therefore those of the class who 
 sustained actual pecuniary loss might sue, notwithstanding that 
 others of the class had been large pecuniary gainers by the death. 
 
 The principle. "The principle which governs, these cases" is thus stated by 
 Brie, C.J., delivering the judgment of the Exchequer Chamber : 
 "To consider whether there was evidence of a reasonable proba^ 
 bility of pecuniary benefit to the parties if the death of the 
 deceased had not occurred ; and was it lost by reason of that death, 
 caused by the wrongful act, neglect, or default of the defendants ? 
 If this were so, then there is a case which the judge must leave 
 to the jury." ^ 
 
 Distinction A distinction was drawn in Boulter v. Weblster^ between ex- 
 
 between ex- , . . 
 
 penses caused penses caused oy the injury and by the death. Dalton v. South- 
 andbyTiJe'^ Eastern Railway* had declared that a claim for funeral expenses 
 death. could not be maintained. In Boulter v. "Webster it was sought 
 
 to substantiate a claim for medical expenses incurred during the 
 illness of the child consequent upon the accident, but the Court 
 refused to entertain the claim, and, in addition, ruled that the 
 damages recovered under the Act must, in all cases, be in the 
 nature of special damage, and that no action could be maintained 
 upon the Act for merely nominal damages. 
 
 This is consistent with the Irish case of Condon v. Great South 
 and Western Railway,' where it was suggested that any service, 
 however small, such as might, if rendered by a daughter to a 
 parent, enable the parent to sustain an action for her seduction, 
 would constitute a suflacient ground to entitle the plaintiff to 
 damages under Lord Campbell's Act. But the Court refused to 
 give "any sanction to that argument," and added: "Between 
 
 ' In Sewavd v. Vera Cruz, lo App. ^ = 4 B. & S. 396, at p. 406, compnre 
 
 Gas. 59, at p._ 70, Lord Blackburn de- Beckett v. Grand Trunk Railway .Com- 
 
 scnbed the action under Lord Campbell's pauy, Ontario Reports, 13 A. E 174 • and 
 
 Act "as an action which is new in its St. Lawrence and Ottawa EailwavCom- 
 
 speoies new in its quality, new in its pany ij. Lett, 11 Canada S. C 1? 42' 
 
 principle, m every way new, and which » (1865) 1 1 L. T. N S w8 
 
 can only be brought if there is any person '' 4 C. B. N. S. 296 ■ "27 L J C P 
 
 answering the description of the widow, 227. • y 1 / 
 
 parent, or child, who under the circum- 5 (1865) 16 Ir. C. L R aik 
 
 Stances suffers pecuniaiy loss by the death." ' * ' ^ ■'■ 
 
PARTI.] . LOED CAMPBELL'S ACT. 171 
 
 the small apmoimt of service which may be suflScient in many cases 
 to save the plaintiff from a nonsuit on the technical ground on 
 which an action for seduction is held sustainable without some 
 proof of actual services shewing that the female, who had been 
 seduced, was, at the time of the seduction, the plaintiff's servant, 
 and the pecuniary loss which must be proved in an action under 
 Lord Campbell's Act, there is no sort of analogy." 
 
 This doctrine was further expanded in two Irish cases, Bourke Bourke «. 
 V. Cork and Macroom Railway Company,' and HoUeran v. Bagnell.^ Maoroom 
 In the former case the father, a respectable tradesman, whose 5*'^^*^ 
 
 . (. . . Company. 
 
 position made him independent of any earnings his son might 
 have afterwards been competent to gain, sued for the damages for 
 the death of the son caused by the defendants' negligence, but 
 the Exchequer Division held him not entitled to recover, on the 
 ground that, first, a reasonable expectation must be shewn that 
 profit would be made by the continuance of life, and, secondly, 
 there must also be a reasonable expectation that some part of the 
 profit so made would become the property of the person on whose 
 behalf damages are claimed either as of bounty or of right. 
 " Bridges v. North London Railway Company,"^ says Palles, C.B., 
 " and other cases decide that in determining the preliminary 
 question whether there is evidence to go to the jury in support of 
 any particular proposition, we must take notice of, and, to a 
 certain extent, act upon, the ordinary experiences of human life. 
 Acting upon this experience, my view is, that this boy would have 
 been more hkely a source of expense than of profit to his father. 
 But, be this as it may, it is clear that up to the moment of the 
 unfortunate occurrence in which he met his death he had never 
 contributed one sixpence to the support of the family. It is 
 equally clear that the position of the father was such as to put 
 him far beyond the necessity of resorting for his support or other- 
 wise to the earnings of his child. The case is one in which there 
 was no moral duty upon the part of the chUd to contribute any 
 portion of his earnings to the parent or family. 
 
 In the other case the child killed was about the age of seven, Holleran » 
 and the only evidence of pecuniary loss was that she had been in "^^ 
 the habit of rendering trifling household services. The language 
 of Morris, O.J., falls somewhat short of that used in some of the 
 cases, such as Bramall v. Lees, and Duckworth v. Johnson.'' But 
 he states once more what had again and again been laid down 
 " that the loss must be a pecuniary loss, actual or reasonably to 
 be expected, and not as a solatium." The Lord Chief Justice 
 
 1 (1879) 4 L. E. Ir. C. L, 682. 2 6 L. R. Ir. C. L. 333. 
 
 3 L. E. 6 Q. B. 337 ; L. R. 7 H. of L. 213. ■• 29 L. T. 0. S. iii ; 34 H. & N. 653. 
 
172 THE LAW OF NEGLIGENCE. [book i. 
 
 then adds a proposition, eminently reasonable in itself, but 
 which is not found in the English cases : " And there should be 
 distinct evidence of pecuniary advantage in existence prior to, 
 or at the time of, the death. This advantage must be a benefit 
 to the plaintiff." " There is no instance," says the learned judge, 
 "of an action for loss caused to a plaintiff by the death of a 
 person of the tender age of the deceased " — seven years. 
 Rule suggested The rule suggested by Morris, C.J., that there must be distinct 
 c!j., (SSssed. evidence of pecuniary advantage in existence prior to, or at the 
 time of, the death, interpreting the term "pecuniary advantage" 
 by the phrase subsequently used in the judgment, as meaning 
 "actual or reasonably to be expected," would go to meet the 
 difficulty pointed out by Bramwell, B., in Duckworth v. Johnson. 
 But the rule, as suggested, could scarcely be reconciled with a 
 case like Bram^U v. Lees, if that can be regarded as an authority, 
 for there, though the child was twelve years old, she had never 
 earned anything, and, beyond the mere fact that she was five years 
 older, there does not seem to have been any facts warranting the 
 drawing of an inference more in favour of her ability to earn than 
 in the case of Holleran v. Bagnell. 
 
 These two Irish cases however point out limitations to the 
 right to recover arising from the position of the father whereby 
 the earnings of the child, being applied to the father's benefit, is 
 rendered improbable; and secondly, from the situation of the child, 
 whereby the probability of there being earnings is rendered too 
 remote. 
 
 Assuming the Irish cases to be correctly decided, and, although 
 they diverge somewhat from expressions used in certain of the 
 English cases, they seem consistent with reason and principle, the 
 probability of earnings is a question to be determined by a mixed 
 consideration of the position of the parent and the age of the 
 child ; so that though a parent of assured position, independent 
 of assistance from his children, could in no case recover, in cases 
 where the position of the parent suggests the probability of resort 
 to the wage-earning faculties of the child, the precise age which 
 would found the reasonable expectation of advantage would 
 fluctuate within the limits of the class that look forward to the 
 wage-earning capacities of their children. In this event, too, the 
 disabilities imposed on the employment of children by the Educa- 
 tion Acts would have the indirect effect of limiting the power of 
 recovery under Lord Campbell's Act. 
 
 If the suggestion that there should be distinct evidence of pecu- 
 niary advantage in existence prior to or at the time of the death, 
 is not law, then it is impossible to say that the actual age of the 
 
PARTI.] LORD CAMPBELL'S ACT. I73 
 
 cliild is material to the existence of the right of action. 
 Suppose effect to be given to the probability of the happening of 
 the yarious contingencies which may prevent the child ever earn- 
 ing money. In the case of poor parents whose expectation is that 
 all their children will earn wages, and who are members of a 
 class the children of which are in the habit of earning wages at 
 the earliest moment and contributing towards the general house- 
 hold expenses for some years at least, the age of the child would 
 seem to be material only so far as it affects the actual present 
 value of the " reasonable expectation of pecuniary benefit." In 
 the case of a very young child the prospect of pecuniary benefit 
 is diminished only by the same causes that would be calculated in 
 ammity tables, and differs only from the case of an elder cliild by 
 the larger amount of deduction, that should be made in the one 
 case rather than the other, consequent upon these uncertainties. 
 
 If, then, the Irish cases are law, several expressions in the 
 English cases have gone beyond the strict rule ; if they are not 
 law, then the tender years of the child would seem immaterial, 
 except so far as it goes to the quantum of damages. 
 
 A somewhat different aspect of the same question was treated HetHenngton 
 in Hetheriugton v. North-Eastern Eailway Company,' where a^^^^t"^^' 
 father, fifty-nine years of age and infirm, sued for the death of a Eaiiway 
 son who had contributed to his support five or six years previously 
 while the father had been out of health, but had not done so 
 since. " I have always," said Field, J., " understood the rule 
 laid down by the decisions in such cases to be that there must 
 have been a reasonable expectation of pecuniary advantage to the 
 relation from the life of the deceased. The defendants' counsel 
 alleges that there is no evidence of any such reasonable expectation 
 in this case. I cannot come to that conclusion." 
 
 Sykes v. North-Bastern Railway Company,^ however, decided Sykes «. 
 that the benefit to the surviving relatives must be a pecuniary EaUway 
 benefit accruing from relationship ; and that where a father loses a Company, 
 son who from his skill is a valuable assistant to his business, for 
 which skill, however, he pays according to the market rate of 
 wages, he cannot claim damages under the statute for a loss that 
 is the result of the determination of the contract between them, 
 and is not a loss that arises out of the relationship between 
 them.' 
 
 ^ (1882) 9 Q. B. D. 160 ; SI L. J. Q. B. negligence of the defendant. It was held 
 495 ; 30 W. B. 797, a case under the Em- by Kelly, C.B., and Pigott, B. (Bramwell, 
 ployers' Liability Act, 1880. B., dissenting), that the plaintiff could not 
 
 ^ (187O 44 L. J. C. P. 191 ; 32 L. T. recover : first, because the common law 
 199 ; 23 W. R. 473. did not give such an action ; but, secondly, 
 
 , ^ The case of Osborn v. Gillett, L. E. 8 "We have the express declaration of the 
 .Ex. 88, was an action by a master for the Legislature, in Lord Campbell's Apt, that 
 death of his servant caused through the no action jies for damages sustained by 
 
174 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Eowley v. 
 Londou 
 and North- 
 western 
 Bailway 
 Company, 
 
 Kelly, O.B.,'s 
 summing up. 
 
 Errors alleged. 
 
 Annuity for 
 joint lives lost, 
 
 What elements constitute " pednniary loss" under Lord Oamp- 
 bell's Act was a subject much discussed in Eowley v. London 
 and North-Western Eailway Company,' argued in the Exchequer 
 Chamber on a bill of exceptions to the ruling of Kelly, C.B., at 
 Nisi Frius. 
 
 The plaintifE sued, for the benefit of the mother, wife, and 
 children of the deceased, for negligence in occasioning his death. 
 The mother was entitled to an annuity of ;£'200 during the joint 
 lives of herself and the deceased, secured by the personal cove- 
 nant of the deceased. 
 
 In summing up, the learned judge told the jury that " they 
 might, if they thought proper, calculate the damages which the 
 mother of the deceased was entitled to recover by ascertaining 
 what is the sum of money which would purchase an annuity of 
 ;£^200 for a person sixty-one years of age (the age of the mother) 
 according to the average duration of human life ; that, according 
 to the Carlisle Tables, it had been stated that the average 
 duration of the life of a man in good health and vigour who 
 had arrived at the age of forty years [the age of the deceased] 
 is twenty-seven years and a fraction ; and that they might, if 
 they thought proper, take as a guide in their calculations of the 
 damages recoverable for the wife and children that such was, 
 according to these tables, the probable duration of the life of a 
 man of forty years of age in the circumstances in which the 
 deceased was,'' 
 
 To this direction three errors were alleged in the exception^ 
 as far as they related to the case of the mother. First, that the 
 mother had lost an annuity for the joint lives of herself and her 
 son, and that an annuity for her own life only would be of con- 
 siderably greater value. The learned judge was admitted to have 
 been guilty of an oversight in not directing in accordance with 
 the suggestion in the exceptions, and the matter was treated on 
 all sides as an obvious slip, which must have been corrected had 
 it been pointed out. 
 
 the death of a human being, and the lan- 
 guage of the preamhle shews that it was 
 intended to include more than is provided 
 for by the operative enactments of the 
 statute." Bramwell, B., admitted the force 
 of the words, but disputed their applica- 
 bility. The editors of Broom's Legal 
 Maxims, 6th edit. pp. 868-9, submit that 
 the case is " no longer law." But one of 
 the chief "authorities, and reasoning upon 
 which the decision of Osborn v. Gillett 
 rests," is the preamble to Lord Campbell's 
 Act; and surely that " the present Lord 
 Bramwell disaented " is not sufficient ta 
 
 overrule the Court's interpretation of this. 
 See Appleby v. Franklin, 17 Q. B. D. 94. 
 See as to the view of Bramwell, B., Sulli- 
 van ». Union Paoifio Railway Company, 
 3 Dill, 334. There are American de- 
 cisions which hold that if a person, mor- 
 tally injured, survives but a moment and 
 suffers, a right of action accrues which 
 survives to the personal representative : 
 Mulchahey v. Washburn Car Wheel Com- 
 pany, I Am. St. E. 458, and note. 
 
 1 (1873) L. E. 8 Ex. 221 ; 42 L. J. 
 Ex. IS3 ; 29 L. T. N. S, 180; 21 W. E. 
 869. 
 
PAETi.] • LORD CAMPBELL'S ACT. I75 
 
 Second, that the value of an annuity, according to the evidence Value of 
 given, would be that of an annuity on an average life, and that averagi Wer 
 the jury ought to have been told to make an allowance for any 
 defect in the health of the life. Blackburn, J., delivering the 
 judgment of the majority of the Court,' upholding the learned 
 judge's direction, on this point said : " The particular life on which 
 an annuity is secured may be unusually healthy, in which case the 
 value of the annuity would be greater than the average ; or it 
 may be unusually bad, in which case the value would be less 
 than the average ; .... we think the jury might properly be 
 directed to consider the lives in question as average lives unless 
 there was some evidence to the contrary ; and if there was 
 evidence to the contrary, the party excepting ought to have placed 
 it on the bill of exceptions." That is, there being evidence of 
 damage to go to a jury, it is not a misdirection to tell them they 
 must assume it is a normal and not an abnormal case. Honey- 
 maa, J., however, dissented from this, but without giving ♦ 
 
 reasons. 
 
 Third, that the value of the annuity spoken to in the evidence Value must be 
 was the value of an annuity on Government or other very good ment or other 
 security, and that the annuity lost was that secured by the Jeomi^y"* 
 personal covenant of the deceased, and therefore of much less 
 value. This also was allowed. 
 
 There was also an exception that the learned judge should Further 
 not have directed the jury that "they might, if they thought to the probable 
 proper, take as a guide, in their calculation of the damages man's Me°^ ^^^ 
 recoverable for the wife and child of the deceased, that the 
 probable duration of the life of a' man of forty years in 
 the circumstances in which the deceased was is twenty-seven 
 years according to the Carlisle Tables." Blackburn, J., and Majority of 
 the majority of the Court construed the meaning of the judge, J^^^'l?^'^' ^^^^ 
 in thus directing the* jury, that this was an element to be babie duration 
 taken into consideration by the jury with the rest of the evidence ; tufa's "w^on 
 and, if so, it was unexceptionable. Brett, J., however, dissented, cin'sfderation'^ 
 on the ground that the invariable direction to juries from the °t *s jury. 
 time of the earliest cases on the statute until now has been " that dissent.' 
 they must not attempt to give damages to the full amount of a 
 perfect compensation for the pecuniary injury, but must take a 
 reasonable view of the case, and give what they consider under 
 all the circumstances a fair compensation." He then continues : 
 " I have a clear conviction that any verdict founded on the idea 
 of giving damages to the utmost amount which would be an 
 equivalent for the pecuniary injury would be unjust. Pounding 
 
 ^ Blackburn, Keating, Grove, and Archibald, JJ. 
 
176 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Grounda of 
 Brett, J.,'s 
 dissent 
 discussed. 
 
 my opinion of it by Parke, B.,' and on the ordinary directions of 
 judges, wHch directions have not been for years challenged, I 
 conclude that the direction that I have enunciated is the legal, 
 and only legal, direction. A direction that leaves it open to the 
 jury to give the present value o£ an annuity equal in annual 
 amount to the income lost for a period supposed to be equal to 
 that for which it would have continued if there had been no 
 accident is a direction, as it seems to me, leaving it open to 
 a jury to give the utmost amount which they think is equivalent 
 for the pecuniary mischief done, and such a direction is a mis- 
 direction according to law."^ Brett, J., was therefore of opinion 
 that evidence of the present value of an annuity was " necessarily 
 misleading and legally irrelevant," and should not have been 
 admitted. 
 
 The reason why the direction which Brett, J., sets out is 
 usually giyen in the class of cases to which it is applicable is 
 that, as a rule, the injuries inflicted do not aiford material for a 
 precise valuation. This appears from what Parke, B., says in the 
 case to which Brett, J., refers,' " for in that view yon would have 
 to calculate all the accidents which might have occurred to him 
 in the course of it, which would be a yery diflficult matter." And 
 so, from the very complexity of the calculation, the estimation of 
 an annuity would be impracticable. In the case of a man losing 
 his arm, the objections to valuing the arm at an annuity value 
 would imply, besides the ordinary valuation of casualties of life 
 and death, considerations of the rate of wages, the disposition to 
 work, opportunities for work, and a thousand other incommen- 
 surable quantities. But the case is far otherwise when a life to 
 which an annuity is attached, and which annuity marks the sole 
 money value of the life to the plaintiff, is terminated by an acci- 
 dent; then the only material circumstances in arriving at an 
 estimate of the loss are those which tend to shorten or prolong 
 
 1 ArmBworth v. South-Eastern Kailway 
 Company, ii Jur. 758. Reference to the 
 case will shew that Farke, B.,wa8 speaking 
 of " an equivalent for the mischief done," 
 in the sense of full compensation, not only 
 for actual loss, but for injured feeling. 
 E.g., " No sum of money could compensate 
 a child for the loss of its parent." This 
 is even more obvious fi'om the sentence, 
 "Scarcely any sum could compensate a 
 labouring man for the loss of a fimb." If 
 it were merely the calculation of the money 
 loss, this would not be true. The Nid 
 PriioB ruling of Farke, B., and the con- 
 sidered judgment of Brett, J., oscillate 
 between the two meanings. 
 
 * Another consideration in favour of the 
 
 rule he considered was layv is thus stated 
 by Brett, J. , in an earlier part of the same 
 judgment: — "If juries do give such 
 damages, poor defendants will be ruined, 
 and the defendants most liable to such 
 actions will not be able to carry on their 
 business upon the same terms 'Ut the pub- 
 lic as now." Are, then, rich wrong(kerB 
 to be more lightly dealt with that poor 
 wrongdoers may not suffer beyond mea- 
 sure ? or is the fear that large employers 
 " will not be able to carry on their busi- 
 ness upon the same terms to the public as 
 now " a legal deterrent from pecuniary 
 compensatory damages? 
 
 ' Armsworth v. Soath-Eastem Bailway 
 Company, 11 Jur, 75?. 
 
PART I.] LORD CAMPBELL'S ACT. 177 
 
 life. Apart from this, the opportunities or tendencies of the 
 deceased a^e irrelevant ; in fact, the elements are exactly those 
 which are considered by a life assurance company in each indi- 
 vidual case. Sometimes the result is an excess ; sometimes a de- 
 fect ; in the long run a " fair compensation." By the death the 
 survivors are not deprived of an uncertain sum, but, assuming 
 the annuity is well secured, of a certain sum, and the only ques- 
 tion is for what length of years. If the rule of Brett, J., wei-e 
 adopted in such a case, the jury would have to estimate the 
 money loss by mere guess-work, and would not be allowed to 
 refer to facts which would go far to define the limits of their 
 inquiries. But it is quite possible in many cases this might be 
 more injurious to " poor defendants " than the reference of the 
 damages to an ascertained standard. At any rate, in cases where 
 it could be shewn that «the life in question was worse than the 
 average, Brett, J.,'s principle would seem to be the exclusion of a 
 more certain mode .in order to admit one more vague and lending 
 itself more to the extravagant sympathies of juries. The evidence, 
 as decided by Blackburn, J., and the majority, is an element — it 
 may be an important element, but still merely an element — ^in the 
 appraising of damages, but the exclusion of it would be ignoring 
 a sign-post and trusting to sheer conjecture. The difference 
 between that compensation for a loss which puts the injured party 
 in the same position as he would have been in had the accident 
 not occurred, with all the possibilities of the future untouched 
 (e.g., for a clergyman the Archbishopric, for a barrister the 
 Chancellorship, for a merchant the prospects of being a millionaire, 
 for a politician a seat in the Cabinet), and the compensation for a 
 loss that gives the present worth as nearly as it may be estimated 
 subject to all deductions (e.g., the probability of the non-con- 
 tinuance of life, or the cessation of profitable employment in any 
 way), is plain in itself, and admirably illustrated by the judgment 
 of Alderson, B., in Jones v. Gooday.' Indistinctness in dis- 
 crimijaating the two principles of estimation is often the ground 
 of confusion ; but when they are distinguished, it is clear that 
 the foriner cannot be the measure of damages, and that everything 
 that can more clearly define the constituents of the latter is of 
 value as an approximation to the actual sum that should be given 
 in the individual case. 
 
 In the celebrated case of Phillips v. London and South-Westem 
 Eailway Company,^ which came twice before the Court of Appeal 
 on the question of the assessment of damages, the case of Rowley 
 
 1 8 M. & W. 146, 
 
 = S C. P. D. 280 ; 49 L. J. C. P. 233 ; 44 L. T. 217 ; on the first appeal, 5 Q. B. D. 
 78 ; 49 L. J. Q. B. 233 ; 41 L. T. 121 ; 28 W. B. 10. 
 
 M 
 
178 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 V. London and North- Western Eailway Company was considerably 
 discussed, and, in giving judgment on the second appeal, Brett, L. J., 
 thus expressed himself : — " It was in effect decided in Eowley v. 
 
 Brett, L.J.,' 
 y\tsw of the 
 effect of 
 
 NorttVestem London and North-Westem Eailway Company that it is a miS' 
 
 Eailway 
 Company iu 
 Phillips V. 
 london and 
 South- 
 western 
 Eailway 
 Company. 
 
 direction to tell the jury they ought to try to give a perfect com- 
 pensation The Court of Exchequbr Chamber were of 
 
 opinion that this attempt to give a nearly perfect compensation 
 was wrong, because a jury must necessarily leave out a multitude 
 of circumstances which they ought to take into consideration in 
 order to estimate a perfect compensation, but which no human in- 
 genuity and no evidence could bring before them. We are there- 
 fore bound by a decision of the Court of Exchequer Chamber." 
 We are therefore bound to see what the actual decision of the 
 Exchequer Chamber in that case was. Of the decision there are 
 four reports,^ and, as the judgments were written judgments, the 
 four reports practically coincide. The reports give the learned 
 Chief Baron's summing up as directing "that according to the 
 Carlisle Tables it had been stated that the average duration of the 
 life of a man in good health and vigour who had arrived at the 
 age of forty years is twenty-seven years and a fraction ; and that 
 they might, if they thought proper, take as a guide, in their 
 calculations of the damages recoverable for the wife and children, 
 that such was, according to these tables, the probable duration of 
 the life of a man of forty years of age in the circumstances in 
 which the deceased was." Blackburn, J., giving the judgment of 
 the majority,^ disallowed the exception that was taken to this. 
 " We think that this cannot be construed as meaning more than 
 that this was an element to be taken into calculation by the jury 
 with the rest of the evidence ; and, if so, it is unexceptionable." 
 Brett, J., dissented, as the direction left " it open to a jury to 
 give the utmost amount which they think is equivalent for the 
 pecuniary mischief done, and such a direction is a misdirection 
 according to law. ^nd such, in my opinion, was the direction in 
 the present case of the Lord Chief Baron."^ Brett, J.,'s view 
 did not prevail. But, further, this statement of the law by 
 Brett, J., was called in question in the appeal on the first trial 
 in Phillips v. London and South-Western Eailway Company." 
 Brett, L. J., sitting as a member of the Court] there asks Sir John 
 Holker during the argument, " What do you say would have been 
 the correct direction to the jury in Eowley's case ? " The answer 
 was that the jury must take into account the value of an annuity 
 during the joint lives of the covenantor and covenantee, having 
 
 1 L. E. 8 Ex. 221 ; 42 L. J. Ex, 153 ; 29 L. T. 180; 21 W. R. 869. 
 
 2 L. E. 8 Ex. at p. 228. 3 At p. 231. « 5 ,Q. B. D. 79. 
 
PAETI.] LORD CAMPBELL'S ACT. 179 
 
 regard to the mode in whicli it was secured, and to all the circum- 
 stances of the covenantor. And James, L. J., subsequently says : 
 "The proper direction to the jury, as it seems to me, would have 
 been to tell them to calculate the value of the income as a life 
 annuity, and then make an allowance for its being subject to the 
 contingencies of the plaintiff retiring, failing in his practice, and 
 so forth." And presently, turning to the facts of the case before 
 him, the Lord Justice said : "I think that what Field, J., meant 
 to say was : ' So far as the injury results in actual pecuniary loss, 
 you must give the plaintiff full compensation for that loss ; but 
 so far as he is entitled to damages for the suffering of being made 
 a helpless cripple, you cannot proceed upon the principle of making 
 full compensation.' " And in giving the judgment of the Court, in 
 which Brett, L.J., concurred without adding anything,- James, L.J., 
 says : " You are to consider what his income would probably have 
 been, how long that income would probably have lasted, and you 
 are to take into consideration all the other contingencies to which 
 a practice is liable." 
 
 In the second case in the Court of Appeal, Bramwell, L.J., Bramwoii, 
 very clearly expresses the same view: "I have tried as judge ' '' 
 more than a hundred actions of this kind, and the direction 
 which I, in common with other judges, have been accustomed 
 to give to the jury has been to the following effect : — ' You 
 must give the plaintiff a compensation for his pecuniary loss, 
 you must give him compensation for his pain and bodily suffer- 
 ing. Of course, it is almost impossible' for you to give to 
 an injured man what can be strictly called a compensation,^ 
 but you must take a reasonable view of the case, and must 
 consider, under all the circumstances, what is a fair amount to 
 be awarded to him.' I have never known a direction in that 
 form to be questioned. I may take the common case of a 
 labourer receiving an injury which has kept him out of work for 
 perhaps six months. His evidence may be that before the time 
 of the accident he was earning twenty-five shillings a week, that 
 during twenty-six weeks he has been wholly incapacitated from 
 work, that for ten weeks afterwards he has been able to earn 
 only ten shillings a week, and that he will not get into full 
 work again for twenty weeks. The plaintiff will be entitled to 
 twenty-five shillings for each of the twenty-six weeks, and to 
 fifteen shillings for each of the ten and twenty weeks.^ He is 
 
 ^ The Lord Justice does not say that it ^ I.e., to restore to him the possibih'ties 
 
 is not legal, and that the elements which of the future. 
 
 would enable an approximation to it are ' There must be deducted from this, 
 
 not admissible evidence ; lie says merely, however, to make it strictly and theoreti- 
 
 it is " almost impossible " to do so. cally correct, the possibility of some occur- 
 
180 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 ConcIuEions i 
 to Brett, J.,'t 
 contention. 
 
 Effect of 
 insurance 
 upon a claim 
 under Lord 
 Campbell's 
 Act. 
 
 also entitled to some amount for his bodily sufferings and for Ms 
 medical expenses ; and in tMs manner the compensation to be 
 IS awarded to him is estimated." The weight of authority is 
 therefore against Brett, J., in holding, first, that the fully calcu- 
 lated equivalent of the pecuniary loss sustained by the person on 
 whose behalf the action is brought cannot be recovered — that 
 is, understanding by an equivalent for pecuniary loss the sum 
 that represents the present worth as nearly as it may be 
 estimated, subject to all deductions ; e.g., the probability of the 
 non-continuance of life, or the cessation of its profitable employ- 
 ment in any way. Secondly, it is again against Brett, J.,'s 
 proposition that a direction that leaves it open to the jury to give 
 the present value of an annuity equal in annual amount to the 
 income lost for a period supposed to be equal to that for which 
 it would have continued, if there had been no accident, is a mis- 
 direction. It would, however, seem to be a misdirection to leave 
 the matter to the jury without a caution to them that the tender 
 of evidence of the present valae of the annuity can be construed 
 as meaning no more than that this was an element to be taken 
 into calculation by the jury with the rest of the evidence. And, 
 thirdly, it negatives Brett, J.,'s remaining proposition that any 
 evidence given solely for the purpose of enabling a jury to make 
 a calculation as to annuity value, with a view to damages, is 
 inadmissible. 
 
 The pecuniary loss caused to the relatives from failure of a 
 life income by reason of death is often lessened, or prevented 
 altogether by an insurance having been effected on the life of the 
 deceased. In Bradburn v. Great Western Railway," a case 
 under the general law of negligence, Bramwell, B., expressed 
 himself " dismayed " at the proposition that the damages that 
 could be recovered from a wrongdoer should be diminished by 
 the providence of the injured person in insuring ; and he cited 
 Dalby v. India and London Life Assurance Company^ as an 
 anthority that the injured person does not recover for the 
 accident, but on the contract, and that his right arises as a quid 
 pro quo by reason of payment of the premiums. Under Lord 
 Campbell's Act, however, this is not so ; for under that Act the 
 damages were to be a compensation to the family of the deceased 
 equivalent to the pecuniary benefits which they might have 
 reasonably expected from the continuance of his life. If, there- 
 fore, the person claiming damages was put by the death of his 
 
 rence that might firevent his earning the 31 L. T. 464 ; 23 W. E. 48. Yates v. 
 
 money, as is done in the case of the an- Whyte, 4 Bing. N. C. 272; following 
 
 nuity. Mason v. Sainsbury, 3 Doug. 60. 
 1 L. K. 10 Ex. I ; 44 L. J. Ex. 9; 2 15 C. B. 365 ; 24 L. jrC. P. 2, 
 
PARTI.] LOUD CAMPBELL'S ACT. 181 
 
 relative into possession of a large estate, there was no loss ; lie 
 was a gainer by the event ; and similarly whatever comes into 
 the possession of the family who have suffered by the death of 
 their relative, by reason of his death, must be taken into 
 account.' This is in complete accordance with the law laid down 
 at Nisi Frius in the case of Hicks v. Newport, Abergavenny, and 
 Hereford Railway Company,'' by Lord Campbell, who directed a 
 jury: "If there were no insurances what would be the amount? 
 Well, then, if there be an insurance for .^lobo by some company 
 that insured the deceased against accident by railways, and they 
 being entitled to receive ;£^iooo upon that policy, it is quite clear 
 there ought to be a deduction from the aggregate amount in 
 respect of that £1000. Then, with regard to the policies upon his 
 life, independently of accident, if you allow any deduction (and 
 I think you will probably consider that some deduction ought to 
 be allowed), it will only be in respect, I should think, of the 
 premiums that would be paid by the family, or which would 
 have been paid by himself if this painful accident had not 
 happened." That is, with regard to an insurance against 
 accidents by railways, the whole of such insurance should be 
 deducted from the amount that the jury would have considered 
 recoverable had there been no assurance ; but with regard to 
 ordinary life assurance, a deduction should be made for the 
 premiums that would probably have been paid had the accident 
 not happened. 
 
 The difference made by Lord Campbell between the two oases 
 of insurance was due probably to the fact that insurances against 
 accidents by railways secure a payment that would .only be made 
 on the happening of the injury in respect of which compensation 
 is claimed ; and which is therefore a species of set-off against it ; 
 since the happening of the accident is the condition precedent to 
 the obtaining the insurance, and if no accident happened no sum 
 at all would be payable. Life insurance, on the other hand, 
 secures a sum payable absolutely, though at an uncertain time. 
 The fact that the injury makes the time of the payment certain 
 is, however, no ground for diminishing the compensation payable 
 in respect of the injury ; since the payment of the sum was in 
 no way dependent on the happening of the injury, though the 
 time of payment has been accelerated by it. ■■ 
 
 Lord Campbell's Act, we have seen, only enables those Damages 
 
 1 , t -1 1 • 1 • p •! recoverable in 
 
 damages to be recovered which arise irom pecuniary loss sus- respect o£ the 
 
 tained by the representatives consequent on the death through |g[^j'^"*^j, 
 
 ' See per Bramwell, B., Bradbum v. Great Western Eailway Company, L. E. 
 10 Ex. r, at p. 3. ' Only reported in a note in 4 B. & S. 403. 
 
182 THE LAW OF NEGLIGEISrCE. [book i. 
 
 sequent to the defendants' negligence of Mm as whose representatives the 
 Lord Camp- *' plaintiffs sue. In Bamett v. Lucas,' after damages had been 
 Barnett«'' recovered tinder Lord Campbell's Act, an action was commenced 
 Lucas. by the widow of the deceased, for whose death damages had been 
 
 recovered in the former action, as administratrix of her husband, 
 to recover damages for injuries caused by the same negligence for 
 which she had recovered in the action under Lord Campbell's 
 Act, but in this instance for damages to the " personal chattels" 
 of the deceased. The principle on which the Irish Court of 
 Common Pleas decided in favour of the plaintiff was that the 
 action under Lord Campbell's Act is brought by the personal 
 representative — not for the estate, but as a trustee for those 
 beneficially entitled ; and that an injury to the personal estate 
 gave a distinct cause of action to the personal representative not 
 to be confounded with the statutable right which he had to 
 bring the other action as trustee for the family. The decision of 
 the Common Pleas was upheld by the Exchequer Chamber on 
 the ground that the cause of action under Lord Campbell's Act 
 could not be the same with that brought on behalf of the estate 
 by the administratrix, since damages recovered under Lord 
 Dissent of Campbell's Act could never be assets of the deceased. Fitz- 
 intlfe Irish '' gerald, B., however, dissented, on the grounds, first, that there 
 Chamter^'^ ^^^ ^^^ ^^^ cause of action — viz., the default of the defendants; 
 and the effects of this, the injury to the chattels and the injury 
 1 to the person, are but different aspects of the one cause of action, 
 
 and do not constitute independent rights of suing ; secondly, that 
 Lord Campbell's Act, as interpreted by Eead v. Great Eastern 
 Eailway,^ gave no new right of action, and therefore a second action 
 was incompetent. " It is the same cause of action sued upon with 
 two inconsistent assumptions — viz., that it was independently of 
 the statute determined by death, and that it continued inde- 
 pendently of the statute notwithstanding death." With the 
 omission of the word " inconsistent " this might well happen. 
 The action for the injury to the estate undoubtedly continued 
 independently of the statute, notwithstanding death;' while inde- 
 pendently of the statute with equal certainty no executor or 
 administrator could maintain an action for the loss of life of his 
 testator or intestate.'' 
 Meaning of The question was, therefore, whether they were the same 
 
 of action." cause of actiou. In Eead v. Great Eastern Eailway,^ Blackburn, J., 
 East^em^"*' ^^J^' " '^^^ principles on which damages are to be assessed are 
 Eailway. ,/o\ti^/-ix- .,-,., 
 
 1 (1870) Ir. R. 5 C. L. 140 ; in tlie Irish » Wheatley v. Lane, i "Will. Saunders, 
 
 Exchequer Chamber, Ir. K. 6 C. L. 247. 239, edit. 1871. 
 
 o'r^ ^- •S ^ci ''i'^ ' ^7h i- ^- ^- 278 ; * Annsworth'j). South-Eastern Eailway, 
 
 18 L. 1\ N. S. 82 ; 16 W. R. 1040. II Our. 758. « 9 B. & S. 719. 
 
PARTI.] LOED CAMPBELL'S ACT. Igg 
 
 new, as correctly said in Blake v. Midland Eailway Company,' 
 and Pym v. Great Northern Railway Company f but the action 
 is not new, in the sense that there is an independent cause of 
 action vested in the representatives of the deceased in their own 
 right." And Lush, J., farther explains this as meaning, " The 
 object of the Legislature was not to make the wrongdoer pay 
 damages twice, or to give the representatives of the deceased a 
 new action, but to give a right of action to the representative 
 when the deceased had not obtained compensation, and when 
 there was at the time of the death a subsisting cause of action 
 which the maxim, Actio personalis moritur cum persond, pre- 
 vented from being enforced." And in Haigh v. Eoyal Mail Steam 
 Packet Company,'' Brett, M.R., delivering the judgment of the 
 Court of Appeal, said : "It is clear that executors can only 
 recover if the deceased man could have recovered supposing that 
 everything did happen to him which, had he not been killed, 
 would have entitled him to bring an action." 
 
 In the former of these cases the statement that there was no 
 new right of action was in connection with the negation of the 
 assumed right of the representatives to recover after satisfaction 
 had been made in the lifetime of the deceased to him personally ; 
 and in the latter case the statement was made where the deceased 
 had contracted away the right to recover for injuries or death. 
 
 In Blake v. Midland Railway Company," Coleridge, J., says : Blake «. 
 " This I Act does not transfer this right of action to his repre- EaUway 
 sentative, but gives to the representative a totally new right of Company, 
 action on different principles." This is in answer to the contention 
 that the deceased if alive could have recovered a solatium, and, 
 therefore, so could his representatives on his death. And in Pym 
 V. Great Northern Railway Company,* in the Exchequer Chamber, 
 Brie, O.J., said : " The statute gives to the personal representative 
 a cause of action beyond that which the deceased would have if he 
 had survived, and based on different principles." But that was 
 in answer to a contention, that as the deceased was possessed of a 
 fortune which would not be diminished by his death, he could not 
 have sued for anything but his persbnal suffering and the' 
 pecuniary loss in consequence. The decisions, therefore, are not Decisions not 
 inconsistent. There effect seems to be, that while the represen- 
 tatives are defeated of their action by the conduct of the deceased — 
 as if, for example, he should be guilty of contributory negligence," 
 
 ^ i8 Q. B. 93, 1 10. Q. B. 57 ; 42 L. J. Q. B. 4 ; 27 L. T. 485 ; 
 
 2 4 B. & S. 396, 406. 21 W. R. 140. 
 
 * 52 L. J. Q. B. 690. As to the law apart ^ i8 Q. B. 93, 1 10 ; 21 L. J. Q. B. 233. 
 
 from Lord Campbell's Act, see McCawley ^ 4 B. & S. 396, 406. 
 
 ■0. Furness Eailway Company, L. R. 8 ^ Tucker v. Chaplin, 2 C. & K. 730. 
 
184 THE LAW OF NEGLIGENCE. [book i. 
 
 or should in any way so have conducted himself, that, had he 
 sumved, an obstacle would have been interposed to the bringing 
 of the action, the happening of death should not found an action 
 that the continuance of life would have defeated. The historical 
 antecedents are the same as they are in cases of personal injury, 
 but the subsequent direction the right of action takes before it 
 fructifies is entirely new. A reference to the preamble of Lord 
 Campbell's Act may help to clear up this point. It is thus 
 expressed: "Whereas no action by law is now maintainable 
 against a person who, by his wrongful act, neglect, or default, 
 may have caused the death of another person ; and it is oftentimes 
 right and expedient that the wrongdoer in such case should be 
 answerable in damages for the injury so caused by him." The 
 wrong to be remedied is, then, the escape of a person who, by 
 his wrongful act or default, has caused the death of another 
 person from being answerable in damages for the injury — ^not 
 primarily the loss to the survivors. The damages are to be paid 
 to them, and are further to be assessed on an estimate of their 
 pecuniary loss ; but the wrong is the death, coupled with im- 
 munity from legal liability for compensation. Contributory negli- 
 gence would then remove the liability for the wrong by eliminating 
 the first element in the cause of action ; payment of compensation 
 preceding the decease of the injured person, or a valid contract to 
 waive the right to compensation in the event of injury or death, 
 would eliminate the second. In so much as these antecedent 
 circumstances — common to the right of action possessed by the 
 injured man if he survived, and to his representatives if he died 
 from the effect of his injuries — are at the basis of both, there is 
 no new right of action, and that is the sense in which the cases 
 so holding are to be understood. While, in so far as the repre- 
 sentatives have a right arising on the death from injury through 
 negligence, the right is entirely a new right, of which, previous 
 to Lord Campbell's Act, there was no precedent in the law. 
 
 Lord Selbome This is apparent from what Lord Selbome says in Seward v. 
 
 ThevTrfcraz. The Vera Cruz' : " Lord Campbell's Act gives a new cause of action 
 clearly, and does not merely remove the operation of the maxim, 
 Actio personalis tnoritur cum persond ; because the action is given 
 in substance, not to the person representing in point of estate 
 the deceased man, who would naturally represent hirti as to all 
 his own rights of action which could survive, but to his wife and 
 children, no doubt suing in point of form in the name of his 
 executor. And not only so, but the action is not an action which 
 he could have brought if he had survived the accident, for that 
 
 1 10 App. Cas. 59, at p. 67 ; 54 L. J. P. 9. 
 
PARTI.] LOED CAMPBELL'S ACT. 185 
 
 would have been an action for such injury as lie had sustained in 
 his lifetime, but death is essentially the caase of the action." Or, 
 as Lord Blackburn says,' an action "new in its species, new in 
 its quality, new in its principle, in every way new, and which can 
 only be brought if there is any person answering the description 
 of the widow, parent, or child who under such circumstances 
 suffers pecuniaiy loss by the death." 
 
 The decision of Read r. Great Eastern Railway Company, there- Effoct of the 
 fore, left open the question whether the cause of action sued on Erad' °?Great 
 in Barnett v. Lucas was the same, in the sense in which alone 5*?,t«™ 
 
 . JKailway 
 
 the question was material, as that for which damages had been Company, 
 previously recovered. What it decided* was that damages could 
 not be recovered independently of the deceased, or, rather, anta- 
 gonistically to him ; and that where the deceased either voluntarily 
 or involuntarily had placed himself in a position that if he had 
 survived he could not bring an action for personal injury at his 
 death, no new right of action had been conferred to replace that 
 which through his own conduct had never arisen or had been 
 extinguished. But it left untouched the question whether, 
 assuming the deceased had left the rights which were united in 
 him unaffected, they were incapable of disjunction by his death 
 and of being sued on separately. 
 
 In Brunsden v. Humphrey' this point has subsequently been Brunsden ». 
 cifmiiori decided in a sense contrary to Fitzgerald, B.,'s con- decides the 
 tention. There a cabman recovered damages for injury caused, by §oJ^Vfn' '" 
 the defendant's negligence, to his cab. He subsequently com- ^a<i «• <*'^^»' 
 menced an action claiming damages for personal injuries sustained Railway 
 through the same negligence. It was held by the Court of "'^™''" 
 Appeal, overi'uling the Divisional Court, Lord Coleridge dissent- 
 ing, that he could maintain the action, Bowen, L.J., observing, 
 " The real test is not, I think, whether the plaintiff had the 
 opportunity of recovering in the first action what he claims to 
 recover in the second ;" and Brett, M.R., suggests as a test — 
 though not an exclusive test — the consideration " whether the 
 same sort of evidence would prove the plaintiff's case in the 
 two actions."' 
 
 ' At p. JO. coat-sleeve'whioh contains his arm, Iiave 
 
 ^(1884)140. B. D. 141 (C. A.); 53 been torn." The following quotation from 
 
 L. J. Q. B. 476. See Sen-aoa. Nopl, 15 Mr. John Stuart Mill seems in point: — 
 
 Q. B. D. 549 ; Clarke v. York, 31 W. E. "The last of the modes of erroneous gene- 
 
 62 ; 52 L, J. Ch. 32. ralization to which I shall advert is that 
 
 ' Lord Coleridge, C.J., dissented on the to which we may give the name of JTalse 
 
 ground that "it seems to mo a mhilety, Analogies This fallacy consists in 
 
 not warranted by law, to hold that u man the misapplication of an argument which 
 
 cannot bring two actions if he is injured in ia at best only admissible as an inconclu- 
 
 his arm and in his leg, but can bring two sive presumption where real proof is unat- 
 
 if, besides his arm and leg being injured, tainable. An argument from analogy is 
 
 his trousers which contain his leg, and his an inference that what is true in a certain 
 
186 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Loss to per- 
 sonal estate. 
 Potter V. 
 Metropolitan 
 District 
 Eailway 
 Uompany. 
 
 Bradshaw v. 
 Lancashire 
 and Yorkshire 
 Eailway 
 Company. 
 
 In Potter v. Metropolitan District Eailway Company '^ the facts 
 are somewliat peculiar. The wife was injured by the negligence 
 of the defendant railway company ; the husband commenced an 
 action for loss of service and expense in nursing, and "loss of 
 profit he would otherwise have made in his business," and died 
 during the pendency of the action. ,The wife then entered a sug- 
 gestion of his death on the record, and the action was proceeded 
 with in her name alone : the only question of damage inquired 
 into was that accruing to the plaintifE personally, and not the 
 damage sustained by the testator in his lifetime by reason of the 
 injury to his wife. The result of that action was a verdict for 
 the plaintiff, with ;£^iooo damages. An action was then com- 
 menced by the plaintiff as executrix for the recovery of the amount 
 of damage sustained by her testator's estate. To this there was a 
 demurrer, on the ground mainly that no right of action survived. 
 Both the Court of Exchequer and the Exchequer Chamber were 
 clearly of opinion that an action lay by the executrix to recover 
 for a loss to the personal estate of the testator. 
 
 In Bradshaw v. Lancashire and Yorkshire Eailway Company,^ 
 where the husband of the plaintiff, who sued as executrix, was in- 
 jured in a railway accident, and subsequently died from the effects. 
 Grove, J., thus states the question raised : — " Does the fact that in 
 this case, besides the injury to the estate, the testator's death has 
 likewise resulted from the breach of contract, make any difference, 
 or does the fact that provision has been made in such cases for com- 
 pensation in respect of the death to certain relatives by Lord Camp- 
 
 case is true in a case known to be some- 
 what ■similar but not known to be, exactly 
 parallel — ^^that is, to be similar in all mate- 
 rial circumstances. An object has the 
 property B ; another object ia not known 
 to nave that property, hut resembles the 
 first in a property A not known to he con- 
 nected with B ; and the conclusion to which 
 the analogy points is that this object has 
 
 the property B also Now, an error 
 
 or fallacy of analbgy may occur in two 
 ways : sometimes it consists in employing 
 an argument .... with correctness in- 
 deed, but overrating its probative force. 
 .... There is another mode of eiTor in 
 the employment of arguments of analogy 
 more properly deserving the name of 
 fallacy — namely, when resemblance in one 
 point is inferred from resemblance in 
 another point, though there is not only no 
 evidence to connect the two circumstances 
 by way of causation, but the evidence 
 lends positively to disconnect them. This 
 is properly the Fallacy of False Analogies " 
 ("Logic," vol. ii. book v. p. 360). For 
 example, to reason from proximity in place 
 to identity of nature. If direct authority 
 
 is wanted, the words of Lord Bramwellin 
 Barley Main Colliery Company v. Mitchell, 
 II App. Cas. at p. 144: "It is a rule 
 that, when a thing directly wrongful in 
 itself is done to a man, in itself a cause of 
 action, he must, if he sues in respect of it, 
 do so once and for all. As if he is beaten 
 or wounded, if he sues he must sue for all 
 his damage, past, present, and future, 
 certain and contingent. He cannot main- 
 tain an action for a broken arm and sub- 
 sequently for a broken rib, though he did 
 not know of it when he commenced his 
 first action. But if he sustained two injur- 
 ies from a blow, one to his person, another 
 to his property — as, for instance, damage 
 to a watch — there is no doubt that he 
 could maintain two actions in respect of 
 one blow. I may apply the test 1 :men- 
 tioned in the argument. If he became 
 bankrapt, the right in respect of the watch 
 would vest in his trustee ; that for damage 
 to his person would remain in him." 
 
 1 (1874) 30 L. T. N. S. 76s ; in the 
 Exchequer Chamber, 32 L. T. N. S. 36. 
 
 2 (1875) L. E. 10 C. P. 189; 44 L. J. 
 C. P. 148 ; 31 L. T. N. S. 847. 
 
PAETi.] LORD CAMPBELL'S ACT. 187 
 
 bell's Act take away any right of action that the executrix would 
 have had but for that Act ? " and answers it in the following words : 
 — " It does not seem to me that the Act has that effect, either 
 expressly or by necessary implication. The intention of the Act 
 was to give the personal representative a right to recover com- 
 pensation as a trustee for children or other relatives left in a 
 worse pecuniary position by reason of the injured person's death, 
 not to affect any existing right belonging to the personal estate 
 in general. There is no reason why the statute should interfere 
 with any right of action an executor would have had at common 
 law. In the case of such right of action he sues as legal owner 
 of the general personal estate which has descended to him in 
 course of law ; under the Act he sues, as trustee in respect of a 
 different right altogether, on behalf of particular persons desig- 
 nated in the Act. Mother argument for the defendants was 
 that, inasmuch as the remedy for the personal injury died with 
 the person, the damages to the estate, being consequential on the 
 personal injury, died also. I do not at all see that that follows 
 as a necessary or logical consequence. The two sorts of damage 
 are separable : the one is pecuniary loss to the estate immediately 
 and naturally arising out of the accident ; the other is personal to 
 the party injured, and, as such, dies with the person. I do not see 
 that there is any valid distinction between this case and that of 
 Potter V. Metropolitan District Railway,' or why the damage to 
 the estate that would clearly be recoverable if the injured party 
 Hved should be the less recoverable because of his death." 
 
 In Leggott V. Great Northern Railway Company,^ Mellor, J., is The decision 
 reported as saying: "With the single exception, as far as I am£°gg'^j^j™ 
 aware of — the case in the Common Pleas, Bradshaw v. Lancashire ^reat 
 and Yorkshire Railway Company — there appears to be no authority Eaiiway 
 that an action will lie by the executor in respect of what is claimed °™P^°y' 
 in this action. But as that case has been decided on the very 
 point,' I entirely yield to the authority of the decision, so far as 
 to say that in this court it cannot be questioned, and we must 
 therefore abide by it. I must say, however, that we yield to it 
 for the purposes of this case ; and that at all events, if it is to be 
 questioned, it must be questioned in a court of appeal." And 
 QuaiQ, J., said : " With regard to the action itself, I merely say I 
 yield to the decision in the Common Pleas without assenting to 
 
 it." There was, however, no appeal, and, after the decision in but not ap- 
 pealed against, 
 
 1 30 L. T. N. S. 765 ; 32 L. T. N. S. 36. Northern Railway Company was that the 
 
 - I Q. B. D. 599, at p. 60s ; 45 L. J. plaintiff had recovered in respect of the 
 
 Q- B. 557 ; 35 L. T. 334 ; 24 W. E. injury caused by the death, and therefore 
 
 784. was estopped from recovering for damages 
 
 ' The contention in Leggott v. Great to the estate. 
 
188 THE LAW OP NEGLIGENCE. [book i. 
 
 andestablisiied Brunsden V. Humptrey,' the law in Bradshaw v. Lancashire and 
 HumpTrey!"'" Yorkshire Eailway Company may be considered established.^' 
 Cau Admiralty A question about which there has been considerable diversity 
 Sil'an acUor of legal Opinion is whether the Admiralty Court— now the 
 m )-em under Admiralty Division of the High Court — can entertain an action 
 bell's Act? in rem for damages for loss of life under Lord Campbell's Act. 
 
 The contention that the Court had jurisdiction was based on 
 the words of section 7 of the Admiralty Court Act, 1861/ which 
 gave the Court "jurisdiction over any claim for damage done by 
 any ship." 
 The Sylph. In the case of The Sylph^ it was held by Sir Robert Phillimore 
 
 that the Court of Admiralty had jurisdiction over all torts and 
 injuries done within the ebb and flow of the tide. " The whole 
 law" (i.e., of the ancient jurisdiction of the Court of Admiralty), 
 he observes, " is collected in the judgment delivered by Mr. Justice 
 Story in the case of De Levis v. Boit.* This judgment, in truth, 
 exhausts all the learning upon the subject." 
 Admiralty Iq Enerland, however, statutory enactments have cut down the 
 
 CourtAct,i86i. . . -,. ,.° - j^i • j • i j • m. i. ^ i, 4.1, 
 
 jurisdiction anciently exercised m Admiralty; but by the 
 Admiralty Court Act, 1861 (24 Vict. c. 10), s. 7, it is enacted 
 that the " High Court of Admiralty shall have jurisdiction over 
 any claim for damage done by any ship ; " and in the case of 
 The Diana" Dr. Lushington said that "the object of the Act," 
 as stated in the title and preamble, is " to extend the jurisdic- 
 tion of the Court." The 7th section does not particularize any 
 circumstances to which the jurisdiction, of the Court is to extend, 
 but " gives the Court jurisdiction in the widest and most general 
 terms." 
 TheGuidfaxe. It was next Contended, in the case of The Guldfaxe," that it 
 was intended to comprise a case of loss of life by collision in the 
 phrase " damage done by a ship." " Not without doubt and 
 hesitation," Sir Robert Phillimore here held that it was. "It is 
 true that Lord Campbell's Act contemplates only an action against 
 the person ; but then the 3 Sth section of the Admiralty Court Act 
 enacts as follows : — ' The jurisdiction conferred by this Act on the 
 
 1 14 Q. B. D. 141. _ wrongs operate to the temporal injury of 
 
 " In giving judgment in Chamberlain v. their personal estate. But in that case the 
 
 Williamson, 2 M. & S. 408, an action by special damage ought to be stated on the 
 
 an administrator for a breach of promise record, otherwise the Court cannot intend 
 
 of maniage to the intestate, Lord Ellen- it Adhere the damage done to 
 
 borough, C.J., said: "The g:eneral rule of the personal estate can be stated on the 
 
 , )aw is Actio personalis moritur cum per- record, that involves a dififerent question." 
 
 solid, under which rule are included all ' 24 Vict. 0. 10. 
 
 actions for injuries merely personal. Ex- * (1867) L. B. 2 A. & E. 24. 
 
 ecutors and administrators are the repre- ^ 2 Grallison 398. 
 
 sentatives of the temporal property — that ^ Lush, at p, 590. 
 
 is, the debts and goods of the deceased, ' (i868) L. K. 2 A. & E. 325 ; 19 L. T, 
 
 but not of their wrongs, except where those N. S. 748 ; 38 L. J. Adm. 12, 
 
PARTI.] LORD CAMPBELL'S ACT. 189 
 
 High Court of Admiralty may be exercised either by proceedings 
 in rem or by proceedings in personam.' And it was admitted by 
 the counsel for the defendant that the argument to be derived 
 from the language of Lord Campbell's Act was as strong against 
 the jurisdiction of this Court in rem as in personam." 
 
 The Judicial Committee of the Privy Council had the same point 
 before them i"n the case of The Beta,' and, without calling on the The Beta, 
 respondents, decided that the words of section 7 " clearly include 
 every possible kind of damage." 
 
 Sir Eobert Phillimore adhered to his previous decision in the 
 next case, that of The Explorer,^ where the collision took place on 
 the high seas, and the persons killed were aliens. But in Smith judgment in 
 ■y. Brown,' Cockburn, C. J.,'and Hannen, J., prohibited the Court of b™4-u.'' 
 Admiralty from entertaining a suit instituted under Lord Camp- 
 bell's Act for personal injuries, resulting in death, occasioned by 
 the coUision of two vessels. They held that " neither in common 
 parlance nor in legal phraseology is the word ' damage '* used 
 as applicable to injuries done to the person, but solely as appli- 
 cable to mischief done to property." And, further, that to hold 
 that there was a transfer of the jurisdiction of the courts of 
 common law to the Coiurt of Admiralty would not only deprive 
 the parties of the common law procedure and mode of trial, but 
 would materially alter their rights and relative position ; as the 
 Court of Admiralty, in dealing with claims for damage arising 
 from collision, acts upon principles unknown to the common law, 
 and which, though very proper in the case of damage done by 
 one vessel to another, are altogether inapplicable to the case of 
 personal injury or the right to compensation given by the 9 & 
 10 Vict. c. 93. Blackburn, J., was also of the Court, and though 
 his "doubts" were "not altogether removed," they were "not 
 strong enough to make him dissent from this judgment, or even to 
 require further time for consideration."' 
 
 The question again came before the Court of Admiralty in the The Fran- 
 case of The Franconia,^ when Sir Robert Phillimore, while adhering ''°°'*' 
 to his previous decisions, took occasion to point out that, in the 
 Merchant Shipping Act, the word damage is applied to " loss of 
 life and personal injury." On appeal, the Court was equally 
 
 ' L. E. 2 P. C. 447 ; 34 L. J. Adm. 76 ; " Per Kelly, C.B. : " The decision of 
 
 12 L. T. N. S. I ; present, Lord Eomilly, Smith v. Brown, with which I entirely 
 
 Sir Wm. Erie, Sir James Colvile, and Sir agree ; " James v. London and Soiith- 
 
 Jo^ph Napier. Western Bailway Company, L. E. 7 Ex. 
 
 ^ (1870) L. E. 3 A. & E. 289; 40 L. J. 195. See, too, per Brett, J., Simpson v. 
 
 Adm. 41 ;,23 L. T. N. S. 604 ; 19W. H. 166. Blues, L. E. 7 0. P. 290, at p. 299. 
 
 2 (1871) L. E. 6 Q. B. 729 ; 40 L. J. « 2 P. D. 163 ; S4 L. J. Q. B. 476. 
 
 Q. B. 214 ; 24 L. T. N. S. 806 ; 19 W. R. See The Queen v. Keyn, 2 Ex. D._ 63 ; 
 
 Z165. Harris v. Owners of the Franconia, 2 
 
 * Damage done by any ship : section 7, C. P. D. 173 ; 41 & 42 Vict, c. 73. 
 24 Vict. c. 10. 
 
190 THE LAW OF NEGLIGENCE. [book i. 
 
 divided, Bramwell and Brett, L, JJ., being of opinion that the appeal 
 should be allowed, and, as a reason for their decision, they called 
 special attention to " the difficulty arising from the difference 
 between the Admiralty and common law rule as to contributory 
 neghgence." Baggallay, L.J., delivered a judgment affirming the 
 view taken by Sir Eobert PhUlimore, principally on the ground of 
 the generality of the words of the Admiralty Court Act, 1861, 
 and the indeterminate use of the word damage ; and this was con- 
 curred in by James, L.J. The result was, that the judgment of 
 the Court of Admiralty was sustained. 
 The Vera Cruz The Same question was once again mooted in The Vera Cruz 
 (. o- 2;- Q^Q^ 2),' where Butt, J., held, on the authority of The Franconia, 
 
 that the Cora-t had jurisdiction to entertain an action in rem 
 against a foreign ship. The Court of Appeal, however, reversed 
 his decision, and held that the Admiralty Division had no juris- 
 diction in an action in rem against a ship under Lord Campbell's 
 Act. Bowen, L. J., reasoned as follows : — " The only claim that can 
 arise must either be a claim for the killing of the deceased or the 
 injuriously affecting his fajnily. The killing of the deceased per 
 se gives no right of action at all, either at law or under Lord 
 Campbell's Act. But if the claim be, as it only can be, for the 
 injuriously affecting the interests of the dead man's family, the 
 injurious affecting of their interests is not done by the ship in the 
 above sense. It arises partly from the death, which the ship 
 causes, and partly from a combination of circumstances, pecuniary 
 or other, with which the ship has nothing to do. The injury 
 done to the family cannot, therefore, be said to be done by the 
 ship." 
 
 The appeal was then carried up to the House of Lords, where 
 the decision of the Court of Appeal was affirmed, and the Admir- 
 alty Division held to be without jurisdiction to entertain the 
 claim. Lord Selborne was of opinion that, if the case necessarily 
 came within the words " any claim for damage done by any ship," 
 according to the reasonable construction of those words in con- 
 nection with the clause which authorizes proceedings in rem to 
 enforce such, then the words, being general, would include it, but 
 express or special inclusion was not indicated. But, while the 
 Admiralty Court Act, 186 1, related expressly to claims for 
 damage done by any ship, and section 7 related to that and nothing 
 else, Lord Campbell's Act was concerned with " general injuries 
 resultiug in loss of life by wrongful acts." That being so, " it is 
 not very likely that, when the legislation goes on such different 
 lines, it should be intended indirectly to affect by the one legisla- 
 
 1 9 P. D. 96. 
 
PART I.] LORD CAMPBELL'S ACT. 191 
 
 tion, and in a. peculiar manner, a pai'ticular case wMoh may or 
 may not arise under the other legislation." 
 
 But, further, Lord Campbell's Act is, "as plainly as possible, 
 a personal action given for a personal injury inflicted by a person 
 who would have been liable to an action for damages manifestly 
 in the common law courts if the death had not ensued," and the 
 Admiralty rules which would be applied if the action were validly 
 brought in the Admiralty Division are inconsistent with certain 
 provisions of Lord Campbell's Act — as, for instance, those regu- 
 lating the delivery of particulars. 
 
 Lords Blackburn and Watson assented to the view of the Lord 
 Chancellor on the question immediately before them — the effect 
 of Lord Campbell's Act; but Lord Blackburn, alluding to the case 
 of Smith V. Brown, guarded himself from deciding more than the 
 actual point under Lord* Campbell's Act. " If," he said, " the 
 question now raised had been whether personal damage to a man 
 who lived was within the 7th section of the enactment, I should 
 have had, as I then had [i.e., in Smith v. Brown], some doubt about 
 the matter, and it would have carried me so far that, if that had 
 been the question now raised, I certainly should have wished to 
 hear the case argued out to the end before giving an opinion upon 
 it one way or the other." And Lord Watson intimates that he 
 also expressed no opinion on the ,wider question.' 
 
 The law may, then, be regarded as definitely settled that the 
 Admiralty Division has no jurisdiction to entertain suits instituted 
 under Lord Campbell's Act by the legal personal representatives 
 of the deceased person against the wrongdoing vessel. 
 
 The Merchant Shipping Act, 1854, s. 506, provides that the The Merchant 
 owner of every sea-going ship or share therein shall be liable in 'P^'"^ 
 respect of loss of life or personal injury to the same extent as if 
 no other loss, injury, or damage had arisen. Where, however, loss 
 of life or personal iajury has been occasioned by a collision, the legal 
 personal representatives of the deceased person, or the person in- 
 jured, must wait until the completion of the inquiry (if any) insti- 
 tuted by the Board of Trade, or until the Board of Trade has reiused 
 to institute an inquiry. And to ascertain this, the person desiring 
 to bring the action must serve a notice to that effect on the Board 
 of Trade ; if the Board does not institute an inquiry within a 
 month, then he has his action ;^ if it does institute the inquiry, then 
 the procedure is regulated by sections 507-12 of the Merchant 
 Shipping Act, 1854. By the Merchant Shipping Act Amend- 
 
 ■ ' In The Bemina, 1 1 P. D. 31, Butt, J., affirmed by the Court of Appeal, 12 P. D. 
 
 held that an action under Lord Campbell's 58. See, per Lord Herschell in the House 
 
 Act is not -within sub-section 9, section 25, of Lords, 13 App. Cas. i, at p. 10. 
 
 oftlie Judicature Act, 1873, and this was ^ 17 & 18 Vict. c. 104, s. 512. 
 
from their 
 ptovislona, 
 
 192 THE LAW OF NEGLIGENCE. [book i. 
 
 ment Act, 1862,' s. 54, the shipowner's liability for loss of life 
 or personal injury to any person being carried in any ship, British 
 or foreign, is limited to an aggregate amount oi £1$ for each ton 
 of the ship's tonnage.^ 
 
 By the Merchant Shipping Act, 1854, s. 514, where any 
 liability has been, or is alleged to have been, incurred by the 
 owner of a ship in respect of loss of life or personal injury, he 
 may commence a suit in the Court of Chancery for the purpose 
 of determiaing the amount of such liability and for the distribu- 
 tion of the amount rateably amongst the several claimants,' and 
 the Court has power of stop all actions and suits pendrug in any 
 other court in relation to the same subject-matter;" and, by the 
 Admiralty Court Act, 1861,* the powers of the Court of Chancery 
 under the Merchant Shipping Act, 1854, are conferred on the 
 Conclusion High Court of Admiralty. The Admiralty Division can therefore, 
 in a certain event, assess damages under Lord Campbell's Act. 
 And this further appears from the judgment, in the Court of 
 Appeal, of Brett, M.E., in The Vera Cruz (No. 2),^ who alludes to 
 this Act and its effect in these terms : — " But I will not say that 
 in no case, for no purpose, may the Court of Admiralty not inquire 
 into damages to a deceased person. For a great many years the 
 Court of Chancery had jurisdiction to limit the amount of the ship- 
 owner's liability, and, if there were several claimants against the 
 ship, to divide the amount for which the shipowner was liable 
 amongst them. In such a suit the liability was admitted. That 
 jurisdiction has been given to the Admiralty Court. At the pre- 
 sent time, in such an action, if one of the claimants against the 
 fund is a person who sues under Lord Campbell's Act, it being 
 necessary to distribute the fund according to statute, it may well 
 be that the Chancery or Admiralty Division must do something not 
 otherwise within its direct jurisdiction — it must take cognizance 
 of such a claim in order to fulfil its regular jurisdiction." 
 
 Lord Selborne, also, in Seward v. The Vera Cruz, in the House 
 of Lords,' aflSrms the Jurisdiction of the Admiralty Division to deal 
 with an action under Lord Campbell's Act "as in any other case 
 (but not more in this than in any other case), if no objection were 
 taken, and no transfer asked for or made," but that would, of 
 course, not constitute an Admiralty action under the special 
 Admiralty jurisdiction, which must be determined irrespective of 
 the Judicature Act, since the sole effect of the Judicature Act 
 is to enable the judge of the Admiralty Division, saving objections, 
 
 1 25 & 26 Vict. c. 63. * Leycester v. Logan, 26 L. J. Ch. 306. 
 
 * The George and Eiohard, 24 L. T. * 24 Vict. c. 10, s. 13. 
 
 N. S. 717. 8 g p_ D_ g6, at p. 100. 
 
 s Hill V. Audus, 24 L. J. Ch, 229. ' 10 App. Cas. 56, at p. 64. 
 
PAUTi.] LORD CAMPBELL'S ACT. 193 
 
 to entertain any cause of action over which the High Court of 
 Justice, of which the Admiralty Division forms a portion, has 
 jurisdiction ; but not to affect with special Admiralty rights or 
 remedies anything which before the Act was not the subject 
 of Admiralty jurisdiction. 
 
 In the case of The George and Richard,' a limitation of osiiid en ventre 
 liability suit brought in the Court of Admiralty, a child e?;,"""^"' 
 ventre sa mdrc was held entitled to be reckoned amongst the 
 representatives amongst whom apportionment of a sum recovered 
 would have to be made." This decision, which seems inevitable 
 upon principle, was supported by a sentence in the judgmeint of 
 Coleridge, J., in Blake v. Midland Railway Company' : " By 
 what rules ought the jury to be guided in this apportionment ? 
 Are they to inquire into the degree of mental anguish which 
 each member of the family has suffered from the bereavement ? 
 Then not only the child without filial piety, but a lunatic child, 
 or a child of very tender years, and a posthumous child on the 
 death of the father, may have something for pecuniary loss, but 
 cannot come in pari passu with the other children, and must be 
 cut off from the solatium." 
 
 It has also been decided under Lord Campbell's Act that it is Misceilaneons 
 not necessary to negative the existence of any relative of the ^'"" ^' 
 deceased other than those named in the declaration;'' that a 
 bastard cannot maintain an action ; " that where the death 
 occurred on board a steamer during the voyage, and it was 
 alleged that the boiler explosion which caused the accident was 
 due to the corrosion of machinery, and that this corrosion had 
 been going on for a period in some portion of which the steamer 
 had been several times in Ireland, no part of the cause of action 
 had arisen within the jurisdiction of the Irish Courts," and 
 substituted service could not be allowed ; that where the jury 
 has manifestly shrunk from deciding the issue, there must be a 
 new trial ;' that default in delivering particulars with the 
 declaration under section 4 is ground for setting aside the 
 service of the writ, but not for setting aside the writ itself; 
 and the objection that the plaint does not state facts shewing 
 an obligation by the defendant to the deceased is matter for 
 demurrer, and is not ground for setting aside the plaint as 
 
 ^ 24 L. T. N. S. 717. not more than one action shall lie for and 
 
 ^ See Williams on Executors, 8th edit. in respect of the same subject-matter of 
 
 p. 1093 ; notes to Viner v. Francis, Tndor's complaint." 
 
 Loading Cases of Real Property Law, "^ 2 H. & C. 735. 
 
 3rd edit. p. 798. " Walsh v. Great Western Eailway 
 
 " 18 Q. B. 93, at p. 108. Company, Ir. E. 6 C. L. 532. 
 
 " Barnes v. Ward, 9 C. B. 392, at p. 398. ' Springett v. Balls, 7 B. & S. 477. 
 The 3rd section of the Act provides " that 
 
 N 
 
194 THE LAW OF NEGLIGENCE. [book i. 
 
 embaiTassing ; ' that when money has been paid to compromise 
 an action, but no division or apportionment of the money has 
 been made and there is no legal right to obtain apportionment, 
 an action will lie, but that the proper remedy is to go to a court 
 of equity to compel the person making default to administer 
 the trust;' that money paid into court may be paid out on a 
 consent, embodying the agreed terms of payment, being made 
 a rule of court;' that, failing an agreement, money paid into 
 court may be paid out in proportions fixed by analogy to the 
 Statute of Distributions ;* and that an action' can be sustained 
 by a relative of the deceased though brought within six calendar 
 months from the death, although at the time there be an executor 
 or administrator of the deceased." 
 
 ' McCate v. Guinness, Ir. R. 9 C. L. ment in The Franconia, 2 P. D. 163, at 
 
 510; on the latter point Fitzgerald, B., p. 171 : "We are of opinion that under 
 
 dissented. that section it must be a jury who find and 
 
 2 CondliEf v. Condliff, 29 L. T. N. S. direct the division into shares." 
 831. ° Under 27 & 28 Vict. c. 95. 
 
 2 Shallow M. Verdon, Ir. E. 9C. L. 150. * A wile iivina; in adultery may not 
 
 ■* Sanderson v. Sanderson, 36 L. T. N. S. recover under Lord Campbell's Act : 
 
 847. See perBramwell, L..J., givingjudg- Stimpson v. Wood, 4 Times L. B. 589. 
 
PART II. 
 
 CORPORATIONS, PUBLIC BODIES, AND PUBLIC 
 OFFICERS. 
 
 CHAPTER I. 
 
 # 
 
 COEPORATIONS AND PUBLIC BODIES. 
 
 We are now to consider how liability for negligence is affected 
 by the fact that the liability is sought to be affixed to other 
 than a private person acting in his private capacity. The most 
 important class to consider in this regard is that of bodies of 
 persons corporate or nnincorporate who are charged with the 
 performance of functions either not at all for their own private 
 benefit, or for their private benefit subordinate to the interests of 
 larger portions of the community. To this class belong all 
 corporations, boards, and trustees charged with any of the 
 numerous branches of local administration. A distinction has, 
 however, been drawn between the functions which belong to 
 these bodies for public purposes, and those which they exercise 
 in connection with property, as land and houses, belonging to 
 them. 
 
 Corporations, in their private character as owners and occupiers Corporations 
 of land and houses, are regarded in the same light as individual owner™ ° 
 owners and occupiers, and dealt with accordingly. As such, they 
 are bound to repair bridges, highways, and churches ; are liable 
 to poor rates, and to the discharge of any other duty or obliga- 
 tion to which an individual owner would be subject.' The law 
 is admirably stated in a judgment of the Superior Court of 
 New York.^ After stating the ownership of certain property 
 by the defendants, the judgment proceeds : " While, as such 
 owners, they [the defendants] enjoy in respect of this property all 
 
 ' 2 Inst. 703 ; Thursfield v. Jones, Sir of SnnderlancI, 6 H. & N. 565 ; Manley v. 
 
 T. Jones, 187 ; Bex «. Gardner, Cowp. 79; St. Helena Canal and Bailway Company, 
 
 Mayor of Lynn v. Turner, Cowp. 87 ; 2 H. & N. 840. 
 
 Henly v. Mayor of Lyme, S Bing. 91, " Biown v. Mayor, &c., of New York, 
 
 I Bing. N. C. 222 ; Cowley v. Mayor, &c., 3 Barb. 254, at p. 257. 
 
196 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Distinction 
 ta,ken between 
 corporations 
 performing 
 public duties ; 
 and those 
 engaged in 
 purposes of 
 more privata 
 profit. 
 
 Parnaby v, 
 Lancaster 
 Canal 
 Company, 
 
 the rights to which private persons would be entitled, they are 
 subject also to the same duties and obligations in respect to 
 others owning adjacent lands that the law imposes upon private 
 persons owning real estate. That the premises in question are 
 held as a public trust, and that no private gain or profit is to be 
 derived from their possession, does not in the least diminish or 
 vary the duties and obligations of the Common Council in respect 
 to adjacent owners whose rights may be injuriously afEected by 
 a particular mode of using this property. The great injunction 
 of the law, addressed to all proprietors of real estate, is : 'So use 
 your own as not to injure another ; ' and a municipal corpora- 
 tion owning lands is as much bound to the observation of this 
 precept as a private person. The citizen and the municipal body, 
 in respect to their several possessions of real estate, stand upon 
 a footing of equality ; neither is a privileged owner, and each 
 
 must fulfil the same duties in respect to the other The 
 
 idea of the irresponsibility of such a corporation can only be 
 entertained by the Courts where the corporation is in the exercise 
 of a purely Governmental function, as when it is either declaring 
 a law in a legislative capacity or, in a ministerial one, executing 
 it without injuriously affecting the property or rights of particular 
 persons."' They are also hable for the torts of their servants done 
 within the scope of their employment.^ But it was sought to 
 draw a distinction between the liability of such bodies for the 
 negligence of the servants employed by them where they per- 
 formed public duties under the authority of Acts of Parliament, 
 from which they received neither emolument nor profit ; and where 
 they formed a mere private company, using its own works, and 
 receiving profit for the benefit of its members. The two views 
 are set out in Parnaby v. Lancaster Canal Company" and Hall v. 
 Smith.* 
 
 In Parnaby v. Lancaster Canal Company,' which was an action 
 against a canal company for allowing a boat sunk in their canal 
 to remain, whereby the plaintifE was injured, Tindal, C.J., in 
 
 ^ Metropolitan AsylnmB District v. Hill, 
 6 App. Cas, 193 ; Truman v. London, 
 Brighton, anil South Coast Eailway Com- 
 pany, II App. Cas. 45. 
 
 ^Yarborough v. Bank of England, 16 
 East 6; Maund v. Monmouth Bailway 
 Company, 4 M. & G. 452 ; 5 So. N. E. 
 457 ; Smilli V. Birmingham Gaa Com- 
 pany, I A. &E. 526. " Strictly speaking, 
 a corporation cannot itself bo guilty of 
 fraud. But ■where a corporation is formed 
 for the purpose of carrying on a trading or 
 other speculation for profit, such as form- 
 ing a railway, these objects can only he 
 
 accomplished through the agency of in- 
 dividuals ; and there can be no doubt that, 
 if the agents employed conduct themselves 
 fraudulently so that if they had been act- 
 ing for private employers the persons for 
 whom they wore acting would have been 
 affected by their fraud, Ihe same prin- 
 ciples must prevail where the principal 
 under whom the agent acts is a corpora- 
 tion " : per Lord Cranworth, C, JJangera. 
 Great Western Bailnray, 5 H. L. C. 72, at 
 p. 86. 
 
 ' II A. &E. 223. 
 J * 2 Bing. 156, 
 
PAKTii.] CORPORATIONS AND PUBLIC BODIES. 197 
 
 the Exchequer Chamber, thus dealt with the objection that 
 there was no duty on them, as constituted by Act of Parliament, 
 to remove the obstruction : — " The facts stated in the inducement 
 shew that the company made the canal for their profit, and 
 opened it to the public upon the payment of tolls to the company ; 
 and the common law in such a case imposes a duty upon the 
 proprietors, not perhaps to repair the canal, or absolutely to free 
 it from obstructions, but to take reasonable care, so long as they 
 keep it open for the public use of all who may choose to navigate 
 it, that they may navigate without danger to their lives or pro- 
 perty. We concur with the Court of Queen's Bench in thinking 
 that a duty of this nature is imposed upon the company, and that 
 they are responsible for the breach of it, upon a similar principle 
 to that which makes a shopkeeper, who invites the public to his 
 shop, liable for neglect oa leaving a trap-door open without any 
 protection, by which his customers suffer injury." 
 
 Hall V. Smith and others marks the assertion of tlie distinction" Hall v. Smith. 
 in the case of trustees for the public not making a profit from 
 the duties out of which the negligent act arises. In that 
 case clerks to commissioners of ,public works were sued for negli- 
 gence of workmen employed on the public works by leaving a 
 quantity of rubbish unguarded and unlighted on the highway. 
 Best, O.J., in giving judgment, after a review of the earlier 
 cases, thus concludes : — " From these cases I collect that the law 
 recognizes the principles which I ventured to state were founded 
 in sound policy and justice, and that no action can be maintained 
 against a man acting gratuitously for the public for the conse- 
 quences of any act which he was authorized to do, and which, so 
 far as he is concerned, is done with due care and attention, and 
 that such a person is not answerable for the negligent execution 
 of an order properly given." 
 
 The position there laid down — that by the general law of the Distinction 
 country trustees for public purposes are not liable in their cor- 
 porate capacity to make compensation for damages sustained by 
 individuals from the neglect of the servants of such trustees to 
 perform the duties imposed on them, or at least that their duty 
 was limited to that of exercising due care in the choice of their 
 officers, and, that having been done, redress was to be sought 
 against the oflScer alone — was advanced in several cases which 
 were considered to be supported, though on grounds that, on 
 examination, proved not to give adequate support to the position. 
 
 First, it was argued that such a ground of decision was implied 
 from the cases, hereafter to be more minutely examined, which 
 decide that where a person is a public oiBcer in the sense that he 
 
198 THE LAW OF NEaLIGENCE. [booki. 
 
 is a, servant of Government; and, as such, has the management of 
 some branch of the Government business, he is not responsible 
 for any negligence or default of those in the same employment as 
 himself.' 
 
 But further examination shews that these cases were decided 
 on the ground that the Government was the principal and the 
 defendant merely a servant, and the well-recognized legal principle 
 was applied to them, that the action must be brought either 
 ag&iinst the principal or against the immediate actors in the wrong. 
 
 Secondly, it was argued that where an act was done for a public 
 purpose it could not be considered wrongful. But against the 
 applicability of this it was pointed out that the principle is that 
 the act is not wrongful, not because it is for a public purpose, but 
 because it is authorized by the Legislature," and this is seen from 
 the fact that where the statutory work has been ineflSciently per- 
 formed the plaintiff has recovered.' Authorities to the contrary, 
 however, undoubtedly exist. These were examined, in the opinion 
 of Blackburn, J., given before the House of Lords, in the case of 
 Mersey Docks and Harbour Board Trustees v. Gibbs,' but were 
 held by the House to be concluded by a preponderating authority,* 
 and the question was set at rest by the decision of the House of 
 Lords establishing that there was no difference in principle arising 
 from the fact that trustees do not make a profit, and are acting 
 merely for the benefit of the public." 
 
 A minute examination of the cases would therefore be un- 
 necessary. The whole learning, however, is collected in the two 
 opinions of Blackburn, J., given in Coe v. Wise' and in Mersey 
 Docks Trustees v. Gibbs.*' 
 
 1 Lane v. Cotton, i Ld. Eaym. 64 ; 801 ; Huck v. Williams, 3 H. & N. 308 ; 
 
 Whitfield i». Le Despencer, Cowp. 754; Wliitehoiise v. Fellows, 10 C. B. N. S. 
 
 Nicholson v. Mounsey, 15 East 384. 765 ; Brownlow v. Metropolitan Board of 
 
 " Eex V. Pease, 4 B. & Ad. 30 ; Gover- Works, 13 C. B. N. S. 768, 15 C. B. N. S. 
 
 nors of the British Cast Plate Manufac- 356. See, too, Coe v. Wise, 5 B. & S. 
 
 turersB. Meredith, 4 T. R. 794; Sutton 440; and an Irish case (Ex. Ch.), Leving- 
 
 V. Clarke, 6 Taunt. 29. And see per ston v. Guardians of the Lurgan Union, 
 
 Williams, J., in Whitehouse v. Fellowes, Ir. E. 2 C. L. 202. 
 
 10 C. B. N. S. 779. Lord Wensleydale was able to arrive 
 
 8 f/eader v. Moxon, 3 Wils. 461 ; W. B1. at the conclusion only in deference to the 
 
 924 ; Grocers' Company m. Donne, 3 N. C. • authority of Mersey Docks and Harbour 
 
 34 ; 3 So. 350 ; Jones v. Bird, S B. & A. 837. Board v. Cameron, 1 1 fl. L. C. 443. 
 
 * L. E I U. of L.! 93 ; 35 L. J. Ex. 225. ' 5 B. & S. 440, at p. 458 ; in the Ex. 
 
 Baker v. Hams, 4 M. & S. 27 ; Duncan v. Ch., '7 13. & S. 831 ; L. R. i Q. B. 7ii ; ^7 
 
 Mndlater, 6 CI. & F. 894 ; HoUiday v. St. L. J. Q. B. 262 ; 14 W. K. 865; 14 L. T. 
 
 Leonard, Shoreditch, 11 C. B. N. S. 192; N. S. 891. 
 
 Metcalfe v. Hetherington, u Ex. 257. « L. E. i H. of L. 93, at p. 102. In 
 
 See, too, EichardEOn v. Corooran, 7 Ir, Dormont v. Furness Eailway Company, 
 
 ^•,•'^•'^1. . ,, , II Q. B. D. 496, where a ship was 
 
 Scott «. Mayor of Manchester, i H. wrecked in the channel of a harbour which, 
 
 & N._S9; Wardw. Lee, 7 E. & B. 426; under the Wrecks Removal Act, 1877 
 
 Clothier V. Webster, 12 C. B. N. S. 790 ; (40 & 41 Vict. c. 16), s. 4, the defendante 
 
 Southampton and Itchin Bridge Company had power to, and did partially remove, 
 
 V. Southampton Local Board, 8 E. & B. Kay, J., held that a duty was imposed on 
 
PAKTu.] CORPORATIONS AND PUBLIC BODIES. 199 
 
 In the subsequent case of Foreman v. Mayor of Canterburyj' 
 Blackburn, J., thus expresses what was decided in Mersey Docks 
 V. Gibbs: — "It was decided that a public body like a local 
 board of health are a.nswerable for the negligence of their 
 servants just as if they were acting as the servants of a private 
 person, and not for a corporation incorporated for a public 
 purpose. Of course, the individuals composing the body are not 
 responsible ; it is the local board of health that are responsible, 
 and they would have to pay the damages out of the funds in their 
 hands as a local board of health." 
 
 In The Queen v. Williams^ the principle of Mersey Docks v. 
 Gibbs was held to apply to the executive Government in a case 
 distinguishable by there being no receipt of harboiu: dues. In 
 Duncan v. Findlater,' one of the cases commented on in Mersey 
 Docks V. Gibbs, Lord Cotfenham constructs a dilemma which, 
 though no longer embodying- an authoritative legal principle, 
 may be referred to as raising a difficulty of frequent occurrence. 
 " If the thing done is within the statute, it is clear that no com- 
 pensation can be afforded for any damage sustained thereby, 
 except so far as the statute itself has provided it. And this is 
 clear on the Ifegal presumption that the act creating the damage 
 being within the statute must be a lawful act. On the other 
 hand, if the thing done is not within the statute, either from the 
 party doing it having exceeded the powers conferred on him by 
 statute, or from the manner in which he thought fit to perform 
 the work, why should the public fund be liable to make good his 
 private error or misconduct ? " 
 
 This dilemma raises the question of the rule by which the Dilemmd 
 limitations of the liability of a statute-created body must be 
 governed ; since it is indisputable that the liability of a body 
 created by statute must be determined upon a true interpretation 
 of the statutes under which it is created ;"* and, therefore, those 
 acts which are to be looked upon as not done in pursuance of the 
 statutory powers cannot impose other than an individual liability. 
 
 The test applicable for the determination of what are acts done Test applicable 
 
 under a statutory power was considered' in Booth v. Olive,* and mfnatfon^or' 
 
 held to be ; — whether the act alleged to be done in the pursuance ""'^ ^°^ 
 
 powers, 
 
 them to remove the wreck from the ' 6 CI. & F. 894. 
 
 channel, and that the case came within * Southampton anil Itcliin IBridge v. 
 
 the principle of Mersey Docks v. Gibhs. Southampton Local Board, 8 E. & B. 
 
 ^ (1871) L. E. 6 Q. B. 214. Gas 801, at p. 812. 
 
 Light ■ and Coke Company v. Vestry ^ loC. B. 827. Bead w. Coker, 13O. B. 
 
 of St. Mary Abbotts, Kensington, 15 850. See Hermann v. Seneschal, 1.3 
 
 Q. B. D. I ; 54 L. J. M. C. 414. C. B. N. S. 392 ; Leete v. Hart, L. E. 
 
 " 9 App. Cas. 418. Famell 1;. Bow- 3 C. P. 322 ; O'Bymc v. Hartington, Ir. E. 
 
 man, 12 App. Cas. 643; Attorney- 11 C. L. 445. 
 General v. Wemyss, t2App. Cas. 192. 
 
200 THE LAW OF NEGLIGENCE. [booki. 
 
 of statutory power was done by persons with a bond fde belief 
 that they filled the character mentioned in the statute under 
 which they professed to act, and had a bond fide belief that they 
 were acting in the fulfilment of the duties thereby imposed on 
 them.' 
 lagisiative But though the general presumption of law is that the liability 
 
 of a ?"" of the legally created body should be to the extent of its funds 
 cuiar act. g^^. ^ggB^^j co-extensive with that imposed by the general law on 
 individuals doing the same things, if the Legislature directs or 
 authorizes the doing of a particular thing, the doing of it cannot 
 be wrongful. Thus, where trustees of a turnpike road, or other 
 similar oflBcial persons, are authorized to do a particular act, such 
 as raising a road, lowering a hill, or making a drain (as in Sutton 
 V. Clarke), and by doing so prejudice the rights or injure the 
 property of third persons, they are not liable to an action, 
 provided they do no more than the Act of Parliament under 
 ■which they are acting authorizes and requires them to do ; ^ not- 
 -withstanding a private individual doing the same thing would 
 have been liable whether he were guilty of negligence or not. 
 If trustees under -a Turnpike Act raise a road, and thereby darken 
 windows, no action will lie against them, provided the act done 
 ' by them is within the scope of the duty and authority conferred 
 upon them. So, if injury result to a third person from the making 
 of a drain, which would be actionable if done by a private 
 individual, it will not be actionable if done by trustees ia the 
 performance of a duty cast upon them by an Act of Parliament, 
 but the act to be done by the trustees is one which must 
 
 1 Knowledge of the existence of the apart from the statnte, have been a right 
 statute was not necessaiy to secure the to bring an action for the injury com- 
 protection extended by it : Bead v. Coker, plained of: New Kiver Company v. John- 
 13 C. B. 850; Uoberts v. Orchard, 2 son, 2 E. & E. 435. Per Lord Campbell, 
 H. & C. 769. C.J., Penny v. South-Eastem BailyAy, 
 
 " Ruck V. Williams, 3 H. & N. 308 ; 7 E. & B. 660 : " Unless the particulir'in- 
 27 L. J. Ex. 357; Mersey Docks w.Gibbs, jury would have been actionable before 
 L. K. I H. of L. 93, at p. 107 ; 35 L. J. the company had acquired their statutory 
 Q. B. 225 ; 14 "W. E. 872 ; 14 L. T. powers, it is not an injury for which com- 
 N. S. 677. " The want of funds affords pensation can be claimed." City of Glas- 
 no legal excuse to the defendants. By };ow Union Railway Company v. Hunter, 
 accepting their charter they impliedly L. E. 2 H. of L. (Sc.1 78 ; Caledonian 
 engaged to fulfil all the duties thereby Eailway Company v. Walker's Trustees, 
 imposed. A neglect of those duties sub- 7 App. Cas. 259. But to warrant the 
 jected them to an indictment ; and their giving of compensation, there must be an 
 poverty as a corporation is no more a enabline; power in the Act : Hammer- 
 defence than the poverty of an individual smith Eailway Company v. Brand, L. K. 
 is a defence to an action for breach of con- 4 H. of L. 171 ; Metropolitan Asylums' Dis- 
 tract or to an indictment for a crime": triot w. Hill, 6 App. Cas. 193, per Lord 
 ■ Waterford and Whitehall Turnpike Com- Watson, at p. 212. In America the law 
 pany». People, 9 Barb. 161. _ appears to be otherwise, on the ground 
 
 2 In cases of this sort the injured person that to deprive a person of compensation 
 is U3ii,allv provided for by the compensation is unconstitutional: Lee v. Pembroke 
 clauses of the statute. It is now well Iron Company, 2 Am. E. 59. See, too, 
 established that there can be no right to Mayor of Montreal v. Drammond, 45 L. J. 
 statutory compensation unless there would, P. 0. 33. 
 
PART II.] COEPOEATIONS AND PUBLIC BODIES. 201 
 
 necessarily produce damage whether done carefully or not. If, 
 however, the act authorized to be done by the trustees is done so 
 carelessly or improperly that the careless or improper manner in 
 which it is done either creates or increases the damage, the 
 trustees will be liable.' But the obligations imposed by the Act, Where con- 
 that gives the power of working, must be strictly conformed to. worklngare 
 . James, L. J., forcibly expressed this in a case' where, an option prescribed, 
 bemg given by statute to a company, either to construct works or be strictly 
 to leave them alone ; and, in the event of their electing to con- °° 
 struct the works, specifying certain conditions under which they 
 should work ; but where the company having determined on the 
 construction of the works, and professing to act in execution of 
 their powers, varied the construction as specified in the conditions. 
 He said : " The words of the Act are that it should be lawful for 
 the company to make theif works according to those levels, and, 
 of course, it was optional with them to make or not to make their 
 works at all. But if they made them, and not to those levels, 
 they would be in this dilemma — either from the neglect of that 
 provision or condition the whole works were illegal, or the provision 
 as to levels ought to be construed as imposing a distinct and 
 separate obligation to that effect, the breach of which would not 
 invalidate all their acts and proceedings, but would have to be 
 remedied or punished like any other breach of statutory obligation. 
 Of course the company would prefer their liability under the 
 latter construction to their liability to capital punishment, which 
 would be the consequence of the former; and we prefer that 
 construction." 
 
 There has been considerable discussion as to the limits Extent of 
 within which people or public bodies acting under a statutory ^go'jPlea by 
 authority are protected by the statutory authorization in the per- statutory 
 formance of acts that, except for the authority of the statute, 
 would expose them to liability to actions for damages. 
 
 The first case was Rex v. Pease,' where the defendants were Eex f. Tease 
 authorized to construct a railway parallel and adjacent to an 
 ancient highway, and under their statutory powers had used it 
 for the carriage of coals in waggons drawn by locomotives worked 
 by steam. The locomotives having frightened the horses of the 
 persons using the highway, the defendants were indicted for a 
 nuisance, but it was held that the interference with the rights 
 
 ' Per Williamg, J., Whitehouse v. ^ Nitro-phosphate and Odam's Chemical 
 
 . Fellowee, lo C. B. N .S. 765, at p. 780 ; Manure Companyw. London andSt. Katha- 
 
 . Governor and Company of the British Cast rine Docks Company, 9 Ch. D. 503; 39 
 
 Plate Mannfaotnrers v. Meredith, 4 T. B. L. T. 433 ; 27 W. R. 267. 
 
 794 ; Sutton V. Clarke, 6 Taunt. 29 ; ^ 4 B. & A. 30. Whitehouse v. Bir- 
 
 Boulter v. Crowther, 2 B, & C. 703, 4 .mingham Canal Company, 27 L. J. Ex. 
 
 U. & S. 195. 25. 
 
202 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Viiughan v. 
 Taff Vale 
 Hail way 
 Company. 
 
 General prin- 
 ciple appli- 
 cable as for- 
 mulated by 
 Oockburu, C.J. 
 
 Joues V. 
 Festiniog 
 Hallway 
 Company. 
 
 Hammersmith 
 Kailway 
 Company v. 
 Brand, 
 
 Lord Clielms- 
 ford's view of 
 the law in the 
 House of 
 Lords. 
 
 of the public must be taken to have been contemplated and 
 sanctioned by the Legislature, inasmuch as the statute gave 
 an unqualified authorization to the use of locomotives. This 
 case was followed in Vaughan v. Tafif Vale Eailway Company,' 
 where a wood belonging to the plaintiff was set on fire by 
 sparks from a locomotive. Cockburn, O.J., thus laid down the 
 general principle applicable : " When the Legislature has sanc- 
 tipned and authorized the use of a particular thing, and it is 
 used for the purpose for which it was authorized, and every pre- 
 caution has been observed to prevent injury, the sanction of the 
 Legislature carries with it this consequence, that if damage re- 
 sults from the use of such thing independently of negligence, the 
 party using it is not responsible." In Jones v. Festiniog 
 Railway Company,^ the Queen's Bench held that, on the construc- 
 tion of the defendants' private Act, there was nothing to author- 
 ize the company to use locomotive engines, and, therefore, the 
 company was left to its common law liabilities. 
 
 These cases were much considered in Hammersmith, &c., 
 Eailway Company v. Brand,^ where the judges were called in to 
 advise ■ the House of Lords, and Bramwell, B., said : "I think 
 those cases* clearly wroog, and that they have proceeded on an 
 inadvertent misapprehension of the object and effect of the 
 clauses in question."* But Lord Chelmsford, who delivered the 
 leading opinion of the House, said: "If the cases of Rex 
 V. Pease and Vaughan v. Taff Vale Railway Company were 
 rightly decided, this question has been determined. It was 
 established by those cases ' that when the Legislature has 
 sanctioned the use of a locomotive engine, there is no liability for 
 any injury caused by using it, so long as every precaution is 
 taken consistent with its use.' " After citing the reasoning of 
 the learned Baron, Lord Chelmsford goes on : " With great respect 
 to the learned Baron, we do not expect to find words in an Act 
 of Parliament expressly authorizing an individual or a company 
 to commit a nuisance, or to do damage to a neighbour. The 
 86th section^ gives power to the company to use and employ 
 locomotive engines, and if such locomotives cannot possibly (he) 
 used without occasioning vibration, and consequent injury to 
 
 * Kex V. Peas?, 4 B. & A. 30 ; Vauglmn 
 V. Taff Vale Eailway Company, S H. &N. 
 
 PV. ^? b "^- ^''- 247 ; 8 W. R. 594 ; 2 
 L. T. N. S. 394. " 
 
 ^^ At p. 189 oiL. B. 4 H. of L., Bramwell, 
 B.j's answer to the Lords' question con- 
 tains a full examination of these cases. 
 
 « Of the E-ailways Clauses Act, 1845 (8 
 & 9 Vict. c. 20). 
 
 1 5 H. & N. 679, at p. 685. The case 
 of Gibson 11. Snuth-EaBtern Railway Com- 
 pany, I F. & F. 23, and the cases referred 
 10 in the note to that case viere earlier 
 decisions, and cannot now bo considered 
 good law. Canada Central Railway v. 
 M'Laren, 8 Ont. App. Rep. 564, at p. 583. 
 
 2 L. E. 3 Q. B. 733. 
 s L. R. 4 H. of L. 171 ; 38 L. J. Q. B, 
 
 265 ; 21 L. T. N. S. 238 ; 18 W. B. 12. 
 
PART II.] COEPOEATIONS AND PUBLIC BODIES. 203 
 
 neighbouring houses, upon the principle of law that Cm cunque 
 cdiquis quid concedit, conoed-ere videtur et id sine quo res ipsa esse 
 non potuit, it must be taken that power is given to cause that 
 vibration without liabihty to an action. The right given to use 
 the locomotive would otherwise be nugatory, as each time a train 
 passed upon the line and shook the houses in the neighbourhood, 
 actions might be brought by their owners, which would soon put 
 a stop to the use of the railway. I therefore think, notwithi 
 standing the respect to which every opinion of Mr. Baron Bramwell 
 is entitled, that the cases of Rex v. Pease and Vaughan v. TafiF 
 Vale Railway Company were rightly decided." 
 
 These cases were again recognized as authorities in Dunn v. Subsequent 
 Birmingham Canal Company in the Exchequer Chamber,' and in '"'^''^" 
 Dixon V. Metropolitan Board of Works.^ In Powell v. Fall,' which 
 was the case of setting fire'to a stack by sparks from a traction 
 engine constructed in conformity with the Locomotive Acts, 1861 
 and 1865. Mellor, J., on further consideration, gave judgment 
 for the plaintiff, on the ground that the case was indistinguishable 
 from Jones v. Festiniog Railway Company, and that the right to 
 recover for damages is expressly reserved to a person sustaining 
 injury from the use of locomotive engines authorized by the 
 statutes. On appeal, this decision was affirmed on the latter ground. 
 Bramwell, L.J., however, said : " The arguments which we have 
 heard are ingenious, but I need only say in reply to them that 
 they have hardened my conviction that Rex v. Pease and Vaughan 
 V. Taflf Vale Railway Company were wrongly decided." * 
 
 Geddes v. Proprietors of Bann Reservoir' further defined the Geddes v. 
 principle laid down in Vaughan ■;;. Tafi" Vale Railway Company and o/eann °™ 
 Hammersmith, &c., Railway v. Brand. In this case the defendants, Eeservoir. 
 having power to make a communication between a reservoir and 
 the River Bann, exercised the power in a manner injurious to the 
 plaintiff owing to their not having seen the necessity of making 
 
 1 L. E, 8 Q. B. 42, at p. 47 ; 42 L. J. » 5 Q. B. D. 597 ; 49 L. J. Q. B. 428; 
 
 Q. B. 34 ; 27 L. T. 683 ; 21 W. f?. 266. 43 L. T. 562 ; Kvans ». Mancbester, Shef- 
 
 But still, under tbe antbority of tbe case field, and Linoolnsbire Bailway Company, 
 
 (Vaugban ». Taff Vale Bailway Comjiany) 36 Cb. D. 626. 
 
 to wbich reference has been "made, if the ■• Piggott v. Eastern Counties Bailway 
 canal company have done no more than the Company, 3 C. B. 229, decides that a corn- 
 Legislature have authorized them to do, and pany may be liable ; in not using the most 
 damage results, and although there may effectual contrivances to prevent the emis- 
 he no clauses in the Act affording compen- tion of sparks, even though engines of 
 Bation, no action can be maintained. See greater power may be needed ; or by allow- 
 Boughton V. Midland Great Western Bail- ing combustible matter to lie upon adjacent 
 way of Ireland Company, 7 Ir.E. C.L. 196. lands. Smith v. London and South- 
 
 ^ 7 Q. B. D. 418, at p. 423 ; 5° L. J. Western Bailway Company, L. K, 5 
 
 Q. B. 722 ; 45 L. T. 312 ; 30 W. E. 83. C. P. 98. 
 
 See Watkins v. Beddin, 2 F. & F. 629, per ^ ^ App. Cas. 430, atp. 449 ; Manley v. 
 
 Erie, C.J. : " The defendant has clearly St. Helens Canal and Bailway Company, 
 
 no right to make a profit at the, expense 2 H, & N. 840. 
 of the security of the public." 
 
204 
 
 THE LAW OF NEGLIGENCE, 
 
 [book I. 
 
 Metropolitan 
 Asylums' Dis- 
 trict V. Hill, 
 
 London and 
 Brighton 
 Bailway 
 Company v, 
 TrumaD. 
 
 provision for the additional quantities of water that would be sent 
 down by reason of their works. Lord Hatherley, having dis- 
 tinguished other cases, said the case was not "within any 
 principle which could be laid down with regard to parties keep- 
 ing themselves entirely within their powers and taking care that 
 the powers of an Act of Parliament, when exercised, shall be 
 exercised in a manner to prevent needless injury. We are not 
 bound nor entitled to suppose that they will wilfully do injury 
 by the exercise of the legislative powers which have been given 
 to them ; but it appears to me clearly and plainly that they should 
 use every precaution, by the exercise either of theii' powers created 
 by the Act of Parliament itself, or of their common law powers, 
 to prevent damage and injury being done to others through 
 whose property the works or operations are to be carried on, 
 and to avoid subjecting them to consequences which they were 
 not bound to anticipate from the Act of Parliament, seeing that 
 the Act also enabled the parties who had the power to do so to 
 prevent the mischief," 
 
 Managers of the Metropolitan Asylums' District v. Hill ' was a case 
 where an Act of Parliament authorized the formation of districts 
 and district asylums for the care and cure of sick and infirm poor, 
 but did not by direct and imperative provisions order these things 
 to be done, so that in the event of a nuisance being created there 
 was no statutory protection. It was accordingly held, deciding 
 upon the lines of Jones v. Festiniog Eailway Company, that the 
 rights of private persons were not affected thereby, and that on the 
 occurrence of a nuisance an injunction might be obtained. Lord 
 Watson there said: "Where the terms of the statute are not im- 
 perative, but permissive, when it is left to the discretion of the 
 persons empowered to determine whether the general powers com- 
 mitted to them shall be put into execution or not, I think the fair 
 inference is that the Legislature intended that discretion to be 
 exercised in strict conformity with private rights, and did not intend 
 to confer licence to commit nuisance in any place which might 
 be selected for the purpose," The other aspect of the principle 
 was illustrated in London and Brighton Railway Company v. 
 Truman,'' where a railway company were authorized by their Act to 
 purchase by agreement any lands, not exceeding in the whole fifty 
 acres, in such places as should be deemed eligible for the keeping 
 of cattle carried by their railway. Under this power they bought 
 land and used it as a yard or dock for their cattle traffic. The 
 user was a nuisance to the occupiers of houses near. The House of 
 Lords reversed the decision of the Courts below, and held that the 
 
 leApp.Cas. I93i SoL. J.Q.B.3S3;44L.T.653;29W.E.6i7. - 1 1 App. Gas. 45. 
 
PART 11.] CORPORATIONS AND PUBLIC BODIES. 205 
 
 occupiers were not entitled to an injunction ; and in so doing again 
 affirmed the principle in Eex v. Pease, Vaughan v. Taff Vale Rail- 
 way Company, and Hammersmith, &c., Railway Company v. Brand. 
 A great point was made of the decision in Managers of the Metro- Meti-opoiitan 
 politan Asylums' District v. Hill and dicta of Lord Watson therein.^ Mc^'"!fflu '^" 
 Lord. Selbome, after stating the question as being whether the discriminated 
 
 , mn>-iTiT. •! i~i from London 
 
 pnnciple oi Rex v. Pease, Vaughan v. iaif Vale Railway Company, and Brighton 
 and Hammersmith, &c.. Railway Company v. Brand applied, thus company «. 
 discriminated the case then before the House from the earlier case : J'™]"S",'i?''' 
 
 lord Selbome 
 
 — " In that case the establishment of a small-pox hospital within in the House 
 certain local limits was not specially authorized, as the construc- 
 tion of the London and Brighton Railway, for the purpose (among 
 other things) of the loading, carriage, and unloading of cattle and 
 other animals, was here. Jf it had been, I do not think that this 
 House would have considered the case of any adjacent land, in a 
 situation not defined, which the Board might have been authorized 
 to purchase by agreement for the enlargement, as they might 
 think desirable, of the hospital premises, different from that of 
 the site of the hospital itself. In that case no use of any land 
 which must necessarily be a nuisance at common law was author- 
 ized; it was not shewn to be impossible that lands might be 
 acquired in such a situation and of such extent as to enable a 
 femall-pox hospital (if required by the Poor Law Board) to be 
 erected upon them without being a nuisance to the adjoining 
 land. Here there can be no question that the Legislature has 
 authorized acts to be done for the necessary and ordinary purposes 
 of the railway traffic (e.g., such as those complained of in Rex v. 
 Pease) which would be nuisances at common law, but which, being 
 so authorized, are not actionable. In that case there were no 
 compulsory powers ; here there are the powers usually given t6 
 railway companies, and the land in question, though not acquired 
 under those powers, was acquired for purposes expressly author- 
 ized, being ejiisdem generis with those for which the compulsory 
 powers were given, and was to be used in connection with and 
 as subsidiary to the railway and other works executed under those 
 powers. In that case there were no provisions for any compen- 
 sation for any damage or injury to any persons under any cir- 
 cumstances. Here there are, the line being drawn, as is usual 
 in railway Acts, between lands taken or injuriously affected by 
 the construction of the works, which are subjects of compensation, 
 and lands which or persons who may suffer some subsequent 
 detriment or annoyance from the authorized use of the railway 
 and works when constructed ; so that, if the question had been 
 
 > At pp. 212, 2I.'^. 
 
20G THE LAW OF NEGLIGENCE. [book i. 
 
 one of compensation, the respondents would not be vpithin the 
 line. In all these points, as it seems to me, the present case is 
 not similar to, but in direct contrast with, that of Managers of 
 the Metropolitan Asylums" District v. Hill." 
 The law as Two expressions of judicial opinion, though in point of time not 
 
 by Lords"^ the latest, but of the highest authority, in Geddes v. Proprietors 
 Biackbirn.'""^ of Bann Eeservoir,^ the one by Lord Hatherley,' the other by Lord 
 Blackburn,' should be cited as concisely summing up the law on 
 this subject. Lord Hatherley, C, commenting on Cracknell v. 
 Corporation of Thetford,^ where works prescribed by statute were 
 executed, and the natural consequence of their execution was an 
 alteration in the condition of a river, which caused damage to the 
 plaintiffs, who brought an action on that ground against the cor- 
 poration, said : " If a company in the position of the defendants 
 there has done nothing but that which the Act authorized — nay, 
 may in a sense be said to have directed — and if the damage which 
 arises therefrom is not owing to any negligence .on the part of the 
 company in the mode of executing or carrying into effect the 
 powers given by the Act,' then the person who is injuriously 
 affected by that which has been done must either find in the Act 
 of Parliament something which gives him compensation, or he 
 must be content to be deprived of that compensation, because 
 there has been nothing done which is inconsistent with the j)ower 
 conferred by the Act and vrith the proper execution of those 
 powers." And Lord Blackburn': " For I take it, without citing 
 cases, that it is now thoroughly well established that no action 
 will lie for doing that which the Legislature has authorized, if it 
 be done without negligence, although it does occasion damage to 
 any one ; but an action does lie for doing that which the Legis* 
 lature has authorized, 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." 
 American rule The general principle of liability has thus been stated by 
 American authors of repute': "If the statute, expressly or by 
 necessary intendment, enacts either that the corporation shall not 
 be subject to certain burdens and liabilities, or, on the other 
 hand, that it shall be, there is little difficulty in determining the 
 extent of the corporate liability in a particular case. But where 
 the statute is entirely silent on the subject of the liability of a 
 public body for misfeasance or nonfeasance in respect "of a public 
 
 1 3 App. Gas. 430. = At p. 438. s At p. 455. " L. B. 4 C, P. 620. 
 " ghcurman and EcdfielJ, Law of Negligence, 4th edit. s. 282. 
 
PARTii.J CORPORATIONS AND PUBLIC BODIES. 207 
 
 duty, regard should be had, in determining its liability in a given 
 case, not so much to the nature and character of the various 
 powers conferred, as to the object and purpose of the Legis- 
 lature in conferring them. Where a duty imposed is, in no 
 proper sense, for ' public purposes,' except as the public derives 
 a common benefit from its proper discharge, and there is nothing 
 in the statute imposing it which indicates a contrary intention, 
 the true rule of construction is, that the Legislature intended 
 that the corporation's liability should be co-extensive with that 
 imposed by the general law on individuals negligently performing, 
 or omitting to perform, a duty owing by them." 
 
 To return, however, from our digression into the consideration 
 of the protection afforded by statutory authority to acts that 
 would, if done without that authority, render those responsible 
 liable to an action for tort, to the consideration of the special 
 position of corporations or other public bodies. There does not Oonsiderations 
 exist any intrinsic distinction between the liability of public bodies the case of'" 
 invested with statutory powers and that of private persons, apart fnveBted°ivith 
 from peculiarities arising from the powers conferred on such public statutory 
 bodies by the instrument or authority creating them. The liability 
 of a master for the act of his servant is limited by the authority, 
 express or implied, that the servant has from the master. The 
 liability of public bodies is limited in addition by the instrument 
 of their creation; and even in the event of their wishing, to ratify 
 some act that is thus vltra vires, they are able to do so only in 
 circumstances we shall subsequently have to consider. 
 
 The general rule of liability of persons or bodies invested with General mio. 
 statutory powers is thus expressed by Brett, L.J.' : " If people do 
 that which, as against the public, amounts to misdemeanour, and 
 lays them open to an indictment, and if, besides the injiiry to the 
 public, they so do it as to do an injury to a private individual, 
 that individual may maintain an action for damages for the breach 
 of the statutory enactment which lays them open to an indict- 
 ment;" and Day, J., in a later case,^ thus expresses himself: 
 " The law is plain that whoever undertakes the performance of, 
 or is bound to perform, duties, whether they are duties imposed 
 by reason of the possession of property, or by the assumption of 
 an office, or however they may arise, is liable for injuries caused 
 by his negligent discharge of those duties. It matters not whether 
 he makes money or a' profit by means of discharging the duties, 
 or whether it be a corporation or an individual who has undertaken 
 to discharge them. It is also immaterial whether the person is 
 
 ' Glossop V. Heston and Isleworth Local ^ Gilbert v. Corporation of the Trinity 
 BoarJ, 12 Cli. D. 102, at p. 121. House, 17 Q. B. D, 795, at p. 799. 
 
208 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Public bodies, 
 how affected 
 by differences 
 in the mode 
 of their incor- 
 poration. 
 
 guilty of negligence by himself or by tis servants. If lie elects to 
 perform the duties by his servants, if, in the nature of things, he 
 is obliged to perform the duties by employing servants, he is 
 responsible for their acts in the same way he is responsible for his 
 own." 
 
 We are next to consider how the liabilities of public bodies may 
 be modified by differences of the duties cast upon them. The ancient 
 apprbpriate method of constituting a public body invested with 
 privileges and affected with duties was by charter from the Crown ; 
 and from this incident of their creation an extension of their 
 liabilities was deduced ; for the grant of this charter was in the 
 nature of a favour, which must be accepted with all its burthens 
 or rejected with all its benefits,' " otherwise a corporation might 
 reject the obligation which was imposed and accept the benefit 
 which was conferred upon them." From this peculiarity of its 
 constitution it resulted that not only was the corporation bound 
 to the Crown to the performance of the duties in consideration of 
 which it had received benefits, but in some circumstances was in 
 addition liable in damages to private persons for their non-per- 
 formance.^ This was laid down in Mayor, &c., of Lyme Kegis v. 
 Henly,' where Park, J., delivering the opinion of the judges, thus 
 expressed himself: — " We do not go the length of saying that a 
 stranger can take advantage of an agreement between A. and B., 
 nor even of a charter granted by the King where no matter of 
 general and public concern is involved ; but where that is the case, 
 and the King, for the benefit of the public, has made a certain 
 grant imposing certain public duties, and that grant has been 
 accepted, we are of opinion that the public may enforce thg per- 
 formance of those duties by indictment, and individuals peculiarly 
 injured by action." It has been sought to base this upon an 
 alleged principle of law, " that a contract made expressly for the 
 benefit of a third person may be enforced by such person so long 
 as the parties thereto have not agreed to rescind it,"* but it would 
 seem both simpler and more accurate to consider the relation as 
 arising from the general position of the Crown as bound to. the 
 
 1 Eex V. VVestwood, 7 Bing. i, at p. 
 92. 
 
 " An indictment and an information are 
 the only remedies to which the piiblio can 
 resort ior a redress of their grievances in 
 this respect. I f an individual has suffered 
 a particular injury, he may recover his 
 loss by an action on the case : i Hawk. 
 PI. Cr. 76, 369 ; 2 Chitty's Cr. Law, 
 333. 3S2-3i 403-4-S; S Birr. 2700; 
 Cowp. 86 ; 4 Bl. Com. 167. 
 
 3 2 CI. &rin. 33l,_at p. 355. As to the 
 American cases on tliia point, see Weight- 
 
 man V. Corporation of Washington, I 
 Black. 39, at p. 53. 
 
 * Such a principle does seem to have 
 been enounced in Dutton v. Pool ; Vent. 
 318, at p. 332, 2 Lev. 211, and to have been 
 the basis of a series of American canes, 
 Lawrence v. Fox, 20 N. Y. 268 ; Van 
 Scliaick V. Third Avenue Railroad Com- 
 pany, 38 N. y. 346 ; but was distinctly 
 denied to be law by Lord Lan^dale, M.B., 
 in Colyear v. Countess of Mulgrave, 2 
 Keen 81, at p. 98. See Pollock on Con- 
 tracts, 4th edit, p, 200. 
 
PARTii.J COEPOEATIONS ANB PUBLIC BODIES. 209 
 
 promotion of tlie interests of the subject, and as acting for them 
 in matters where political are intermixed with private considera- 
 tions, and the subject as clothed with rights in the matter some- 
 what analogous to those of a cestui que trust. 
 
 But the cases have been extended considerably further than 
 this. Thus in Sutton v. Johnstone,' the plaintiff brought an action Sutton v. 
 for malicious prosecution, and added a count for unreasonably •f°'"'^'°"*- 
 delaying the calling of a court-martial ; and in reference to which 
 Eyre, B., lays down the proposition that " every breach of a public 
 duty working wrong or loss to another is an injury, and action- 
 able." This dictum was approved and adopted in Ferguson v. Earl Ferguson v. 
 of KinnoulP by Lord Lyndhurst, 0. : " When a person has an im- KinnoiiU. 
 portant public duty to perform, he is bound to perform that duty, 
 and if he neglects or refuses^so to do, and an individual in conse- 
 quence sustains an injury, that lays the foundation for an action to 
 recover damages by way of compensation for the injuiy that he has 
 so sustained. My lords, that was expressly laid down, if it were 
 necessary to cite authority for the purpose, in the case of Sutton 
 V. Johnstone,' by Mr. Barort Eyre, in delivering the judgment of the 
 Court of Exchequer in that important case ; and other authorities 
 might be mentioned to the same effect."^ By Lord Brougham": 
 "If the law casts any duty upon a person which he refuses or fails 
 to perfonn, he is answerable in damages, as my noble and learned 
 friend has stated, to those whom his refusal or failure injures. 
 .... Nor are these propositions the less true generally and as 
 the rule because there are exceptions, and a very few exceptions, 
 introduced into the law and Constitution of this, and indeed of 
 every, country from the necessities of the case. Thus, the Legisla- 
 ture can, of course, do no wrong; but so [_sic] its branches are placed 
 beyond all control of the law. And the courts of justice, that is, 
 the superior courts, courts of general jurisdiction, are not answer- 
 able, either as bodies or by their individual members, for acts 
 done within the limits of their jurisdiction. Even inferior courts, 
 provided the law has clothed them with judicial functions, are not 
 answerable for errors of judgment ; and where they may not act as 
 judges, but only have a discretion confided to them, an erroneous 
 exercise of that discretion, however plain the miscarriage may be,, 
 and however injurious its consequenpes, they shall not answer for. 
 This follows from the very nature of the thing : it is implied in 
 the nature of judicial authority, and in the nature of discretion 
 where there is no such judicial authority. But where the law neither 
 
 ' 1 T. E. 784. ence). Innes v. Magistrates, Moiison's 
 
 '' 9OI.-&F. 251. Dictionary of Decisions, vol. xxxi. case 
 
 ^ Green v. Buccle-churclies, 1 Leon. p. 13189. 
 323, c. 456. Stirling v. Turner (no refer- * At p. 289.. 
 
 O 
 
210 THE LAW OF NEGLIGENCE. [book i. 
 
 confides judicial power nor any discretion at all, but requires 
 certain things to be done, every body, whatever be its name, and 
 whatever other functions of a judicial or^of a discretionary nature 
 it may have, is bound to obey, and, with the exception of the 
 Legislature and its branches, every body is liable for the conse- 
 quences of disobedience ; that is, its members are liable" through 
 whose failure or contumacy the disobedience has arisen, and the con- 
 sequent injury to the parties interested in the duty being performed." 
 Lord Oottenham' states the principle : " If there has been a wrong 
 sustained, if that wrong has arisen from the body of which these 
 individuals form a part having refused to do that which the law 
 has stated they are bound to do, and damage has been sustained 
 by an individual in consequence, and if, in such cases, the law be 
 that the individual members of the body are all answerable in their 
 own persons for the damage and injury so sustained, the whole case 
 is exhausted." And Lord CampbelP: " I conceive that, by the 
 law of Scotland, as well as by the law of England, and, I beheve, 
 by the law of every civilized country, where damage is sustained 
 by one man from the wrong of another, an action for compensation 
 is given to the injured party against the wrongdoer." 
 
 The law thus explicitly laid down by this highest Court must 
 be taken to be definitely established. But there are not wanting 
 authorities in support of a different view. 
 American law In America a distinction is drawn, and" well established,' between 
 
 diffflrs " 
 
 corporations created for their own benefit, who are made to stand, 
 in the same position as individuals, and quasi-corporations created 
 by the Legislature for purposes of public policy, who, though liable 
 to indictment for omission to perform duties enjoined, are not 
 liable to an action for such neglect unless the action is given by 
 some statute.* 
 Later EngijBh And in England, Kelly, O.B. — delivering the considered judg- 
 ment of the Court of Exchequer in Wilson v. Mayor and Cor- 
 poration of HaHfax,* referring to the case of Hartnall v. Eyde 
 Commissioners," where it was decided that the statute creating the 
 
 1 At p. 308. that hia opinion has failed to satisfy my 
 
 '■' At p. 310. mind of the correctness of the position." 
 
 ' Hickok V. Trustees of the Village of Weightmanw. Corporation of Washington, 
 
 Plattsburgh, 16 N. Y. 158. The distinc- i Black. 39; see, too, Eohinson v. Cnam- * ". 
 
 tion has not gone unquestioned. In Peek berlain, per Peckham, J., 34N. Y. 389. 
 V. Village of Batavia, 32 Barb. 634, * Mower v. Leicester, 9 Mass. 248, at 
 
 Marvin, J., is reported as saying, p. 642 : p. 250. Wilson v. Mayor of New York, i 
 
 " It is not for me to question the soundness Denio 595. Barnes v. District of Coliim- 
 
 of this position. Indeed, when a case bia, 91 U. S. (i Otto) 540, at p. 552, it 
 
 arises in which it is in point, I shall of is said, " whether this distinction is based 
 
 course follow it ; but 1 may be permitted upon sound principle or not, it is so well 
 
 to say, with great respect for the very able set lied that it cannot he disturbed." . 
 and learned judge upon whose reasoning ^ L. R. 3 Ex. 114, at p. 119 ; 37 L. J. 
 
 the Court proceeded (Selden, J., in Weet Ex. 44 ; 16 W. E. 707 ; 17 L. T. N. S. 666. 
 V. Trustees of the Village of Brockport), ^ Followed in Ohrby v, Eyde Commia.. • 
 
 authorities. 
 
partilJ COKPOEATIONS AND PUBLIC BODIES. 211 
 
 commissioners haviag expressly imposed upon them the obligation 
 of repairing the roads, they were Uable not merely to be indicted for 
 a breach of that duty, bu^ to be sued by anybody who could shew 
 that by reason of such breach of duty he had sustained particular 
 and special damage — said, " Should a case arise in which the 
 question shall be whether the 68th section of the PubHc Health 
 Act, 1848,' imposes upon the local authority the liability to be. 
 sued in a civil action for damages by reason of a failure to 
 perform a duty assigned to them by the Act, we should pause 
 before we could hold that, in addition to the well-established 
 remedy by indictment, every individual among the public would 
 have a right of action for any and every injury resulting from 
 such breach of duty. Upon this point, however, as it does not 
 arise in the present case, we pronounce no opinion." 
 
 On the other hand, in Hammond v. Vestry of St. Pancras,^ a Hammond ». 
 case under section 72 of the Metropolis Local Management Act,' st!l'ancias. 
 where it was sought to impose a liability for an injury resulting 
 from the disrepair of a sewer, and apart from negligence, Brett, 
 J., said : " Now, if the 72nd section does throw upon the defend- 
 ants an absolute duty or obligation to guarantee that the sewers 
 shall be at all times cleansed, it follows that, if any injury arises 
 to an individual from their not being so kept, the vestry are 
 hable."^ The decision of the Court turned on the fact that no 
 negligence was alleged, afld therefore, failing a statutory .duty 
 imposed in " the clearest possible terms," there was no liability. 
 
 The point, however, established by the American decisions, No distinct 
 that bare trustees are not liable to private persons for mere cisSn^contrary 
 
 sioners, 5 B. & S. 743 ; 33 L. J. Q. B. 296 ; evidence of negligence in original con- 
 
 12 W. R. 1079. stiTiction to justify llie finding of the jury 
 
 ' The section runs : " Be it enacted to that effect, and also that the corpora- 
 
 that the Incal board of health shall" &c. lion had a discretion when to do the work. 
 
 II & 12 Vict. u. 63 repealed 38 & 39 Vict. ' i8 & 19 Vict. c. 120. 
 
 u. 55, s. 343. ■• In Glossop V. Heston and Isleworth 
 
 ^ L. B. 9C. P. 316; 43L. J. C. P. 157; Local Board, 12 Ch. D. 102, at p. 120, 
 
 30L.T.N. S. 296;22 W. B. 826. Meeki!. Brett, L. J., said : " The defendants hav- 
 
 Whiteohapel Board of Works, 2 F. & F. 144, ing done no act, it seems to me the 
 
 is distinguished as involving negligence ; Court of Chancery has never, without 
 
 if othennse, is overruled Lampard ». City some act done by such a body as this, 
 
 Commissioners of Sewers, i Times Bep. granted what is called a mandatory in- 
 
 114. Fleming i). Mayor aiid Corporation of junction against a public body in order 
 
 Manchester, 44 L. T. 517, 45 J. P. 423, to force them merely to enter upon ^nd to 
 
 in similar in its facts to the case in the do their duty. There was a long list of 
 
 tejst, hut the finding of the jury was that cises cited to us the other day ; I watched 
 
 if the sewer had been originally properly them carefully, and there was not one of 
 
 constructed, it would not have required them in which the defendant had not done 
 
 repair, and would not have burst. Ste- an act which had caused an injury to a 
 
 phen, J., held the corporation liable. In private individual, and which act was un- 
 
 Fisher's Digest, vol. iii. col. 3135, this justified by any statute, and which was 
 
 decision is said to have been reversed in such an act as.'if done by a piivate indi- 
 
 the Court of Appeal, but the case is not vidual, would have given a cause of action 
 
 reported. Probably the decision was re- at law " : 48 L. J. Ch. 736 ; 40L. T. 736 ; 
 
 versed on the ground that there was no 28 W. K. iit. 
 
 to the rule in 
 America. 
 
212 
 
 THE LAW OP NEGLIGENCE. 
 
 [book I. 
 
 Cases 
 examined. 
 
 M'Kinnon v, 
 Fensou. 
 
 Jolliffe V. 
 Wallasey 
 Local Board. 
 
 abstention from performing functions to the discharge of which 
 the State has obliged them, seems never to have been distinctly 
 and seriously argued in an English case ; but the law has been 
 taken as settled in a contrary sense to that which has been 
 established in America ; though, with the exception of a few 
 dida, such as that in Borough of Bathurst v. Macpherson' — 
 " In their lordships' opinion, there is no principle upon which a 
 distinction in this respect between nonfeasance and misfeasance 
 can be supported " — the point involved in the English cases is 
 not irreconcilable with the existence of such a rule. An exami- 
 nation of them will make this plain. Thus, Mersey Docks- 
 Trustees V. Gibbs^ does not touch the point, since there the 
 common law imposed a duty to take care, as long as the docks 
 were open for public use, that they should be in a state to be 
 used without danger to the lives and property of those using 
 them. That case is similar to most of the other cases where the 
 neglect, if an omission, is an omission to maintain a standard set 
 by the defaulting body, and not an omission to take any proceeding 
 whatever under their powers. 
 
 The rule as generally applicable is enunciated by Pollock, C.B., 
 in the case of M'Kinnon v. Penson' — " that where an indictment 
 can be maintained for something done to the general damage of 
 the public, an action on the case can be maintained for a special 
 damage thereby done to an individual, as in the ordinary case of 
 a- nuisance in the highway, or by a stranger digging a trench 
 across it, or by the default of the person bound to repair ratione 
 tenurcB." But it is obvious from the instances given, and, 
 indeed, from the general language of the propositioh, that this 
 rule applies to those cases where a nuisance has been created 
 either by the act of the defendant or from his default in main- 
 taining conditions that have been altered from their original state 
 by the act of the defendants. The case of default to repair ratione 
 tenurcB is also well within the rule in Henly v. Mayor, &c.,, of 
 Lyme. An example of those cases of frequent occurrence where de- 
 fault in maintaining conditions that have been altered from their 
 original state by the act or under the title o:^ the defendant, and 
 where the damage really arises from a positive act imperfectly 
 carried out, and not from an omission to act, is the omission 
 complained of in JoUifEe v. Wallasey Local Board," which was 
 " not placing a buoy of sufficient size and dimensions over the 
 anchor to resist the current of the ebb and flow of the tides so 
 as properly and effici'ently to indicate the position of the anchor." 
 
 ' 4 App. Cas. 256, at p. 267. = L. E. i H. of L. 9-5. 
 
 3 8 Ex. 327 ; 23 L. J. M. C. 97. 
 
 • L. E. 9 C. P. 62 ; 43 1. J. C. P. 41 ; 29 L. T. N. S. 582. 
 
PABTii.] CORPORATIONS AND PUBLIC BODIES. 213 
 
 That is, the omission was the failure to complete or to maintain 
 work that they had undertaken — ^not an omission to undertake 
 work to which they were obliged by statute, except in the 
 sense that all shortcomings in enjoined work can be termed 
 '■ ©missions." 
 
 White V. Hindley Local Board' is to the same effect. A grid white ». 
 was placed over the opening of a sewer to prevent the hole being Lo;ai Board, 
 dangerous to those using the road, and also to prevent stones 
 passing into the sewer. The grid was defective through want of 
 repair, and the horse of the plaintiff was injured. The Court 
 held that the defendants were liable, "at all events in their 
 capacity of owners of the sewers," even if there was an exception 
 to their liability as surveyors of highways. 
 
 Borough of Bathurst v. Macpherson,^ before the Judicial Commit- Borougli of 
 tee of the Privy Council, though containing expressions of greater Macpherson. 
 extension, does not necessarily involve any wider principle. There 
 the damage for which plaintiff sued was caused by an artificial work, 
 viz., a barrel drain, without the construction of which the accident 
 would not have occurred, nor yet if it had been kept in repair. 
 The question in the case was whether the Corporation of Bathurst 
 were bound to keep this drain, that they had made, in repair. 
 The opinion of the judges of the Privy Council was thus summed 
 up' : — " Their lordships are therefore of opinion that the appellants, 
 by reason of the construction of the drain, and their neglect to 
 repair it, whereby the dangerous hole was formed, which was left 
 open and unfenced, caused a nuisance in the highway, for which 
 they were liable to an indictment. This being so, their lord- 
 ships are of opinion that the corporation are also liable to an 
 action at the suit of any person who sustained a direct and par- 
 ticular damage from their breach of duty." But the default of 
 the defendants was not " keeping the drain they had made in 
 repair." They had made a hole, and neglected to prevent its 
 
 ' L. R. 10 Q. B. 219 ; 44 L. J. Q. B. 1 14 ; ccciirring. The Master of the Eolls sng- 
 
 32 L.T. N. S. 460; 23 W. R 651. Black- gested a possible distinction between 
 
 more v. Vestiy of Mile End Old Town, Moore's case and that of the AVorthing 
 
 9 Q. B. D. 451, where a water meter was Local Board to be that in the latter the 
 
 placed in aniron box in the footway, the top same authority had control over the 
 
 ofwhichwove smooth. Smiths. WestDerby highway and over the valve cover. But 
 
 Local Board, 3 C. P. D. 423; 47 L. J. in the subsequent case of Bast London 
 
 C. P. 607. Kent V. Worthing Local Board, Waterworks Company v. Vestry of St. 
 
 loQ. B. D. 118; S2L. J. Q. B. 77. This Matthew, Bethnal Green, on Kent v. 
 
 was reflected on in Moore v. Lambeth Worthing Local Board being cited in 
 
 Waterworks Company, 17 Q. B. D. 463 ; argument, the Master of the Eolls obr 
 
 55 L. J. Q. B. 304, where it was held in served: "We oven-uled that case the 
 
 the Court of Appeal that a fire-plug law- other day.'' See The Queen v. Mayor, &c., 
 
 fully fixed in the highway, and in good of Poole, 19Q. B.D. 602. As to the autho- 
 
 condition, becoming dangerous through rity of this case on the preliminary point 
 
 defect in the condition of the suiTOuuding taken in it, see the curious note at p. 683. 
 
 pavement, did not give a cause of action " 4 App. Cas. 256 ; 48 L. J. P. C. 61. 
 
 against the water company on an accident ' At p. 267. 
 
214 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Jjictum oi 
 Best, O.J., iu 
 Henly v. 
 Mayor of 
 Lyme. 
 
 VieliUn in 
 Borough of 
 Bathurst v. 
 Macpherson. 
 
 becoming dangerous, and the necessary decision of the case is 
 thus expressed :— " Their lordships are of opinion that, under the 
 circumstances, the duty was cast upon them of keeping the arti- 
 ficial work, which they had created, in such a state as to prevent 
 its causing a danger to passengers on the highway which, but for 
 such artificial construction, would not have existed." Thus in this 
 case there was an omission supervening on an act, not a mere omis- 
 sion to act. This would be sufficient to reconcile the case with 
 the American rule, even if the fact of the action being against 
 a corporation, and not against a body invested merely with duties 
 by statutory enactment, did not bring the case within the other 
 branch of the rule by assimilating it to the cases of which Henly 
 V. Mayor, &c., of Lyme is the type. But there are the expressions 
 already quoted, which are certainly not reconcilable with the 
 existence of any such rule as would draw a distinction between 
 corporations and quasi-corporations at all. The opinion' states : 
 " In their lordships' opinion, there is no principle upon which a 
 distinction in this respect between nonfeasance and misfeasance 
 can be supported." The authorities upon which this statement 
 is based are — (i) a dictim in Henly v. Mayor of Lyme Eegis, by 
 Best, C.J., in the Court of Common Pleas,'' and (2) the case of 
 Hartnall v. Ryde Commissioners. The first of these is : "I take 
 it to be perfectly clear that if a public officer abuses his officej. 
 either by an omission or commission, and the consequence of that 
 is an injury to an individual, an action may be maintained against 
 such public officer." But an examination of the passage in the 
 judgment shews by its sequel that no more was intended than has 
 been enunciated above as the proposition affirmed in Henly v. 
 Mayor of Lyme. The judgment continues : " Then what consti- 
 tutes a public officer ? In my opinion, every one who is appointed 
 to discharge a public duty, and receives a compensation, in whatever 
 shape, whether from the Crown or otherwise, is constituted a 
 public officer." No more, then, is asserted than that, where duties 
 are to be performed in consideration of benefits conferred, an 
 action lies by those specially injured by the non-performance of 
 the duties which were the consideration for the benefit, and, were 
 verbal criticism of any weight, , the abuse of an office would 
 difier vitally from the mere non-entry on the duties of it. 
 
 2. The opinion in Borough of Bathurst v. Macpherson says : 
 " It [i.e., the case before the Committee] more nearly resembles 
 the public body held liable in an action in Hartnall v. Ryde Com- 
 missioners,' a decision which has been recognized as sound law 
 in several later oases. It was there held that the statute creating 
 
 1 At p. 267. 
 
 " S Bing. at p. 107. 
 
 4 B. & S. 361. 
 
PART II.] CORPORATIONS AND PUBLIC BODIES, 215 
 
 the commissioners having expressly imposed upon them the 
 obligation of repairing the roads, they were liable not only to be 
 indicted for a breach of that duty, but to be sued by anybody 
 who could shew that by reason of such breach of duty he had 
 sustained particular and special damage." 
 
 Hartnall v. Ryde Commissioners, which, says Brett, L.J.^' " was What was 
 an exceptional case," was recognized as an authority in Ohrby v. Havtnaii J. 
 Eyde Commissioners,'' where Mellor, J., giving the judgment of ^[^ j ^°™" 
 the Court, having arrived at the conclusion that the act in respect 
 of which the omission was charged was one in which there was 
 no absolute discretion, proceeds : " And if that be the true con- 
 struction of the section, the record discloses a case of actual neg- 
 ligence and breach of duty on the part of the defendants 'them- 
 selves, and we think that under such circumstances we are bound 
 by the decision of this Court in Hartnall v. Eyde Commissioners 
 upon the construction of another section of this very statute, but 
 which is exactly in point as to this objection. If that authority 
 is to be questioned, it must be in a court of error, as we are bound 
 by it." 
 
 But in Gibson v. Mayor of Preston,' Hannen, J., giving the con- Gibson v. 
 sidered judgment of the Court of Queen's Bench, thus limited the Preston, 
 effect of Hartnall v. Ryde Commissioners. There " the Court did 
 draw the inference that the Legislature, by the language of the 
 particular local Act, intended to give a right of action against the 
 defendants for an injury resulting from a breach of their duty to 
 repair streets, but the enactment in that case was peculiar." 
 While the dictum in the earlier case of Wilson v. Mayor and 
 Corporation of Halifax has been already noticed, the case of 
 Hartnall v. Ryde Commissioners is therefore to be looked on as 
 the drawing of a particular inference from the terms of a special 
 and local statute,* and not as the enunciation of any general doc- 
 trine of the common law. 
 
 Guardians of the Poor of the Holbom Union v. Vestry of the Guardians of 
 Parish of St. Leonard, Shoreditch,* is very similar to Hartnall v. „. Vestry oT°° 
 
 the Parish of 
 St. Leonard, 
 
 ^ Glossop V. Heston and Isleworth is only an instance of what was laid down Shoreditoh. 
 
 Local Board, 12 Ch. D. 102, at p. 121. ty the Honse of Lords in a case [i.e., 
 
 ° 5 B. & S. 743, and supra. Henly v. Mayor, &c., of Lyme] where it 
 
 ' {1870) L. R. 5 Q. B. Z18, at p. 221. ;wa8 held that an individual who had sus- 
 Hartnall v. Commissioners of Byde was tained damage from a corporation neglect- 
 also distingnished in Parsons v. Vestry of ing to repair a sea-wall, which by their 
 St. Matthew, Bethnal Green, L. E. 3 charter they werei tinder an obligation to 
 C. P. 56 ; 37 L. J. C. P. ^62 ; 16 W. R. 85 ; repair, might sue such corporation." In 
 17L. T. S. S. 211. " '- the report in the Law Reports, the oorre- 
 
 * What this inference was is shewn by sponding passage to this cited is abso- 
 
 Willes, J., Parsons v. St. Matthew, Beth- Intely unintelligible, 
 nal Green, 37 L. J. C. P. 62, at p. 65 : ^2 Q. B. t>. 145 ; 46 L. J. Q. B. 36 ; 
 
 "The case of Hartnall a. Ryde Com- 35 L. T. N. S. 400 : 25 W. R, 40. 
 missioncrs introduces no new doctrine ; it 
 
216 
 
 THE LAW OF NEGLIGENCE. 
 
 Fbook I. 
 
 The rule in 
 Sutton V. 
 Johnstone 
 sanctioned in 
 Ferguson v. 
 KinnouU. 
 
 Exception in 
 the case of 
 highways and 
 bridges. 
 
 24 Hen. VIII. 
 c. fi. 
 
 2 & 3 P. & M. 
 0.8. 
 
 Ryde OommissiGners. There the defendants were sued under 
 l8 & 19 Vict. 0. 120, for neglecting to remove dust and refuse. 
 They sought to bring themselves within the judgment in Parsons 
 v. St. Matthew, Bethnal Green,' but the Court held them liable ; 
 Mellor, J., on the ground, " As the Legislature has not thought fit 
 to exempt the defendants from liability, it would be unreasonable 
 to hold that the duty cast upon them can be enforced only by 
 indictment or mandamus." But Lush, J., said : " The defend- 
 ants, as the vestry of the parish, were bound to clear away the 
 dirt and rubbish of the inhabitants, and the plaintiffs enjoy at 
 least in this respect the same rights as persons residing within 
 ihe parish. Section 127 enacts that any profit arising from the 
 sale of the refuse is to go to the defendants, and this no doubt was 
 intended as some compensation for the expense incurred in the 
 performance of the diity imposed upon them."^ This ground of 
 decision would mark a further distinction between officers who 
 owe a duty to individuals from whom they receive a compensa- 
 tion for the performance of some, specific service, and those whose 
 obligations are to the public alone.^ At any rate, it is no autho- 
 rity for the proposition that trustees or (Juasi-corporations created 
 by the. Legislature for purposes of public policy are by common 
 law liable to private persons for neglect of duties enjoined on 
 them. That proposition is, however, to be deduced from the rule 
 laid down by Eyre, B.,'' " that every breach of & public duty 
 working wrong or loss to another is an injury, and actionable," 
 recognized and sanctioned as it is by the opinions in the House 
 of Lords in Ferguson v. Earl of KinnoulL* To this rule, however, 
 there is an exception in the case of highways and bridges. 
 
 At common law the remedy for want of repair in highways and 
 bridges was not by suit against the surveyor or justices, but by 
 presentment or indictment against the county, or against some 
 individuals thereof for and in the name of all the rest." 
 
 The first statute on the subject of bridges was 22 Hen. VIII. 
 0. 5, which provided that if a bridge were within a city or corpo- 
 rate town, the inhabitants should repair it ; if not, the inhabitants 
 of the county or shire should do so. As to highways, the first 
 statute was 2 & 3 P. & M. c. 8, by which constables and church- 
 wardens of parishes were to call the inhabitants together annually 
 to choose two surveyors and orderers for mending highways, who 
 were bound to assume the trust under a penalty of twenty shillings. 
 
 1 L. K. 3 0. p. 56. 
 
 2 Nioholl V. Allen, i B. & S. 916. 
 
 ^ On the whole of this subject, see an 
 admirable judgment by Selden, J., West 
 V. Ti-ustees of the Village of Brockport, i5 
 N. Y. 161. 
 
 * Sutton V. Johnstone, i T. E. 784. 
 
 5 9CI. &]?. 251. 
 
 ^ 2 Inst. 701; Popham, 192 ', 13 Co. 37, 
 6. 7 ; Cro. Car. 365 ; Com. Dig. tit. Che- 
 min, B 3 ; 2 Black. Rep. 685 ; Andrew's 
 Eep. loi, 285. 
 
PAETH.] CORPORATIONS AND PUBLIC BODIES. 217 
 
 There is no record of any private suit having been brought against 
 these. 
 
 By 13 Geo. III. c. 78, all former laws on the subject of 13 Geo. III. 
 highways are collected and reduced into one Act, and by it the "' ^ ' 
 sessions were to appoint a surveyor of highways for each parish, 
 with a salary and ample powers of superintendence. In 1788 
 the case of Russell v. Men of Devon' was decided, in which it was 
 held that no civil action lay against the inhabitants of a county 
 for an individual injury in consequence of a breach of their public 
 duty. The Court referred to the case in 5 Edw. IV. fo. 3," as 
 good law, which decided that if a highway be out of repair, so 
 that a horse be mired and injured, no action lies by the owner 
 against him who ought to repair it, for it is a public matter, and 
 ought to be reformed by presentment. The case is an authority 
 to shew that no private suil will lie either in the case of a broken 
 bridge which is to be repaired by the county, or of a bad road 
 which is to be repaired by the parish. 
 
 In 183s, the Highway Act, S & 6 Will. IV. c. 50, was s & 6 Will. IV. 
 passed, providing that the surveyor shall repair, and keep in "' ^°' 
 repair, the several highways in the parish; in default, he is 
 liable to a penalty of ;^Sj ^lud he shall, on the justices viewing 
 the road, or causing it to be viewed, put it in repair to their 
 satisfaction. 
 
 The subsequent case, M'Kinnon v. Penson,' turned upon the M'Kinnon 0. 
 liability of the county surveyor in neglecting to repair a bridge 
 under the statute 43 Geo. III. c. 59, which provided that 
 the inhabitants of counties " shall and may sue and for any 
 damage done to bridges and other works," and " shall and may 
 be sued in the name of such surveyor," but the Court decided 
 that there was no manifested intention in the statute to con- 
 stitute a new liability in counties to actions to which they were 
 not liable by common law. Had this been intended, " the 
 obvious course would have been to recite the grievance, and 
 provide for the remedy in express terms." ^ 
 
 Then came Young v. Davis,* where the question was whether, Young v. 
 under the Highway Act, 5 & 6 Will. IV. c. 50, a surveyor of ■^''^'®' 
 highways was liable to an action simply because a road is out 
 of repair. The Court thought the case had been substantially 
 decided by M'Kinnon v. Penson, and also that the Act of Parlia- 
 
 ^2 T. R. 667. Thomas v. SoiTel, the death of a person caused by the non- 
 
 Vaugh. '340. repair of a road they wore bound to repair 
 
 2 Bro. tit. Action sur le Case, pi. 93. Tinder the Act. 
 
 8 Ex. 319 ; 9 Ex. 609. » 7 H. & N. 760, 2 H. & C. 197 ; 31 
 
 :« 
 
 _ Beg. V. Pocock, 17 Q, B. 34, L. J. Ex. 250; 6 L. T. N. S. 363, 
 trustees under a local Act were held not 9 Ji. T. N. S. 145; 10 W. K. 524, 11 
 liable to indictment for manslaughter for W. B. 735. 
 
218 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 The Metro- 
 polis Local 
 Management 
 Act, i8ss. 
 
 Gibson v. 
 Mayor of 
 Preston. 
 
 USect of the 
 PuUio Health 
 Act, 1875. 
 
 ment appeared not to have been passed for the purpose of 
 creating a new liability, but simply in order to provide machinery 
 whereby the existing duty of the parish to repair might be 
 conveniently fulfilled. 
 
 The Metropolis Local Management Act (18 & 19 Vict. 
 c. 120) was alleged to have effected an alteration, in the district 
 of the metropolis, in the liability to private action for want of 
 re{)air to highways by placing the exclusive right to repair them 
 in the vestries as constituted under that Act, and thereby exone- 
 rating the parish from all concern in their repair. This was 
 argued in Parsons v. St. Matthew, Bethnal Green,' but it was 
 held that section 96 of the Act transfers to the vestries in the 
 metropolis the duties and liabilities of the surveyor of highways, 
 but only subjects them to those liabilities to which the surveyor 
 of highways had been previously subject." 
 
 In Gibson v. Mayor of Preston' it was contended that the 
 Public Health Act, 1848 (i i & 12 Vict. c. 63), s. 68, 
 which enacted that all streets being, or which shall at any time 
 become, highways within any district, shall vest in, and be 
 under the management and control of, the local board of health, 
 rendered the local board liable to an action for injuries caused 
 by non-repair of a highway. The judgment of the Court was 
 given by Hannen, J., who said : " The enactment that the streets 
 shall ' vest in '■ the local board, whatever meaning may be 
 assigned to that expression, does not seem to us to enlarge the 
 liability resulting from the following words, that they shall be 
 ' under the management and control of the local board ' — 
 language similar to that used in the statute under consideration 
 in Eex v. St. George, Hanover Square,* where it was held that 
 the imposing of the duty of repairing on a person or body other 
 than the parish did not by implication exempt the parish from 
 liability to indictment ; and while this liability remains, the cases 
 above referred to. Young v. Davis' and Parsons v. St. Matthew, 
 Bethnal Green," established that no right of action is created 
 against those to whom the management and control of the roads 
 is given." 
 
 No different powers seem to have been confen'ed by the 
 Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 144, 
 
 1 L. B.3 C. P. 56; 37 L. J. C. P. 62; 
 17 L. T. N. S. 211 ; 16 W. E. 85. See 
 Taylor v. Vestry of St. Mary Abbotts, 
 Kensington, 2 Times Law Eep. 668. 
 
 *' The case was also decided on the 
 words of the 98th section, by which " it 
 shall be lawful for every vestry," from 
 which the Court held that it would appear 
 
 that it was intended to give them a dis- 
 cretion whether to repair the streets or not. 
 
 5 L. R. 5 Q. B. 218 ; 39 L. 3. Q. B. 
 131 ; 22 L. T. N. S. 293 ; 18 W. R. 689. 
 
 * 3 Oampb. 222. 
 
 = 7 H. & N. 760, 2 H. & C. 197 ; 31 
 L. J. Ex. 250. 
 
 « L. R. 3 C. P. 56. 
 
PAKTii.] COEPOEATIONS AND PUBLIC BODIES. 219 
 
 under which it has been held that there is nothing to make 
 
 the urban sanitary authority liable to a common law indictment 
 
 for neglecting those duties which they have imposed on them 
 
 either as surveyors of the highway or as inhabitants in vestries 
 
 assembled.' The conclusion may be thus stated : — By common 
 
 law no action could be maintained for an injury arising from 
 
 the non-repair of a highway by the paiish, and the Legislature 
 
 has not interfered by any general enactment to give a remedy 
 
 by action to persons sustaining such an injury. It is therefore 
 
 incumbent on a plaintiff, who seeks to establish that such a right 
 
 is exceptionally given to persons sustaining an injury in a 
 
 particular district, to shew distinctly that the Legislature had 
 
 such an intention in passing the enactment to which such an 
 
 effect is attributed.^ And, thus an exception is grafted on the 
 
 principle laid down by Eyre, B., in Sutton v. Johnstone, and 
 
 approved by the House of Lords in Ferguson v. Earl of Kinnoull,' 
 
 "that every breach of a public duty working wrong or loss to 
 
 another is an injury, and acti&nable."'' 
 
 The principle of non-liability for mere neglect to repair was Non-iiabUity 
 also applied to criminal proceedings in the case of Reg. v. Pocock,'' repair in 
 where trustees under a local Act were charged with man- prM^dings. 
 slaughter on a coroner's inquisition, which set out that they did 
 " feloniously " neglect to repair, or contract for the reparation, of 
 a certain road, whereby it became ruinous, and a man driving 
 along the road was killed. The inquisition was removed by 
 certiorari into the Queen's Bench, and quashed. Lord Campbell 
 saying : " No doubt the neglect of a personal duty, when death 
 ensues as the consequence of such neglect, renders the party guilty 
 
 1 Per Lord Coleridge, The Qaoen v. ing oorporationB, that an intention to give 
 
 Mayor &c., of Poole, 19 Q. B. D. 602, at p. a private action for a neglect in its per- 
 
 609. " The Act of Parliament contem- formance is to be presumed." TheAroeri- 
 
 plates that the duty formerly belonging to can doctrine is thus stated (p. 380) : — 
 
 the pariah still remains in them, and that " However it may he where the duty in 
 
 the inrveyoracts strictly as their officer " : question is imposed by the charter itself, 
 
 per Pollock, C.B., Young v. Davis, 7 the examination of the authorities con- 
 
 3ff. & N. 760, at p. 772. firms us in the conclusion that a duty 
 
 " Per Hannen, J., Gibson v. Mayor of which is imposed upon an incorporated 
 
 Preston, L. E. 5 Q. B. 218, at p. 222. city, not by the terms of its charter, nor 
 
 ' 9 CI. & F. 251. _ for the profit of the corporation, pecuniarily 
 
 * The judgment of Gray, C. J., in Hill v. or otherwise, but upon the city as the re- 
 Boston, 122 Mass. pp. 344-381, contains presentative and agent of the public, and 
 an exhaustive examination of the English for the public benefit, and by a general 
 cases from the Year-books down to Winch law applicable to all cities and towns in 
 V. Conservators of the Thames, L. K. 9 theoommonweallh, and a breach of which, 
 C. P. 378. He thus expresses himself in the case of a town, -would give no right 
 (at p. 369) : "The result of the English of private action, is a duty owing to the 
 aathonties is, that when a duty is imposed public alone, and a breach thereof by a city, 
 upon a municipal corporation for the bene- as by a town, is to be redressed by prose- 
 flt of the public, without any consideration cution in bohalf of the public, and will not 
 or emolument received bj[ the corporation, support an action by an individual, even 
 it is only where the duty is a new one, and if he sustains special damage thereby." 
 is such as is ordinarily performed by trad- ^ 17 Q. B. 34 ; 5 Cox C. 0. 172. 
 
220 THE LAW OF NEGLIGENCE. [book i. 
 
 of it liable to an indictment for manslaughter, and the cases 
 which have been cited in the course of the argument, and which 
 establish that doctrine, are good law. .... But how can the 
 principle apply to the present case ? It cannot be said that the 
 trustees are guilty of felony in neglecting to contract. Not only 
 must the neglect, to make the party guilty of it liable to the 
 charge of felony, be personal, but the death must be the 
 immediate result of that personal neglect. According to the 
 argument here, it might be said that where the inhabitants 
 generally are bound to repair, and a death is caused, as in 
 the present case, all the inhabitants are indictable for man- 
 slaughter.'' 
 Another There also appears to be another exception in the case where a 
 
 exception. ^^^ right of action is created by statute, and a means given by 
 Atkinsons. the Same statute for its enforcement. Kelly, O.B., in Atkinson 
 MTdGatediead '"• Newcastle and Gateshead Waterworks Company, in the Court 
 Waterworks of Exchequer, speaking of the judgment of Lord Campbell in 
 ompan . Qquj,Ji ^_ Steel, is reported as saying that it " really comprises 
 the whole law on the subject " of the right of action by a private 
 person specially injured by breach of an Act imposing a duty, and 
 where there is a penalty for the non-performance of the duty. 
 The passage he cites is as follows* : — " The general rule is that 
 whenever a man has a temporal loss or damage by the wrong of 
 another, he may have an action on the case to be repaired in 
 damages : Com. Dig. tit. Action on the Case, A. The Statute of 
 Westminster 2, c. 50, gives a remedy by action on the case to all 
 who are aggrieved by the neglect of any duty created by statute : 
 see 2 Inst. p. 486 ; and in Com. Dig. tit. Action upon Statute, F, 
 it is laid down that in every case where a statute enacts or prohibits 
 a thing for the benefit of a person, he shall have a remedy upon 
 the same statute for the thing enacted for his advantage, or for 
 the recompense of a wrong done to him contrary to the said law." 
 The law thus laid down does not conclude the question of 
 whether there is a right to sue for a mere omission to exercise a 
 statutory duty to the State when the omission works a special 
 injury to the person seeking to sue, since the general rule laid 
 down is no more than when one is injured by the act of another 
 from whom a duty is owing^ — otherwise there is no wrong — he 
 has a right of action. And the interpretation in Comyns of the 
 Statute of Westminster 2, c. 50, contains the saving clause 
 that the statute must enact or prohibit a thing " for the benefit 
 of a person." 
 
 1 L. E. 6 Ex. 404, at p. 408. 
 
 ' £!.g., bailding a wall that interferes with hia prospect. 
 
PART 11.] COEPOEATIONS AND PUBLIC BODIES. 221 
 
 But the judgment of Lord Campbell in Couch v- Steel' maybe Judgment of 
 read as deciding that 7 & 8 Vict. c. 112, s. 18, created ag'jfouon'"" 
 duty to individuals as well as imposed a penalty for non-per- ^t^^'- 
 formance which might be recovered by an informer. He says° : 
 " As far as the public wrong is concerned, there is no remedy but 
 that prescribed by the Act of Parliament. There is, however, 
 beyond the public wrong, a special and particular damage sus- 
 tained by the plaintiff, by reason of the breach of duty by the 
 defendant, for which he has no remedy unless an action on the 
 case at his suit be maintainable ; and the question is whether the 
 penalty annexed to the offence concludes the plaintiff, who has 
 sustained a special and particular damage, as well as the public, 
 though no part of the penalty is payable to him." Lord Camp- 
 bell's view (adopted by the Court) is that, first, the Act was 
 passed for the benefit of individuals ; secondly, that, such being 
 the case, individuals injured should have a means of enforcing the 
 duty towards them ; thirdly, that as, apart from the penalty given 
 to the informer (who is not necessarily the injured person), no 
 means were provided by the Act for obtaining compensation, the 
 common law right to maintain an action in respect of a special 
 damage resulting from the breach of a statutory duty is not taken 
 away by reason of a penalty recoverable by a common informer 
 being annexed as a punishment for the non-performance of the 
 public duty. These propositions were approved by Kelly, C.B., Approved by 
 and Bramwell and Cleasby, BB. (Martin, B., not assenting), in the ^nd Bramweii 
 Court of Exchequer, in Atkinson v. Newcastle and Gateshead ^^ Cleasby, 
 Waterworks,' but all three of them were doubted, and, as to two, Atkiuson v. 
 a decision quite inconsistent with their unimpaired existence was Gateshead 
 come to in the Court of Appeal in the consideration of the same ^tnoran^^' 
 case; and the decision of the Court of Exchequer was reversed.'' proved by the 
 As to the first. Lord Cairns, C, said^ : " With regard to that case Appeal in the 
 and the effect of that particular Act, I will say this, that if the ^™® '"■^^• 
 matter were brought before this Court for review I should like to 
 take time to consider whether, with reference to that particular 
 Act, that case was rightly decided." As to the second. Lord 
 Cairns, C, said : " I must venture, with great respect to the learned 
 judges who decided that case [Couch v. Steel], and particularly to 
 Lord Campbell, to express grave doubts whether the authorities 
 
 ' 3 E. & B. 402; 23 L. J. Q. B. 121. ii city corporation into private houses is 
 
 ' At p. 412. not on the footing of a contract, but of a 
 
 ' L. E. 6 Ex. 404. licence which is paid for. As to the effect 
 
 * 2 Ex., D. 441 ; 49 L. J. Ex. 775 ; 36 of a statutory "remedy taking away_ a 
 
 L. T. 761 ; 25 W. E. 794. Fisher v. common law right of action in America, 
 
 City of Boston, 104 Mass. 87. In Smith v. see Williams v. Hingham Turnpike Cor- 
 
 Philadelphia, 81 Penn. 38, it was laid poration, 21 Mass. 341. 
 
 down that the introduction of water by ^ At p. 448. 
 
222 THE LAW OF NEGLIGENCE, [book i, 
 
 cited by Lord Campbell justify the broad general proposition that 
 appears to have been there laid down — that, wherever a statutory 
 duty is created, any person who can shew that he has sustained 
 injuries from the non-performance of that duty can bring an action 
 for damages against the person on whom the duty is imposed." 
 As to the third, Brett, L.J. , said: "I entertain the strongest 
 doubt whether the broad rule there enunciated can be maintained 
 — the rule, that is to say, that where a new duty is created by 
 statute and a penalty is imposed for its breach, which penalty is to 
 go to the person injured by such breach, the penalty, however 
 small and inadequate a compensation it may be, is in such a case 
 to be regarded as indicating an intention on the part of the Legis- 
 lature that there should be no action by such person for damages, 
 but that, where a similar duty is created and a similar penalty 
 imposed, which is not to go to the person injured, then the 
 intention is that he is 'to have a right of action. I don't think 
 that proposition can be supported." And Lord Cairns ^ : " There 
 being here in a certain number of cases, a penalty which the 
 plaintiff himself admits excludes the right of action, the con- 
 clusion is irresistible that in the remaining cases also in the same 
 section the Legislature intended to give no right of action." 
 
 The actual decision in this case is no more than that there may 
 be circumstances (as where a penalty for breach is prescribed 
 that may in some instances go to the person suffering special 
 damage from the breach of a statutory duty), where the breach of 
 a public statutory duty does not vest a right of action in a person 
 suffering special damage against the person guilty of the breach. 
 And those circumstances may be generalized in the words of Lord, 
 Tenterden in Doe dem. the Bishop of Rochester v. Bridge*;, 
 " Where an act creates an obligation, and enforces the perform-j 
 ance in a specific manner, we take it to be a general rule that 
 performance cannot be enforced in any other manner. If an 
 obligation is created, but no mode of enforcing its performance 
 is ordained, the common law may, in general, find a mode suited 
 to the particular nature of the case." It may then be stated 
 that where a statute creates an obligation and enforces the per- 
 formance in a specific manner, not only is the public remedy by 
 indictment excluded, but also any rights of private persons apart 
 from the statute creating the right;' and this is an exception to 
 the general rule of law. 
 Wrong or losa But to return to the rule. Further, it is necessary, in order to 
 to" he fndu-*"* bring a case within the operation of the rule, that the wrong or 
 
 rifaeton"^"^ i At p. 447. 
 
 2 I B. & Ad. 847,859; cited and approved, Stevens u.Jeacocke, 11 Q.B. 731, at p. 742. 
 » Per Lord Campbell, 3 E. & B. at p. 412. 
 
PAETii.] COKtORATIONS AND PUBLIC BODIES. 223 
 
 loss should be something special to the individual bringing it. 
 This is made clear in Glossop v. Heston and Isleworth Local 
 Board.' The head-note states the relevant facts as follows : — The 
 defendants were a Local Board, constituted in November 1875 
 under the Public Health Act, 1875. The plaintiff complained 
 that, for some time before and since the defendants became the 
 sanitary authority, sewage was allowed to fall into a stream 
 passing near his residence so as to pollute it and cause a nuisance 
 to him. He complained to the defendants in May 1876, and, 
 nothing having been done, he brought an action against them, in 
 July 1876, for damages and for an injunction. 
 
 It was held that, assuming " an actionable nuisance existed, as 
 the defendants had done no act to create or increase it, the plaintiff 
 had no cause of action." The principle of the decision is thus ex- James, L.J., 
 pressed by James, L.J.,^ after holding on the facts that the Board Heston^and ' 
 was not gmlty of neglect: "But if they had been guilty of any i^^^^°g^j.j 
 refusal, such as is necessary for the purpose of applying for a 
 mandamus, or any maid fide delay, for it must be brought up to 
 that to make it equivalent to a refusal to take steps, if anything 
 of that kind had occurred, that is not the ground of an action by 
 any proprietor in the district who may be deprived of the benefit 
 he expected to derive from the performance of that duty. If the 
 neglect to perform a pubUc duty for the whole of a district is to 
 enable anybody and everybody to bring a distinct action or to file 
 a distinct claim because he has not had the advantages he other- 
 wise would be entitled to have if the Act had been properly put 
 into execution, it appears to me the country would be buying its 
 immunity' from nuisances at a very dear rate indeed by the sub- 
 stitution of a far more formidable nuisance in the litigation and 
 expense that would be occasioned by opening such a door to 
 Utigious persons, or persons who might be anxious to make profit 
 and costs out of this Act of Parhament. It appears to me the 
 only remedy would be by an application for a mandamus."' 
 
 1 12 Ch. D. 102. Attorney-General v. private injury by a public nuisance every 
 
 Gnardiaos of Poor of Dorking, 20 Cb. D. man shall bave his action, as is agreed in 
 
 595; 51 L. J. Cb. 585 ; 46 L. T. 573; Williams's case, 5 Co. 73 a, and West- 
 
 30 W. E. 579. bury and Powell, Co. Lit. 56 a. Indeed, 
 
 ^ At p. 1 14. where many men are offended by one 
 
 " The law that determines whether pro- particular aof, then they must proceed by 
 
 ceedings for a wrong are to bo by indict- way of indictmcflt, and not of action : for 
 
 ment is thus stated by Holt, C.J., Asbby in that case the law will not multiply 
 
 0. White, I Sm. Lead. Cas. gtb edit. 268, actions. But it is otherwise when one 
 
 at p. 296 : " If men will multiply injuries, man only is offended by that act, he shall 
 
 actions must be multiplied too, for every have his action ; as if a man dig a pit in 
 
 man that is injured ought to have his re- a common, every commoner shall have an 
 
 compense. Suppose the defendant had beat action 011 the case per quod communiam 
 
 forty or fifty men, the damage done to each suam in tarn amplo modo habere non 
 
 one is peculiar to himself and he shall have potent; for every commoner has a several 
 
 his action. So if many persons receive a light. But it would be otherwise if a man 
 
224 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I.- 
 
 Absolute 
 obligation or 
 discretionary 
 power. 
 
 Where the 
 duty is 
 discretionary. 
 
 The consideration of this case insensibly leads to the considera- 
 tion of another principle — that of the absolute obligation, or the 
 discretion, involved in the performance of certain statutory works. 
 We have seen that it is not the law that a local board is liable 
 to private persons for mere failure to carry out powers conferred 
 by statute, unless there is an absolute obligation on him to do so. 
 
 Now, " If a matter is left to the discretion of any individual or 
 body of men, who are to decide according to their own conscience 
 and judgment, it would be absurd to say that any other tribunal 
 is to inquire into the grounds and reasons on which they have 
 decided, and whether they have exercised their discretion properly 
 or not.'" Or, as Cockbum, C.J., expressed it in a case where the 
 question was whether a mandamus should issue to a vestry to 
 make sewers under the Metropolis Management Act, "in order to 
 constitute a suflScient writ there ought to appear upon the face of 
 it a present duty to be performed and a non-performance of that 
 present duty. Now this writ only shews a general duty in the 
 vestry to perform the work, and not a present duty to do it at 
 once."^ 
 
 The considerations applicable, where the duty is of this discre- 
 tionary nature, are well pointed out in an American case' : " It is 
 not the law that a municipal corporation is responsible in a private 
 action for not providing sufficient sewerage for every or for any 
 part of the city or village. The duty of draining the streets and 
 avenues of a city or village is one requiring the exercise of 
 deliberation, judgment, and discretion. It cannot, in the nature 
 of things, be so executed that in every single moment every square 
 foot of the surface shall be perfectly protected against the conse- 
 quence of water falling from the clouds upon it. This duty is not, 
 in a technical sense, a judicial one, for it does not concern the 
 administration of justice between citizens, but it is of a judicial 
 nature, for it requires, as I have said, the same qualities of 
 deliberation and judgment. It admits of a choice of means, and 
 the determination of the order of time, in which improvements , 
 shall be made. It involves, also, a variety of prudential considera- 
 tion relating to the burdens, which may be discreetly imposed at 
 a given time, and the preference which one locality may claim 
 over another. If the owner of property may prosecute the corpo- 
 
 dig a pit in a highway, eveiy passenger shall 
 not bring his action, hut the party shall 
 he punished by indictment, because the 
 injury is general and common to all that 
 pass. But when the injury is particular 
 .ind peculiar to every man each man shall 
 have his action." 
 
 1 Per Lord Tenterden, C.J., Eeg. ■». 
 Mayor, &c., of London, 3 B, & Ad. 271. 
 
 See also E. v. Archbishop of Oanterhniy, 
 15 East 157. R. V. Visitors of Middlesex 
 Asylum, 2 Q. B. 433. E. v. Bishop of 
 Gloucester, 2 B. & Ad. 158. Wright v. 
 Fawcett, 4 Burr. 2041. 
 
 ^ The Queen ». Vestry of St. Luke, 
 ChelBea, 31 L. J. Q. B. 50. 
 
 8 Per Denis, C.J., MUls v. CSty of 
 Brooklyn, 32 N, Y, 489, at p. 493. 
 
PART II.] CORPORATIOKS AND PUBLIC BODIES, 225 
 
 ration on the ground that suflBcient sewerage has not been provided 
 for his premises, all these questions must be determined by a jury, 
 and thus the judgment, which the law has committed to the city 
 council or to an administrative board, will have to be exercised by 
 the judicial tribunals. The Court and jury would have to act 
 upon a partial view of the question, for it would be impossible 
 that all the varied considerations which might bear upon it could 
 be brought to their attention in the course of a single trial. Such 
 a system of law would be as vexatious in practice as it is unwar- 
 ranted in law."' Yet, if works in the discretion of the corporation 
 to undertake or to leave, are undertaken, and negligence is shewn 
 in the construction, the corporation is liable.^ But, in the case of Dietinotion 
 powers primd facie discretionary, a further distinction has been po^rg"eon- 
 drawn between, first, those where the obiect, for which the power ^'^'^'f'*'^,^'"^* 
 
 . , . „ , * . . , . duty to exor- 
 
 is conferred, is for the purpose of enforcing a right, m which case oise them, and 
 there may be a duty cast on the donee of the power to exercise it Fe'ire dVithan 
 for the benefit of those who have that right when required on their j^^°?"io„ 
 behalf. When there is such a duty it is not inaccurate to say 
 that the words conferring the power are equivalent to saying that 
 the donee must exercise it ; and, second, those where the discre- 
 tion is absolute. 
 
 The earliest case that is referred to, where discretionary words 
 were held to create a duty, is that of Alderman Backwell.^ The Baokweii's 
 creditors of Alderman Backwell petitioned for a commission of 
 bankruptcy against him under a statute" which enacted that the 
 Lord Chancellor or Lord Keeper, upon every complaint made to 
 him in writing against such person being bankrupt, " shall have 
 
 ' Compare Forbes v. Lee Conservancy ought to adhere io the plain meaning of 
 Board, 4 Ex. D. 116 — a judgment of Pol- the words nsed by the Legislature, which 
 lock, B., considering the law as to discre- are permissive only : and that there is no 
 tionary powers of commissioners. In York reason ^in policy, or otherwise, why wo 
 and North Midland Railway Company v. should endeavour to pervert them from 
 The Queen, 1 El. & B. 858, it was unani- their natural meaning," at p. 865. "We 
 mously decided in the Exchequer Chamber are of opinion that the mandamus cannot 
 before Jervis, C.J., Pollock, C.B., Cress- be supported, upon the ground that the 
 well, Williams, and Talfourd, 33., and railway company having exercised some 
 Parke, Alderson, Piatt, and Martin, BB., of their powers and made part of their 
 overruling the Queen's Bench, Lord Camp- lino are bound to make the whole rail- 
 bell, C.J., and Crompton, J., Erie, J., dis- way authorized by their statute. It is 
 senting, and also the Queen's Bench cases, unpecessary here to determine the abstract 
 The Queen v. Lancashire and Yorkshire proposition that a work which before it is 
 / Railway Company, i El. & B. 228 ; The begim is permissive is, after it is begun. 
 Queen v. GreatWestem Railway, i E. &B. obligatory. We desire to be understood 
 253:that"tosaythatthereisnodifiFereuce as assenting to the proposition of my 
 between words of requirement and words of brother Erie ' that many cases may occur 
 authorities when found in railway acts is where the exercise of some of the com- 
 simply to affirm that the legislature does not pulsory powers may create a duty to he 
 know the meaning of the commonestexpres- enforced by mandamus.' " 
 Bions,"atp. 864. " It seems to us, there- " See Ashley v. City of Port Huron, 
 fore, that these statutes [i.e., the private 24 Am. R. 552; Leader v. Moxon, 3 
 Acts of the company] do not cast upon the Wils. 464, S. C. 2 Wm. Bl. 924; Jones ■ 
 plaintiffs in error this duty, either by ex- v. Bird, S B. & Aid. 837, 845. 
 press words or by implication ; that we ^ j Ygn,_ jjj. * 13 Bliz. c. 7, s. 3. 
 
 P 
 
22G 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 The King v. 
 Barlow. 
 
 The Eing v. 
 Havering atte 
 Bower. 
 
 Gases under 
 the County 
 Court Act. 
 
 Moriese v. 
 Royal British 
 Bank. 
 
 full power and authority, by commission under the Great Seal," 
 to issue a commission. When the Exchequer was closed ia 1 676 
 many bankers who had deposited their money there were unable 
 to meet their demands. Alderman Backwell, who was one, fled 
 to Holland, leaving his son to make terms with his creditors. 
 Notwithstanding, however, all the help the Government and the 
 Lord Keeper could give, it was decided that, on the statute, the 
 Lord Keeper was bound to issue the commission. The next case is 
 The King v. Barlow,' which was an indictment on the 14 Car. II. c. 
 2, against churchwardens for not making a rate to reiihburse con- 
 stables. The words of the statute were " may make a rate," but it 
 was held that they were bound to do so. Then came The King v. 
 Havering atte Bower,'' where a charter gave the steward and suitors 
 of a manor authority to hear and determine civil suits. It was 
 held that they were bound to hold the court. 
 
 Next came three cases under the, County Court Act (13 & 14 
 Vict. c. 61), s. 13. The words used were, that on its being 
 proved by aflSdavit by the plaintiff that the cause was one in 
 which there was concurrent jurisdiction, the court in which the 
 action is brought, or a judge at chambers, " may thereupon, 
 by rule or order, direct that the plaintiff shall recover costs." 
 In Jones v. Harrison^ the Court of Exchequer had construed 
 this as giving the Court a discretionary power to refuse the rule. 
 But in Macdougall v. Paterson" the Court of Common Pleas 
 arrived at a different conclusion, Jarvis, C.J., stating the rule to 
 be that when a statute confers an authority to do a judicial act in 
 a certain sense it is imperative on those so authorized to exercise; 
 the authority when the case arises, and its exercise is duly applied 
 for by a party interested, and having the right — that is, having 
 by statute the right to make the apphcation. And in Crake v. 
 PowelP the Court of Queen's Bench, having the conflicting opinions 
 of the Court of Exchequer and the Court of Common Pleas 
 before them, adopted the reasoning of the latter, Lord Camp- 
 bell saying, " If the plaintiff be entitled to costs, and the Court or 
 jl-idge is empowered to make a rule or order for that purpose 
 ex debito justitice, he may call upon the Court or judge to do so." 
 
 Morisse v. Eoyal British Bank* was very similar. There power 
 was conferred upon the Courts to grant execution against a share- 
 holder by a creditor who had obtained judgment against the 
 company and issued execution against it without effect, and it 
 was held that it was obligatory on the Court to grant it. 
 
 1 Salk. 609. 
 = S B. & A. 691. 
 s 6 Ex. 328. 
 
 * llC. B. 7SS; 27 L. J. C. P. 27. 
 
 ° 2 El. & B. 210. 
 
 « I C. B. N. S. 67 ; 26 L. J. C. P. 62. 
 
PART II.] CORPORATIONS AND PUBLIC BODIES. 227 
 
 To the same effect are Rex v. Rotherham Local Board' and 
 Worthington v. Local Board of Moss Side,^ where under the Public 
 Health Act, 1848 (11 & 12 Vict. c. 63), the local board may- 
 make rates. On the application of judgment creditors, they were 
 compelled to make rates for the purpose of satisfying judgment 
 obtained against them. 
 
 In The Queen v. Tithe Commissioners,' where power was given The Queen ». 
 to the tithe commissioners to confirm agreements for commutation sioners. 
 of tithe in certain circumstances, Coleridge, J., thus expresses the 
 rule: — " It has been so often decided as to hare become an axiom 
 that, in public statutes, words only directory, permissory, or enabling 
 may have a compulsory force, where the thing to be done is for 
 the public benefit or in advancement of public justice." But in 
 the subsequent case of Julius v. Bishop of Oxford* it was pointed juiins v. 
 out that this was too broadly expressed, Earl Cairns, C, saying'* oxforS." 
 that the cases " appear to decide nothing more than this : that 
 where a power is deposited with a public officer for the purpose of 
 being used for the benefit of persons who are specifically pointed 
 out, and with regard to whom a definition is supplied by the 
 Legislature of the conditions upon which they are entitled to call 
 for its exercise, that power ought to be exercised, and the Court 
 will require it to be exercised." 
 
 The rule for the distinction of the two classes of cases — those Euie laid 
 where there are discretionary words coupled with a duty, andQ°]^°aC." 
 those where the discretion is unfettered by a duty — is expressed 
 by Earl Cairns, C, in the case just referred to,° where, discussing 
 the effect of the words "it shall be lawful" in introducing a 
 statutory enactment as importing a discretion, he thus discriminates : 
 " The words ' it shall be lawful ' are not equivocal. They are plain 
 and unambiguous. They are words merely making that legal and 
 possible which there would otherwise be no right and authority 
 to do. They confer a faculty or power, and they do not of them- 
 selves do more than confer a faculty or power. But there may 
 be something in the nature of the thing empowered to be done, 
 something in the object for which it is to be done, something in 
 the conditions under which it is to be done, something in the 
 title of the person or persons for whose benefit the power is to be 
 exercised, which may couple the power with a duty, and make it 
 the duty of the person in whom the power is reposed to exercise 
 that power when called upon do so. Whether the power is one 
 coupled with a duty such as I have described is a question which 
 
 1 8 El. & Bl. 906. 2 i,_ E, I Q_ B_ 63. 3 14 Q. B. 459. 
 
 * 5 App. Cas. 214 ; 49 L. J. Q. B. 577 ; 42 L. T. 546 ;' 28 W. E. 726. 
 ^ At p. 225. 
 " Julius V. Bishop of Oxford, 5 App. Cas, 214, at p. 222. 
 
Z2o 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Distinction 
 between a 
 corporation 
 and a natural 
 person with 
 reference to 
 the power of 
 incuiTing 
 liabilities. 
 
 Acts of agent 
 how far bind- 
 ing on cor- 
 porations. 
 I. When 
 authority to 
 act implied. 
 
 II. When ex- 
 pressly given 
 in a matter 
 ultra vires. 
 
 according to our system of law, speaking generally, it falls to the 
 Court of Queen's Bench to decide on an application for a mandamus. 
 And the words ' it shall be lawful ' being, according to their 
 natural meaning, permissive or enabling words only, it lies upon 
 those, as it seems to me, who contend that an obligation exists to 
 exercise this power to shew, in the circumstances of the case, 
 something which, according to the principle I have mentioned, 
 creates this obligation."' 
 
 A distinction of some importance has still to be treated — ^that 
 between a coqDoration and a natural person with reference to the 
 power of incurring liabilities. A natural person is presumed 
 capable of acquiring all classes of rights and becoming subject to 
 all classes of liabilities within the range marked by the legal 
 system of the State of which he is a member. But a corporation 
 has a definite scope and limit, outside which it may not presume 
 to act without risking its very existence. If, on the true con- 
 struction of the instrument creating a corporation it appears — 
 whether expressly or by implication is of no moment' — ^that the 
 corporation is precluded from acting in any particular way, a 
 contract so to act on behalf of the corporation is wholly void, and 
 cannot be ratified.' A more difficult question is whether a cor- 
 poration is liable for ft tort distinctly authorized by it, but outside 
 the limits of the corporate powers. 
 
 There are a large number of railway cases, to be considered in 
 another connection, where the point is whether acts admittedly 
 wrongful, biit done by the officers of companies in assumed 
 advancement of the companies' interests, are within the scope of 
 the duty of those officers sufficiently to render the companies 
 liable for their misfeasance ; or whether, in any way, an implied 
 authority to do them could be inferred so as to charge the com- 
 panies for the fault of their officers. The conclusion from them 
 is that an agent has no implied authority to commit a tort 
 ultra vires, and cannot on that ground merely bind his principal 
 corporation.'' The question now to be considered differs from 
 these in that an express and definite instruction exists to do an 
 act which when done is wrongful and outside the objects of the 
 company's constitution. The question, then, is to what extent is 
 the corporate property bound to compensate the wrong done by 
 the direction of the corporation while professing to act, and 
 believing themselves to act, as a corporation, but in a manner not 
 authorized by their jiowers. 
 
 1 See Dormant v. Furness Bailway Company, WeeMy Notes, 1883, p. 72. 
 
 " Bex V. Mayor, &c., of London, i Show. 254, at p. 280; 8 St. Tr. 1039. 
 
 ' Ashbury Eailway Carriage and Iron Company b. Eiclie,L. R.7 H. of L. 653, at p. 673. 
 
 * Poulton V, London and South- Western Eailway, L. E. 2 Q. B. 534. 
 
PAETii.] CORPORATIONS AND PUBLIC BODIES. 229 
 
 The point seems to have been glanced at by Blackburn, J., 
 in Poulton v. London and South-Western Railway/ where he Pouitou v. 
 says: "In the present case an act was done by the station- g°„t^°'^g°tgj„ 
 master completely out of the scope of his authority, which there Kailway. 
 can be no possible ground for supposing the railway company 
 authorized him to do, and a thing which could never be right on 
 the part of the company to do. Having no power themselves, 
 they cannot give the station-master any power to do the act; 
 therefore the wrongful imprisonment is an act for which the 
 plaintiff, if he has a remedy at all, has it against the station- 
 master personally, but not against the railway company." 
 This was in accordance with the view that had long been 
 accepted. In Harman v. Tappenden^ an action was brought Harman v. 
 against corporations in their private characters for acts done in "PP^"'^"" 
 their corporate capacity, and it was questioned by Lord Kenyon," 
 notwithstanding two early cases,^ whether the defendants were 
 liable in their private character for what was only done in their 
 corporate capacity. He referred to a case he had argued before 
 Lord Mansfield against the Master and Fellows of Wadham College, 
 where the Master had great objection with respect to the facts 
 agreed upon by a majority to be returned, contending that he 
 would thereby make himself individually liable to the conse- 
 quences, on which Lord Mansfield said that what he did in his 
 corporate capacity could not hurt him in his individual character. 
 The case itself does not seem to throw any light on the point now 
 being considered, as the act for which the defendants were sued 
 was of a judicial nature, and the defendants acted to the best of 
 their judgment. 
 
 In Maund v. Monmouthshire Canal Company ° the question Maund v. Mou- 
 was whether trespass would lie against a corporation for the canai ^'^"^ 
 acts of its officers done within its authority ; and, on the authority Company. 
 of Tarborough v. Bank of England,^ it was held that it could. 
 In that case, which was argued on motion in arrest of judgment, 
 it had to be presumed that a valid authority from the Bank to 
 do the wrongful act had been given, and that such authority 
 was proved. But as against the application of these decisions to 
 the present question it might be contended that the acts done 
 
 ^ L. E. 2 Q. B. 534, at p. 540. and Hex v. Eippon, i Ld. Eavm. 563, at 
 ^ See note to Maund v. Monmouthshire p. 564, a case of mandamus to the Corpora- 
 Canal Company, 4 M. & G. 452, citing, tion of Eipon, citing Enfield v. Hills, T. 
 inter alia, Bro. Abr. Corporation, 43. Jones 116, case of mandamus against the 
 '^ (1801) I East 555, 560. Citj_ of Canterbury, and aetion brought 
 - Eich V. Pilkington, Carthew 171, an against particular person held to lie. 
 action against the Lord Mayor of Lon- ' (1842I 4 M. & G. 452. 
 don in his private capacity for an act " (1812) 16 East 6, wliere the learning 
 done with others in his private character, on the caBes is collected in the judgment 
 to which there was a plea in abatement ; of Lord EUenborongh, C.J. 
 
230 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 MU1«. 
 Hawker. 
 
 Conflict of 
 opinion in the 
 Exchequer. 
 
 View of 
 Cleasby and 
 Pigott, BB. 
 
 KeUy, O.B., 
 dissents. 
 
 On appeal to 
 Exchequer 
 Chamber, 
 point not 
 decided. 
 
 Lord Bramwell 
 in Abrath v. 
 Korth-Eastem 
 Eailway. 
 
 were committed about a matter necessarily incident to the cor- 
 poration business, and that, had the corporation not been held 
 liable, an immunity from liability for torts would have been the 
 necessary result. 
 
 The point did arise in Mill v. Hawker/ where an action was 
 brought against the surveyor -and members of a highway board 
 in their private character for acts committed by the surveyor 
 under the order o£ the Board. From the course taken at the 
 trial, the fact that the act done was wholly outside the powers of 
 the Board was taken for granted. The majority of the Court'' 
 held that in respect of corporate acts the individual members of 
 the corporation could not be sued. "It is clear that this is so 
 when the corporate acts are such as the corporate body is qualified 
 to perform, and the resolutions and acts of the members are only 
 introductory to the corporate body acting in the matter. But it 
 is equally clear 'that when the acts are such as the corporate 
 body is not by law qualified to do, and the corporate body, if 
 they pretend to do them, are acting ult7'a vires, then the 
 mere fact of giving a corporate form to the act does not pre- 
 vent it from being the act of those who cause it to be done." 
 The Lord Chief Baron (Kelly), however, dissented from this. 
 In a judgment in which all the authorities are collected and 
 considered, he thought it " settled law that no action lies against 
 the individual members of a corporation for a corporate act done 
 by 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 contemplation of 
 law a corporate act at all."^ The Exchequer Chamber declined 
 to decide the point, Blackburn, J., saying* : " It is one of con- 
 siderable importance and great difficulty. If it were necessary to 
 decide that question, we should require time for consideration, 
 and possibly when we had considered it our decision would not 
 
 be unanimous We think it better, therefore, to leave the 
 
 decision of the Court of Exchequer upon that point as it is. 
 We leave it with the authority it had before — no better and no 
 worse." 
 
 The point is again touched on by Lord Bramwell in giving 
 an illustration in Abrath v. North-Eastern Railway Company* : 
 " If the directors even, by resolution at their board, or by order 
 
 1 L. R. 9 Ex. 309, L. U. 10 Ex. 92 ; Crompton, J., E. v. Train, 9 Cox C. C. 
 3 L. J. Ex. 129, 44 Ii. J. Ex. 49 ; 30 
 L. T. N. S. 894, 33 L. T. N. S. 177 ; 22 
 
 L. J. Ex. 49 ; 30 180, at p. 184. 
 
 T.N. 8.177522 <Atp. 94. 
 
 W. E. 26,24 W. R. 348. 6 II ^pp_ Cag 24y_ at p_ 251; 55 
 
 " Cleasby and Pigott, BB. L. J. Q. B. 457 ; 55 L. T. 63. 
 
 3 See remarks on the same point by 
 
PART 11.] CORPORATIONS AND PUBLIC BODIES. 231 
 
 under the common seal of the company, were maliciously, with 
 the view of putting down a solicitor who had assisted others to 
 get damages against them, to order a prosecution against that 
 man, if they did it from an indirect or improper motive, no action 
 would lie against the corporation, because the act on the part of 
 the directors would be ^dtra vires ; they would have no authority 
 to do it." But this case would be within the exception stated by 
 Kelly, O.B., where "the corporate name be (is) used as a mere 
 colour for the malicious act," and does not advance the solution 
 of the question. 
 
 In America, however, the question is comprehensively settled. Poiut settled 
 There the rule laid down is, that a corporation is liable to the 
 same extent and in the same circumstances as a natural person 
 for the consequences of i1;g wrongful acts, and will be held 
 responsible in a civil action, at the suit of an injured party, for 
 eveiy grade and description of forcible, malicious, or negligent 
 tort or wrong which it commits, however foreign to its nature 
 or beyond its general powers the wrongful transaction or act 
 may be.' 
 
 The rule seems an intelligible one, and, reasoning from the Tendeuoy of 
 analogy of the liability of corporations for fraud," for malicious 
 prosecution,' for libel,^ and for intentional misfeasance," will 
 probably be recognized by the Courts whenever the point calls 
 for decision, with, however, the limitations suggested by 
 Kelly, C.B., in his dissentient judgment in Mill v. Hawker, and 
 perhaps with reference to the opinion of the Common Pleas, 
 expressed by Erie, C.J.^ : " We think it extremely important that 
 these companies should be held responsible where they admit they 
 have intentionally done a wrongful act, and that those whom 
 they have injured should not be driven to seek a doubtful remedy 
 against their officers or servants, who may be wholly unable to 
 answer the compensation which the jury may award to the 
 injured party." 
 
 We have now considered the general principles governing the 
 
 ^ New York and New Hampshire Eail- North-Eastem Eailway Company, 1 1 App. 
 .jad Company v. Schyler, 34 N. Y. 30. Cas. 24^, atp. 250. But see also remarks 
 Merc. Bank ». State Bank, 10 Wall. 604. of Earl of Selbome, at p. 256, as to malice 
 
 Central Kailroad and Banking Company in a corporation. Bex «. Mayor, &c., of 
 
 V. Smith, 52 Am. R. 353. London, i Show. 274; 8 St.Tr. 1039, 1305, 
 
 ^ Barwick v. English Joint Stock Bank, 1309. 
 
 L. E. 2 Ex. 259 ; Banger v. Great West- * Whitfield v. South-Eastern Eailway 
 
 em Railway Company, S H. of L. 72, Company, El. Bl. & El. 115. 
 
 per Lord Cottenbam; Royal British Bank, ° Green v. London General Omnibus 
 
 Ex parte Nichol, 28 L. J. Ch. 257, per Company, 7 C. B. N. S. 290. 
 
 Lord Chelmsford, C. ' Green v. London General Omnibus 
 
 ' Bank of New South Wales v. Owston, Company, 7 C. B. N. S. 290, at p. 303 ; 
 
 4 App. Cas. 270 ; Edwards v. Midland in this case the corporation was a trading 
 
 Eailway Company, 6 Q. B. D. 287. See, one created by statute, 
 however, Lord Bramwell in Abrath 0. 
 
232 . THE LAW OF NEGLIGENCE. [book i. 
 
 case of public bodies and trustees. The particular relations that 
 are raised will be deferred until they can be considered in the 
 course of their development in combination with the general 
 doctrines of law that will have to pass under review. Meanwhile, 
 the results at present attained may be summarized : — 
 Results I . The liability of bodies incorporated for the pursuit of their 
 
 own advantage differs only from that of private persons in so 
 much as it is limited by the statute or charter under which they 
 receive their powers.' 
 
 2. Bodies incorporated for the performance of public duties 
 are liable for the negligence of their servants in improperly 
 performing such duties to the same extent as if those servants 
 were acting as the servants of private persons.^ 
 
 3. But the individuals composing the body are not responsible 
 unless for some independent act done that would render them 
 responsible apart from their relation to the incorporated body.^ 
 
 4. To obtain the protection of the statute (or charter of 
 incorporation) in avoiding individual liability, it is necessary 
 that the act done should be done (a) with the lond fide belief 
 that it is done in the character mentioned in the statute, and 
 (6) with the bond fide belief that the acts so done are in fulfil- 
 ment of the duties so imposed.'' 
 
 5. Acts done under a statutory authority must strictly 
 pursue the terms of it, and any variation constitutes an action- 
 able wrong.° 
 
 6. Acts either expressly or by necessary intendment pre- 
 scribed by the Legislature to be done carry vdth them no other 
 liability than that the Legislature has seen fit to impose.* 
 
 7. In cases where acts are authorized by the Legislature 
 the performance of which necessarily inflicts injury on third 
 persons, if the injured person is not compensated by the statute 
 he has no remedy whatever for the injury he sustains.' 
 
 8. Where statutory powers are conferred, all acts necessarily 
 
 1 Cowley ». Mayor, &o., of Sunderland, Manure Company v. London and St. 
 6 H. & N. 565 ; 30 L. J. Ex. 127 ; 4 Katharine Dock Company, 9 Ch. D. 503 ; 
 L. T. N. S. 720 ; 9 W. R. 668. Manley v. 39 L. T. 433 ; 27 W. Tl. 267. 
 
 St. Helens Canal and BaUway Company, ' Whitehouse v. Fellowes, 10 C. B. 
 
 2 H. & N. 840 ; 27 L. J. Ex. 159. N. S. 765 ; 30 L. J. C. P. 306 ; 4 L. T. 
 
 2 Mersey Docks Trustees v. Gibbs, N. S. 177 ; 9 W. E. 557. 
 
 L. E. I H. of L. 93 ; 35 L. J. Ex. 225 ; ' Penny v. South-Eastem Eailway, 7 
 
 14 L. T. N. S. 677 ; 14 W. ,E. 872. Euck E. & B. 660 ; 26 L. J. Q. B. 225 ; jSew 
 
 V. Williams, 3 H. & N. 308 ; 27 L. J. Ex. Eiver Company v. Johnson, 2 E. & E. 435 ; 
 
 3S7. 29 L. J. M. C. 93 ; 8 W. B. 179 ; Brand 
 
 'Foreman v. Mayor of Canterbury, ». Hammersmith Eailway Company, L. E. 
 
 L. E. 6 Q. B. 214 ; 40 L. J. Q. B. 138 ; 4 H. of L. 171 ; 38 L. J. Q. B. 265; 21 
 
 24 L. T. N. S. 38s ; 19 W. R. 719. L. T. N. S. 238 ; 18 W. E. 12; Cale- 
 
 * Booth 1). Chve, 10 C. B. 827. Readu. donian Railway Company v. Walker's 
 
 Colter, 13 C. B. 850 ; 22 L. J. C. P. 201. Trustees, 7 App. Gas. 259 ; 46 L. T. 826 ; 
 
 " Nitro-phosphate and Odam's Chemical 30 W. R. 569. 
 
PART II.] CORPORATIONS AND PUBLIC BODIES. 233 
 
 done within the limits of the parliamentary authorization, and 
 all consequences arising from acts so done in pursuance of such 
 statutory powers, even though they inflict damage upon third 
 persons which otherwise would be actionable, do not give any right 
 to the person injured thereby.' 
 
 9. To deprive a person of a right of action that he would 
 possess but for statutory powers conferred on a person or the body 
 committing what would else be an actionable wrong in forward- 
 ing the object of those powers, it is necessary that there should 
 be clear authorizatipn, though not necessarily an express author- 
 ization of the methods of acting in consequence of the adoption 
 of which the wrong, actionable apart from the statute, has been 
 committed.^ 
 
 10. In cases where there is a clear authorization of certain 
 classes of acts the performance of <iny one of which produces the 
 damage complained of, any failure of a reasonable exercise of the 
 powers possessed by the statutory body, whether by the statute or 
 at common law, to prevent the damage complained of is " negli-. 
 gence," and actionable, notwithstanding the statute.^ 
 
 1 1 . An act which, as done against the public, amounts to 
 inisdemeanour, and is therefore indictable, when done so as to 
 inflict an injury on a private individual will subject the doer to 
 an action at the suit of the person so injured.* 
 
 12. With the exceptions mentioned in the following pro- 
 position, every breach of public duty working wrong or loss to 
 another is an injury, and actionable.^ 
 
 13. Breach of public duty includes not only the imperfect 
 performance of duties enjoined, but also the omission to perform 
 them," excepting (a) where the omission is the omission of the 
 inhabitants of a county or parish, or of those invested by statute 
 with their liabilities to repair highways or bridges;' (6) where a 
 
 1 BexD. Peaae, 4B. &A. 30. Vanghan Trinity House, 17 Q. B. D. 795; 35 
 V. TafiF, &o., Railway Company, S H. & "W. R. 30. 
 
 N. 679 ; 29 L. J. Ex. 247 ; 2 L. T. N. S. ' Sutton «. Johnstone, i T. R. 784. Fer- 
 
 394; 8 W. R. 594 ; Brand v. Hammer- guson v. Earl of Kinnoull, 9 CI. &F. 251. 
 
 smith Railway Company, L. R. 4 H. of L. ^ Borough of Balhurst v. Maopherson, 4 
 
 171 ; supra. A-pp. Cas. 256 ; Jolliffe v. Wallasey Local 
 
 2 Jones V. Festiniog Railway Company, Board, L. R. 9 C. P. 62 ; 43 L. J^ C. P. 
 L. R. 3 Q. B. 733 ; 37 L. J- Q- B. 214 ; 41 1 29 L. T. 582 ; Guardians of the Poor 
 18 L. T. N. 8. 902 ; 17 W. R. 28 ; Hill of the Holhorn Union v. Vestry of the 
 V. Managers of the Metropolitan Asylum Parish of St. Leonard, Shoreditch, 2 
 District, 6 App. Caa. 193 ; 5° L. J. Q- B. Q. B. D. 145 ; 46 L. J. Q. B. 36 ; 35 
 3SS ; 44 L. T. 653 ; 29 W. R. 607. Com- L. T. N. S. 400 ; 25 W. R. 40. 
 
 'pare Amacraft v. St. Thomas Sanitary ' Russell v. Men of Devon, 2 T. R. 
 
 Authority, 42 L. T. 365. 667. Young v. Davis, 7 H. & N. 760. 
 
 ' Geddis v. Proprietors of Bann Reser- M'Kinnon v. Penson, 8 Ex. 319, 9 Ex. 
 
 voir 3 App. Cas. 430. 6o9- Parsons v. St. Matthew, Bethnal 
 
 * Glossop ». Heston and Isleworth Local Green, L. R. 3 C. P. 56 ; 37 L. J. C. P. 
 
 Board, 12 Cb. D. 102 ; 47 L- ■'• Ch. S36 ; 62 ; 17 L. T. N. S. 211 ; 16 W. R. 81. 
 
 26 W. R. 433. Gilbert v. Corporation of Gibson v. Mayor of Preston, L. R, 5 Q- B. 
 
234 THE LAW OF NEGLIGENCE. [book i. 
 
 statute has created a duty and imposed a penalty for its breach ; 
 in which case no action can be maintained for breach of, or omission 
 to perform, such statutory duty, unless a right of action is created 
 by the statute.' 
 
 1 4. The mere fact of omission to perform a public duty owing 
 to the whole of a district is not enough to entitle an inhabitant 
 of the district to bring an action for the loss of the advantages 
 he would otherwise have had, had the public duty been per- 
 formed.^ 
 
 1 5 . Where an absolute duty is imposed on a person or public 
 body by statute or charter, any injury resulting to an individual 
 from the non-dischaxge of the duty is actionable." 
 
 16. Where no absolute duty is imposed, the failure without 
 neghgence to carry out a statutory requirement is not action- 
 able.^ 
 
 17. Powers granted to any person or body requiring the 
 exercise of a discretion, when exercised, are not subject to the 
 supervision of any other tribunal whatever,* but such person or 
 body may be compelled to exercise their discretion (though not 
 in any particular manner) by mandamus." 
 
 18. Powers primd facie discretionary, but conferred for the 
 pui-pose of enforcing a right as against third persons, import a 
 duty, and must be exercised for the benefit of those who have 
 the right.' 
 
 19. A corporation is liable both for a breach of contract and 
 for a tort committed within the scope of the powers of the 
 corporation.' 
 
 20. A corporation is liable for the tortious acts of its agent, 
 either within the power of the agent or subsequently ratified by 
 the corporation, if such tortious acts are within the scope of the 
 powers of the corporation." 
 
 218; 39 L. J. Q. B. 131 ; 22 L. T. N. S. " Julius v. Bisbop of Oxford, 5 App. 
 
 293 ; 18 W. R. 689. Cas. 214 ; 49 L. J. Q. B. 577 ; 42 L. T. 
 
 ^ Atkinson «. Newcastle and Gateshead 546; 28 W. B. 726. 
 
 Waterworks Company, 2 Ex. D. 441 ; ' Julius u. Bishop of Oxford, 5 App. 
 
 46 L. J. Ex. 77S ; 36 L. T. N. S. 761 ; Cas. 214. 
 
 25 W. E. 794 ; Doe dem. Bishop of ^ Erie, C. J., in Green v. London Gene- 
 
 Soohester v. Bridges, i B & Ad. 847 ; ral Omnibus Company, 7 C. B. N. S. at p. 
 
 Stevens v. Jeacocke, 11 Q. B. 731. 290: "I take the whole tenor of authori- 
 
 2 GloBsop V. Hesion and Isleworth lies, from Yarhorough w. Bank of England 
 Local Board, 12 Ch. B. 102; si^a. down to the case of Whitfield v. South- 
 
 3 Hammond v. Vestry of St. Fancras, Eastern Bailway Company, to shew that 
 L. E. 9 G. P. 316 ; 43 L. J. C. P. 157 ; an action for a wrong does lie against a 
 30 L. T. N. S. 296 ; 22 W. E. 826. corporation where the thing done is within 
 
 * Hammond v. Vestry of St. Fancras, the purpose of its incorporation." 
 
 L. E. 9 C. F. 316 ; supra. » Poulton v. London and South-Westem 
 
 ^ The Queen v. Mayor of London, 3 B. Eailway Company, L. E. 2 Q. B. 534 ; 
 
 & Ad. 271. E. o. Archbishop of Canter- 36 L. J. Q. B. 294 ; 17 L. T. N. S. 11, 
 
 bury, IS East 157. and cases therein referred to. 
 
PAETii.] COEPOEATIONS AND PUBLIC BODIES. 235 
 
 21. A corporation is not liable where the agent has exceeded 
 his authority, and where the act has not been ratified.' 
 
 22. Whether a corporation is liable for a tort the corporation 
 expressly directs to be committed, but which is wholly outside the 
 scope of the powers of the corporation, is as yet unsettled by 
 auliority.'' 
 
 1 Kaye v. Brett, 5 Ex. 269, 274; Howard v. SliewarJ, L. E. 2 C. P. 152; Cole 
 t. North-Weslern Bank, L. E. 10 C. P. 345 ; Edmunds v. Busliell, L. E. i Q. B. 97. 
 
 2 Mill V. Hawker, L. E. 10 Ex. 92; 44 L. J. Ex. 49; 33 L. T. N. S. 177 ; 24 
 W. E. 348. 
 
CHAPTER II. 
 
 PUBLIC OFFICERS. 
 
 liability of We have already considered certain general principles applicable 
 pu 10 cors. j^ ^j^^ consideration of the liability o£ corporations or bodies 
 created by statute to perform certain duties. Akin to that 
 subject is the consideration of the rules governing the liability of 
 public officers. 
 The Sovereign. Under this head it will now be convenient to consider the 
 position of the Sovereign, though constitutionally there is very 
 slight analogy between his position and that of the large number 
 of functionaries whom we shall here have to treat of. However, 
 the position of the Sovereign with regard to his liability for 
 negligence seems more conveniently to be considered here than 
 under any other division of the subject. 
 
 The negligence of the Sovereign, then, may be either personal 
 negligence or negligence through his servants. With regard to 
 the former, the constitutional maxim is Becc non potest peccare} 
 If, then, the Sovereign personally command an injurious act, the 
 act may be invalid, yet the Sovereign is not accountable,^ though 
 those who act in the execution of injurious commands may be 
 made answerable for their effects if they are done without cover 
 of law. But no action can be brought against the Sovereign 
 even in regard to civil matters, for the maxim that the King can 
 do no wrong applies to personal as well as to political wrongs, and 
 not only to wrongs done personally by the Sovereign, if such a thing 
 can be supposed to be possible, but to injuries done by a subject 
 by the authority of the Sovereign.' This was laid down in the 
 well-known case of Viscount Canterbury v. Attorney- General,* 
 where it was admitted that for the personal negligence of the 
 Sovereign no proceeding could be maintained. This formed the 
 
 1 Hroom's Legal Maxims, 6tli edit. p. 46. ^ chittj-j On the Prerogative, p. 5. 
 
 Le grand case in le Court gards, 2 Eolle ' Chitty, On the Prerogative, pp. 339, 
 
 E. 294, at p. 304, -where it is written, Alii 340. Feathers v, Tlie Queen, 6 11. & S. 
 
 possint non peccare, iUe non potest pec- 257, per Cockhuin, C.J., at p. 295. 
 
 care. * i Phillips 316, at p. 321. 
 
PABTn,] PUBLIC OFFIOEKS. 
 
 237 
 
 basis of the reasoning of Lord Lyndhurst, 0., whereby lie arrived 
 at the conclusion that, as the Sovereign was personally un- 
 accountable, so also was he not accountable for the torts of his 
 servants. The Lord Chancellor's reasoning was as follows : — " If 
 the master or employer is answerable upon the principle that Qui 
 fctffit per aiiwn, fadt per se, this would not apply to the Sovereign, 
 who cannot be required to answer for his own personal acts. If 
 it be said that the master is answerable for the negligence of his 
 servant because it may be considered to have arisen from his own 
 misconduct or negligence in selecting or retaining a careless 
 servant, that principle cannot apply to the Sovereign, to whom 
 negligence or misconduct cannot be imputed, and for which, if 
 they occur in fact, the law affords no remedy. Gases have arisen 
 of damages done by the negligent management of ships of war. 
 It has been held that where the act is done by one of the crew, 
 without the participation of the commander, the latter is not 
 responsible.' But if the principle now contended for be correct, 
 the negligence of the seamen in the service of the Crown would 
 raise a liability in the Crown to make good the damage, and 
 which might be enforced by a petition of right." 
 
 The case of Viscount Canterbury v. Attorney-General is Visobnnt 
 important for another legal position that it established. The Attomeyl^ "' 
 proceedings were by petition of right, brought by the Speaker of General, 
 the House of Commons, for damage caused to his furniture by 
 the fire burning down the Houses of Parliament, and resulting 
 from the negligently burning of bundles of Exchequer talUes 
 which had been ordered to be removed. The control of the 
 Houses of Parliament had been vested in the Commissioners of 
 Woods and Forests, officers appointed by the Crown and re- 
 movable at pleasure. The subordinate officers were appointed by 
 the Commissioners. It was by these subordinate agents that the 
 fire was alleged to have been caused. The point was with what 
 liability would the negligence of these high officers affect the 
 Crown. The Lord Chancellor discusses the question on two 
 grounds — that of their personal and that of their vicarious 
 liability. He said : " Now, assuming that the fire had been 
 caused by the personal negligence of the Commissioners, would 
 the Crown in such case have been liable to make good the loss? 
 They are indeed styled servants of the Crown, but they are in 
 truth public officers appointed to perform certain duties assigned 
 to them by the Legislature, and for any negligence in the discharge 
 of such duty, and any injury that may be thereby sustained, they 
 alone are, I conceive, liable. It is supposed that the Crown is 
 
 1 Nicliolsoa V. Mounsej, 15 East 384. 
 
238 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Consideration 
 of the liability 
 of servants of 
 the Crown. 
 
 I. As to 
 contracts. 
 
 Macbeath v. 
 Haldimimd. 
 
 Gidley v. lord 
 Palmerstou. 
 
 responsible for the conduct of all persons holding public offices 
 and appointments, and bound to make good any loss or injury 
 which may be occasioned by their negligence or delinquency. 
 At least some authority should be cited in support of such a 
 doctrine. But then it is said, these officers are appointed by the 
 Crown and are removable at the pleasure of the Grown. That 
 circumstance alone will not, I conceive, create any such liability. 
 The Keeper of the Great Seal and other persons holding high 
 Bituations in the State have authority to appoint to many offices 
 and also to remove the persons so appointed at their pleasure, 
 but they are not on that account subject to make compensation 
 for injury occasioned by the neglect or misconduct of the persons 
 so appointed. The mere selection of the officers does not create a 
 liability. But if the Crown would not be responsible for the act 
 done, had it been done by the superiors, it follows that it cannot 
 be held liable for the negligence of their subordinate agents 
 whom they appoint and remove, and with the selection or control 
 of whom the Crown has no concern." ' 
 
 Since, then, it is plain that the Sovereign cannot personally be 
 made liable for the negligences and torts of his servants, it remains 
 to consider in what circumstances and to what extent those 
 servants are themselves protected for acts done, or purported to 
 be done, in the course of their service. The law has been 
 clearly laid down that, with regard to contracts, no cause of action 
 exists against the servant. The course of the decisions has been 
 uniform. The earliest was Macbeath v. Haldimund,? which was 
 an action against the Governor of Quebec, for military stores sup- 
 plied to the garrison. Lord Mansfield's judgment went on", the 
 ground that " it was notorious that the defendant did not per- 
 sonally contract." 
 
 Gidley v. Lord Palmerston' is a well-known case. Money had 
 
 ' As to the remedies for any infrioge- 
 nient of the subject's rights, in Broom's 
 Constitational Law, 2nd edit. p. 238, 
 occurs the following passage : " ' The Con- 
 stitution of England,' says Lord Holt, 14 
 St. Tr. 784, 'has widely disli-ibuted to 
 several courts the determination of proper 
 causes, but has left no subject in any case 
 where he is injured, without his adequate 
 remedy, if he will go to the right place 
 for it.' If the suliject has cause of com- 
 plaint against the Grown, he must proceed 
 lor redress by that pathway which the 
 constitution has laid out for bim ; for an 
 illegal invasion of his liberty he should 
 proceed by habeas corpus; to obtain the 
 revocation of a grant which injuriously 
 affects him, he should proceed by scire 
 facicu ; for an illegal invasion of the rights 
 
 of property, he should proceed by petition 
 of rignt." By statute 46 & 47 Vict, 
 c. 57, s. 26, acwe facias is abolished, in so 
 far as it relates to patents for inventions. 
 As to the history of Petition.of Eights, and 
 where it lies, see judgment of Blackburn, 
 J., Thomas v. The Queen, L. R. 10 Q. B. 
 31 ; that the Sovereign could not be sued 
 for a wrong, see Tobin v. The Queen, 16 
 C.B. N. S. 310 ; approved, Feathers v. The 
 Queen, 6 B. & S. 257, at p. 294 ; 35 L. J. 
 Q. B. 200 ; 12 L. T. N. S. 114; Longford 
 V. United States, loi U. S. (11 Otto) 341. 
 
 ^ I T. B. 180. For a compendium of 
 the American law on this subject, with an 
 examination of the English cases, see 
 United States v. Lee, 106 U. S. (6 Otto) 
 196-251. 
 
 3 3 Brod. & B. 285. 
 
PART II.] PUBLIC OFFICERS. 
 
 239 
 
 been paid to the defendant as Secretary at War, which he was 
 authorized to pay over to plaintiff's testator. Not having done 
 so, he was sued, but the plaintiff was held disentitled to recover, 
 on the grounds, as stated by Dallas, O.J., in delivering judgment, 
 that the duty was " as between him and the Crown only, and not 
 resulting from any relation to, or employment by, the plaintiff, or 
 under any undertaking in any way to be personally responsible 
 to him. The money received is granted by the Crown, subject 
 only to the disposition or control of the defendant as the agent 
 or officer of the Crown, and responsible to the Crown for the due 
 execution of the trust or duty so committed. There is, therefore, 
 no duty from which the law can imply a promise to pay to the 
 testator during his life or to his executor after his death, nor can 
 money be said to have been had and received to the use of the 
 testator which money belonged to the Crown, being received as 
 the money of the Crown, and the party receiving it being respon- 
 sible only to the Crown in its public character." 
 
 The cases were reviewed in the Privy Council, in Palmer v. Paimsri'. 
 Hutchinson,' where a claim was made against the Deputy Com- ^'^*°'"°^°°- 
 missary-General for Natal to recover the price or hire of certain 
 waggons and oxen for the carriage of goods. Their lordships 
 were in that case clearly of opinion that the Deputy Commissary- 
 General could not be sued, either personally or in his official 
 capacity, upon a contract entered into by him on behalf of the 
 commissariat department. Since he was not a corporation, and 
 had no property or assets in his official capacity which could be 
 seized or attached in execution of a decree against him in that 
 capacity ; while it was clear that " no portion of the Government 
 revenue, whether allocated to a special purpose or not, could be 
 seized in execution under it."" 
 
 In Kinloch v. Secretary of State for India, in the House of Kiniochw. 
 Lords,' an attempt was made to obtain a legal remedy against state for^india. 
 the Secretary of State by alleging the terms of a royal warrant 
 to constitute a trust, to an account and distribution of the residue 
 of which the plaintiff claimed to be entitled. The unanimous 
 decision, however, of the House of Lords was that the terms of 
 the royal warrant did not constitute a trust, but merely an 
 agency for the performance of duties which the Sovereign per- 
 sonally could not perform, and for the performance of which he 
 was answerable to the Sovereign alone." 
 
 With regard to torts, the subject is more complicated. But II. As to toria. 
 
 ' 6 App. Cas. 619. Tbe American law " 7 App. Caa. 619. 
 
 is snmmed up and stated, Hagood v. * Kioe v. Shnter, i Bast 579. See note 
 
 Southerr., 117 V. S. (10 Davis) 52. of a case, at p. 582, illustrating the maxim, 
 
 2 Chitty, On the Prerogative, pp. 31, 32 Cesaante ratione cessat ipsa lex. 
 
240 THE LAW OF NEGLIGENCE. [book i. 
 
 servants of the Crown will be liable for any act not justifiable by 
 a lawful authority from the Crown. If the act is in itself wrongful; 
 the officer doing it will in any event be liable. This appears 
 EogersB. from Eogers v. Rajendro Dutt,' where the owner of a steam tug 
 Bajendro Dutt. ^^^^ ^j^^ defendant to recover for damage caused by an order 
 issued in the defendant's official capacity forbidding the officers of 
 the Bengal pilot service to allow the plaintiff's tug to take any 
 ship in tow of which they should have the charge. In the 
 particular case it was held that no action lay; but in giving 
 judgment the Court said : " Neither does it seem to conclude 
 the question that the particular act complained of is to be con- 
 sidered as the act of Government, and that ia the part which 
 defendant took in it he acted merely as the officer of the Govern- 
 ment, intending to discharge his duty as a public servant with 
 perfect good faith, and with an entire absence of malice, particular 
 or general; against the plaintiff. For if the act of the defendant 
 was in itself wrongful as against the plaintiff, and produced 
 damage to him, the plaintiff must have the same remedy by action 
 against the doer whether the act was his own, spontaneous and 
 unauthorized, or whether it was done by order of the superior 
 power. The civil irresponsibility of the supreme power for 
 tortious acts could not be theoretically maintained with any show 
 of justice if its agents were not personally responsible for them. 
 In such cases the Government is morally bound to indemnify its 
 agent, and it is hard on such agent where this obligation is not 
 satisfied ; but the right to compensation in the party injured is 
 paramount to this consideration ; that is to say, special circum- 
 stances may render even a public servant personally responsible 
 for acts bond fide done by him on behalf of the public which in 
 contemplation of law injuriously affects another."^ And again. 
 Feathers v. from what Cockburn, C. J., said in Feathers v. The Queen^ : "As the 
 Sovereign cannot authorize wrong to be done, the authority of 
 the Crown would afford no defence to an action brought for an 
 illegal act committed by an officer of the Crown." On the other 
 hand, no Government has ever held itself liable to individuals for 
 the misfeasance, laches, or unauthorized exercise of power by its 
 officers and agents ; and Mr. Justice Story says'* the Government 
 does not undertake to guarantee to any person the fidelity of any 
 of the officers or agents whom it employs, since that would 
 involve it in all its operations in endless embarrassments and 
 difficulties and losses, which would be subversion of the public 
 
 ' 13 Moo. P. C. C. 209. * On Agency, § 319, cited by Miller, 
 
 2 Cobbett V. Sir George Grey, 4 Ex. 729. J., Gibbons v. United States, 8 Wall. 269, 
 ^ 6 B. & S. 257, at p. 296. at p. 274. 
 
PART II.] PUBLIC OFFICERS. 241 
 
 interests. As to military officers, in Ms summing-up in Wall v. Wnii v. 
 M'Namara,' Lord Mansfield said : " In trying the legality of acts ^t'^*™'^™- 
 done by military officers in the exercise of their duty, particularly 
 beyond the seas, where cases may occur without the possibility of 
 application for proper advice, great latitude ought to be allowed, 
 and they ought not to sufier for a slip of form if their intention 
 appears by the evidence to have been upright : it is the same as 
 when complaints are brought against inferior civil magistrates, 
 such as justices of the peace, for acts done by them in the 
 exorcise of their civil duty. There the principal inquiry to be 
 made by a court of justice is, how the heart stood, and if there 
 appears to be nothing wrong there, great latitude will be allowed 
 for misapprehension or mistake. But, on the other hand, if the 
 heai't is wrong, if cruelty, malice, and oppression appear to have 
 aggravated the imprisonment or other injury complained of, they 
 shall not cover themselves with the thin veil of legal forms nor 
 escape under the cover of a justification the most technically 
 regular from that punishment which it is your province and 
 your duty to inflict on so scandalous an abuse of public trust." 
 Again, in Swinton v. Molloy,^ where the defendant, the captain Swinton v. 
 of a man-of-war, had imprisoned the plaintiff, who was the ^°'i°y- 
 purser, and who brought an action against him, where it ap- 
 peared in evidence that the defendant had imprisoned the 
 plaintiff for three days without inquiring into the matter, and 
 had then released him on hearing his defence. Lord Mansfield 
 said that such conduct on the part of the ■ defendant did not 
 appear to have been a proper discharge of his duty, and there- 
 fore that his justification had failed him under the discipUne of 
 the navy. 
 
 The accountability of an officer believing himself to act in Madrazo «. 
 pursnance of his authority, yet doing an act which is ultimately ' ^^' , 
 
 found outside it, is shewn by the case of Madrazo v. Willes,' 
 where the captain in the royal navy whose duty it was to arrest 
 British ships engaged in the slave trade unlawfully took posses- 
 sion of the ship of the plaintiif, a Spanish merchant, which was 
 engaged in the African slave trade, in which, by the law of 
 Spain, he lawfully might. A verdict and judgment were given for 
 the plaintiff for ;^2l,i8o, and though an unsuccessful attempt 
 was made to reduce the damages, on the ground that the slave 
 
 ^ CSted in Johnstone v. Sutton, i T. E. of bringing in foreign vessels engaged in 
 
 493 ; I B. P. C. 76, at p. 93 ; 2 Gilb. on the slave irade, see 1 Kent's Comment- 
 
 ividence, by Lofft, p. 558. aries, 4th edit. pp. 191, 200 ; The Aiite- 
 
 2 Cited in Johnstone v. Sutton. lope, 10 Wheat. 66. As to contract , 
 
 ' 3 B. & Aid. 353. Compare Fabrigas made by a British subject for the sale 
 
 ». Mostyn, 20 St, Tr. 162 ; i Sm. Lead. of slaves, Santos o. lUidge, 8 0. B. N. S. 
 
 Cas. 9th edit. p. 628. And as to the right 869. 
 
 Q 
 
242 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Tobin V. The 
 Queen. 
 
 Bnron v. 
 Denman. 
 
 Jiidgmeot of 
 Parke, B. 
 
 trade was by statute declared unlawful, no attempt was made to 
 contest the captain's liability for his act. 
 
 The converse case to this was Tobin v. The Queen/ brought 
 before the Common Pleas on petition of right, where a vessel not 
 registered as a British vessel was seized and destroyed as being 
 engaged in the slave trade ; whereas the vessel was alleged in ' 
 the petition, and for the purposes of the case the averment was 
 admitted, not to have been in any way engaged in the slave 
 trade, nor liable to be condemned as so engaged. The Attorney- 
 General demurred. After giving judgment in favour of .the 
 demurrer on various statutory points, the Court said : "If it be 
 assumed that Captain Douglas had authority from the Crown to 
 seize all, ships engaged in the slave trade, so that the seizure, if 
 lawful, would have been made by him in the capacity of agent 
 for the Crown, still, if he seized a ship not engaged in the slave 
 trade, he would not act within the scope of that authority, and 
 would not make his principal liable for that wrong. Thus, where 
 a warrant was granted by the Secretary of State to apprehend the 
 author of the ' North Briton,' and the defendant, upon good 
 ground of suspicion, apprehended the plaintifif, who proved that 
 he was not the author, the defendant was held not to have 
 acted in obedience to that warrant, and to be responsible without 
 a justification therefrom.'"* 
 
 In Buron v. Denman,^ also arising out of the capture of the 
 slaves of a Spaniard by the captain of one of her Majesty's ships, 
 the Crown professed to adopt and ratify the alleged unlawful act. 
 An action against the captain was brought at bar. As to the 
 power of the Crown to ratify the wrongful act, Parke, B.,* in 
 summing up, said : "On that subject I have conferred with my 
 learned brethren, and they are decidedly of opinion that the 
 ratification of the Crown, communicated as it has been in the 
 present case,' is equivalent to a prior command. I do not say I 
 dissent, but I express my concurrence in their opinion with some 
 doubt, because on reflection there appears to me a considerable 
 distinction between the present case and the ordinary case of 
 ratification by subsequent authority between private individuals. 
 If an individual ratifies an act done on his behalf, the nature of 
 the act remains unchanged ; it is still a mere trespass, and the 
 party injured has his option to sue either. If the Crown ratifies 
 
 1 i6 C. B. N. S. 310 ; 33 L. J. C. P. 
 199. 
 
 " Leach v. Money, 19 St. Tr. looi ; 
 3 Burr. 1692, 1742 ; i Wm. Bl. 555. 
 
 ' 2 Ex. 167 ; Secretary of State for 
 India v. Sa Haba, 13 Moo. P. C. C. 
 86. 
 
 ^ The other judges were Aldersoii, 
 Eolfe, and Piatt, BB. 
 
 ^ In documents from the Secretary of 
 State for Foreign Affairs, the Lords of the 
 Admiralty, and Secretary of State for the 
 Colonial Department, on the report of the 
 Governorof Sierra Leone and thedefendant, 
 
PAETii.J PUBLIC OFFICERS. 243 
 
 an act, the character of the act becomes altered, for the ratifica- 
 tion does not give the party injured the double option of bringing 
 his action against the agent who committed the trespass or the 
 principal who ratified it, but a remedy against the Crown only 
 (such as it is), and actually exempts from all liability the person 
 who commits the trespass. Whether the remedy against the 
 Crown is to be pursued by petition of right, or whether the 
 injury is an act of State without remedy except by appeal to 
 the justice of the State which inflicts it, or by application of the 
 individual suffering to the Government of his country to insist 
 upon compensation from the Government of this — in either view, 
 the wrong is no longer actionable. I do not feel so strong upon 
 the point as to say that I dissent from the opinion of my learned 
 brethren ; therefore, you have to take it as the direction of the 
 Court that, if the Crown, with the knowledge of what has been 
 done, ratified the defendant's act by the Secretaries of State or the 
 Lords of the Admiralty, this action cannot be maintained." To 
 this ruling a bUl of exceptions was tendered, but was not carried 
 further, and the law laid down in the summing up has been since 
 frequently cited by text-writers and acquiesced in.^ 
 
 But if the ratification of the Crown may secure immunity for 
 an act otherwise wrongful, much more is an officer of the Crown 
 saved from liability for an act ordered by Government or the 
 Crown. The rule of law was laid down by Cockbum, C.J., in 
 Hodgkinson v. Fernie,^ a case where vessels chartered by Govern- Sodgkinson v. 
 ment as transports whilst in tow of a steamer commanded by a ''™"'" 
 naval officer came into collision: "Where two vessels are char- 
 tered by tho Government for an expedition such as that in 
 question, one of the terms of the contract they enter into is, that 
 liey shall pay implicit obedience to the persons who command it ; 
 therefore, if one of them sustains damage from the other whilst 
 acting in obedience to the orders of a superior officer, the owner 
 of the vessel doing the damage cannot be held responsible in a 
 court of law to the owner of the vessel to which the damage 
 is done." 
 
 This necessarily follows from what was laid down in Johnstone 
 
 ' As to this doctrine of ratification by Pliillips v. Eyre, L. R. 6 Q. B. i, at p. 24. 
 
 the Crown, Lord Stowell held in The InFletcherj). Braddiok, 2N.B. 182, Mans- 
 
 EoUer, 6Eob. Ad.atp,364,thatthenotifi- field, C.J., said: "It is doubtful whether, 
 
 cation of blockade, which is a high act of by obeying the orders of the officer, it was 
 
 sovereignty by a commander in foreign meant that the officer should see to the 
 
 stations, was legal, though it was without navigation and direct the motion of the 
 
 authority from tlie Gdvemment at home ; ship." The comment of Abbott on Ship- 
 
 and the fact of tho Government having had ping,_8th edit. p. 56, on this is :— " This 
 
 tipie to repudiate, and not having done so, decision is not perfectly satisfactory, 
 
 was evidence of recognition, though the .... The case was hardly ripe for judg- 
 
 commander had no original authority; ment until that doubt had been removed." 
 
 and see the judgment of Willes, J., in = a C. U. N. S. 415, at p. 436. 
 
2ii 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 
 
 Malicious or 
 oppressive 
 execution of 
 orders. 
 
 Sutton V. 
 Johnstone. 
 
 In re Man- 
 sergh. 
 
 Dawkins v. 
 lord Kokeby. 
 
 v. Sutton' : " A subordinate officer must not be judge of the 
 danger, propriety, expediency, or consequence of the order he 
 receive^ ; he must obey : nothing can excuse him but a physical 
 impossibility." 
 
 Another case that arises is where the orders of the Govern- 
 ment in military or naval affairs are executed, but maliciously 
 and oppressively. The general rule of law undoubtedly is that 
 whenever any subject of England suffers damage for any illegal 
 or injurious act of another short of felony, the law gives him a 
 remedy by civil action, and without any previous conviction of 
 the act. 
 
 In Sutton V. Johnstone,^ however, the House of Lords, 
 affirming the judgment of the Exchequer Chamber and reversing 
 that of the Court of Exchequer, held that cases " involving 
 questions of military discipline and military duty alone " are 
 " cognizable only by a military tribunal, and not by a Court 
 of law.'" 
 
 In In re Mansergh,* Oockburn, C.J., thus marks the limits of 
 the Courts of law : — " Where the civil rights of a person in 
 military service are afEected by the judgment of a military 
 tribunal, in pronouncing which the tribunal has either acted 
 without jurisdiction or has exceeded its jurisdiction, this Court 
 [the Court of Queen's Bench] ought to interfere to protect those 
 civil rights ; e.g., where the rights of life, liberty, or property are 
 involved, although I do not know whether the latter case could 
 occur. Here, however, there was nothing of the sort, and the 
 only matter involved was the military status of the applicant — a 
 thing which depends entirely on the Crown, seeing that every 
 person who enters into military service engages to be entirely at 
 the will and pleasure of the Sovereign."' 
 
 The concluding expression of this statement is not perfectly 
 explicit. It might be perhaps interpreted to import an implied 
 contract. But between the Crown and the servant seeking ser- 
 vice there is nothing in the nature of a contract even possible, for 
 the power is inherent in the Crown, against which no coercive 
 process could be made available and no contract in derogation 
 would be recognized." 
 
 In a series of cases culminating in Dawkins v. Lord Eokeby,' in 
 
 ^ Report of Lords Mansfield and 
 LpiighboroHgh's opinion in Johnstone v, 
 Sntton, I T. B. 493, 510, at p. 546. 
 
 2 Johnstone v. Sntton, i T. E. 493. 
 
 ' Dawkins v. Lord Panlet, L. E. 5 
 Q. B. 94 ; 39 L. J. Q. B. 53 ; Dawkins v. 
 Lord Kokeby, L. E. 7 H, of L, 744 : 41; 
 L, J. Q. B, 8, 
 
 * I B. & S. 400. 
 
 5 As to this, see trials of Golding and 
 Qihers, 12 St. Tr. 1270, 
 
 " Poe's case, 5 B. & Ad. 681, and the 
 cases collected in Grant u. Secretary of 
 State for India, 2 C. P. D. 445. 
 
 =■ L. E. 7 H. of L. 744. See the cases 
 there cited in argument. 
 
PAETii.] PUBLIC OFFICERS. 245 
 
 the House of Lords, it was held that even malice and falsehood 
 alleged against a defendant were not sufficient to give the Courts 
 of law joi-isdiction where the plaiatiff and defendant were both 
 military men, and the causes of action alleged occurred in the 
 course of proceedings before a Court of inquiry assembled in con- 
 formity with the Queen's regulations for the governing of the 
 army. In delivering judgment in that case Lord Chancellor Cairns 
 cited with approval the summing up of Mr. Justice Blackburn at 
 the trial, that " an action would not lie if the verbal and written 
 statements were made by the defendant, being a military man, in 
 the course of a military inquiry, in relation to the conduct of the 
 plaintiff, being a military man, and with reference to the subject 
 of that inquiry, even though the plaintiff should prove that the 
 defendant had acted maid fide, and with actual malice, and with- 
 out any reasonable or probable cause, and with a knowledge that 
 the statements so made and handed in by him as aforesaid were 
 false." 
 
 It follows, from what has been already said,' that the authority Conclusion, 
 of a Court of ordinary civil or criminal jurisdiction is not affected 
 by the mere fact that a person brought before it is in the naval 
 or military service of the Crown, and that soldiers or sailors may 
 recover even against their superior officers for wrongs that cannot 
 properly be referred to their military or naval characters.^ 
 
 The rule of the non-accountability of servants of the Crown is Euie not 
 not limited to military and naval officers, but holds good in the ,Siitary and 
 case of all servants of the Crown, though, indeed, some of the "*^*' officers, 
 cases are not readily to be reconciled with the principle. 
 
 In re Nathan,' in the Court of Appeal, is the latest and most in re Kaihan. 
 authoritative of a series of decisions upon the position of the great 
 departments of internal administration. This was a case under 5 & 6 
 Vict. c. 79, s. 23, for a mandamus to the Commissioners of Inland 
 Eevenue to pay to the applicant the amount of probate duty over- 
 paid by him. The objection was that the Crown cannot direct a writ 
 of mandamus to itself, nor does a writ lie against servants of the 
 Crown ;* and the decision of the Court of Appeal was that, as the 
 duty had been paid to the Coinmissioners as the mere servants of the 
 Crovm (and on the assumption that the statute did not establish a 
 duty between the applicant and the Commissioners, in which event 
 there would have been a right of action, and the remedy by man- 
 damus would have been inappropriate), and as such they were 
 
 " See per Cookburn, C.J., Jn re Man- ' Percival v. Tlie Queen, 3 H. & C. 
 
 sergh, I B. & S. 400. 217 ; Executors nf Perry v. The Queen, 
 
 " Warden 0. Bailey, 4 Taunt. 67. L. R. 4 Ex. 27 ; De Lancey «. The Queen, 
 
 . ' 12 Q. B. D. 461 ; 53 L. J. Q. B. 229 ; L. R. 7 Ex. 140. 
 51 L. T. 46 ; 32 W. R. S43- 
 
246 THE LAW OF NEGLIGENCE. [book i. 
 
 bound to obey the orders of the Crown, the money had been paid 
 in contemplation of law into the hands of the Crown. "If that 
 be so, the meaning of the Act of Parliament, which says that these 
 servants of the Crown are to pay back money which belongs to 
 the Crown, and which is in the possession of the Crown and no 
 longer in the actual possession of the Commissioners of Inland 
 Eevenue, is that it is a duty imposed upon them as sei-vants of the 
 Crown, and the duty imposed upon them is a statutory duty which, 
 thBy then owe to the Crown. The statute is also an enabling 
 statute, because it enables them, without a direct order from 
 the Crown in each particular case, to get back from some other 
 department of the Executive, but which is after all from the Crown, 
 and out of the general fund into which it has been paid, the 
 money which is to be repaid to such persons as the prosecutor if 
 they make out their case. Therefore, the right of the prosecutor 
 seems to me' to be a right against the Crown in respect of moneys 
 which are in the hands of the Crown, and belong to the Crown. 
 If that be so, then no action will lie, because an action will not 
 lie against servants of the Crown. I have said that I do not 
 think the statute gives any individual an action against the 
 Commissioners for the reasons I have stated — viz., that it raises 
 no relation between the applicant and the servants of the Crown, 
 therefore the claims upon which the prosecutor insists must be 
 a claim against the Crown. If the prosecutor, therefore, has any 
 remedy in this case, it must be by petition of right." 
 Two classes The distinction pointed out seems to be between those cases 
 
 I. Where com- where Commissioners or others, acting as servants of the Crown, 
 under'nariia."' ^^ceive money either under the authority of Act of Parliament, 
 mentary and without reference to the authority of the Crown, or in some 
 
 capacity in which their relation to, and dependency on, the Crown 
 is not invoked when they are liable to ordinary process to secure 
 
 II. Where its due application ; and those cases where they are acting as 
 
 they act as n i /~i -i n i ■, r^ i 
 
 the mere Servants 01 the Orown, and are amenable to the Crown, whose 
 Orovra. * ^ servants they are, when they are not amenable to the jurisdiction 
 of the Courts otherwise than by petition of right.'' The case of The 
 King V. Lords Commissioners of the Treasury" seems inconsistent 
 with this. There the Queen's Bench ordered a mandamus to go, but 
 in the subsequent case of In re Hand" Lord Denman, who delivered 
 judgment in the earlier case, shews a disposition to limit the 
 range of his decision, and, in Baron de Bode's case,* Coleridge, J., 
 speaks of the decision as " a much misunderstood instance," and 
 
 1 Brett, M.E., at p. 472. = 4 A. & E. 286. 
 
 2 The Queen v. Lords Commissioners of * 4 A. & E. 984. at p. 996. 
 
 the Treasury, L. E. 7 Q. B. 387. " 6 Dowl. Practice Cases, 776, at p. 792. 
 
PAKT II.] 
 
 PUBLIC OFFICERS. 
 
 247 
 
 as turning on the particular statute. In The Queen v. Commis- 
 sioners of Woods, &C.J Lord Denman's opinion again seemed to 
 incline to his earlier view,^ and in The Queen v. Lords of the 
 Treasury,^ under i & 2 Will. IV. c. 1 1 , the earlier decision 
 was followed. Ex parte Walmsley^ and The Queen v. Lords 
 Commissioners of the Treasury' are the other way. The law 
 may now, however, be considered settled, and The King v. Lords 
 Commissioners of the Treasury" overruled by In ra Nathan" in 
 the Court of Appeal. 
 
 The next class of public officers whose position we shall con- Governors of 
 sider is that of Governors of dependencies.' *^™ encies. 
 
 Fabrigas v. Mostyn" is an important decision from this point of Fabrigas v. 
 view. To an action for assault and false imprisonment, the °^^"' 
 defendant pleaded — ^first, not guilty, and, secondly, that he was 
 Governor of a colony, and tnat the plaintiff was raising sedition 
 and mutiny, in consequence of which he imprisoned him. The 
 plaintifE put in issue the facts of the plea. The verdict went for 
 
 A bill of exceptions was tendered, and two of the Two points : 
 points it was sought to argue were that, first, an action would not would not lie 
 
 the plaintiff, 
 points it was 
 he in England," and no action at all could anywhere lie against "^ England ; 
 
 ' IS Q. B. 761, at p. 770. 
 
 ^ 16 Q. B. 357. See Blackbura, J., 
 L. R. 7 Q. B. 399, as to this decision. 
 
 ' I B. & S. 81. 
 
 < L. E. 7 Q. B. 387. 
 
 » 4 A. & E. 286. 
 
 " L. E. 12 Q. B. D. 476. As to Lords 
 of the Admiralty, see Ex parte Eicketts, 
 4 A. & E. 999 ; as to Commissioners of 
 Woods and JTorests, Ex parte Eeeve, 5 
 Dowl. 668 ; and as to Commissioners of 
 liiXciBe, The Queen v. Excise Commis- 
 sioners, 6 Q. B. 981. 
 
 ' The rule of the Civil Law is, In jui 
 vocari non oportet neque consulem neque 
 prcefectum neque prcBtorem neque procon- 
 sidem, neqae cwteros magistratvs qui im- 
 perium habent, qui' coercere aliquempos- 
 sunt, et jubere in carcerem eiuci; nee 
 pontificem, dum sacra facit : D._ 2, 4, 2. 
 As to Commissioners appointed in a con- 
 quered cbuntry, it is said, in arguing in 
 Elphinstone o. Bedreechnnd, i Knapp 
 P. C. C. 316, at p. 346: "A Commissioner is 
 almost only equal to a Governor ; perhaps 
 his office IS rather inferior ; at any rate 
 he cannot pretend to a greater degree of 
 irresponsibility." 
 
 8 Cowper 161 ; 20 St. Tr. 81 ; i Sm. 
 Lead. Cas. 9th edit. 628. 
 
 8 Phillips «. Eyre, L. E. 6 Q. B. i, is 
 the leading authority on what are the 
 constituents to found an action of tort in 
 England. It is there laid down (at p. 28) 
 that two conditions must be fulfilled. 
 First, the wrong must be of such a 
 character that it would have been action- 
 
 able if committed in England : Tiie Halley, 
 L. E. 2 P. C. 193. Secondly, the act 
 must not have been justifiable by the law 
 of the place where it was done : Blad's 
 case, 3 Swan. 603 ; Dobree «. Napier, 2 
 Bing. N. C. 781 ; Eeg. v. Lesley, Bell 
 C. C. 220. Phillips u. Eyre and The Halley 
 are followed and approved in the Court of 
 Appealin TheMoxham. I P. D. 107. In 
 Ballantine v. Golding, Cook's Bankruptcy 
 Law, p. 487, Lord Mansfield laid down the 
 rule that " what is a discharge of a debt 
 in the country where it is contracted is a 
 discharge of it every wliore," and, by parity 
 of reasoning, where an obligation ex delicto 
 to pay damages is discharged and avoided 
 by the law of the country where it is 
 made, the accessory right of action is in 
 like manner discharged and avoided. To 
 shew, however, that an action is pending 
 abroad for a wrong is no ground for stay- 
 ing proceedings in this country, see Cox v. 
 Mitchell, 7 C. B. N. S. 55. 'in Potter v. 
 Brown, 5 East 124, 131, Lord Ellen- 
 borough, C. J., said : " We always im- 
 port together with their persons the exist- 
 ing relations of foreigners, as between 
 themselves, according to the laws of their 
 respective countries, except, indeed, where 
 those laws clash with the rights of our 
 own subjects here, and one or other of the 
 laws must necessarily give way, in which 
 case our own is entitled to the preference." 
 See Story's Conflict of Laws, s. 326 ; 
 Cail V. Papayanni, i Moo. P. C. C. N. S. 
 471, at p. 484 ; Scott V. Seymour, i H. & 
 C. 219. 
 
248 
 
 THE LAW OF NEaLIGENCE. 
 
 [book I. 
 
 II. No action the Govemor of a colony any more than against the King himself, 
 a^^st the Lord Mansfield, C.J., answered these contentions as follows : — 
 UoTemor of « rpj^g point that I shall begin with is the sacredness of the person 
 of the Governor. If that was true, and if the law was so; he must 
 plead it. This is an action for false imprisonment ; primd facie 
 the Court has jurisdiction. If he was guilty of the fact, he must 
 shew a special matter that he did this by a proper authority. 
 What is his proper authority ? The King's commission to make 
 him Governor. Then he certainly must plead it. It has been 
 singled out that in a colony that is beyond the seas, but part of 
 the dominions of the Grown of England, though actions would lie 
 for injuries committed by other persons, yet it shall not lie against 
 the Governor. In every plea to the jurisdiction you must state a 
 jurisdiction, for, if there is no other method of trial, that alone 
 will give the King's Courts jurisdiction. Now, in this case no 
 other jurisdiction is shewn even by way of argument, and it is 
 most certain that if the King's Courts cannot hold plea in such a 
 Z)i(!««mot Lord case, there is no other Court upon earth that can do it; for it is 
 "AGovernor truly Said that a Govemor is in the nature of a Viceroy, and of 
 '* t° ^''^f necessity part of the privileges of the King are communicated to 
 Viceroy." him during the time of his government. No criminal prosecution 
 lies against him, and no civil action will lie against him ; because 
 what would the consequence be ? Why, if a civil action lies 
 against him, and a judgment is obtained for damages, he might be 
 taken up and put in prison on a capias, and, therefore, locally 
 during the time of his government the Courts in the island can- 
 not hold plea against him. I£ he is out of the government he 
 leaves it ; he comes and lives in England, and he has no efiects 
 there to be attached ; then there is no remedy whatsoever if it is 
 not in the King's Courts." But the dictum of Lord Mansfield 
 that " a Governor is in the nature of a Viceroy" may be considered 
 as not to be law. The question arose in Cameron v. Kyte,' where 
 Parke, B., in giving the judgment of the Privy Council, said : 
 " If a Govemor had, by virtue of that appointment, the whole 
 sovereignty of the colony delegated to him as a Viceroy, and 
 represented the King in the government of that colony, there 
 would be good reason to contend that an act of sovereignty done 
 by him would be valid and obligatory upon the subject living 
 within his government, provided the act would be valid if done 
 by the Sovereign himself, though such an act might not be in 
 conformity with instructions which the Governor had received for 
 the regulation of his own conduct. The breach of those instruc- 
 tions might well be contended on this supposition to be matter 
 
 1 3 Knapp P. C. C. 332. 
 
 Lord Mans- 
 field's dictum 
 considered by 
 the Privy 
 Council in 
 Cameron v. 
 Eyte. 
 
PART II.] PUBLIC OFFICERS. 249 
 
 resting between the Sovereign and his deputy, rendering the 
 latter liable to censure or punishment, but not affecting the 
 validity of the act done. Bub if the Governor be an officer 
 merely with a limited authority from the Crown, his assumption 
 of an act of sovereign power out of the limits of the authority so 
 given to him would be purely void, and the Courts of the colony 
 over which he presided could not give it any legal efEect, We 
 think the office of Governor is of the latter description, for no 
 authority or dictum has been cited before us to shew that a 
 Governor can be considered as having delegation of the whole 
 royal power in any colony as between him and the subject when 
 it is not expressly given by his commission."' But in Hill i;. -Oi'ctemof Lord 
 Bigge," another case before the Privy Council, the dictum of Lord sented from in 
 Mansfield was expressly dissented from by Lord Brougham,' who ^''^ "• -^'see- 
 delivered their lordships' judgment. The action was for a private 
 debt contracted by the defendant in England before he was 
 Governor, but on which he was sued in the Courts of the colony, 
 and thereupon claimed, as a personal privilege of the Governor, 
 immunity from being called to answer there. Lord Brougham 
 said : " If it be said that the Governor of a colony is quasi- 
 Sovereign, the answer is that he does not even represent the 
 Sovereign generally, having only the functions delegated to him by 
 the terms of his commission, and being only the officer to execute 
 the specific powers with which that commission clothes him." And 
 then, with reference to the objection to taking the acting Governor 
 of a colony in execution, he says : " It by no means follows that, 
 because an action may be maintained and judgment recovered, 
 therefore the same process must issue against the Governor as 
 against another person pending his government. His being liable 
 to be taken in execution is not the necessary consequence of his 
 being liable to have a judgment against him. There were anciently 
 more instances than happily now of persons privileged from legal 
 process ; but there still are some such exemptions, as privilege 
 of peerage and of Parliament, and of persons in attendance upon 
 the Sovereign and upon courts of justice. None of these privileges 
 protect from suits, all more or less protect from personal arrest 
 in execution or judgment recovered by suit. Indeed, the old, and 
 we may say obsolete, writ of protection which the King granted 
 
 * At pp. 343, 344. liable to process during his government 
 
 " 3 Moo. P. C. C. 465; there were would not of very necessity follow from his 
 
 present Lord Brongham, Lord Campbell, being liable to action, and that the same 
 
 Erskine .1. and Dr. Lushington. argument might be used to shew that an 
 
 ' " With the most profound respect for action lies not against persons enjoying 
 
 the authority of that illustrious judge undoubted freedom from arrest by reason 
 
 [Lord Mansfield], it must be observed that, of privilege " : at p. 481. 
 
 as has been shewn, the Governor being 
 
250 THE LAW OF NEGLIGENCE. [book i. 
 
 to Ms servants and debtors purported to be a protection from all 
 pleas and suits ; yet the Courts held tliat no one should thereby 
 be delayed in his action, but only that execution should be stayed 
 after judgment.' It may be observed in passing that those protec- 
 tions were a provision made by the old law for the security of 
 persons in the foreign service of the Crown ; as commanders of 
 armies, ambassadors, and, doubtless, Governors of the continental 
 dominions also.' It is therefore not at all necessary that, in holding 
 a Governor liable to bo sued, we should hold his person liable to 
 arrest while on service — that is, vifhile resident in his government. 
 It is not even necessary that we should meet the suggestion of 
 his goods, in all circumstances, being liable to be taken in execu- 
 tion — though that is subject to a different consideration." 
 
 Phillips V. In Phillips V. Eyre' a colonial Act of Indemnity had been 
 
 passed for certain alleged wrongful acts that had been done by 
 the Governor, and this was held to be an answer to an action 
 brought in England, on the principle that to found any right of 
 action it was necessary that the acts out of which the action arose 
 could not have been justified by the law of the place where they 
 were done, and the Act of Indemnity, by which the elements 
 necessary to constitute a right of action were removed, was not 
 necessarily and in its nature unjust.'' 
 
 MiiagraveiJ. The Privy Council had again the question of a Governor's 
 
 authority before it in the case of Musgrave v. Pulido." This 
 was an action of trespass brought in Jamaica against the 
 Governor for seizing and detaining a schooner of which the 
 plaintiff was charterer. The plea was in substance a plea of 
 privilege and to the jurisdiction, setting out that the defend- 
 ant was the Governor of Jamaica, and that the acts in 
 respect of which the action was brought were done by him 
 in that capacity. After a review of the cases, the judgment 
 of the Privy Council proceeds as follows : — " It is apparent 
 from these authorities that the Governor of a colony (in ordinary 
 cases) cannot be regarded as a Viceroy ; nor can it be assumed 
 that he possesses general sovereign power. His authority is 
 derived from his commission, and limited to the powers thereby 
 expressly or impliedly entrusted to him. Let it be granted that, 
 for acts of power done by a Governor under and within the limit 
 
 ^ Cro. Jao. 419 ; 25 Edw. III. 6tat. 5, sponsible for excess or of failnre in duty, 
 
 c. 119. but he "is bound to hit the exact line 
 
 * Co. Lilt. 130 a. between excess and failnre of duty, and 
 ' L. E. 4 Q. B. 22s ; Ex. Ch., 6 the difficulty of so doing, though it might 
 
 Q. B. I . be some ground for a lenient consideratioa 
 
 * As to the duty of a person entrusted of his conduct by the jury, is no lefjal 
 with the suppression of a riot or revolt, defence." See report of Eeg. v. Eyre by 
 Littledale, J. (Eeg. v. Pinney, 3 B. & Ad. W. Finlason, charge of Blackburn, J. 
 558), lays it down that not only is he re- ° (1879) 5 App. Cas. 103. 
 
 Pulido. 
 
PART II.] PUBLIC OFFICERS. 251 
 
 of bis commission, he is protected, because in doing them he is 
 the servant of the Crown, and is exercising its sovereign authority ; 
 the like protection cannot be extended to acts which are wholly 
 beyond the authority confided to him. Such acts, though the 
 Governor may assume to do them as Governor, cannot be con- 
 sidered as done on behalf of the Crown, nor to be in any proper 
 sense acts of State. When questions of this kind arise, it must 
 necessarily be within the province of municipal Courts to determine 
 the tme character of the acts done by a Governor, though it may 
 be that, when it is established that the particular act in question 
 is really an act of State policy done under the authority of the 
 Crown, the defence is complete, and the Courts can take no 
 further cognizance of it." 
 
 In Tandy v. Lord Westmoreland,' an action brought against Lord- 
 the Lord-Lieutenant of Irfland by Napper Tandy, the Irish of Ireland. 
 Court of Exchequer, on motion by the Attorney-General, and ^"gtmordand. 
 acting on facts disclosed in a warrant of attorney from Napper 
 Tandy to Dowling, his attorney, ordered the subpoena issued 
 against the Lord-Lieutenant to be quashed, on the ground that , 
 
 the facts so disclosed shewed that he was sued for an act done by 
 him in his capacity of Lord-Lieutenant, and that such an action 
 is not maintainable. This decision was followed in Luby v-. Lord Luby v. Lord 
 Wodehouse,^ where the Attorney-General, for the defendant, ° ^ °"*°' 
 moved, on affidavits filed by the plaintiif, that proceedings be 
 stayed or the writ be taken ofE the file, on the ground that the 
 facts set out in the affidavits shewed that the action was brought 
 against the defendant for acts " done by Lord Wodehouse qud 
 Lord-Lieutenant, and not for a personal act done by him as a 
 private individual, and that therefore he is not amenable to this 
 or to any 'other Court for such an act," and the Court, being 
 satisfied from the materials of the accuracy of the contention, 
 granted the motion. In a third Irish case," the motion was Sullivan «. 
 supported by an affidavit made by the Under-Secretary, which ''' ^^^ 
 was answered by the plaintiff; here, too, the Court made the 
 order. 
 
 It appears, then, from these and other cases,^ that in actions Eule of law. 
 brought against the Governors of dependencies it is necessary, in 
 order to prevent the ordinary Courts of law holding cognizance 
 of them, that — first, the facts out of which the proceedings arise 
 
 ' 27 St. Tr. 1264. Sup. Vol. p. 10; Nabob of Camatio v. 
 
 ^ 17 Ir. C. L. E. 618. East India Company, i Ves. .Tun. 370; 
 
 " Sullivan D.Earl Spencer, Ir. R.6C.L. Ex-E^'ahofCoorg«, East India Company, 
 
 173. 29 Beav, 300 ; Eajah Salig Earn v. 
 
 * Eajah of Tanjore's case, 13 Moo. Secretary of State for India, L. E. Ind. 
 
 P. C. Ci. 22 ; Forester and others 1). Secre- App. Sup. Vol. p. 119— all cited in Mus- 
 
 tary of State for India, L. E. Ind. App. grave v. Pulido, S App. Cas.102. 
 
252 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Judicial 
 oiiicers. 
 
 Seaman v. 
 Fatten. 
 
 Vanderheyden 
 V. Young. 
 
 should be laid before the Court, apparently in any form by 
 which the Court can sufficiently inform itself ; and, secondly, the 
 Court, on inquiry into the nature of the acts complained of, 
 should be satisfied that they bore the character of acts of State ; 
 whereupon, on being satisfied on these two points, it would 
 take no further cognizance of them.' 
 
 The next class of public officers to consider are those clothed 
 with judicial duties. The best description of what are judicial 
 duties may be extracted from two American cases. In Seaman v. 
 Patten," Livingston, J., said: "An officer acting imder a com- 
 mission from Government, who is enjoined by law to the per- 
 formance of certain things, if in his judgment or opinion the 
 requisites therein mentioned have been complied with, and who 
 is inhibited under the like exercise of his own discretion from 
 doing other things, who is sworn to discharge these duties to the 
 best of his ability, and exposed also to penalties as well for 
 negligence as for acting where he ought not, is not answerable 
 to a party who may consider himself aggrieved for an omission 
 arising from a mistake or a mere want of skill, if there is no bad 
 faith, corruption, malice, or some misbehaviour or abuse of power." 
 The officer in the case was an " inspector-general of provisions," 
 and therefore not of a Court of record. 
 
 In Vanderheyden v. Young, Spencer, J., delivering the opinion 
 of the Court, said': "It is a general and sound principle that 
 whenever the law vests any person with a power to do an act, 
 and constitutes him a judge of the evidence on which the act 
 may be done, and at the same time contemplates that the act is 
 to be carried into effect through the instrumentality of agents, 
 the person thus clothed with power is invested with discretion, 
 and is, quoad hoc, a judge."'' 
 
 Thus, a broker who undertook to give his opinions' upon fruit 
 submitted to him was held to act as a quasi-arbitrator* ; so was 
 
 ' As to the criminal liability cif a 
 Govenior, see ii & 12 Will. Ill.c. 12 ; Eex 
 V. Wall, 28 St. Tr. 51 ; Bpx v. Pictcn. 30 
 St. Tr. 225 ; Keg. v. Eyre, Finlason's His- 
 tory of the Jamaica Case. 
 
 ^ 2 Caines 312. 
 
 ' 2 Jolinson I JO, at p. 158. 
 
 ' See Bamardiston v. Soame, 6 St. Tr. 
 1063 ; and the Act occasioned bv the de- 
 cision, 7 & 8 Will. III. c. 7. The first 
 reason of North, C.J., is that the sheriff 
 acts as judge in declaring the majority of 
 votes, and therefore no action will lie, 
 though his action is charged to be mali- 
 cious. " If a justice of the peace commit 
 any error within his jurisdiction, I know of 
 no case where such an action will lie againct 
 him, as if be convict upon evidence which 
 
 turns out not to be true, and an action of 
 false imprisonment be brought against 
 him, the conviction is conclusive evidence 
 in his favour. As to the case of arevenne 
 officer, he is a mere volunteer, and there- 
 fore he is liable for any mistakes he may 
 make. But this is more like the case of a 
 sheriff, who is a ministerial officer. If, 
 for instance, a writ oifi.fa. be directed to 
 him, he is bound to act ; and when pro- 
 perty is disputed, if he return nvJla hma, 
 and happen to be mistaken in point of 
 law, it is a false return " : per Wilson, J., 
 in Drewe v. Ooulton, cited in a note to 
 Harman v. Tappenden, i East 555, at p. 
 
 Pappa V. Rose, L. E. 7 C. P. 32, 
 
 525- 
 
and 
 :er'a case. 
 
 PABTH.] PUBLIC OFFICERS. 253 
 
 an average adjuster, to whom the parties to a suit agreed to refer 
 the matter in dispute,' and an architect in an action by the 
 builder against him for negligence,^ unless in the case of fraud 
 and collusion.' 
 
 The principle of the immunity of judges for judicial acts is E\riy law. 
 stated as early as the Book of Assize, 27 Edward III. pi. 18. 
 And even earlier than this, the same protection was extended to 
 grand jurors ; for in 2 1 Edward III.'' a writ of conspiracy was 
 sued in the King's Bench, and the defendants pleaded they were 
 indictors therein, which was held to be a good plea. In 
 9 Edward IV., page 3, pi. i O, it was held by Littleton, J., that an 
 action for assault and battery would not lie against a justice of the 
 peace for what he did as a judge of record. 
 
 Staundforde, in his " Plegs del Coron,"* lays it down that no stanndfoi-de, 
 prosecution for conspiracy lies against grand jurors, for it shall corou." ^ 
 not be intended that what they did by virtue of their oaths was 
 false and malicious ; and that the same law applied to a justice 
 of the peace, for he shall not be punished as a conspirator for 
 what he does in open session as a justice. 
 
 In Floyd and Barker's case" the subject was considered by the rioyd 
 two Chief Justices (Popham and Coke), the Chief Baron (Fleming'), ^ 
 the Lord Chancellor Egerton, and all the Court of Star Chamber. 
 " It was agreed that in so much as the judges of the realm have 
 the administration of justice, under the King, to all his subjects, 
 they ought not to be drawn into question for any supposed cor- 
 ruption which extends to the annihilating of a record or of any 
 judicial proceedings before them, or tending to the slander of the 
 justice of the King, which will trench to the scandal of the King 
 himself, except it be before the King himself ; for they are only 
 to make an account to God and the King, and not to answer to 
 any suggestion in the Star Chamber, for this would tend to the 
 scandal and subversion of all justice. And those who are the 
 most sincere would not be free from continual calumniations, for 
 which reason the orator said well, Invigilandum est s&mper muUce 
 inddicB sunt bonis. And the reason and cause why a judge, for 
 anything done by him as judge, by the authority which the King 
 hath committed to him, and as sitting in the seat of the King 
 
 ' Tharsis Sulphur and Copper Company * 12 Rep. 23. 
 
 ■u. Lnftus L. E. 8 C. P. I. ' The same year made Chief Justice of 
 
 2 Stevenson v. Watson, 4 C. P. D. the King's Bench. 
 
 J48. ^ In the time of Edward III., Thorpe, 
 
 ■■' Batterbury a. Vyse, 2 H. & C. 42 ; C. J., was degraded for taking bribes : 3 
 
 32 L. J. Ex. 177; 8 L. T. N. S. 283; Inst. 146; i Lord Campbell, Chief Justices, 
 
 Ludbrookw. Barrett, 46 L. J. C. P. 798; go.Qi- As to judges convicted of bribery, 
 
 36 L. T. N. S. 616. see 4 Bl. Com. 139; 3 Inst. 146; Lord 
 
 i Hil. pi. 16. Bacon's case, 2 St. Tr. 1087 ; Lord Mao- 
 
 " Published 1583, at p. 173 B. clesiield's case, 16 St. Tr. 76. 
 
254 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Resolution in 
 Bushel] 's case. 
 
 Hammoud v, 
 Howell. 
 
 Groenvelt v, 
 Burwell. 
 
 (concerning his justice), shall not be drawn in question before any 
 other judge for any surmise of corruption, except before the 
 King himself, is for this : the King himself is de jure to deliver 
 justice to all his subjects ; and for this that he himself cannot 
 do it to all persons, he delegg,tes his power to his judges, who 
 have the custody and guard of the King's oath. And, forasmuch 
 as this concerns the honour and conscience of the King, there is 
 great reason that the King shall take account of it, and no other."' 
 
 And in Bushell's case^ it was resolved by all the judges of 
 Engla,nd (except Kelynge, C.J.) that a juryman cannot lawfully 
 be punished by fine, imprisonment, or otherwise for finding 
 against the evidence or against the direction of the judge, even 
 though his finding is alleged to be given coiTuptly and knowing 
 the evidence to be full and manifest.' After Bushell's case came 
 the case of Hammond v. Howell,'' where the defendant was 
 Recorder of London, and, as one of the judges of oyer and terminer, 
 had fined and imprisoned the plaintiff because he had brought in 
 a verdict as a petit juror contrary to the direction of the Court 
 and the evidence. The act of the defendant was admitted to 
 have been illegal, but the Court held that, in a conflict of prin- 
 ciple, the bringing the action was a greater ofEence than the 
 imprisonment of the plaintiff; that no action would lie against a 
 judge for a wrongful commitment any more than for an erroneous 
 judgment ; that, though the defendant acted erroneously, he acted 
 judicially ; and that, if what he did was corrupt, complaint might 
 be made to the King, and, if erroneous, it might be reversed. 
 
 The case of Groenvelt v. BurwelP should be noticed for the 
 unanimous judgment of the King's Bench, delivered by Holt, C.J., 
 who went at large into the cases, and shewed that judges were 
 not liable to an action by the party for what they did as judges ; 
 that no averment was admissible that a judge of record had acted 
 against his duty ; that, even if a justice of the peace should record 
 that, upon his view, as a force which was no force, he could not 
 be drawn in question, for it is a judicial act; that, in like 
 
 1 Aire v. Sedgwick, 2 EoUe Eep. 197 ; 
 Basten v. Caiew, 3 B. & C. 649 ; 5 Dowl. 
 
 & Ey. 558- . 
 
 2 (1670) Vanghan 135 ; 6 St. Tr. 999 ; 
 Bradley v. Fisher, 13 Wall. 335 ; Yates 
 V. Lansing, 9 John. 395. 
 
 ' The verdict of a jury might anciently 
 be set aside by an attaint ; as to which 
 see Finch, Law, p. 484. By statute 11 
 Hen. VL c. 4, the plaintiff in an attaint 
 could recover his damages and costs 
 against the jm-ors and defendants. See 
 also IS Hen. VI. c. 5 ; Forsyth, Hist. 
 Trial by Jury, p. 181. Where a writ of 
 
 attaint lay, which was cot in criminal 
 cases (Hawkins, Pleas of the Crown, 
 book i. c. 73, s. 5), a jury of twenty- 
 four tried the issue whether the previous 
 jnry had sworn falsely. The verdict of 
 the second jury concluded the matter. 
 The writ of attaint was abolished 6 
 Geo. IV. 0. 50; section 61 exempts those 
 guilty of the offence of embracery : 4 
 Steph. Com. 262 ; i Eussell on Crimes, 5th 
 edit. p. 360. 
 
 * I Mod. 184 ; 2 Mod. 218. 
 
 " 12 Mod. 386; I Salk. 396; l Ld. 
 Eaym, 454. 
 
PABTir.] PUBLIC OFFIOERS. 255 
 
 manner, jurors were not responsible for their verdicts, because 
 they were judges of fact ; and " that it would expose the justice 
 of the nation, and no man would execute the office of a judge 
 upon peril of being arraigned by action or indictment for every 
 judgment he pronounces."^ 
 
 Passing over a number of earlier cases we come to the case of Kemp ». 
 Kemp "v. Neville,^ where Erie, J., delivered an elaborate judgment, ^^' ^' 
 in which all the learning on the subject passed under review. 
 His conclusions are — first, that a judicial officer cannot be sued for 
 an adjudication, according to the best of his judgment, upon a 
 matter within his jurisdiction ; and, secondly, that a matter of 
 fact adjudicated by him cannot be put in issue in an action 
 brought against him for what he has so done. And it will not 
 found jurisdiction in a civil suit to allege that what has been done 
 has been done maliciously and corruptly,' though judges of inferior 
 courts are under the supervision of the Queen's Bench Division, 
 where they may be made amenable to punishment for corruption 
 or gross misconduct.'' 
 
 But an important distinction exists between judges of superior Distinction 
 courts — ^that is, with power to fine and imprison, and hence of .^^^e of a 
 record' — and those of inferior courts with regard to their im- superior court j 
 munity from process for what is done by them while purporting an inferior 
 to act in the discharge of the duties of their office. The Courts °°™ ' 
 take judicial cognizance of the position and dignity of the one, 
 but will require to be informed on the pleadings of the jurisdic- 
 tion of the other .° 
 
 When once the quality of the action is 'determined, the rule 
 applicable to it is clear, and is thus laid down by Parke, B., in 
 delivering the judgment of the Judicial Committee of the Privy 
 Council in Calder v. Halket' : — " English judges when they act Oaiden-. 
 wholly without jurisdiction, whether they may suppose that they judgnient by 
 had it or not, have no privilege ; and the justices of the peace, ^**«> B. 
 whether acting as such or in their judicial character in cases of 
 summary conviction, have no other than that of having notice of 
 action, a limitation of time for bringing it, a restriction as to 
 
 1 See, b)0, Miller v. Seare, 2 Wm. Bl. The Queen v. Marshall, 4 E. & B. 475; 24 
 114s ; Mostjn v. Fabrigas, Cowper L. J. Q. B. 242; In re Hull, 9 Q. B. D. 
 172. 689 ; The Queen v. Badcer, 4' Q. B. 468. 
 
 2 (1861) 10 C. B. N. S. 523 ; 31 " Button v. Howell, Show. P. C. Love- 
 L, J. C. P. 158. land's edition, p. 31, at p. 43 ; Dicas 1?. 
 
 ' Hagart's Trustees v. Hope, Shaw Lord Brougham, 6 C. & P. 249, see 
 
 App. Oas. 125, at p. 143 ; Fray v. Blauk- Kelly's argument at p. 265 ; Taaffe ». 
 
 hum, 3 B. & S. 576 ; Thomas v. Clmrton, Lord Downes, 3 Moo. P. C. C. 36, n. ; 
 
 2 B & S 475 ; Scott r. Stansfield, L. E. Houlden v. Smith, 14 Q. B. 841. 
 
 3 Ex. 220; 37 L. J. Ex. 155. '3 Moo. P. C. C. 28, at p. 75; 
 * See, per Holt, C.J., Groenvelt v. Beaurain a. Scott, 3 Camp. 387, with note 
 
 Burwell) I Ld. Kaym. 454, at p. 467. refen-ing to Boraine's case, 16 Ves. Jun. 
 
 = Ex parte Eamshay, 18 Q. B. 173 ; 346, 
 
256 THE LAW OF NEGLIGENCE. [book i. 
 
 venue, the power of tendering amends and of pleading the 
 general issue, with certain advantages as to costs." " An act of 
 a judicial nature, and whether there was any irregularity or 
 error in it or not, would be dispunishable by ordinary process at 
 law ; but the protection would clearly not extend to a judicial act 
 done wholly without jurisdiction." And a little farther on in the 
 judgment' : " It is well settled that a judge of a court of record 
 in England with limited jurisdiction, or a justice of the peace 
 acting judicially with a special and limited authority, is not liable 
 to an action of trespass for acting without jurisdiction, unless he 
 had the knowledge, or the means of knowledge of which he ought 
 to have availed himself, of that which constitutes the defect of 
 jurisdiction. Thus, in the elaborate judgment of Mr. Baron 
 Powell in Gwynn v. Poole ^ it is laid down that a judge of a court 
 of record in a borough was not responsible as a trespasser unless 
 he was cognizant that the cause of action arose out of the 
 jurisdiction, or at least that he might have been cognizant but 
 for his own fault, which last proj)Osition Mr. Baron Powell illus- 
 trates by a reference to the case of the Marshalsea Court, which 
 had jurisdiction only in certain cases where the King's servants 
 were parties, who, being all enrolled, the judge ought to have had 
 a copy of the enrolment, and so would have known the character 
 of the parties. ' It is true,' says Mr. Baron Powell (speaking of 
 the case of a borough court), ' that the cause of action does not 
 arise within the jurisdiction of the Court, as it ought to do ; but 
 as the judge cannot know that except by the plaintiff or defendant, 
 until he knows it the rule shall be in this case as in others — ■ ; 
 Ignorantia facti excusat.' Mr. Baron Powell lays down the 
 same rule as to a party, but his opinion in that respect is dis- 
 approved by Lord Chief Justice Willes in Moravia v. Sloper,' but 
 not so far as it relates to a judge or officer. The like rule has 
 been followed in the case of magistrates acting under the special 
 power of Acts of Parliament, who are not liable as trespassers if 
 they have jurisdiction to inquire into the facts stated before them, 
 and nothing appears on one side or another to shew their want 
 of jurisdiction.'' It is clear, therefore, that a judge is not liable 
 in trespass for want of jurisdiction unless he knew or ought to 
 have known of the defect, and it lies on the plaintiff in every 
 such case to prove that fact." 
 Houlden*. The law as thus laid down is illustrated by the case of 
 
 Smith. Houlden v. Smith.^ The plaintiff, who dwelt and carried on 
 
 1 At p. 77. ■• Pike V. Carter, 3 Bing. 78 ; Lowther 
 
 2 Lutw. App. 1560, at p. 1566. V. Earl of Radnor, 8 East 113. 
 
 » WilleB 30. 5 14 Q. B. 841. As to the authority of 
 
PAETU.] PUBLIC OFFICEES. 257 
 
 business at Cambridge, out of the jurisdiction of the Spilsby 
 
 County Court, was sued in that court by leave of the judge under 
 
 9 & 10 Vict. c. 95, s. 6o, the cause of action having arisen 
 
 within jurisdiction of the Court. Judgment was duly obtained 
 
 against him. Afterwards, while the plaintiff still dwelt and carried 
 
 on business at Cambridge, a judgment summons was issued by 
 
 order of the judge of the Spilsby Court imder section 98 calling 
 
 upon the plaintiff to be examined as to his estate and effects, and, 
 
 the plaintiff not appearing, the judge, knowing the facts, but 
 
 believing nevertheless that he had authority, made an order that 
 
 the plaintiff should be committed for his contempt. The plaintiff 
 
 brought an action of trespass for false imprisonment. A verdict 
 
 was found for ^the plaintiff subject to the opinion of the Court 
 
 on the question of law. After hearing argument, the considered 
 
 judgment of the Court was delivered by Patteson, J., holding Judgment of 
 
 that the action was maintainable. The following passages from'''*"'^™'^" 
 
 his judgment put the law in a clear light : — " That this commitr 
 
 ment was without jurisdiction is plain ; that the defendant 
 
 ordered it under a mistake of the law and not of the facts is 
 
 equally plain, for it is impossible that he could be ignorant that 
 
 the plaintiff dwelt and carried on his business in Cambridgeshire, 
 
 the service of all the processes having been proved to have been 
 
 made there, and the defendant having originally specially allowed 
 
 the plaint to be made in his court, within the jurisdiction of which 
 
 the cause of action accrued, the defendant (the now plaintiff) 
 
 residing in Cambridgeshire. This case is not, therefore, within 
 
 the principle of Lowther v. Earl of Eadnor' or Gwinne v. Poole,^ 
 
 where the facts of the case, though subsequently found to be 
 
 false, were such as, if true, would give jurisdiction, and it was held 
 
 that the question as to jurisdiction or not must depend on the 
 
 state of facts as they appeared to the magistrate or judge 
 
 assuming to have jurisdiction. Here the facts of the case, which 
 
 were before the defendant and could not be unknown to him, 
 
 shewed that he had not jurisdiction, and his mistaking the law 
 
 as applied to these facts cannot give him even a primd facie 
 
 jurisdiction or semblance of any. The only questions, therefore, 
 
 are, whether the defendant is protected from liability at common 
 
 law, being and acting as the judge of a court of record, in which 
 
 case the plea of not guilty would be suflScient, or whether he is 
 
 protected by the provisions of any statute Although it 
 
 is clear that the jxidge of a court of record is not answerable at 
 
 this case, see what is said by Kelly, C.B., want of jnrisdiotion was known to defend- 
 in Scott w. Stansfield, 37 L. J. Ex. 155, ant: see, too, 2 Stark. Ev. 2nd edit. 426, 81 1, 
 at p. 158. In Watson v. Bodell, 14 ^ 8 Bast 113, 119. 
 
 M. & W. 57, it was assumed that the ^ 2 Lntw. App. 1560, 1566. 
 
 B 
 
258 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Distinction 
 between acts 
 done by a 
 justice of the 
 peace and a 
 judge of a 
 superior 
 court. 
 
 Bule as to 
 those acting 
 under the 
 order of a 
 judicial 
 authority. 
 
 Distinction 
 between the 
 case of acting 
 within or 
 without the 
 jurisdiction. 
 
 common law in an action for an erroneous judgment or for the 
 act of any officer of the Court wrongfully done, not in pursuance 
 of, though under colour of, a judgment of the Court, yet we 
 have found no authority for saying that he is not answerable 
 in an action for an act done by his command and authoiity 
 when he has no jurisdiction." But the same act when done by 
 a judge of a saperior court and by a justice of the peace may 
 have very different consequences. Thus, justices of the peace are 
 not individually invested with a power to hear and determine 
 any felony or other offence. Their authority is to try before 
 themselves and others. The power of each individual justice to 
 issue a warrant to bring up one charged with a felony is merely 
 ministerial to the other justices who are necessarily to sit with 
 the justice issuing the warrant during the hearing of the charge,- 
 and therefore a wrongful issuing of it is a ministerial and not 
 a judicial act and is not protected;' but not so in the case of 
 the judge of a superior court ; for he has power to sit alone and 
 try the fact respecting which the process issued : the act is 
 therefore judicial, and protected.^ There is also this further 
 qualification attached to the privilege of justices of the peace, 
 that the act complained of, though done within their jurisdiction, 
 must have been done honestly and in good faith." 
 
 As to those who act under the order of one exercising judicial 
 authority, the general rule of liability is expressed by the maxim. 
 Qui jussu judicis aliguod fecerit Twn iddetur dolo malo fecisse, quia 
 pdrere necesse est.* This rule is mentioned in the present connection 
 on account of an analogous distinction existing as that which 
 governs in the case of judges of record and of inferior magistrateSii 
 When a Court has jurisdiction of a cause and proceeds erro- 
 neously, all acting under the authority of the Court will be pro- 
 tected.* But when the Court has not jurisdiction, then actions will 
 lie against all acting under the authority it has wrongly assumed 
 to have.° Where, however, the authority exercised is special and 
 
 ^ Bum's Justice, art. Justice of the 
 Peace, 13th edit, vol.iii. p. 155, citing Lin- 
 ford V. Fitzroy, 13 Q. B. 240; 18 L. J.M. C. 
 108. As to what are ministerial acts, see 
 The Queen ». Machen, 14 Q. B. 79; 18I1. J. 
 M. C. 213 ; The Queen v. Godolphin, 13 
 L. J. M. C. 57 ; The King v. Edwards, i 
 Wm. Bl. 637 ; The Queen «. Stainforth, 11 
 Q. B. 66 ; The King v. Austrey, 6 M. & S. 
 319,321 ; TheQueen».Percy,43L.J.M.C. 
 '45 ; L. E. 9 Q. B. 64 ; The Queen v. Aston, 
 19 L. J. M. 0. 236 ; and many more cited 
 in Stone's Justicii by Macnamara, at p. 18 
 et seq. As to protection and power of jus- 
 tices, see II & 12 Vict. cc. 42, 43, 44 
 (Jarvis's Acts). 
 
 2 Taaffe v. DowneB, 3 Moo. P. C. C. 
 36, at p. 55. 
 
 " Windham v. Clere, Croke Eliz. 130; 
 Liuford v. Fitzroy, 13 Q. B. 240. But 
 see Bassett v. Grodschall and others, 3 Wil. 
 121, where, in an action against justices 
 for refusing to grant a lioenoe, malice was 
 alleged; see, too, 11 & 12 Vict. c. 44, 
 
 B. I. 
 
 * Marshalsea case, 10 Reports, 76, cited 
 from D. 50, 17, 167, § 1. In the Beports 
 there is this comment " (but when he has 
 no jurisdiction more est judex)." 
 
 " Munday ?;. Stubbs, 10 C. B. 432; 
 Prentice v. Harrison, 4 Q. B. 852 ; Brown 
 V. Jones, IS M. & W. 191 ; Gosset v 
 Howard, 10 Q. B. 411. 
 
 ' Marshalsea case, 10 Rep. 70 ; Taylor 
 V. Clemaon, 11 CLiSt Fin. 6l0. 
 
PART II.] PUBLIC OFFICERS. 259 
 
 out of the course of the common law, and confined to a limited 
 jurisdiction, aa in case either of warrants for arrest, commitment, 
 or distress, or of convictions or orders by local magistrates, it is 
 requisite that the instrument so to be enforced and obeyed 
 should shew on inspection all the essentials from which such 
 duties arise.' If, again, cause is expressed, although it may 
 be imperfectly, the officer is not expected to jtidge of the 
 sufficiency of the statement ; so that, if the cause expressed is 
 within the jurisdiction of the magistrate, he is entitled to 
 protection." Where no cause whatever is expressed, the want of 
 jurisdiction is clear.' The law on this point is most neatly 
 summed up in Peacock v. Bell'' : " The rule for jurisdiction is Poacoek v. 
 that nothing shall be intended to be out of the jurisdiction of •^''"• 
 a superior court but that wjiich specially appears to be so." 
 "Nothing shall be intended to be within the jurisdiction of an 
 Inferior court but that which is expressly alleged." But writs 
 issued by a superior court not appearing to be out of the scope 
 of their jurisdiction are valid and of themselves a protection to 
 all officers and others in their aid acting under them ; and 
 that although they be on the face of them irregular, as a capias 
 against a peeress;" or void in form, as a capias ad respondefidum not 
 returnable the next term ;" for the officers ought not to examine 
 the judicial act of the Court whose servants they are, nor exercise 
 their judgment touching the validity of the process in point of 
 law, but are bound to execute it, and are therefore protected 
 by it.' 
 
 As to ministerial officers, the general rule is, that a breach of Ministerial 
 ministerial duties gives a right of action to the party aggrieved 
 thereby.* But to this there is a most material modification in the Where there 
 case of those acts done under statutory authority by command of authority. 
 the statutory superior, and without negligence in the performance 
 of what is enjoined, although that itself is a negligent injunction. 
 Thus, for example, by the terms of 25 & 26 Vict. c. 61, s. 16, 
 the officer appointed to carry out the orders of a highway board 
 is absolutely protected while carrying out the orders of the Board 
 
 ' The Queen v. Inhabitants of Stain- 453. See The Brewers' case, 1 Roll. Eep. 
 
 forth, II Q. B. 75 ; Goaseta. Howard, per 134. 
 
 Parke, B., 10 Q. B. 359, at p. 453; ^ Countess of Eutland's^case, 6 Eep. 
 
 Agnew V. Jobson, 14 Cox C. C. 625. 54 a. 
 
 " Brittain v. Kinnaird, I B. & B. 432, ' Parsons v. Loyd, 3 Wils. 341. 
 
 and Mould v. Williams, S Q- B. 469, are ' Turner v. Felgate, i Lev. 95 ; Cotes 
 
 authorities for the proposition that the v. Michell, 3 Wils. 341, cited Parke, B., 
 
 warrant of magiBtratea is an adjudication Gosset v. Howard, 10 Q. B. 359, at p. 
 
 of every matenal point. 454- 
 
 ^ See per Coleridge, J., Howard v. ' Per Brett, J., Pickering v. James, 
 
 Gosset, 10 Q. B. 359, at p. 390. L. E. 8 C. P. 489, at p. 509. The principal 
 
 * I Saund. 74, cited by Parke, B., cases are cited in the argument in this 
 
 Gosset V. Howard, 10 Q, B. 359, at p. case. 
 
260 THE LAW OF NEGLIGENCE. [book i.- 
 
 Wherethera within the scope of the Board's authority. Where there is no 
 auttorky"*"'^^ definite statutory immunity the case is somewhat more difficult. 
 The argument that, because in some cases the Legislature has 
 seen fit specially to provide for this difficulty, in those cases where 
 it has not there is no protection, is valid only so far as legislation 
 is concerned with the creation of new relations, and not with the 
 declaration and consolidation of old rules of law. There is, however, 
 the authority of Lord Fitzgerald,' while sitting as a judge of the 
 Queen's Bench in Ireland, for the proposition that where acts have 
 been done under orders from a body vested with statutory authority 
 to order ; and where the party enjoined is by statute bound to 
 compliance with orders thus issued ; no liability attaches to the 
 party conforming, even though the orders issued be improvident, 
 and though there be no absolute statutory immunity. On principle 
 this would seem to be so. The ground of accountability is negli- 
 gence, and negligence is an act of omission or commission. But, 
 by statute, the person acting is bound to carry out the behests of 
 the person enjoining. By hypothesis, the negligent act is within 
 the scope of the powers of the person enjoining, and obedience to 
 the injunction is therefore enjoined by statute. The act then 
 prescribed is done, and, by hypothesis, is done without negli- 
 gence. In the prescribing of the act there is negligence, but that 
 is not the concern of the actor, who, on the act being prescribed, 
 is constrained to act. Thus, when his intervention comes in, 
 there is no negligence. The action (if any) would seem to be 
 against the superior for wrongly prescribing, not against the in- 
 ferior for performing what it was his duty to do. 
 Detei-mination The determination of what is a ministerial, as contrasted with 
 ministeriaf ^ judicial, office is considerably complicated by reason of the large 
 ^udioM** number of offices whose duties involve an alternation of judicial 
 duties. and ministerial functions, when it becomes in great part a question 
 
 of fact what were the exact duties with regard to the performance 
 of which the action was brought ; and thus the decision of each 
 case turns rather on the particular facts shewn than on any general 
 principle that is involved. The governing consideration in these 
 cases is, however, stated by Chancellor Kent* in the following 
 words : — " When the law renders a public officer liable to special 
 damage for neglect of duty, the cases are those in which the ser- 
 vices of the officer are not uncompensated or coerced, but voluntary 
 and attended with compensation, and where the duty to be per- 
 formed is entire, absolute, and perfect." 
 
 We have already seen^ what are the criteria of judicial duties. 
 
 * Brennan v. Guardians of Limerick ' Bartlett v. Crozier, 17 Johns. 438, at 
 
 Union, 2 L; E. Ir. C. L. 42 ; considered p. 450. 
 post, p. 263. ' Ante, p. 255. 
 
PARTii.] PUBLIC OFFICEES. 261 
 
 The distinction, then, between judicial and ministerial duties seems Distinction 
 to resolve itself into this — that where an officer has to exercise a tadSd!''™ 
 discretion he is protected by judicial privilege ; where he has to 
 perform an ascertained duty, he has to do it subject to his liability 
 for negligence if, in any way, he falls short of its efficient per- 
 formance. This was the rule laid down by Bayley, J.,' in a case Eule as stated 
 cited by Blackburn, J., in his opinion delivered before the House ^ °'^^^' " 
 of Lords in Mersey Docks Trustees v. Gibbs,'' where he said 
 that the defendants, who in that case were the persons actually 
 executing a sewer authorized by statute, were not protected merely 
 because acting iond fide and to the best of their skill and judg- 
 ment. " That,'' says he, " is not enough ; they are bound to 
 conduct themselves in a skilful manner, and the question was 
 most properly left to the jury to say whether the defendants had 
 done all that any skilful person could reasonably be required to 
 do in such a case." Though unquestionably no one can be made 
 liable for a breach of duty unless traceable to himself or his ser- 
 vant or servants in the course of his or their employment, this 
 rule is, however, inapplicable where the act which occasions the 
 injury is the very one which was intended, and also where the 
 performance of a duty is incumbent on a person, who entrusts it 
 to another, who neglects it, for this " furnishes no excuse, either 
 in good sense or law.'" 
 
 The case of Government servants is also not within this rule. Government 
 This arises out of the principle that the subordinates are the within the 
 servants of the public, not of the person or persons who have the '^"^®' 
 superintendence of the department in which they work, even if 
 they are appointed by them. The principle may be thus stated — 
 that when a person is acting as a public officer on behalf of the 
 •Government, and has the management of some branch of the 
 Government business, he is not responsible for the neglect or 
 misconduct of servants, though appointed by himself in the same 
 business.^ 
 
 The question was mooted so far back as the year 1699,* when History of 
 
 . .__. , -X, 1 • i ii ™e law. 
 
 it was resolved by three judges of the Kings Bench, agamst the i^n^f. Cotton, 
 opinion of Holt, C. J., that the Postmaster-General is not answer- 
 
 1 Jones V. Bird, 5 B. & A. 837. And in essentially defective, and which the con- 
 
 Sutton V. Clarke, i Marsh 429 ; 6 Taunt. tractor remonstrated with them for adopt- 
 
 29, road trustees were held free from ing, on the ground that it was unpre- 
 
 liability where they did all the statute cedented. 
 
 required them, in the test way they could l L. E. i H. of _L. 93, at p. 1 13- 
 
 and according to the best information, ' Pickard v. Smith, 10 t. B. JN. b. 470, 
 
 though it turned out that they were mis- at p. 480. „,. , ^ , ,. _, , 
 
 taken Sec for the American decisions, * Per Lord vV ensleydale, Mersey Docks 
 
 Sherman « 'Kortright, 52 Barb. 267, and Trustees v. Gibbs, L. E. i H. of L. 93, at 
 
 Weightman v. Washington, I Black 39. p. 124. 
 
 In this latter ease the corporation was held » Lane v. Cotton, l Ld. Kaym. 646. 
 liable for carrying out a plan that was 
 
262 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Whitfleld «. 
 lord Ls 
 Sespencer. 
 
 Judgment 
 of Lord 
 Mansfield. 
 
 Nicholson V. 
 Mouncey, 
 
 able for a. packet delivered to the receiver at the Post Office and 
 lost out of the office. The dissent of Holt, O.J., was founded on 
 a comparison of the situation of a postmaster and a carrier or the 
 master of a ship. But, as was subsequently pointed out by 
 Lord Mansfield,' the comparison does not hold good, since "the 
 Postmaster has no hire, enters into no contract, carries on no 
 merchandise or commerce. But the Post Office is a branch of 
 revenue and a branch of police created by Act of Parliament." 
 The case of Lane v. Cotton was canvassed and reconsidered in 
 Whitfield V. Lord Le Despencer,^ where the question argued was 
 whether the defendant, as Postmaster-General, was personally 
 responsible for the amount of a bank-note stolen in the Post 
 Office by one of the sorters, and while engaged in his work there. 
 This was unanimously decided in the negative; and the judgment 
 of Lord Mansfield is the most authoritative exposition of the law 
 on the point. He says : "As to an action on the case lying 
 against the party really' offending, there can be no doubt of it, 
 for whoever does an act by which another person receives an 
 injury is liable in an action for the injury sustained. If the 
 man who receives a penny ' to carry the letters to the post-offices 
 loses any of them, he is answerable ; so is the sorter in the 
 business of his department ; so is the Postmaster for any fault of 
 his own.'' Here no personal neglect is imputed to the defendants, 
 nor is the action brought on that ground ; but for a constructive 
 negligence only by the act of their servants. In order to succeed, 
 therefore, it must be shewn that it is a loss to be supported by 
 the Postmaster, which it certainly is not. As to the argument 
 that has been drawn from the salary which the defendants enjoy, 
 in a matter of revenue and police under the authority of an Act 
 of Parliament the salary annexed to the office is for no other 
 consideration than the trouble of executing it. The case of the 
 Postmaster, therefore, is in no circumstance whatever similar to 
 that of a common carrier, but he is like all other public officers, 
 such as the Lords Commissioners of the Treasury, the Com- 
 missioners of the Customs and Excise, the Auditors of the 
 Exchequer, &c., who were never thought liable for any negU- 
 gence or misconduct of the inferior officers in their several 
 departments." 
 
 In Nicholson v. Mouncey,' the captain of a sloop of war was 
 
 1 Cowp. 764. 
 
 2 (1778) Cowp, 754 ; Jones v. Monsell, 
 Ir. B. 6 C. L. 155. In Wiggins v. Hath- 
 away, 6 Barb. 632, also a postmaster's 
 case, the American law is laid down in 
 accordance with tlie English, that the rale 
 Mespondeat superior does not apply to a 
 
 public officer or agent of the Goyem- 
 ment. 
 
 ' Edwards «. Dickenson, 12 Mod. 6. 
 
 * ConferDnnlopD.Munroe,7 Cranch24Z. 
 
 ^ (1812) IS Bast 384; Tobin v. The 
 Queen, 16 C. B. N. S. 310 ; O'Byrae v. 
 Hartington and others, Ir. R. 1 1 C. L. 445. 
 
PART 11.] PUBLIC OFFICERS. 263 
 
 held not liable for damage caused by her running down the 
 plaintifiE's vessels when the damage had been done during the 
 watch of the lieutenant, who had the actual management of the 
 ship at the time of the accident. The ground of the claim 
 against the captain was that he was to be considered " in the 
 ordinary character of master of the vessel by means of which the 
 injury was caused to the plaintiff's property." " But," says 
 Lord Ellenborough, 0. J., " how was he master ? He had no 
 power of appointing the ofl5cers or crew on board; he had no 
 power to appoint even himself to the station which he filled 
 on board ; he was no volunteer in that particular station merely 
 by having entered originally into the naval service, but was 
 compellable to take it when appointed to it, and had no choice 
 whether or not he would serve with the other persons on board, 
 but was obliged to take such as he found there and make the best 
 of them ; he had no power either of appointment or dismissal over 
 them. The case, therefore, is not at all like that of an owner or 
 master who .... is answerable for those whom he employs 
 for injuries done by them to others within the scope of their 
 employment." And the captain of a ship employing a pilot is 
 not responsible for damage caused by the ship when under the 
 control of the pilot, for the pilot performs a duty imposed by 
 Act of Parliament, and is not under the control of the captain.' 
 
 A case, exceptional in its nature, but somewhat analogous in statutory 
 its incidents to the relations existing between the different officers toZnl^My'^ 
 of Government departments, is found where the arrangeinent and with power of 
 
 „ T , . . . , carrying tneni 
 
 control over matters of public concern is given by statute to one out assigned 
 body, and the power of carrying them out is assigned to another, ° *°° ^'^' 
 as in the case of the jurisdiction exercised by the Local Goverh- 
 ment Board over poor law guardians. Brennan v. Guardians of Brennan «. 
 Limerick Union,^ before the Irish Queen's Bench Division, is a nmerick" ° 
 decision of some interest on the point. In that case an action u°io>i- 
 was brought under Lord Campbell's Act, and was decided on 
 demurrer to a declaration alleging that a patient in a fever 
 hospital attached to a union workhouse was so insufficiently 
 attended to that he, while in the delirium of the said disease, left 
 his bed and fell into a yard attached to the said hospital, and was 
 injured. In giving judgment, Fitzgerald, J., referred to various 
 sections of the Irish Poor Law Act which went the length of 
 establishing that, although the guardians of the poor were a 
 corporation to take order for the relief of the destitute poor, they 
 
 ^ Lucey v. Ingram, 6 M. & W. 302 ; General Steam Navigation Company v. British 
 and Colonial Steam Navigation Company, L. E. 4 Ex. 238. 
 = (1878) L. E. Ir. z C. L. 42. 
 
264 THE LAW OF NEGLIGENCE. [book i. 
 
 were subordinate to and were under the control of and governed' 
 by the Poor Law Commissioners, and that the law imposed on the 
 latter the duty of fixing the staff of paid officers to act under the 
 guardians, and gave the Commissioners also the power of removal; 
 that the Commissioners might direct the increase or diminution 
 of the staff, and might fix the duties of the respective officers ; 
 and that the guardians could not appoint paid officers unless and 
 until the Commissioners have previously sanctioned the creation 
 of such offices, and though the guardians might fill up vacancies, 
 they were unable to add to the existing stafE without the order of 
 the Commissioners. The learned judge, after noting other powers 
 statement of ' they possessed, said : " Upon a consideration of these provisions 
 ktzgeraid, J. of the Poor Law Acts, we have come to the conclusion that the 
 workhouse hospital is portion of the union workhouse in which 
 the guardians are to take order for the relief of the destitute and 
 sick poor, but subject to the control of the Commissioners; that it 
 is for the Commissioners, and not the guardians, to determine and 
 direct what staff should be appointed for the workhouse hospital 
 as for any other portion of the union workhouse ; and that the 
 duty of the defendants was not ' to provide proper attendants to 
 watch over the plaintiff's son,' but that their duty was to select 
 and appoint such staff of paid attendants as the Commissioners 
 should, by their order and warrant, direct." The learned judge, after 
 several further remarks, continued as follows : — " I desire further 
 to state my own impression that on other and wider grounds the 
 action is not maintainable. The administration of the Poor Laws 
 are [sic] in the hands of the Poor Law Commissioners, who, by 
 express statutable provisions and their power to make and enforce 
 general and special orders, exercise complete power over every board 
 of guardians, and control and direct their action. The guardians 
 are but a subordinate administrative body acting as unpaid public 
 trustees in taking order for the relief of the destitute poor. I 
 incline to the opinion that an action does not lie against them in 
 their corporate capacity for a supposed neglect of their adminis- 
 trative duty in not providing adequate relief. For any such 
 neglect of duty they are subject to the order and authority of the 
 Poor Law Commissioners, and may be dissolved as a corporation, 
 and paid officers appointed in their stead to carry into effect the 
 duties they have neglected. The guardians as a corporation may 
 possibly be liable to indictment, or the individual members of the 
 Board may be personally responsible in damages for negligent 
 omission to perform their individual duties ; but it would seem 
 to be against public policy to permit actions to be maintained 
 against them in their corporate capacity for negligent omission in 
 
PART II.] PUBLIC OFFICERS. 265 
 
 carrying out their administrative duties/ and especially as the 
 damages and costs should be paid, if at all, out of the rates. If 
 the present action can be maintained^ why should not an action 
 lie against the guardians, at suit of each pauper, for every sup- 
 posed neglect of administrative duty causing to the individual 
 any real or fancied grievance — e.g., for supplying food insuflBcient 
 in quantity or inferior in quality, or insufficient or inferior clothing 
 or bedding, defective sanitary arrangements, or any other of the 
 various neglects or omissions by which inmates of a workhouse 
 may be prejudicially affected ? If the real or supposed omissions 
 of guardians are to be thus redressed, it would be difficult, if not 
 impracticable, to administer the laws for the relief of the destitute 
 poor." 
 
 An unreported English case raised the same point on almost Unreported 
 identical facts. Plaintiff's husband, some months previous to the 
 accident out of which the action arose, suffered from delirium 
 tremens, and was received into the infirmary of St. George's-in-the- 
 East, an institution administered under the Poor Laws to a similar 
 extent to that indicated in Brennan's case. He was shortly after- 
 wards discharged as cured. Some months afterwards he was 
 brought in again with a certificate from the parish doctor that 
 he was suffering from fits, and he was put into the fits ward, a 
 reference being made at the time to his previous admission three 
 months earlier. He showed no symptoms of violence, but after a 
 few days, when the nurse in charge of the ward was in a part of 
 it away from the window, he broke the window, squeezed through 
 the bars, and threw himself into a yard below and was killed. 
 The widow brought an action against the guardians for negligence, 
 th.e negligence alleged being, that having notice of the deceased's 
 previous admission to the infirmary, and the cause of it, he should 
 have either been placed in the lunatic ward or more effectually 
 guM:ded where he was. The case was tried before Huddleston, B., 
 the jury being discharged in order that any questions of law 
 arising might be taken straightway to the Court of Appeal. 
 Judgment was given for the plaintiff, but was reversed in the Court 
 of Appeal, on the ground that the facts disclosed no negligence. 
 The Court thus avoided the necessity of any expression of 
 opinion on the position of the guardians and the limit of their 
 liabilities under the Poor Law Orders. With reference, however, 
 to this Bowen, L.J., said : " I am not sure that it is not, perhaps, 
 humane to the plaintiff that our decision is given against her 
 in the Court of Appeal, because I do not hesitate to say that the 
 
 I See Mill v. Hawker, L. E. 9 Ex. 309 ; L. B. 10 Ex. 92 ; Central Eailroad v. 
 Smith, S2 Aid. K. 353. 
 
206 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Question 
 unsettled iu 
 England. 
 
 American 
 decision. 
 
 Foreman v. 
 Mayor of 
 Canterbury. 
 
 other question would be so abstruse as hardly to have stopped at 
 this Court if we decided in her favour.'" 
 
 The question, therefore, may be taken to be at present an un- 
 settled one in English law. In America, however, it seems already 
 authoritatively decided. In Alamango v. Board of Supervisors of 
 Albany County and the Mayor and Recorder of the City of Albany* 
 an action was brought by a convict against defendants, who, by Act 
 of the Legislature, were " authorized and directed " to establish a 
 penitentiary for the punishment of persons convicted of crime. They 
 acted accordingly, and appointed proper officers to manage and 
 superintend it ; these officers illegally put the plaintiff to work ; 
 while engaged in which he was injured. The Court held plaintiff 
 could not recover. " The duty of punishing criminals," it was 
 said, " is inherent in the sovereign power. It may be committed 
 to agencies selected for that purpose, but such agencies while 
 engaged in that duty stand so far in the place of the State, and 
 exercise its political authority, and do not act in any private 
 capacity. It is so in the laying out and maintaining of highways, 
 the building of court-houses and school-houses, as well as in the 
 building of jails and places of detention. In the performance of 
 all such duties it is settled, by the unanimous agreement of the 
 Courts, that these agencies are not liable for neglect or misfeasance, 
 unless the liability is specially imposed by statute."' In Foreman 
 V. Mayor of Canterbury, Blackburn, J.," states a cognate point 
 arising under the 37th section of the Public Health Act, 1848,* 
 which " requires the local board of health to appoint a surveyor 
 and other persons named as officers and servants ; at the end of the 
 section it is said that they may dismiss at pleasure all the officers 
 and servants except the surveyor, and the surveyor is not to be 
 dismissed without the approval of the General Board of Health. 
 That being so, it would be a question to consider whether the 
 surveyor whom they are thus required to appoint, and whom 
 they are not allowed to dismiss at pleasure, is in the relation of 
 servant to them in such a way as that, if the matter were being 
 
 ^ Hickmorew. Guardians of St. George's- 
 in-the-East, which is the case referred to, 
 is not reported in any of the law reports. 
 There are reports of it in its various stages 
 in the TXmes for April 2, April 3, and 
 May 21, 1884. The facts and tlie quota- 
 tion in the text are from the shorthand 
 notes kindly supplied me by one of the 
 counsel in the case. 
 
 2 (1881) 25 Hun'sEeports,S5i ; Brown 
 V. People, 75 New York 437, 441. See 
 Periy v. House of Eefiipe, 52 Am. Eep. 
 495, the judgment in which case is not so 
 wide as the terms of the head-note : "An 
 action does not lie against a State house 
 
 of refuge for an assault on an inmate hy 
 an officer thereof." In Forde v. Skinner, 
 4 C. & P. 239, parish officers were held 
 liable for cutting off the hair of a person 
 in a poor-house by force. Bay ley, J., say- 
 ing : " However desirable such a regula- 
 tion as that of cutting off the hair of 
 pel sons iu a poor-house ma^ be ... . 
 yet it is altogether unauthorized by law, 
 and is a wrongful act if done without the 
 consent of the party." 
 
 " Compare Osborne v. Milman, 17 
 Q. B. D. 514; 18 Q. B. D. 471. 
 
 « L. E. 6 Q. B. 214, at p. 218. 
 
 * II & 12 Vict. c. 63. 
 
PART II.] PUBLIC OFFICERS. 267 
 
 done by the surveyor, and the cause of the mischief were the 
 negligence of the surveyor, the local board of health would be 
 responsible for his negligence. I do not wish to express an 
 opinion as to whether they would or would not be responsible."' 
 
 We have considered the principles governing the liabilities of Distinction 
 those public officers who act for the profit of the public at large. offlcers'acUng'' 
 But there is another class who, in certain of their duties, act not *" the public 
 
 ' ... . *' large and 
 
 for the public in general, but for such individuals of it who may those who act 
 have occasion to employ them for a certain fee paid. This class 
 includes sheriffs, notaries, public solicitors, and others whom we 
 shall hereafter separately and independently consider, but who all 
 are liable for the negligence and omission of their servants in the 
 discharge of such of their duties as we have indicated above. 
 
 The King, in the exercise of his prerogative, may, by letters 
 patent, suspend a public officer, though the office be granted for 
 life, and after suspension the officer is entitled to receive the 
 salary, but not to exercise the functions of the office.^ 
 
 The following propositions are submitted : — Summary. 
 
 1. The Sovereign can commit neither political nor personal 
 wrong, nor authorize nor be responsible for any description of act 
 that is wrongful.^ 
 
 2. Servants of the Crown are not liable on contracts made on 
 behalf of the Crown, either personally or in their official capacity." 
 
 3. Eemedy may be obtained from the Crown on contracts by 
 petition of right. There is no remedy against the Crown for 
 torts.* 
 
 4. There is the same remedy by action for a tort against the 
 wrongdoer, whether the act was his own or was done by the ex- 
 press order of the superior." 
 
 5. When an act done within the powers of the Crown, though 
 
 ' " The surveyor of highways is not Viscount Canterbury v. Attorney-General, 
 
 responsible to a person sustaining injuries i Phillips, 216 ; Feathers v. The Queen, 6 
 
 from the parish ways being out of repair, B. & S. 257, 295 ; 35 L. J. Q. B. 200 ; 
 
 though no action can be brought against his 12 L. T. N. .S. 1 14- 
 piincipals, the inhabitants of the parish " • _* Macbeath v. Haldimund, i T. E. 180 ; 
 
 per Blackburn, J., Mersey Docks «. Gibbs, Gidley v. Lord Palmerston, 3 Brod. & B. 
 
 L. E. I H. of L. at p. ill. As to the 285 ; Palmer v. Hutchinson, 6 App. Cas. 
 
 position of a surveyor under a highway 6ig ; 50 L. J. P. C. 62 ; 45 L. T. 180 ; 
 
 board, see Mill 0. Hawker, L. R 9 Ex. Kinloch v. Secretary of State for India, 7 
 
 309; L. E. loKx. 92. For the purposes of App. Cas. 619; 51 L. J. Ch. 885; 47 
 
 liability for the negligence of a contractor, L. T. 133 ; 30 W. E. 845. 
 the surveyor is a servant of the inhabitants: ^ Tobin v. The Queen, 16 C. B. N. S. 
 
 Taylor v. Greenhalgh, L. R. 9 Q. B. 4S9. 310 ; Thomas v. The Queen, L. E. 10 Q. B. 
 
 See Stone v. Cartwright, 6 T. E. 411. 31 ; 44 L. J. Q. B. 9 ; 31 L. T. N. S. 
 
 In the subsequent case of Pendlebury v. 439 ; 23 W. E. 176. 
 Greenhalgh, i Q. B. D. 36, the facts " Sogers v. Eajendro Dutt, 13 Moo. 
 
 shewed actual misfeasance in the sur- P. C. C. 209 ; Cobbett v. Sir George \ 
 
 veyor. Grey, 4 Ex. 729 ; Feathers v. The Queen, 
 
 2 Cruise, Digest, tit. 25, s. 113, citing 6 B. & S. 257; 35 L. J. Q. B. 200; 
 3 Swan. 178. 12 L.T.N. S. 114. 
 
 3 Chitty, On the Prerog., pp. 339, 340; 
 
268 THE LAW OF NEGLIGENCE. [book i. 
 
 in excess of the authority conferred on the doer, is ratified by the 
 Crown, the act thereupon becomes no longer actionable, and the 
 person committing it is exempted from all liability that would 
 otherwise have occurred.' 
 
 6. Questions of military or naval discipline and duty are alone 
 cognizable by a military or naval tribunal, and not by a court of 
 law, even though malicious and oppressive exercise of power may 
 be alleged.' 
 
 7. The jurisdiction of a militaiy or naval court can be exer- 
 cised only on a naval or military matter ; and persons amenable in 
 their professional character to these tribimals may yet obtain re- 
 dress in the ordinary courts in matters where their professional 
 obligations are not involved.^ 
 
 8. The Governor of a colony is not the representative of the 
 King to the extent of obtaining a personal inviolability for his acts 
 while in his government.'' 
 
 9. An action may be maintained, and judgment recovered, 
 against the Governor of a colony, in the courts of the colony, for 
 debts incurred by the Governor in his personal capacity, either 
 previously to undertaking the government or during the time he 
 was exercising its functions.* 
 
 I o. The Governor of a colony may be sued, either in England or 
 in his government, for acts done in the course of his government,' 
 
 11. If the Governor of a colony is sued in England for acts 
 done in the course of his government, an act of indemnity passed 
 in the colony will be sufficient to defeat the action.' 
 
 1 2. When an action is brought against the Governor of a colony 
 it is essential, in order to enable the Courts to decide whether 
 the alleged wrongful act was an act of State, and so not cognizable 
 by the Courts, or an independent wrong, for which an action is 
 maintainable, that the facts should be sufficiently set out for a 
 judgment to be formed upon them.' 
 
 13. On the Court being satisfied in any manner and by any 
 materials it may determine to be sufficient that the act sought to 
 be questioned is an act of State and capable of being lawfully 
 done as snch, it will take no further steps in any proceedings 
 commenced against a Governor or high State functionary." 
 
 ' Buron v. Denman, 2 Ex. 167. ^ Hill v. Bigge, 3 Moo. P. C. C. 465. 
 
 2 JohnBtone v. Sutton, i T. E. 493; * Fabrigas«. Mostyn.Cowp. 161 ; 2oSt. 
 
 Dawkins v. Lord Paulet, L. R. 5 Q. B. 94 ; Tr. 81 ; i Sm. Lead. Cas.gtli edit. p. 628. 
 
 39 L. J. Q. B. S3 ; 21 L. T. N. S. 584 ; ^ Phillipa v. Eyre, L. R. 4 Q. B. 225, 
 
 18 W. R. 336 ; Dawkins v. Lord Rokeby, L. E. 6 Q. B. i ; 40 L. J. Q. B. 28 ; 22 
 
 L..R. 7 H. of L. 744 ; 45 L. J. Q. B. 8 ; L. T. N. S. 869. 
 
 33 L. T. N. S. 196 ; 23 W. R. 931. s Musgrave v. Pulido, 5 App. Cas. 
 
 ' Warden v. Bailey, 4 Taunt. 67. 102 ; 49 L. J. P, C. 20 ; 41 L. T. 629 ; 
 
 * Cameron v. Kyte, 3 Knapp P. C. 0. 28 W. R. 373. 
 
 332. ' Tandy v. Lord Westmoreland, 27 
 
PABTii.] PUBLIC OFFIOERS. 269 
 
 14. Judges are of two kinds — of courts of record and of courts 
 not of record.* 
 
 15. All acts done in the exercise of judicial power and within 
 the limits of the authority of the person so acting are protected, 
 even though the decision arrived at is erroneous." 
 
 1 6. A judicial act is one where an alternative is given to the 
 person entrusted with the power to act, either to do or to refrain.' 
 A ministerial act is one which it is incumbent on the person 
 entrusted with the power to act to do in prescribed circumstances.'' 
 
 17. An act done by a judge of a court of record within the 
 limit of his authority will not lay the foundation of an action, 
 even though it may be done maliciously, corruptly, or oppress- 
 ively.' 
 
 18. Judges of the superiqr courts are amenable for oppression 
 or corruption only to the Sovereign or to Parliament; judges 
 of inferior courts are, besides, under the supervision of the Queen's , 
 Bench Division." 
 
 19. An act done by a judge of a court not of record and 
 within the limits of his authority must, in addition, be done 
 honestly and in good faith, in order to protect its author from an 
 action.' 
 
 20. In cases where the validity of judicial acts is questioned 
 the jurisdiction of the superior courts of the kingdom is to be pre- 
 sumed ; that of inferior courts must be shewn.' 
 
 2 1. To render a judge of an inferior court who has acted out of 
 his jurisdiction liable to an action at suit of the injured party it 
 must be shewn either that he knew or could have known from 
 inquiry that the act for which it is sought to proceed against him 
 was beyond his jurisdiction.' 
 
 22. Those acting under the authority of a Court having juris- 
 
 St. Tr. 1264 ; Snllivan v. Earl Spencer, ^ Hagart's Trustees v. Hope, Shaw 
 
 Ir. B. 6 C. L. 173 ; Castro v. Murray, App. Cas. 125 ; Fray v. Blackburn, 3 
 
 L. E. 10 Ex. 213 ; Dawkins v. Prince B. & S. 576 ; Ward v. Freeman, 2 Ir. 
 
 Edward of Saxe-Weimar, I Q. B. D. 499 ; C. L. K. 460, in the Irish Exchequer 
 
 45 L. J. Q. B. 567 ; 35 L. T. N. S. 323 ; Chamber, where the judges delivered in- 
 
 24 W. B. 670. dependent and exhaustive -written judg- 
 
 1 Bushell's case, 6 St. Tr. 999 ; Fer- ments ; Scott v. Stansfield, L. E. 3 Ex. 
 gnsoni). EarlotKinnoull, 9 CI. & F. 289; 220; 37 L. J. Ex. 155; 18 L. T. N. S. 
 Gamett v. Ferrand, 6 B. & C. 611, 625. 572; 16 W. K. 911. 
 See judgment, Kent, C, in the well-known * JJb ^arte Eamshay, 18 Q. B. 173; 
 case Yates v. Lansing, S John. 291 ; on 21 L. J. Q. B. 238 ; The Queen v. Mar- 
 Appeal, 9 John. 376. shall, 4 E. & B. 475 ; 24 L. J. Q. B. 242 ; 
 ' 2 Floyd and Barker's case, t2 Co. 23 ; The Queen v. Badger, 4 Q. B. 468. 
 Groenvelt v. Burwell, i Ld. Baym. 454 ; ' Windham v. Clere, Croke Eliz. 130 ; 
 Kemp B. Neville, 10 C. B. N. S. 523 ; 31 L'n'ord v. Fitzroy, 13 Q. B. 240; 18 
 L. J.C.P.isS; ioW.E.6;4L.T.N.S. L.J.M.C.108; 11 &12 Vict. c. 44, s. i. 
 640. ' Peacock v. Bell, I Saund. 74. 
 
 ^Leaman v. Patten, 2 Cainea 312; » Houlden v. Smith, 14 Q. B. 841; 
 
 Vanderheyden v. Young, 2 John. ijo. Calder v. Halket, 3 Moo. P. C. C. 
 
 * Bartlett v. Crozier, 17 John. 438. 28. 
 
270 THE LAW OF NEGLIGENCE. [book i. 
 
 diction over the subject-matter are protected, although the par- 
 ticular exercise of jurisdiction is erroneous.' 
 
 23. Those acting under the authority of a Court not having 
 jurisdiction over the subject-matter are not protected.^ 
 
 24. Warrants issued by superior courts need not shew author- 
 ity; those issued by inferior courts must shew all the essentials 
 from which the duty required to be performed by the warrant 
 arises.^ 
 
 25. A breach of ministerial duties gives a right of action to 
 the party aggrieved thereby.^ 
 
 26. Bona fides in the discharge of a ministerial duty is not 
 sufficient to free from liability in respect of the same. There 
 must further be an efficient and skilful performance of the duties 
 imposed.* 
 
 27. Public officers in the discharge of ministerial offices are 
 liable to the same extent and in the same manner as private 
 individuals for the acts of their servants, but when a person is 
 acting as a public officer on behalf of the Government, and has 
 the management of some branch of the Government business, he is 
 not responsible for the neglect or misconduct of servants, though: 
 appointed by himself in the same business." 
 
 ^ Munday v. Stubbs, 10 C. B. 432 ; nom. Jones v. Pikering, 29 L. T. N. S. 
 
 Gosset M. Howard, 10 Q. B. 4.11. 210. 
 
 2 Gosset V. Howard, 10 Q. B. 411. ^ Jones ». Bird, S B. & A. 837 ; Mersey 
 
 ^ Countess of Rutland's case, 6 Eep. Docks Trustees v. Gibbs, L. E. i H. of IJ. 
 
 54 a ; Parsons v. Loyd, 3 Wils. 341 ; The 693. 
 
 Queen «. Inhabitants of Stainforth, II Q. "Mersey Docks Trustees v. Gibbs, 
 
 B. 75 ; Agnew v. Jobson, 14 Cox C. C. L. E. i H. of L. 93 ; Lane v. Cotton, 
 
 625. I Ld. Eaym. 646 ; Whitfield ». Lord le 
 
 * Pickering «. James, L. E. 8 C. P. 489 ; Despencer, Cowp. 754 ; Nicholson v. 
 
 42 L. J. C. P. 217; 21 W. E. 786 ; sub Mouncey, 15 East 384. 
 
PART III. 
 
 LIABILITY OF A MASTER IN RESPECT OF EIS 
 SERVANT. 
 
 CHAPTER I. 
 
 PRINCIPLES DETERMINING THE MASTER'S 
 LIABILITY FOR HIS SERVANT. 
 
 The liability of the master for the tortious act of his servants, Maxim, 
 done either without authority or in defiance of it, is referred to fS^?"* 
 the maxim, Respondeat superior.^ This maxim, which has come 
 to express the principle according to which the tort of the servant 
 is made referable to the master, in its original use was to apply 
 alone " to those who, having the custody of gaols of freehold or 
 inheritance, commit the same to another that is not sufiBcient," 
 and was found in the concluding section of Statute of Westminster 
 2, c. II : Et si custos gaolce non hdbeat per guod justicietur, vel unde 
 solvat respondeat superior suus qui custodiam, hufusmodi gaolce sibi 
 commisit per idem ireve. But its application has passed from this 
 narrow and technical limit, and has become so general and 
 extensive, that Jessel, M.R., thus comments on it^: — " It is clear 
 that on principle a man is liable for another's tortious act if he 
 expressly directs him to do it, or if he employs that other person 
 as his agent and the act complained of is within the scope of the 
 agent's authority. I agree that the Court ought to be very 
 careful how it extends the doctrine. Respondeat superior. It has 
 been carried in our law very far indeed; I think quite far 
 enough. If I had to enact a law upon the subject I doubt 
 whether I should carry it so far." 
 
 But the maxim Respondeat superior is rather the formula 
 whereby liability is referred to its source than the reason for the 
 existence of a liability. 
 
 ^ 2 Inst. 382. For the American view see Shearman and Redfield's Law of Negli- 
 gence, § 143. 
 = Smith V. Keal, 9 Q, B. D. 340, at p. 351. 
 
272 THE LAW OF NEGLIGENCE. [booki. 
 
 Maxim, Qui The equally familiar maxim, Qui facit per alium facit per se/ 
 
 fMitpZse"™ has been by some souglit to be applied in a narrower sense than 
 Respondeat superior ; and its meaning has been taken to be that 
 he who has authorized an act to be done which is done under his 
 authority is as liable as he who personally and for his own benefit 
 does the same. This undoubtedly is so ; but there is no good reason 
 why its meaning should be limited to those cases where authority . 
 has actually been given. The Committee on the Employers' 
 Liability in their Keport^ say that, the maxim is " inapplicable to 
 cases where the act causing the injury is done either without 
 authority or in defiance of it." There is a fallacy in this mode of 
 expressing cases of liability. The master is never liable where 
 the servant acts without authority — that is, without authority ex- 
 press or implied. The whole ground of the master's liability in 
 the extreme cases alluded to is that the master has given, or 
 appeared to give, with circumstances that bind him, such an 
 authority to the servant that the master cannot be permitted to 
 deny the validity of such acts subsequently done by the servant in 
 following out the objects which have been committed to him as 
 would naturally seem to flow from the position the servant held. 
 Mutual The maxim, Qui facit per alium facit per se, is the statement of a 
 
 these maxims.* rule of law the scope of which is not limited by express author- 
 ization, but extends to cases where authority to act is implied 
 only, and operates by establishing an irrebuttable presumption in 
 the circumstances in which it becomes applicable.^ The maxim, 
 Bespondeat superior, is the legal expression of the consequence 
 arising from the application of the rule of law just stated, where 
 by reason of the principal's direct authorization of the acts in 
 question ; or by a conclusion of law which imputes them to the 
 principal whether he authorized them or not ; the principal is 
 precluded from shewing that he personally is not accountable for 
 certain acts. He who does a thing by his agent, express or 
 implied, does it himself; therefore the superior must answer for 
 all acts done by the other for him, whether he has actually 
 authorized them, or left the matter open, or even forbidden them. 
 The principle at the bottom of this very extensive liability is 
 an irrebuttable presumption'' — that the master authorized every 
 
 ' The maxim, as it appears in Co. Litt. (Chelmsford), Biirtonshill Coal Company 
 
 258 a, runs, Qui per alium fadt per se v. McGruire, 3 Macq. 300, at p. 306. 
 
 ipsum faeere videtur. * Per Kelly, C.B., giving judgment in 
 
 2 Eeportofthe House of Commons Com- Exchequer Chamber: "The principle to 
 
 mittee ou Employers' Liatjility, 1877. be deduced from the authorities is, that 
 
 ' Eyery act which is dpne by a servant Vfhere a servant is acting within the scope 
 
 in the course of his duty, is regarded as of his employment, and in so acting does 
 
 done hy_ his master's orders, and oonse- something negligent or wrongful, the em- 
 
 quently is the same as if it were the mas- ployer is liable, even though the act done 
 
 ter's own act: per the Lord Chancellor may be tlie very reverse of that which the 
 
PART in.] MASTER'S LIABILITY TOR HIS SEEVAJ^T. 273 
 
 act done in advancement of the master's business, pending tlie 
 authority, and covered by its objects. An authorization for what, 
 very possibly, has been absolutely forbidden is implied by law 
 from the mere existence of the relatiop of employer and employed, 
 and on two grounds: First, that the real principal should be Grounds for 
 affected with responsibility for his acts ; secondly, that he should ^enf o1 thf " 
 not be able, by secret agreenient or special terms, to avoid the principle, 
 detriment, while assuming the benefit, of acts appropriate to, or con- 
 sequential on, the existence of the relation of master and servant.' 
 Admitted authority to do an act, the hand that actually does it 
 may be the servant's, yet the reason of the act is the master's 
 authorization, therefore the master, as the motive power, is re- 
 sponsible.^ But the law goes further, where there is authority to 
 do an act the master's authorization covers, not the mere necessary 
 doing of it, but all acts, whether implicated in, or subsidiary to, 
 the main action. And the question of what is implicated in, or 
 subsidiary to, any particular relation must be settled previously to 
 affixing a character of liability, or non-liability, to any act ; yet 
 through all the principle runs, that if it is not the master's act 
 daly authorized, it is yet an act done with circumstances that 
 public policy requires should presume the master's authority. 
 
 The most comprehensive and authoritative statement of the WiUes, J., in 
 ground covered by the principle of law now under review is that En^^sh Joint 
 of Willes, J., giving the judgment of the Exchequer Chamber in ^*°°'^ ■^'"''^• 
 Barwick v. English Joint Stock Bank.' H© says : " The general 
 
 servant was actually directed to do." '■' Opinions will vary as to whetlier 
 Bayley v. Manchester, Sheffield, and Lin- greater abuse arises from leaving the mas- 
 colnshire Railway Company, L. E. 8 ter liable in all events, or from relieving 
 0. P. 148, at p. 152. him from liability, save where he is shewn 
 ■' LimpuB V. London General Omnibus to be in fault. In the one case he will 
 Company, i H. & C. 526, " The law is not undoubtedly be liable where he ought not 
 so futile as to allow a master, by giving to be ; in the other he vrill be able, by col- 
 secret instructions to his. servant, to dis- lusioii, to escape liability, with which 
 charge himself from liability ' ' : per Willes, equally undoubtedly he should be affected. 
 J., at p. 539. Objections have been made to The balance of advantage or disadvantage 
 the justice of imposing on the master, the will probably be determined more by the 
 possibly ruinous consequences of his ser- tendency of menial habit in each inquirer, 
 vant's negligence. The answer is. That than from an undisputed count of gains 
 the master, for his own purposes, has and losses. See a pamphlet, " The Evils 
 armed his servant with the destructive of the Unlimited Liability for Accidents 
 agency. The misuse of it should enure of Masters and Railway Companies," by 
 to the'master's detriment rather than those Joseph Brown, Q.C., F.Gr.S. (Butterworth, 
 injured by it should suffer loss. But it is 1870). 
 
 urged in criminal procedure, the master ^ L. E. 2Ex. 259, atpp. 265-6. "The 
 
 is not liable at all, The criminal law has true rule was, it seems to me, enuuciated 
 
 no regard to the loss of the individual, but by the Exchequer Chamber in a judgment 
 
 exclusively looks to the good regulation of of Willes, J., delivered in the case of Bar- 
 
 the State. The test of damages can never wick v. English Joint Stock Bank 
 
 be what would he an adequate pecuniary This definition of liability has been con- 
 penalty for the offence, since penalty .and stanlly rel'erred to in subsequent cases as 
 damages are for different objects, and have adequate and satisfactory, and was cited 
 no point of relation. The penalty is a with approval by Lord Selbome, in the 
 payment for breach of the law : damages H. of L., in Holdsworth v. City of Glasgow 
 lor infringement of a personal right. Bank (5 App. Gas. 317). Mackay v. Com- 
 
 S 
 
274 THE LAW OF NEGLIGENCE. [book i. 
 
 rule is, that the master is answerable for every sucli wrong of the 
 servant or agent as is committed in the course of the service and 
 for the master's benefit, though no express command or privity of 
 the master be proved." That principle is acted upon every day 
 in running-down cases.' It has been appKed also to direct tres- 
 pass, to goods, as in the case of holding the owners of ships liable 
 for the act of masters abroad improperly selling the cargo.^ It 
 has been held applicable to actions of false imprisonment in cases 
 where officers of railway companies entrusted with the execution 
 of bye-laws relating to imprisonment, and intending to act in the 
 course of their duty, improperly imprisoned persons who are sup- 
 posed to come within the terms of the bye-laws.'' It has been 
 acted upon where persons employed by the owners of boats to 
 navigate them and to take fares have committed an infringement 
 of a ferry or such-like wrong.^ In all these cases it may be said, as it 
 was said here, that the master has not authorized the act. It is true 
 he has not authorized 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 act of his master to place him in." 
 Three pro- Three of the earliest propositions illustrative of the law are to 
 
 the Year be found in the Tear Books under 9 Hen. VI., 53, B.;' they are 
 to the following efiect : — 
 
 1 . If a servant, whose duty it is to sell merchandise, sells an 
 unsound horse" or other merchandise' in a fair no action lies 
 against the master for deceit, since he did not direct the servant 
 to sell to any person in particular. 
 
 2. But if the servant, by direction and contrivance of the 
 master, sells to any particular man, if it prove unsound an action 
 lies against the master, for it is his sale. 
 
 3. If the servant of a tavern-keeper sells wine to another 
 which is corrupt, action lies against the master, although he did 
 not tell the servant to sell to the particular man. 1 
 
 mercial Bank of New Brmiswick (L. R. 5 explaining, at 3 E. & E. p. 683, Rob )■. 
 
 P. C. 394) is consistent with this prin. Birkenhead Railway Company, 7' Ex. 36; 
 
 ciple. It is a definition strictly in accord- and ses Barry v. Midland Eiailway Coni- 
 
 ance with the ruling of Miirtin, B., in jjany, Ir. L. E. i C. L. 130. 
 
 Limpua v. London General Omnibus * Huzzey v. Field, 2 C. M. & E. 432, 
 
 Company (l H. & C. 526), which was up- at p. 440. 
 
 held in the Exchequer Chamber (see per s RoUe'sAbr. Action sur Cas ; Southern 
 
 Blackburn, J.)": perBowen.L.J., British v. How, Cro. Jac. 468. 
 
 Mutual Banking Company v. Charnwood ' Helyear v. Hawke, S Esp. 72 ; Alex- 
 
 Porpst Railway Company, 18 Q.B. D. 714, aiider v. Gibson, 2 Campb. 555 ; Colenmn 
 
 at p. 717. V. Eicbes, 16 C. B. 104, at p. 113. 
 
 1 See Laugher v. Pointer, 5 B. & C. ^ Smith v. M'Gaire, 3 H. & N. 563. 
 547, at p. 554. "If a man sends his servant to market lo 
 
 2 Ewbank v. Nutting, 7 C. B. 797. sell goods or a horse for a certain price, 
 " Goff V. Great Northern Eailway Com- and the servant sells them for less, th« 
 
 pany, 3 E. & E. 672 ; 30 L. J. Q. B. 148, master is bound by it," 
 
 Books, 
 
PART III.] MASTER'S LIABILITY FOR HIS SERVANT. 275 
 
 The first proposition is probably not law at the present day.' ^-st pro. 
 The ground of it evidently is that a sale in market overt, where luouswd. 
 there is opportunity of inspecting the goods, not implying a 
 warranty,' the purchaser was put upon inquiry whether the 
 servant had a special authority given him. The proposition — 
 that the master, having entrusted the servant to sell, he is 
 entrusted to do all that he can to effectuate the sale, and if he 
 does exceed his authority in so doing, he binds his master' — 
 seems, however, to have prevailed. 
 
 The second proposition is undoubted law,^ and so is the third. Second and 
 The liability is dependent on the consideration that the master poshiont 
 sent the servant there for the purpose of selling wine. The 
 action is on breach of a warranty ; but no distinction seems to 
 be drawn between the direct arct of the master and the negligence 
 of the servant. The ground of the master's liability is, that he 
 has authorized the servant to sell wine, and placed him in a 
 position where the master's credit is pledged for its good quality. 
 The case, too, of a tavern-keeper differs from that stated in the 
 first proposition by reason of there being no opportunity in the 
 first instance for the guest to select the food. 
 
 In the time of Charles I. the law is thus laid down : — If a servant Law in the 
 keep his master's fire negligently, an action lies against the master ; o™aries r. 
 otherwise, if he carry it negligently in the street. If I com- 
 mand my servant to distrain, and he ride on the horse taken 
 for the distress, he shall be punished, not I.' 
 
 An action, Michael v. Alestree," was brought against both Michael ». 
 
 Alestree. 
 
 ' See the cases cited above. '^ Noj'b Maxima, c. 44, p. 95. 
 
 2 Bumby v. BoUett, 16 M. & W. 644 ; " 2 Lev. 172 ; V6ntris295 ; 3 K.eb. 650. 
 
 Eramerton v. Matthews, 7 H. & N. 586 ; In Eoe v. Latouche, 9 Ir. C. L. R. 9, the 
 
 5 L. T. K. S. 681 ; Smith r. Baker, 40 case of Michaelv. Alestree is said to be sus- 
 
 L. T. N. S. 261 ; Morley v. Atten- tainable after verdict on the ground that 
 
 ' , 3 Ex. 500. the allegation in the declaration that 
 
 See per Lord Ellenborough, C.J., the defendant acted Improvide incaute 
 
 Helyear v. Hawke, 5 Esp. 72. et absque debita consideratione inepti- 
 
 * M'GrOwan v. Dyer, L. E. 8 Q. B. 141 ; tudinis loci, was tantaTnount to an alle- 
 
 Ormrod «. Huth, 14 M. & W. 664. Mr. gation of negligence. Jessel, M.E., must 
 
 J. Brown, Q.C., "Minutes of Evidence have been under a misapprehension that 
 
 taken before the Select Committee on Era- hitherto the law had not allowed the 
 
 ployers' Liability," p. 399, vol. 27, Parlia- joinder of master and servant in one 
 
 mentary Papers, 1876, thus delivers him- writ, when he said in Eaglesfleld v. Lon- 
 
 self, speaking on the liability of a master donderry, Marquis of, 4 Ch. D. at p. 
 
 for the tort of his servant : " I found thero 708 : " A coachman, who by his nega- 
 
 was no case whatever prior to the one by gence in driving his master's carriage 
 
 Lord Holt in the reign of William 111., runs over a child, is liable to an action at 
 
 when the master was held responsible for the suit of the child, and the master is also 
 
 the negligent acts that his servant com- liable. I apprehend that under the new 
 
 mitfed in the course of his employment. practice they might be joined as defend- 
 
 Lord Holt appears to have been the first ants." See Whitamore v. Waterhouse, 
 
 who laid down this law. He was a great 4 C. & P. 383. Partial compensation 
 
 judge, no doubt ; but before that time having been recovered against the servant, 
 
 there is reason to believe the law was the the master is released : Wright v. London 
 
 other way.'' Mr. Brown cites no authority General Omnibus Company, 46 L. J. Q. B, 
 
 for this belief. 429- 
 
Booth. 
 
 g76 THE LAW OF NEGLIGENCE. [book i. 
 
 master and servant for that "the defendant' in Lincoln's Inn 
 Fields — a place where people are always going to and fro about 
 their business — ^brought a coach with two ungovernable horses, 
 and, eux improvide incaute et absque debita consideratione iTieptitw- 
 dinis loci, there drove them to make them tractable and fit them 
 for a coach ; and the horses, because of their ferocity, being not 
 to bg managed, ran upon the plaintiff and hurt and grievously 
 wounded him." The gist of the case is rather the question of 
 negligence than of liability. In the report in Ventris there is no 
 reference whatever to the question of the master's liability ; and 
 in both the other reports the point for which alone the case is 
 cited here was but incidentally mentioned, and not as matter for 
 argument, but as recognized law. 
 Kingston v. The case of Kingston v. Booth' is sometimes referred to as the 
 
 starting-point of the law, and is thus reported. In an action of 
 trespass for assault, battery, and wounding, tried at the bar, 
 these points were ruled by three of the justices — viz., Withins, 
 HoUoway, and Walcot, absente cap. justic. 
 
 First. If one enter upon land whereof I am in legal posses- 
 sion, and I desire him to go off my land and he refuse it, then, 
 after this, I may use violence and thrust him off; but I cannot 
 wound him or knock him on the head.^ 
 
 Secondly. If I command my servant to do what is lawful, and 
 he misbehave himself or do more, I shall not answer for my 
 servant but my servant for himself, for that it was his own act, 
 otherwise it was in the power of every servant to subject his 
 ■master to what actions or penalties he pleased.^ 
 
 Thirdly. If I command my servant to do a lawful act, as in this 
 case, to pull down a little wooden house wherein the plaintiff was 
 and would not come out (and which was carried upon wheels 
 into the land to trick the defendant out of possession), and bid 
 them take care they hurt not the plaintiff ; if in thus doing my 
 servants wound the plaintiff, in trespass of assault and wounding 
 brought against me I may plead not guilty, and give this in 
 evidence, for that I was not guilty of the wounding, and pulling 
 down the house was a lawful act.'' 
 First The first resolution dealing with a wrongful entry on land is 
 
 isolation. appropriate to the law of trespass and not to that of employers' 
 liability. 
 
 ' (i68s) Skinner, 228. Railway Companv, L. E. 8 C. P. 
 
 2 Davies v. Williama, 16 Q. B. 148. 
 546 Bush ; «. Parker, i Bing. N. C. * As to pulling down a bouse, the plain- 
 72. tiif being therein, see Perry v. FitzUowe, 
 
 3 This proposition is inaccurate or at 8 Q. B. 757 ; Jones v. Jones, i H. & C. 
 least may be misleading : Bailey v. i. As to wounding plaintiff, Gregory v, 
 JJ»ncheBter, Sheffield, and Lincolnshire Piper, 9 B. & C. 591. 
 
 rei 
 
PART III.] MASTER'S LIABILITY FOR HIS SERVA]N-T. 277 
 
 The extreme ambiguity of the second is consistent with the Second 
 existence only of a law of agency or of a law of employers' "^^""i""™- 
 liability for torts. The servant in executing the lawful commands 
 may unwittingly or incidentally cause an injury not the necessary 
 result of agency, and yet which is not " his own act." Again, 
 the reason given for the second resolution is, the master is not to 
 be liable in certain cases, " otherwise it was in the power of 
 every servant to subject his master to what actions or penalties 
 he pleased." This would not apply to cases where the servant 
 was in good faith carrying: out to the best of his ability the 
 lawful commands of his master. The test therefore that would 
 seem to be pointed at is, whether the act was an act conse- 
 quential on the employment and was done in pursuance of the 
 master's business. In this view the current of the law would be 
 the same as at the present day. 
 
 The third proposition, although incidentally introducing new Thii-d 
 points of law, seems rather to be an application of the first and ^''^oi^'io"- 
 second propositions, to illustrate the limitation of the master's 
 responsibility for those acts, and those only, which he actually 
 authorized. True, no word is said as to the means by which the 
 servant is to do the " lawful act;" but if in the doing what is 
 enjoined there is neither misbehavour nor excess, it seems to 
 follow that the master would be liable. The question as to what 
 would be to " do more" within the rule in the second proposition 
 might undoubtedly be a difficult one ; but the particulars in the 
 third indicates that to do more was to commit independent 
 assault upon the plaintiff.' There seems no reason, then, to 
 conclude from this case that the principle of law was then other 
 than now, or, as it has been urged, was changing its current. 
 Whether the liability were in contract or tort seems only im- 
 portant with reference to the mode of presenting the case, and 
 not to the principle by which the master is affected. The ser- 
 vant by breach of warranty renders the master liable in damages. 
 The master hus not actually authorized the servant to selj bad 
 wine, yet the law assumes that he has, in order to render the 
 Blaster liable ; the position of the servant, whose duty it is 
 to sell wine, is conclusive as against the master. So, too, in 
 tort, where the act of the servant is referred to the responsibility 
 of the master, the law assumes that his incidental misfeasance 
 has been equally authorized so as to render the master liable, but 
 not for his direct wrongdoing. 
 
 The master's liability for the negligent act of the servant is 
 
 1 tyoDB V. Martin, 8 A. & E. 512. A injury by doing a lawful act negligently, 
 Inaster is liable trbere his serValit causes butbotwherehewilfullydoes an illegal one. 
 
278 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Turbervillo v. 
 Stampe, 
 
 Jones V. Hart. 
 
 Inference 
 deducible 
 from this 
 caee. 
 
 recognized in 1 697 in the case of Turberville v. Stampe,' where 
 it is laid down : " If my servant throws dirt into the highway, 
 I am indictable. So in this case, if the defendant's servant 
 kindled a fire in the way of husbandry and proper for his 
 employment, though he had no express command from his 
 master, yet his master shall be liable to an action for damage 
 done to another by the fire, for it shall be intended that the 
 servant had authority from his master, it being for his master's 
 benefit." 
 
 An anonymous case, cited in Lord Eaymond's reports,^ appears 
 to be the same as a case reported in Holt, under the name 
 Jones V. Hart,^ and decided shortly subsequently to Turberville 
 V. Stampe. " A servant to a pawnbroker took in goods, and 
 the party came and tendered the money to the servant, who said 
 he had lost the goods, upon this action in trover was brought 
 against the master, and the question was whether it would lie 
 or not. Holt, O.J. : " The action will lie in this case. If the 
 servant of A. with his cart ran against another cart wherein is a 
 pipe of wine, and overturn the cart and spill the wine, the 
 action lieth against A. So where a carter's servant runs his cart 
 over a boy action lies against the master for the damage done by 
 this negligence. And so it is if a smith's man pricked a horse in 
 shoeing, the master is liable. For whoever employs another is 
 answerable for him, and undertakes for his care to all that make 
 use of him. The act of a servant is the act of his master, where 
 he acts by authority of his master." 
 
 The full report of this case seems rather to point to the 
 conclusion that the remark of Pollock, C.B., made in another 
 connection,'' might be applied here also, " The law must have 
 been the same long before it was enunciated in this court," than 
 to warrant the inference that has been drawn by some authorities' 
 that the law was at one time the other way, and that it was 
 at this period that the transition occurred to the modern view. 
 
 1 I Ld. Eaym. 264. Brucker v. Fro- 
 niont, 9 T. E. 659, was decided on the 
 authority of Turberville v. Slampe. The 
 declaration set out that tho defendant was 
 driving a cart. The proof was that the 
 servant was driving. Objection was taken 
 to the generality of the pleading, which, 
 however, was held good on the ground 
 that the servant's act was in law the mas- 
 ter's. SeoHuzzeyw. Field, 2 C. M. & R. 
 432, at p. 440. " The servant was acting 
 at the time in the course of his master's 
 service, and for his master's benefit, and 
 his act was that of the defendant, 
 although no express command or privity 
 of his master was proved." " It is part of 
 
 the history of the law that the .judgment 
 in Huzzey v. Field, although delivered by 
 Lord Abinger, was prepared by Lord 
 Wensleydale " : per Willes, J., Limpua 
 V. London General Omnibus Company, I 
 H. & C. p. 540. 
 
 2 I Ld. Baym. 739 ; Salkeld 440. 
 
 3 Holt 642. 
 
 ■* Vose V. Lancashire and Yorkshire 
 Railway, 2 H. & N. 728. The remark 
 was there made with reference to the law 
 as laid down in Priestley «. Fowler. 
 
 ° Mr. J. Brown, Q.C., Evidence before 
 the House of Commons' Committee on 
 Employers' Liability. 
 
PART III.] MASTER'S LIABILITY POR HIS SERVANT. 279 
 
 On the same page on which this case is reported in Salkeld's 
 Reports, is another case,' where Holt, C.J., says : " The owners Boson v. 
 are liable in respect of the freight, and as employing the master, ^'^°'^'°'^''- 
 for whoever employs another is answerable for him, and under- 
 takes for his care to all that make use of him." About the same Middieton v. 
 time, Holt, 0. J., stated the proposition, viewed from its other ^°'^^^'-'- 
 aspect, " that no master is chargeable with the acts of his servant, 
 but when he acts in the execution of the authority given him." 
 This dictum was not necessary for the decision of the case, which 
 was decided on the point that a stage coachman was not within 
 the custom as a common carrier to receive parcels for conveyance, 
 and so to bind his master, unless a regular charge was made for 
 conveyance,^ but it has, notwithstanding, been accepted as a 
 weighty authority. Lord iCenyon, after quoting it as a sufficient 
 authority, adds as comment : " Now, when a servant quits sight 
 of the object for which he is employed, and without having in 
 view his master's orders pursues that v/hich his own malice 
 suggests, he no longer acts in pursuance of the authority given 
 him, and, according to the doctrine of Lord Holt, his master will 
 not be answerable for such act."^ 
 
 In the earlier cases much stress was laid on the distinction Distinction 
 between the form of action being in trespass or trespass on the tre^ass and 
 case as affording a means of discriminating between those acts of trespass on 
 the servant for which the master is answerable, and those in 
 respect of which he goes free. 
 
 The following distinctions were drawn, and considered to be 
 established : — 
 
 I. Where the injury arises from the negligence of the defend- 
 ant, and the act is at the same time immediate, as where the 
 defendant by negligent driving runs against the plaintiff's carriage, 
 the plaintiff may maintain case for the negligence, waiving the 
 trespass. 
 
 II. Where the injury arises from the negligence of the 
 defendant's servant, case only and not trespass is maintainable 
 against the master. 
 
 III. Where the injury arises not from the negligence of the 
 defendant, but the act is both wilful and immediate, trespass is 
 the proper form of remedy. 
 
 IV. Where the injury is not immediate, but only consequential 
 upon the act done, the remedy is case, and not trespass. 
 
 ' Boaon o. Sandford, Salk. 440. tended to find its way into the pocket of 
 
 ^ Middieton v. Fowler, Salk. 282. See the owner of the waggon, then the ownei? 
 
 Bntler «. Baring, 2 C. & P. 613. "It is not liable in case the parcel is lost. " 
 is equally clear that if persons be foolish ^ M'Manus ii. Crickett, I Bast 106, 
 
 enough to send parcels by the waggoner 108. This case is discussed in Howe v. 
 
 for a hire paid to him, which is never in- Newmaroh, 94 Mass. 49, 
 
280 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Croft V. 
 Aljeou, 
 
 Bistinctioa 
 between acts 
 of the servant 
 importing and 
 not importing 
 liability. 
 
 lyons ». 
 Martin. 
 
 Gordon v. 
 Bolt. 
 
 V. Where the plaintiff is the owner, but not entitled to the 
 immediate possession of a chattel injured by the defendant driving 
 violently against it, case and not trespass must be brought.' 
 
 By the operation of the Judicature Acts, 1873-5, and the 
 Rules of the Supreme Court niade in pursuance thereof, these 
 distinctions of form are made nugatory.'' The distinction, how- 
 ever, pointed out between a negligent act of the servant and a 
 wilful act, marks a distinction of legal obligation on the master. 
 In the one case he answers for his servant's act, in the other he 
 does not. 
 
 The point came directly before the Courts for decision in Croft 
 V. Alison." An accident happened from defendant's coachman 
 striking plaintiff's horses with his whip, in consequence of which 
 they moved forward, and the chariot was overturned. On a verdict 
 being given for the plaintiff, a new trial was moved for, on two 
 grounds. First, that the plaintiff was not the owner of the carriage. 
 Secondly, the injury arose from the act of defendant's coachman 
 in wantonly whipping the plaintiff's horses. A rule was refused 
 on both points. As to the latter, the Court said : " The distinction 
 is this : if a servant driving a carriage, in order to effect some 
 purpose of his own, wantonly strike the horses of another person 
 and produce the accident, the master will not be liable. But if, in 
 order to perform his master's orders, he strikes but injudiciously 
 and in order to extricate himself from a difficulty, that will be 
 negligent and careless conduct for which the master will be liable, 
 being an 'act done in pursuance of the servant's employment." 
 
 The opinion of two other judges on the same point must not 
 be passed over. Patteson, J., in Lyons v. Martin^ : " A master is 
 liable where his servant causes injury by doing a lawful act 
 negligently, but not where he wilfully does an illegal one." And 
 Parke, B., in Gordon v. Rolt' : " The result of the authorities is, 
 that if a servant in the course of his inaster's employ drives over 
 any person and does a wilful injury, the servant and not the 
 master is liable in trespass ; if the servant by his negligent 
 
 ' Morley«.Gaisforcl,2H.Bl. 41, note (a). 
 " Section 24, 36 & 37 Vict. c. 66, 
 " (1821) 4 B. & Aid. 590 ; Seymour 
 «. Greenwood (1861), 7 H. & N. 355. A 
 master is liable for injury caused by the 
 wanton and violent conduct of his servant 
 in the performance of an act within the 
 scope of his employment. With this case 
 should be compared Eastern Counties Rail- 
 way Company v. Broom, 6 Ex. 314, an 
 inspector of the railway company profess- 
 ing to act as their servant, took the plain- 
 tifl' out of a railway carriage and gave him 
 into custody on charges of not producing 
 his ticket, not paying his fare, and of 
 
 annoying the company by being intoxi- 
 cated. The charge of intoxication was 
 not preferred before the magistrate, one of 
 assault being substituted. In an action for 
 the assault brought against the company 
 the Court held there was no evidence of 
 ratification, and that there was not suSB- 
 cient evidence to go to the jury in the 
 absence of such evidence of ratification. 
 In Bank of New South Wales v. Owston, 
 4 App. Cas. 270, it is said that the decision 
 is " scarcely consistent with later authori- 
 ties." 
 
 < (i838)8A. &E. 512. 
 " (1849) 4 Ex. 365. 
 
PART III.] MASTER'S LIABILITY FOR HIS SERVANT. 281 
 
 driving causes an injury, the master is liable in case ; if the 
 master himself is driving, he is either liable in case for his 
 negligence, or in trespass, because the act was wilful." 
 
 A very tourious case, not on the principles of law, but as to Williams v. 
 their application, was Williams v. Jones,' first decided in the"^""®^" 
 Exchequer, and thence carried to the Exchequer Chamber. The 
 plaintiff, having sold some boards to the defendant, allowed him 
 to have them made into a signboard in one of three sheds be- 
 longing to him. The defendant employed a carpenter, and, whilst 
 he was at work, a stranger came in, filled his pipe with tobacco, 
 supplied the carpenter with some, and lighted a match. The 
 ea];penter, having lighted a shaving from the match, let it fall 
 negligently, and caused a fire that burned down the sheds. The 
 jury found that the relationtof master and servant existed between 
 defendant and his carpenter. The Court of Exchequer entered a judgment in 
 nonsuit, as, " after much consideration, we think it impossible to Exciieque"^ 
 hold that a person who employs another for a sum of money to 
 do certain work is responsible because the person so employed 
 lights his pipe, a very common and natural act, and which the 
 jury have found to be negligence." In the Exchequer Chamber 
 there was a division of opinion. The judgment of the majority^ Judgment in 
 was delivered by Keating, J. Their point of view was : " That a ohamber.'"^"^' 
 master is liable for the negligence of his servant in the course of 
 his employment admits of no doubt, and, if it could be said that 
 the act of lighting a pipe of tobacco for the purpose of smoking 
 it was in any way connected with the making of the sign-board, 
 which alone the carpenter was employed by the defendant to do, 
 there would be no difficulty in saying the master would be liable, 
 but we can see no such connection. It was not necessary that he 
 should smoke in order to make the sign-board, nor was the act of 
 lighting the pipe, in any way whatever for the benefit of his 
 master, or in the furtherance 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." 
 
 Blackburn and Mellor, J J., dissented. Blackburn, J,, however. Dissent of 
 
 , Blaokbux-n and 
 I (1865) 3 H. & C. 256 ! in Ex. Gh., be the act of one of those men in lighting Mellor, JJ. 
 602. There is a yei-y similar American his pipe after eating his dinner and care- 
 decision. A fire was lighted by men in lessly throwing the burning match into 
 the employment of a railway company, on the grass " : Marrier v. St. Paul, &c., 
 a right of way belonging to the company, Railroad Company, 31 Minn. 351. 
 for the purpose of warming their coffee. ^ Erie, C.J., and Smith and Keating, 
 The plaintifirs property was in consequence J J. 
 
 set on fire. It was held " no more within ' See Turbervillev, Stampe, i Ld, Raym. 
 
 the scope of their employment than would 264. 
 
282 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 statement of 
 general rule 
 of law by 
 Blackburn, J, 
 
 Limpus V. 
 
 London 
 
 General 
 
 Omnibus 
 
 Company. 
 
 considered the point as, "not one admitting of being elucidated 
 by argument or by decided cases ; in truth, the whole case depends 
 upon" what " is a correct statement of the effect of the facts." 
 But his statement of the general rule of law is of value : " That 
 where the relation of master and servant exists between one 
 directing a thing to be done and those employed to do it, the 
 master is considered in law to do it himself, and, as a conse- 
 quence, that the master is responsible, not only for the conse- 
 quences of the thing that he directed to be donSj but also for the 
 consequences of any negligence of his servants in the course of 
 the employment, though the master was no party to such negli- 
 gence, and even did his best to prevent it, as, in the ordinary 
 case, where a master, selecting a coachman believed to be sober, 
 sends him out with orders to drive quietly, and the coachman gets 
 drunk and drives furiously. In such a case it may seem hard 
 that the master should be responsible, yet he no doubt is if he be 
 his master within the definition stated by Parke, B., in Quarman 
 V. Burnett,' that the person is liable ' who stood in the relation of 
 master to the wrongdoer, he who had selected him as his servant 
 from the knowledge of, or belief in, his skill and care, and who 
 could remove him for misconduct, and whose orders he was bound 
 to receive and obey.' But the master is not liable for any negli- 
 gence or tort of the servant which is not in the course of the 
 employment, for such negligence or tort cannot be considered as 
 in any way the act of the master." The learned judge then adds : 
 " In the present case the diflSculty is to apply these rules to the 
 facts." Though the facts are peculiar the report of them is not 
 without value as bearing on the law applicable to a case of 
 possibly not infrequent occurrence. " Supposing a miner em- 
 ployed in a coal mine (assuming him to be a servant) improperly 
 and contrary to orders, for the purpose of lighting his pipe or 
 anything of that sort, opens his safety lamp, and there is an ex- 
 plosion which kills a passer-by."^ Though not identical, the case 
 of Williams v. Jones would, in all probability, have a determining 
 effect on such a case were it to arise. 
 
 The law as laid down in Croft v. Alison was accepted as the 
 true rule in Limpus v. London General Omnibus Company,' in the 
 
 I 6 M. & W. 499, ^09. 
 
 ^ See OTidence of Mr. R. S. Wright 
 before House of Commons' Committee on 
 Employers' Liability for Injuries to their 
 Servants, questions 605-9, vol. ix. Farlia- 
 merifary Papers, 1876. 
 
 3 (1862) I H. & C. 526 ; 32 L. J. Ex. 
 34; 7 L. T. N. S. 641; iiW.E. 149. 
 Howe B.Newraaroh, 94 Mass. 49. In North 
 V. Smith, 10 C. B. N. S. 572, defendant was 
 
 riding with his groom, past plaintifiT, who 
 was driving three horses with a wajrgon ; 
 as they passed, defendant put his horse to 
 a trot, and the groom spurnng his horse to 
 keep up with his master, the horse struck 
 nut and injured the plaintiff. The Court 
 held that there was negligence on the 
 part of the groom, for -vrfiioh tho master 
 was liable, as being within the, scope of 
 tho employment. 
 
PART m.] MASTEE'S LIABILITY FOR HIS SERVANT. 283 
 
 Exchequer Chamber, where, however, there was considerable dis- 
 cussion, and a difference of opinion as to its effect. An omnibus 
 driver, contrary to printed instructions from his employers, en- 
 deavoured to hinder and obstruct the passage along the road of 
 the plaintiff's omnibus, and, in consequence, the plaintiff's omnibus 
 was overturned. At the trial, Martin, B., in effect, directed the 
 jury that, if a servant acts in the prosecution of his master's busi- 
 ness for th? benefit of his master, and not for the benefit of him- 
 self, the master is liable, although the act may, in one sense, be 
 wilful on the part of the servant.^ The defendants excepted to 
 this direction, that the judge made it an essential part of his 
 direction whether the defendant's driver was doing what he be- 
 lieved to be for the interest of his employer, whereas the real 
 question was, whether th§ driver thought the act necessary for 
 carrying out his master's orders. The Exchequer Chamber {dis- 
 scntientc "Wightman, J.) was not of this opinion. The true rule 
 being : " If a master employs a servant to drive and manage a 
 carriage, the master is responsible for any misconduct of the 
 servant in driving and managing it, which must be considered as 
 having resulted from the performance of the duty entrusted to 
 him, and especially if he were acting for his master's benefit, and 
 not for any purpose of his own.'"' The expressions here limit 
 the rule to the case of the driver of a carriage, but their effect is, 
 of course, applicable to all cases where the relation of master and 
 servant exists. "Wightman, J.,'s objection was, that the act, |;°g"^°^°^_ 
 though done by the driver whilst employed in the service of the j./s objection, 
 defendants, cannot be considered as an act done by him in the 
 course of his service. 
 
 An earlier case, Gregory v. Piper,^ is to the same effect, though Gregory «. 
 the circumstances were different. There the defendant employed '^'"^' 
 a labourer to lay down rubbish near the plaintiff's land in order 
 to obstruct the way, but with special instructions not to let any 
 of the rubbish touch the plaintiff's wall. As the rubbish became 
 dry it naturally shingled down. On an action being brought for 
 trespass a verdict was entered for plaintiff, and sustained on 
 motion, since the trespass was the natural consequence of the 
 act ordered to be done, and that being as much the defendant's 
 act as if it had been done by his express command, trespass could 
 be ma,intained. A proposition laid down by Littledale, J., seems Proposition 
 rather too broadly expressed. He says : " Where a servant does daip)j.^' 
 
 1 See per Byles, J., p. S4i- "■* ''i™ *" S^t tim down, struok the plain- 
 
 " Where a quarrel arose between the tiff, the defendants were held liable for an 
 
 servants of a tram company and of an omni- act done within the scope of their servant's 
 
 bus company, and the tram-car servant authority: Ward !). London Oreneral Omni- 
 
 cot on the step of the omnibus to take the bus Company, 42 L, J. C. P. 265. 
 
 number of the driver, who, while whipping » (1829) 9 B. & C. 591. 
 
284 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Joel V. 
 Morrison. 
 
 Sleatli V. 
 Wilson. 
 
 Fenn v. 
 Harrison. 
 
 Mitchell !). 
 Orassweller, 
 
 Martin i: 
 Temperley. 
 
 work by order of his master, and the latter imposes a restriction 
 in the course of executing his order which it is difficult for the 
 servant to comply with, and the servant, in execution of the order, 
 breaks through the restriction, the master is liable in trespass." 
 
 The judgment of the other judges goes only the length of 
 deciding that where the injurious consequence is a natural or 
 probable result from the execution of the main business, that 
 then the master must be held directly to have authorized 
 the act, though in fact he may have forbidden it. That is, 
 the test is the master's interest, and the servant's intention of 
 advancing it, not exact conformity to open or secret instructions. 
 Joel V. Morrison was a case at JVisi Pruis} The plaintiff was 
 knocked down by the defendant's cart while being driven by 
 defendant's servant. Parke, B., laid down, that if the defendant's 
 servant took out his cart without leave defendant was not liable ; 
 so, toojjf the defendant's servant chose to visit a friend in the 
 master's cart when not on the master's business he would not be 
 liable ; ^ so, too, if the servant lent the cart to a person who was 
 driving without the defendant's knowledge ; so, too, if he were 
 on a frolic of his own, without being at all on his master's 
 business.^ But, on the other hand, the master would be liable if 
 the servant, being on his master's business, took a detour to call 
 upon a friend ; or if he was going on his way against his master's 
 implied commands when driving on his master's business. The 
 test proposed was, was the servant acting in the course of his 
 employment at the time of the accident. 
 
 The law, as laid down by Parke, B., was approved in the case 
 of Mitchell v. Orassweller by the Court of Common Pleas.^ The 
 case was one were the servant had been serving his own ends 
 with his master's cart. The Chief Justice said: "I think at all 
 events if the master is liable where the servant has deviated it 
 must be where the deviation occurs in a journey on which the 
 servant has originally started on his master's business ; in other 
 words, he must be in the employ of his master at the time of 
 committing the grievance." 
 
 What constitutes "acting in the course of the employment" 
 was treated with more detail by Coleridge, J., in Martin v. 
 Temperley.' The question is, were the defendant and the persons 
 "employed by him master and servants? If they were, the 
 general principle applies, and the tests leave no doubt that they 
 
 1 (1834) 6 C. & P. SOI. 
 
 2 Sleath V. Wilson, 9 C. & f. 6B7 ; 
 approved in the American case, Fbi]a> 
 delphia and Eeading Eailroad Company It, 
 Derby, 14 How. (U. S.) 486. 
 
 ' Fenn ». Harrison, 3 T. E. 762 i Mitch- 
 ell ?). Crassweller, 13 C. B. 237. 
 * 13 C. B. 257. 
 " 4 Q. B. 298, at p. 312. 
 
PABT III.] MASTER'S LIABILITY FOR HIS SERVANT. 285 
 
 were. First, the men were selected by the defendant ; secondly, 
 they were paid by him; thirdly, they were doing his work; 
 fourthly, they were under his control — that is, in doing the work 
 in the ordinary way." The question of whether any act done is 
 done in the employment is of course for the jury, and where a 
 man in charge of a horse and cart " had authority to conduct 
 the horse and cart during the day " the Court would not set 
 aside a verdict against the employer on the ground that there was 
 no evidence that the driver was acting in the scope of his em- 
 ptoyment, the evidence being that the man, contrary to his 
 instructions, went home to dinner at a place about a quarter of a 
 mile out of the line of his work, and left the horse and cart in 
 the street before his house — hence the accident.' 
 
 The cases were all recojisidered by the Queen's Bench in Storey storey «. 
 V. Ashton,' when Oockburn, O.J., said : " The true rule is that the ■^''^'°''- 
 master is duly responsible so long as the servant can be said to be idd down by 
 doing the act in the doing of which he is guilty of negligence in ^°'=''''"™> *^-^- 
 the course of his employment as servant. I ain very far from 
 saying if the sei'vant when going on his master's business took a 
 somewhat longer road that owing to this deviation he would cease 
 to be in the employment of the master, so as to divest the latter 
 of all liability : in such cases it is a question of degree as to how 
 far the deviation could be considered a separate journey." 
 
 An American case^ lays it down that the sole question to be Euie in 
 
 determined as to employment is whether at the time the accident cushmau!' 
 
 occurs the person in charge is so in charge with the assent of the 
 
 owner and engaged in his business and in respect to that property 
 
 and business under his control without any reference to the 
 
 question whether the wrong-doer is in the general employment of 
 
 another ; and this must be indisputably so. 
 
 An old case, M'Laughlin v. Prior,'' both illustrates and supports M'LaughUn v. 
 
 Prior. 
 
 > Whatman v. Pearson (1868), L. E. 3 and the jury taking the ciroumstanoes in 
 
 C. P. 422. See also Edwards v. Vestry of the present case into consideration must 
 
 St. Mary, Islington, 22 Q. B. D. 338. In undertake the task of deciding." "I 
 
 Brady i". Giles, i Moo. & B. 494, at p. 495, think it was a question fertile jury whether 
 
 Lord Abinger.C.B., said: "It had always Fisher in this case was a person having 
 
 appeared to him that the Court of King's such authority " : per Jervis, C.J., Giles 
 
 Bench had pursued an erroneous course in v. Taff Eailway Company, 2 E. & B. 822, 
 
 Laugher v. Pointer, when they allowed at p. 829. 
 
 the question now raised to be discussed as ■' (1869) L._E. 4 Q. B. 476. Storey v. 
 
 if it were a question of law for the judge Ashton is distinguished in Wilson r. 
 
 to decide. It always appeared to him that Owens, 16 L. E, Ir. C. L. 225, where the 
 
 it was impossible to lay down any rule of cases are collected in a considered judg- 
 
 law on such a point, no satisfactory line ment. Eayner v. Mitchell, 2 C. P. D. 
 
 could be drawn at which as a matter of 357 ; Johnson v. Pritchard, 8 N. S. Wales 
 
 law thB general owner of a carriage, or E. (j. L. 6 ; Quinn v. Power, 87 N. Y, 
 
 rather the general employer of the driver, 535. 
 
 ceased to be responsible and the temporary * Kimball v. Cushman (1870), 103 Mass. 
 
 hirer became so. Each case of this class 194 ; Wood v. Cobb, 95 Mass. 58. 
 
 must depend upon its own cironmsfcances, ^ 4 M, & G. 48. Wheatley v. Patrick, 
 
286 THE LAW OP NEGLIGENCE. [book i. 
 
 this proposition. Defendant and others hired a cafriage and 
 horses driven by postillions, the servants of the owner of the 
 horses. Defendant rode upon the box. The postillions by mis- 
 conduct overturned plaintiff's gig and injured plaintiff himself, 
 for which he brought his action against defendant. Tindal, O.J., 
 in holding the action maintainable, said : " If he had remonstrated 
 or expostulated with them at the time I do not think defendant 
 would have been liable in this action, even upon the supposition 
 that the post-boys were his servants, for no servant can make his 
 master a trespasser against his will. Or if he had been inside 
 the carriage and had not seen what was going on, and the post-' 
 boys of their own will had done the injury, I do not think the 
 defendant would have been liable; but the fact of his being 
 outside the carriage, with a full view of all that was taking place 
 and not interfering, though I do not say it is strong evidence, is 
 some evidence to go to the jury that he assented to the act of the 
 post-boys. But the case does not stop there, for his subsequent 
 conduct is to be taken into consideration. There is nothing to 
 shew that he repudiated the act of the post-boys, on the contrary, 
 he professed throughout to hold himself responsible. He told the 
 witness, Mason, who was driving the gig in which the plaintiff 
 was seated at the time the accident happened, that if he had 
 succeeded in getting into the line he should have allowed Mason to 
 return to his former position in the line. All this shews that he 
 had a control over the post-boys, and that he assented to their acts." 
 Question of The question of what is an act within the scope of a servant's 
 
 the scope of a employment being for the jury (unless the act is manifestly out of 
 empr"ymeiit *^® course of the Servant's employment, when a nonsuit is proper), 
 for the jury, the reported cases turn in nearly every instance either on the 
 validity of the finding, or on the fact of there being some evidence 
 in the particular case that should be left to the jury.' The 
 general principle of the law is clear, and has already been 
 enunciated, while the particular facts which raise the principle 
 Cases where are of course infinitely various. Thus, the master was held 
 held liable. responsible after a verdict by a jury that the servant was on his 
 master's business at the time of the accident, where the servant, 
 who was possessed of a horge and gig, was going to see his 
 medical attendant, and also purposed calling upon one of his 
 master's customers for payment of a debt, and whilst on his way 
 to the former place the accident occurred.'' Thus, too, where 
 
 2 M. & \V. 650, where u man having ^ M'Kenzie v. M'Leod, 10 Bing. 385; 
 
 borrowed a horse and chaise and sitting Williams v. Jones, 3 H. & C. 256 ; Mitch- 
 
 aloug with the driver when the accident ell v. Crassweller, 13 C. B. 237. 
 
 happened for which action was brought, was " Patten v. Bea (1857), 2 C. B. N. S. 
 
 held rightly "charged as in the possession 606. In an Irish case, where the facts were 
 
 and control of them." somewhat similar, the Co«rt refused to 
 
PAKT m.] MASTER'S LIABILITY FOR HIS SERVANT. 287 
 
 defendant hired a labourer for six weeks at weekly wages, and 
 in that time the plaintiff, not knowing of such arrangement, 
 employed the same labourer to do a job for him, which was being 
 done when the defendant claimed and received of the plaintiff 
 payment for the job, on the ground that the labourer's earnings 
 during the six weeks belonged to him, and the plaintiff thereupon 
 claimed for damages arising from the negligent way in which the 
 work, thatching wheat, was performed.' Again, where the defendant 
 sent a barge to a wharf to be loaded, but the lighterman in charge 
 was unable to get to the wharf in consequence of plaintiff's barge 
 lying in the way without any one in charge of it, when, by 
 direction of the foreman of the wharf, he pushed the plaintiff's 
 barge away and moored his own alongside, and on the ebbing of 
 the tide the plaintiff's bajge settled on a projection and was 
 iujured.^ And where a stevedore employed to ship iron rails had a 
 foreman whose daty it was (assisted by labourers) to carry the 
 rails from the quay to the ship, after the carman had brought 
 them to the quay and unloaded them there, the carman not 
 unloading the rails to the foreman's Fatisfaction the latter got into 
 the cart and threw out some of them so negligently that one 
 fell upon and injured a person who was passing." Again, where 
 the carman of a coal merchant, for the purpose of delivering 
 coals at the premises of a customer, removed an iron plate in the 
 foot- way which covered an opening communicating with the coal- 
 cellar ; no warning was given by the carman that the plate was 
 taken up, in consequence the plaintiff, who was passing along 
 at the time, fell in and was injured.'' So, also, where the master 
 of a ship makes a deviation in order to perform salvage services ; ' 
 and where plaintiff was standing on defendant's platform on his 
 way from another company's terminus to the booking-office of a 
 third company waiting for his luggage, and a porter of the 
 defendants negligently drove a truck laden with luggage so that 
 a portmanteau fell off and injured the plaintiff." But the act of Cases where 
 
 ^ the master was 
 
 held not liable, 
 
 liolcl aa a matter of law, that the master of the heads of van horses which were 
 
 was responsible for the negligence of the obstrucling his way, caiTsing them to move, 
 
 servant : Cormack v. Digby, 9 Ir. C. L. whereby a packing-case fell down and was 
 
 557. A herd got leave from his master broken. 
 
 to go for a day to a neighbouring town to ' Burns v. Ponlsom (1873), L. R. 8 0. P. 
 
 transact business of his own and borion-ed 563. Brett, J., dissented, on the ground 
 
 his master's horse and tax cart for the pur- " that the defendant's duty did not begii) 
 
 pose, it was afterwards agreed that he till the iron rails had been thrown out of 
 
 should bring home some meat from the the cart." 
 
 town for his master. The accident, which ■• Whitely w. Pepper, 2 Q. B. D. 276 ; 
 
 was the cause of action, arose from negli- Clapp v. Kemp, 122 Mass. 481 ; Braith- 
 
 gence in driving. waite v. Watson, 5 limes, L. K. 331. 
 
 1 Holmes v. Onion, 2 C. B. N. S. 790. » The Thetis, L. E. 2 Adm. 365. 
 
 2 Page». Defries, 7 B. & S. 137; over- " Tebbutt z'. Bristol and Exeter Bailway 
 ruling Lamh ».' Palk, 9 C. & P. 62^, where Company, L. B. 6 Q. B. 73. 
 
 a coachman got off his tox and seized hold , ■ 
 
288 THE LAW OF NEGLIGENCE. [book i. 
 
 the servant was held not within the scope of his authority, 
 and the master consequently was held not liable ; where the 
 defendant's servant burnt down a house demised to the defendant, 
 by lighting furze and straw with a view to cleanse the chimney, 
 which smoked ;' where a local board of health, being in occupa- 
 tion of a sewage farm, had entrusted the management to B, and a 
 ditch running between the plaintiff's land and the farm, to render 
 the ditch more capable of carrying olf the drainage from the 
 farm, B. went on the plaintiff's land and pared away his side of 
 the ditch and cut away the brushwood and underwood that 
 impeded the flow of the drainage;' and where plaintiff occupied 
 premises beneath the offices of the defendants, one of whom had 
 a lavatory for his own use exclusively, and his orders to his 
 clerks being that no clerk should come into his room after he had 
 left, a clerk going into the room to wash his hands at the 
 lavatory after his employer had left, turned the water tap and 
 negligently left it, so that water flowed from it into the plaintiff's 
 premises and damaged them.' 
 Peculiar An American case,* reported amongst the most important and 
 
 authoritative cases, carries the liability of the master for the act 
 of the servant to the very verge of absurdity — ^if, indeed, it should 
 not be held considerably to have overstepped that verge. A female 
 passenger, travelling in a railway car, was kissed by the conductor. 
 The conductor was girrested, convicted on a criminal charge of 
 assault, fined 25 dollars, and committed until the fine and the 
 costs' of the prosecution were paid; he was also discharged from 
 the employment of the defendant company immediately upon their 
 being informed of the charge made against him by the plaintiff. 
 An action was brought against the railway company for the 
 assault, and I ooo dollars damages given. An appeal was brought 
 to the Supreme Court of Wisconsin. Eyan, 0. J., in giving judg- 
 ment, expressed himself with considerable rhetorical vehemence, 
 and held the defendants clearly liable. "It is contended," he 
 says, in the course of a long judgment, plentifully garnished with 
 authorities, " that though the principal would be liable for the 
 negligent failure of the agent to fulfil the principal's contract, 
 the principal is not liable for the malicious breach by the agent 
 
 1 M'Kenzic v. M'Leod, 10 Bing. 385. Manchester, Sheffield, and Lincolnshire 
 
 The definition of the words "the ser- Eailway Company, L. B. 8 C. P. 148, at 
 
 vant's duty," given hy Alderson, B., seems p. 152. 
 
 quite inconsistent with the rule laid down ^ Bolinghroke v. Swindon New Town 
 
 in subsequent cases. " In that case the Local Board (1874), L. R. 9 C. P. 575. 
 
 American 
 case. 
 
 cleanse the chimney ; but it was distinctly Q. B.I). 318; Euddeman v. Smith, 5 
 
 servant burnt the house down in trying to ' Stevens v. Woodward (1881), 6 
 
 ~ 3. b. " — ~ 
 
 es, L. 
 to cleanse the chimney, and therefore she * Croaker v. 6hioago and North-Weet- 
 
 was not acting in the course of her employ- ern Railway Company (iS^''^ 17 Am. K, 
 ment": per Blackburn, J., Bayley v. 504; 36 Wis. 657. 
 
 cleanse the cnimney ; out It was distmctly CJ. H. U. 318; J 
 shewn that it was not her duty in any case Times, L. R. 417, 
 to cleanse the chimney, and therefore she * Croaker v. CI 
 
PART III.] MASTER'S LIABILITY FOR HIS SERVANT. 2S9 
 
 of the contract which he was appointed to perform for the 
 principal : as we understand it, that if one hire out his dog to 
 guard sheep against wolves, and the dog sleeps while a wolf 
 makes away with a sheep, the owner is liable ; but if the dog play 
 wolf, and devour the sheep himself, the owner is not liable. The 
 bare statement of the proposition seems a reductio ad absurdum. 
 The radical diflSoulty in the argument is that it limits the con- 
 tract. The carrier's contract is to protect the passenger against 
 all the world ; the appellant's construction is that it is to protect 
 the respondent against all the world except the conductor, whom 
 it appointed to protect her, reserving to tha shepherd's dog a 
 right to worry the sheep. No subtleties in tire books could lead 
 us to sanction so vicious an absurdity." 
 
 This case is absolutely irreconcilable with the English cases, 
 and is cited here rather as an instance of the enthusiasm of a class 
 of lawyers, than for its coincidence with accepted legal principles 
 or the rudiments of common-sense.' 
 
 On the question of the power of a particular agent appointed Power of 
 to a special sphere of duty to arrest offenders when he might agenUo put 
 consider it for the advantage of his employer, there have been a ]a^*'£^oSon. 
 series of cases, mostly relating to the liability of railway com- 
 panies for wrongful arrests by their servants. These require 
 separate consideration. But their result is that the authority 
 to arrest offenders is only implied where the duties which 
 the officer was employed to discharge could not be efficiently 
 performed for the benefit of his employer unless he had 
 the power to apprehend offenders promptly on the spot,^ or 
 could not prevent the loss to his master's property committed 
 to his . charge otherwise than by taking the offender into 
 custody. 
 
 In each of the two earliest cases. Eastern Counties Eailway Eastern 
 Company and Eichardson v. Broom,^ and Eoe 'e. Birkenhead, &o., Eaiiway 
 Bailway Company," the plaintiff, who had been arrested at a §°3°Jnd 
 station for refusal to pay the fare demanded, brought an action Boeo.' 
 
 Till • J.X1 Birbenheaa, 
 
 for false imprisonment. In both the question arose as to tne &c., Eaiiway 
 authority of the officers at the station to make the arrest, and in ^°"'P*"y- 
 
 1 In The Queen v. Great North of Eng- has no such duties cannot be guilty in 
 landKailwavCompany, 9Q. B. 31S, atp. these oases." This may serve as an 
 |36,LordDenman,C.J.,said: "The Court authority as to the law to any to whom 
 « ofCommon Pleas latelyheld that a corpora- the intrinsic absurdity of the decision in 
 fion might be sned in trespass, but no the text is not apparent, 
 body has sought to fix them with acts of ^ Bank of New South Wales v. Owston, 
 immorality. These plainly derive their 4 App. Cas. 270, at p. 288 ; Allen v. 
 character from the corrupted mind of the London and South-Western Kailway Corn- 
 person committing them, and are viola- pany, L. E. 6 Q. B. 65. 
 ticnsof the social duties that belong to ' 6 Ex. 314. 
 men and aobjects. A corporation which * 7 Ex. 36. 
 
 'I' 
 
290 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Giles V. 
 Taff Vale 
 Ball way 
 Coaipany. 
 
 Goff V. Great 
 
 Northern 
 
 Railway^ 
 
 both it was held there was not sufficient evidence bf such 
 authority to go to the juiy. The decision in the first of these 
 eases upon the insufficiency of the evidence for the consideration 
 of the jury is scarcely consistent with later authorities. In the 
 last of them, Parke, B., thought there was no proof that the 
 servant " had ever received any general authority from the 
 company to arrest any person who did not pay his fare, nor was 
 there any evidence of any course of dealing to shew that, as a 
 servant of the company, he was authorized 'to make any arrest on 
 their behalf.'" 
 
 Both these decisions were in 1857. In 1853, in Giles v. 
 Taff Vale Railway Company, the principle governing in these 
 cases was more fully elucidated by the Exchequer Chamber. 
 The question was whether there was evidence sufficient to prove a 
 conversion of certain quicks belonging to the plaintifE by the 
 Taflf Vale Railway Company. The quicks had been brought in 
 two parcels to two different stations belonging to the defendants ; 
 when asked for, reference was made to one Fisher, who was 
 called "the general superintendent of the line,'' and he refused 
 to deliver them. The argument turned on whether Fisher, being 
 guilty of a conversion, bound the company as acting within the 
 scope of his authority. The majority of the Court^ agreed that 
 he did. Jervis, C.J., gave it as his opinion that " it is the duty of 
 the company carrying on a business to leave upon the spot some 
 one with authority to deal on behalf of the company with all 
 cases arising in the course of their traffic as the exigency of the 
 case may demand." The whole of the Court,' however, assented 
 that a "general superintendent" had authority to bind the com- 
 pany in all matters requiring a prompt decision, if they arose in 
 the course of the ordinary business of the company. 
 
 In Gofi" V. Great Northern Railway,* Blackburn, J., thus com- 
 ments upon Giles v. TafE Vale Railway Company* : " The question 
 in that case arose as to the evidence of authority to deal with 
 goods, and the language of the difierent judges being with refer- 
 ence to that subject, they speak only of the exigencies of traffic, 
 or of the business of a carrier of goods ; but the same principle 
 is, we think, applicable to all exigencies that may be naturally 
 expected to arise in the ordinary course of any business of the 
 company. If these are of such a nature that a decision must be 
 come to on behalf of the company promptly, the company may 
 
 1 Bank of New South Wales v. Owston, 
 4 App. Cas. 270, at p. 285. 
 
 2 Jervis, C.J., Pollnok, C.B., Alderson, 
 B., Maule, J., Piatt, B., Williams, J., and 
 Talfourd, J. 
 
 ° Parke and Martin, BB., doubted as to 
 certain facts of the case. 
 ^ (i86i)3E. &E. 672, at p. 681. 
 » 2 B. & B. 822. 
 
PAET III.] MASTER'S LIABILITY FOR HIS SERVANT, 291 
 
 reasonably be expected to authorize some one on the spot to 
 decide for them in such cases." 
 
 In Goff V. Great Northern Railway Company' the plaintiff had Goff ». Grsat 
 been arrested by an inspector of the company, acting under the EaUwa™Com. 
 direction of a superintendent, for travelling on the line without a P""?'' 
 proper ticket, and the Court thought that, '• from the nature of 
 the case, the decision whether a particular passenger should be 
 arrested or not must be made without delay, and as the case 
 may be not of infrequent occurrence, it was a reasonable inference 
 that in the conduct of their business the company should have 
 on the spot officers with authority to determine, without the delay 
 attending on the convening the directors, whether a person 
 accused of this offence should be apprehended " ; but it was added 
 in a subsequent case ^ that " by giving the guard authority to turn 
 out an offending passenger the defendant necessarily gave him 
 also authority to judge for himself who should be considered an 
 offending passenger." 
 
 A distinction was next drawn between acts which the com- 
 pany could themselves do and those they had no authority to do, 
 as marking the boundary line between acts within the implied 
 authority of a superintendent and those outside it. In Poulton pouiton v. 
 V. London and South-Western Railway Company,' a station- and smith 
 master took the plaintiff into custody because, as he erroneously W'eetem 
 supposed, he had not paid the fare for a horse that had been Company. 
 carried on the defendants' railway. By the Act of Parliament 
 governing in the matter," the station-master had authority to 
 arrest and detain in custody any person that did not pay his 
 fare ; but where goods were not paid for they might only be 
 detained.' On the ground, then, that it was an act that the 
 company could not themselves lawfully do, it was held out of the 
 scope of the station-master's authority, and one for which the 
 company could be no more responsible than if he had committed 
 
 1 3E.&E.672. Coxw.MidlandCounties J.,p.4i, which "wasawell-oonBideredcase, 
 
 Bailway Company, 3 Ex. 268, decided and the principles there laid down have 
 
 that it was not incident (0 tlie employment never been deviated from," per Blaokbura, 
 
 uf »BtatioD-master or other sei-vants of a J., p. 38. 
 
 railway company to bind the company by ^ Seymour v. Greenwood, 7 H. & N. 
 
 contracts for siirgical attendance on in- 355, at p. 358 ; where the declaration was 
 
 jured passengers. The authority of this lor wrongfully turning a person out of an 
 
 case was questioned and shaken in Walker omnibus. Walker v. South-Eastern Eail- 
 
 V. Great Western Bailway Company, L. E. way Company ; Smith v. Same, L. E._ 5 
 
 2 Ex. 228 where itwas held that the general C. P._ 640. This case turns wholly on its 
 
 manager of a railway company has, as in- peculiar facts. 
 
 cidental to his employment, authority to ^ l_ R.2Q.B. 534; Charlton «. London 
 
 bind the company to pay for surgical Tramways Company, 4TimesL.E. 157, in 
 
 attendance. See, too, Moore v. Metro- C. A. p. 629 ; Mali v. Lord, 39 N. Y. 381. 
 
 pnlitan Bailway Company, L.B. 8 Q. B. 36, * 8 Vict. c. 20, ss. 103 and 104. 
 
 "this case cannot be distinguished from » Section 97. 
 Goff t;.GreatNorthemBailway,"per Lush, 
 
292 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Edwards v, 
 London 
 and North- 
 Western 
 Bail way 
 Company, 
 
 Allen V. 
 
 London 
 
 and gouth- 
 
 Wostem 
 
 Eailway 
 
 Company. 
 
 Judgment of 
 Blackburn, J, 
 
 Two limita- 
 tions of the 
 rule laid down 
 therein. 
 
 an assault or done any other act whicli the company never author- 
 ized him to do. So in Edwards v. London and North-Western 
 Eailway Company* it was held that a foreman porter in temporary 
 charge of a station had no implied authority to arrest a person 
 whom he suspected of stealing the company's property. 
 
 The general proposition that every servant who is entrusted with 
 the property of his master has an implied authority to put the law 
 in motion with reference to any offence that may be committed in 
 connection with that property was definitely raised in AUen v. 
 London and South- Western Eailway Company.^ The plaintiff 
 took a ticket at one of the defendants' stations and tendered in 
 payment a two-shilling piece. Amongst the change handed the 
 plaintiff by the booking-clerk was a French two-sous piece, which 
 the plaintiff refused to accept and the clerk to take back. The 
 plaintiff then reached over the counter to put his hand into the 
 bowl of the till which contained copper coin. The booking-clerk 
 seized him, called a policeman, and the plaintiff was taken to the 
 station and locked up for the night. The Court held that the 
 clerk had no authoi'ity to act as he did. Blackburn, J., said : 
 " There is a marked distinction between an act done for the pur- 
 pose of protecting property by preventing a feldny or of recover- 
 ing it back, and an act done for the purpose of punishing the 
 offender for that which has already been done. There is no 
 implied authority in a person having the custody of property to 
 take such steps as he thinks fit to punish a person who, he sup- 
 poses, has done something with reference to the property which 
 he has not done. The act of punishing the offender is not any- 
 thing done with reference to the property, it is done merely for 
 the purpose of vindicating justice. And in this respect there is 
 no difference between a railway company, which is a corporation, 
 and a private individual." In the same judgment there are given 
 two possible cases of limitation to the rule thus laid down : " If 
 a man in charge of a till were to find that a person was attempt- 
 ing to rob it and he could not prevent him from stealing the 
 property otherwise than by taking him into custody, the person 
 in charge of the till might have an implied authority to arrest the 
 offender ; or if the clerk had reason to believe that the money 
 had been actually stolen and he could get it back by taking the 
 thief into custody, and he took him into custody with a view of 
 recovering the property taken away, it might be that that 
 might be within the authority of a person in charge of a till." ' 
 
 ■■ L. E. 5 C. P. 445. 
 2 fi87o) L. E. 6 Q. B. 65. 
 s Compare Blades 1;. Higge, 12C.B. N. S. 
 501 ; II H. L. C. 621 ; when a servant has 
 
 reasonahle grounds for believing that pro- 
 perty of his master entrasted to his charge 
 has been wrongfully taken out of his cus- 
 tody, it is within the scope of his duty to 
 
PAET III.] MASTER'S LIABILITY FOE HIS SERVANT, 293 
 
 In an Iiish case ' in which there was a very great divergence Van Den 
 of opinion, three judges,' in the Irish Exchequer Chamber, §fs°^;^ii. 
 held — where the allegation against the plaintiff, and for which '^7 Compimy. 
 he had been arrested, was of stealing a ticket — that if the 
 ticket-clerk and station-master had reasonable grounds for be- 
 lieving that a ticket had been abstracted they had implied 
 authority from the railway company to detain the plaintiff in 
 order to regain the ticket. The majority of the Court, however, 
 preferred to place their decision on the ground that there was 
 evidence to show that the company's servants detained the plain- 
 tiff in the beUef that he was attempting to travel on the defend- 
 ants' railway without payment of his fare, by means of a stolen 
 ticket, and that they were assuming to act within the powers of the 
 Eailways Clauses Consolidation Act, 184S (8 Vict. c. 20), ss. 103, 
 104. 
 
 A somewhat different case is Bayley v. Manchester, Sheffield, Bayiey v. 
 and Lincolnshire Railway.^ There the plaintiff was not arrested Sheffield, and 
 but assaulted merely. By the rules and bye-laws of the company LincoUisiiire 
 it was the duty of the company's porters to prevent passengers 
 going by wrong trains. A porter seeing the plaintiff in a 
 carriage, and conceiving it was a wrong one, pulled him out. The 
 passenger was right, the porter wrong, the passenger was injured. 
 The company was held liable both in the Common Pleas and on 
 appeal to the Exchequer Chamber. Kelly, C.B., thus expressing Principle 
 the principle : " Where orders are given to some extent incon- expressod^by 
 sistent, and such that it may not always be easy under all cir- Kelly, O.B. 
 cu'mstances to comply literally with the provisions of all of them — 
 for instance, where, as in the present case, there is a general order 
 to prevent persons from travelling in the wrong carriage if pos- 
 sible, accompanied by a direction not to remove them from the 
 carriage — it is obviously very likely that the servant may, while 
 acting in the performance of the general duty cast upon him, 
 neglect the particular direction as to the mode of doing it. But 
 it appears to me that he will be none the less acting within the 
 scope of his employment." The last case on this branch of the 
 law, Bank of New South Wales v. Owston,'' is chiefly valuable for 
 a succinct examination of the leading decisions by Sir Montague 
 Smith.' The particular point for decision was, whether an acting 
 manager of a bank had authority to. direct a prosecution where the 
 clear inference from the evidence was that he was subordinate to 
 
 detain a person -whom he reasonable sns- - Monahan, C.J.,Pigott, C.B., andLaw- 
 
 peots as the wrongdoer in order to regain son, J. 
 
 possession of the property, provided that in ' L. E. 7 C. P. 41 5, ill the Exchequer 
 
 BO doing he uses no unnecessary Tiolence. Chamber, L. E. 8 C. P. 148. 
 
 •^ Van Den Eynde V. Ulster Eailway * a App. Cas, 270. 
 
 Company, 5 Ir. E. C. L. 6, 328. " At p. 285. 
 
294 THE LAW OF NE&LIGENCE. [book i. 
 
 the general manager, who was himself subject to the authority of 
 the directors. The decision was, that from his position alone no 
 general authority to prosecute on behalf of the bank was given ; 
 and this is in complete accord with the earlier cases. 
 Liability of A word must be added as to the liability criminally of the 
 
 naiiyforaot'of master for the act of his servant. It is obvious that the master 
 servant. jg jjable for the criminal acts of the servant when he has expressly 
 
 commanded them or personally co-operated with the servant in 
 their commission.' The law in this class of cases may perhaps be 
 more correctly stated by saying that the relation of master and 
 servant does not render the master the less liable to answer when 
 he is accessory, whether before or after the fact, than if no relation 
 of master and servant existed. If the master co-operates with the 
 servant the master is then himself a principal, and must answer 
 for his own wrongdoings. No amount of mere negligence short of 
 becoming an accessory renders "the master criminally liable for his 
 servant's crime. Thei-e are, however, qiiasi-CT'iminal cases where 
 the master is liable for the act of his servant. For example, in The 
 King u Dixon'' it was held that if a master baker will introduce 
 alum he is liable criminally for injurious consequences brought 
 about by his servant's disregard of his instructions. The chief 
 hea,d of this qtucsi-crimiaaX responsibility is found in the cases 
 under the revenue laws. It has been held that a master is 
 answerable for the illegal act of his servant, if within the scope 
 of his probable authority, and done for the master's benefit. Thus, 
 in Attorney-General v. Siddon,' where, after the detection of 
 smuggled tobacco concealed in a cellar, a servant in his master's 
 absence procured a permit by which he intended to protect the 
 goods from seizure, the master was held liable for the penalty 
 attached to the offence of unduly using a permit. Bayley, J., in 
 giving judgment, said : " This is not properly a criminal pro- 
 ceeding, but, as a civil proceeding for a debt of the Grown, it is 
 penal in its nature, as are also infoi-mations for penalties on the 
 statutes of usury, or against a master for the giving unstamped 
 receipts by his servants. Whether the information here is penal 
 or civil in its nature, the act of the servant is by law to be con- 
 sidered to be given by the master to the servant for the caiTying 
 on the business of the former." In criminal proceedings for libel, 
 too, a sale by the servant in the shop of the master, without the 
 knowledge, privity, or concurrence of the master in the sale, or 
 even without a knowledge of the contents of the libel sold, is 
 sufiScient evidence to convict the master, though liable to be con- 
 
 1 Foster C. C. 125 ; Stephen, Digest of Criminal Law, 22, 23. 
 
 2 3M. &S. II. 3 iTyr. 41. 
 
PART III.] MASTER'S LIABILITY FOR HIS SERVANT. 295 
 
 tradicted.' So also where a public nuisance is caused by the way 
 in which a man's seiTants conduct his business, the master is 
 indictable,^ and under the special language of special Acts of 
 Parliament.^ But it holds good, in the absence of special legisla- 
 tive provision, that where proceedings are a prosecution for a crime 
 the master is not liable for the act of his servant.'' 
 
 The following propositions may be considered as established : — Propositions. 
 
 1 . A man is liable for another's tortious' act (a) if he expressly 
 directs it, or (6) if the act is subsidiary or incidental to what has 
 been directed.* 
 
 2. An act is subsidiary or incidental (a) where it is itself done 
 with the view of advancing the master's interests in the business 
 committed to the servant," or (b) is a natural result from acts done 
 in furtherance of the master's interests,' or (c) where it is done at a 
 time when the servant is acting in the course of his employment.' 
 
 3. The " business committed to the servant " is held to include 
 not merely all acta done in the rightful prosecution of such 
 business, but all acts done by a negligent, indiscreet, reckless, or 
 over-zealous servant during the conduct of it, and taking their 
 rise out of it." 
 
 4. All acts done in the conduct of business, and with the pur- 
 pose of promoting it, are done in the scope of the business, so far, 
 that is, as to render the employer liable for the results of the same, 
 even though, in fact, they are done contrary to the express in- 
 structions of the master.'" 
 
 5. Where the employer has given positive express instructions 
 forbidding the doing of certain acts, which acts are, nevertheless, 
 natural or probable results of the doing of the business enjoined, 
 the master shall yet be held to have authorized them, if, in the 
 carryiug out of his orders, that which is there expressly forbidden 
 to be done results." 
 
 6. Where the act is a positive wilful act done to gratify 
 feelings of irritation against another, but yet in carrying out the 
 
 ^ Eex V. Almon, 20 St. Tr. 803, at p. ^ Barwiuk w. English Joint Stock Bank, 
 
 838; 5 Burr. 2686. See The Queen v. L. E. 2 Ex. 259; 36 L. J. Ex. 147; 16 
 
 Holbrook, 3 Q. B. D. 60, 4 Q. B. D. 42. L. T. N. S. 40 ; 15 W. K. 877. 
 
 ^ The Queen v. Stephens, L. R. i Q. B. " Limpus v. London General Omnibus 
 
 702. Company, i H. & C. 526 ; 32 L. J. Ex. , 
 
 3 Mullins V. Collins, L. R. 9 Q. B. 34 ; 7 L. T. N. S. 641 ; 11 W. E. 149. 
 
 292; Redpate v. Haynes, i Q. B. D. 89 ; ' Gregory v. Piper, 9 B. & C. 591. 
 
 Cunrly v. Leoocq, 13 0- B. D. 207 ; Boml ^ Storey v. Ashton, L. R. 4 Q. B. 476 ; 
 
 V. Evans, 21 Q. B. D. 249. Compare 38 L. J. Q. B. 223 ; 17 W. R. 727. 
 
 the American cases, Commonwealth v. " Bayley v. Manchester, Sheffield, and 
 
 Holmes, 119 Mass. 195 ; Comnionwealth Lincolnshire Railway, L. R. 7 C. P. 415; 
 
 ». Pratt, 126. Mass. 462. L. R. 8 C. P. 148; 42 L. J. C. P. 78; 
 
 * Newman «. Jones, 17 Q. B. P. 132. 28 L. T. N. S. 366. 
 
 See, as to a proceeding under 16 & 17 '" Limpus v. London General Omnibus 
 
 Vict. c. 128, Chisholm v. Doulton, 5 Times Company, supra. 
 
 L. R. 437. " Gregoiy v. Piper, 9 B, & C. 591 
 
296 THE LAW OF NEGLIGENCE. [book i. 
 
 business of the employer, and under the belief that the act so 
 done is for the benefit of the employer, the employer is liable.' 
 
 7. Where the servant is in pursuit of his own object, and 
 not upon the business of his employer, although he is at the time 
 using the facihties with which his employment has furnished him, 
 the employer is not liable.^ 
 
 8. Where the act is a wilful trespass done from private malice, 
 and without regard to the business of the employer, the employer 
 is not liable.^ 
 
 9. Where the act done, though for the advancement of the 
 interest of the employer, is yet concerned with matters other than 
 those that the employer has entrusted to the servant, the employer 
 is not liable." 
 
 10. Where the act is not authorized by the employer, but the 
 opportunity for doing such act is afforded by the relation 
 between the employer and employed, the employer is not liable." 
 
 1 1 . The question of what acts are within the scope of authority 
 is for the jury, what can be for the judge.* 
 
 12. It is a duty of the employer carrying on a business, either 
 himself to be present, or to leave available some one with authority 
 to deal without delay with all cases arising, if the exigencies of 
 the business may so demand.' 
 
 1 3 . Acts professing to be done under the employer's authority 
 and for his benefit, but such as he himself could not legally do, 
 do not render him in any case liable.' 
 
 14. A servant has no implied authority to punish a person 
 whom he supposes has done some wrong to his employer's pro- 
 perty, when the object in view be the vindication of justice, and 
 not the preservation of propei'ty." 
 
 1 5 . A servant has an imphed power of detaining a person 
 whom he reasonably suspects is a wrongdoer in order to reclaim 
 or preseiTe his employer's property.'" 
 
 ' Ward V. General Omnibus Company, Jackson, 3 App. Cas. 193 : 47 L. J. C. P. 
 
 42 L. J. 0. P. 26s ; 28 L. T. N. S. 850. 303 ; 37 L. T. N. S. 697 ; 26 W. R. 
 
 ^ Bayner». Mitchell, 2 C. P. D. 357; 175. 
 
 25 W. 'E. 633 ; Storey v. Ashton, L. E. ' Giles v. Taff Vale Railway Company, 
 
 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; 17 2 E. & B. 822. Goff v. Great Northern 
 
 W. E. 727 ; Quinn v. Power, 87 N. Y. Railway Company, 3 E. & E. 672 ; 30 
 
 535- L- J- Q- B. 148 ; 3 L. T. N. S. 850. 
 
 3 M'Manus v. Crickett, i East 106. » Poultou v. London and South-Western 
 
 * Poulton V. South-Western Railway Eailway Company, L. R. 2 Q. B. 534 ; 36 
 
 Company, L. R. 2 Q. B. $34 ; Boling- L. J. Q. B. 294; 17 L. T. N. S. 11. 
 
 broke, v. Swindon Local Board, L. R. 9 ' Allen v. London and South-Western 
 
 C. P. S7S ; Lyon v. Martin, 8 A. & E. Railway Company, L. R. 6 Q. B. 65 ; 40 
 
 512. L. J. Q. B. 55 ; 23 L. T. N. S. 612 ; 19 
 
 ^ Mitchell'?). Crassweller, 13 C. B. 237 ; W. R. 127. 
 
 22 L. J. C. P. 100; Eaynerc. Mitchell, " Blades v. Higgs, 11 H. L. C. 621 ; 
 
 2 C. P. D. 357. Van Den Eynde v. Ulster Railway Com- 
 
 6 Metropolitan Eailway Company v. pany, 5 Ir. E. C. L. 6, 328. 
 
PART III.] MASTER'S LIABILITY FOR HIS SERVANT, 297 
 
 1 6. A plaintifi cannot recover first against the servant, and 
 subsequently against the employer in another action, but having 
 recovered any sum against either, his right to compensation from 
 the other is gone.' 
 
 1 7. The master is not criminally liable for the act of his 
 servant, unless he is in such a position with respect to it that he 
 would be liable to punishment as an accessory.^ 
 
 1 8. Where a person maintains works, employs servants, and 
 carries on his business by his servants in such a manner that, in 
 the event of private injury resulting, an action would lie, such 
 person is liable personally where the injury is to a public right, 
 though the remedy is in form a criminal proceeding.^ 
 
 19. Where a servant commits a criminal offence while acting 
 in his master's business,,and in the ordinary course of the busi- 
 ness, the master is primd facie liable, but may discharge himself 
 by shewing that what was done was without his privity or con- 
 currence.* 
 
 20. In certain cases the master is made liable by statute for 
 the criminal act of his servant not authorized by him/ 
 
 ^ Wright V. London General Omnibus * E. v. Almoii, 20 St. Tr. at p. 
 
 Company, 46 L. .J. Q. B. 429. 838. 
 
 " Newman v. Jones, 17 Q. B. D. 132; ^ Bond v. Evans, 21 Q. B. D. 249 ; 57 
 
 SS L. J. M. C. 1 13 ; 5S L. T. 327. L. J. M. C. 105 ; 59 L. T. 41 1 ; 36 W. £. 
 
 ' The Queen v. Stephens, L. K. i Q. B. 767. See 35 & 36 Vict. t. 76, ss. 60-69 ! 
 
 702 ; 35 L. J. Q. B. 251 ; 14 L. T. N. S. 44 & 45 Vict. c. 37. 
 593 ; 14 W. E. 859. 
 
CHAPTER II. 
 
 LIMITATIONS ON EMPLOYER'S LIABILITY WHERE WORK 
 IS DONE UNDER AN INDEPENDENT CONTRACT. 
 
 The relation between contractor and employer is much more 
 complicated than that between master and servant; and legal 
 opinion on the subject, after having undergone considerable 
 fluctuations, has at length settled itself, in a course of decision, 
 quite opposite to what some time ago was the prevailing drift. 
 View formerly For a long time there was a strong inclination to adopt the 
 preva on . proposition that a person shall be answerable for any injury which 
 arises in carrying into execution that which he has employed 
 , another to do ;' and the prevailing opinion was, that the question 
 
 whether a man were contractor or servant made no difference 
 whatever in the liability of his employer.^ 
 View accepted The law then definitely formulated itself, and limited the 
 at present. liability of the owner of premises to those acts which they defi- 
 nitely authorized, or which were in the nature of a nuisance 
 that they permitted. It is the progress of legal authority from 
 the former to the latter of these views that we have now to 
 consider. 
 Bush v. The leading case to be considered on the earlier view of the 
 
 einman. j^^ -^ g^gj^ ^ Steinman." The case was this. A. having a house 
 by the roadside, contracted with B. to repair it for a certain 
 sum. The materials were to be furnished by C. and D. D.'s 
 servant brought a quantity of lime and placed it in the road, by 
 which the plaintiff's carnage was upset. The Court held A. 
 answerable for the damage sustained. At the trial, Eyre, C.J., 
 had nonsuited ; on the motion he changed his opinion : " Though 
 
 1 Eyre, C. J., in Bush u. Steinman, i B. (or possibly by his contractors, for that 
 
 & P. 404, says, indeed, "this seems to be would have made no difference), that an 
 
 too large and_ loose;" but no other jirin- injury was done to the plaintiff's house, 
 
 ciple is snbstituted as the basis of that and his lordship was held responsible, 
 
 decision. _ ' (1799) I B. & P. 404; Hilliard v. 
 
 * Byre, C.J., in Bush v. Steinman : Bichardson, 69 Mass. 349 ; Bigelnw's 
 
 Lord Lonsdale's colliery was worked in Leading Cases on the Law of Torts, 636 ; 
 
 such a manner by his agents and servants Simons v. Monier, 29 Barb. 419. 
 
PART III.] INDEPENDENT CON,TRACTS. 299 
 
 I still feel difficulty in stating the precise principle on which tho 
 action is founded, I am satisfied with the opinion of my brothers." 
 He, however, relied upon three cases, Stone v. Cartwright," 
 Littledale v. Lonsdale,'' and a case stated upon the recollection 
 of Buller, J. Stone v. Cartwright was a case of injury done Stone v. 
 upon the land of the defendant's principal, and by the principal's ^*'''^"s'''- 
 servants ; the actual decision being that an action should be 
 brought " against the hand permitting the injury, or against the 
 owner for whom the act was done.'" This case, then, that pro- 
 ceeds on the assumption of the existence of the relation of master 
 and servant, is no authority in a case where the relation of master 
 and servant does not exist.'' 
 
 The next case is Littledale v. Lord Lonsdale.* " Lord Lonsdale's Littledale v. 
 colliery was worked in suph. a, manner by his agents and servants °^ ""^ " "' 
 (or possibly by his contractors, for that would have made no 
 difference), that an injury was done to the plaintiff's house, and 
 his lordship was held responsible. Why ? Because the injury 
 was done in the course of his working the colliery." But in this 
 case the acts done were on the property of the defendant, and 
 were done in the course of working mines, for which purpose the 
 land was occupied, and were in the nature of a nuisance inter- 
 fering with the property of a neighbour. If, too, the working 
 was done by agents or servants working in the method pre- 
 scribed by the master, a difference of the rule applicable is 
 apparent. On all which grounds the case is distinguishable 
 from Bush v. Steinman, and the decision to be sustained on 
 independent ground. 
 
 The third case, on which Eyre, C.J., based his judgment, was Oase recol- 
 one "my brother Buller recollects." "It is this. A master B^5i^^r^'']'_ 
 having employed a servant to do some act, the servant out of 
 idleness employed another to do it, and that person, in carrying 
 into execution the order which had been given to the servant, 
 committed an injury to the plaintiff for which the master was 
 held liable." The facts of the case are very vague and ill- 
 reported. Assuming, however, that it was well decided, the 
 relation of master and servant is definitely stated to exist, a 
 relation that may be sufficient for the decision, but which did 
 not exist in Bush v. Steinman. It would also be necessary to 
 
 ' 6 T. R. 411. 2 2 H. Bl. 267. H peel- of Parliament, having pleaded in 
 
 * "He hired and dismissed the colliers chief to a bill cited against him in the 
 
 at his pleasure." Court of King's Bench, cannot afterwards 
 
 ** The relation between master and ser- assign for error that he ought to ha^^e 
 
 vant as commonly exemplified in actions been sued by original writ and not by bill, 
 
 brought against lhe master is not suffi- The facts may, however, be collected from 
 
 cient: per Eyre, C.J., atpp. 406-7. 2H. the pleadings set out in the report. Those 
 
 Bl. 267, p. 299. in the text are taken from Byre, C.J.,'8 
 
 ^ This, as reported, is on the point that judgment. 
 
300 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Judgment of 
 Heath, J., in 
 Bush V. 
 Steimnan, 
 
 presume an authority empowering the servant to delegate his 
 duties.' 
 
 Other cases were referred to by the other judges, but these 
 may be classed either as acts done by servants or agents under 
 efficient control of the defendants, or nuisances created upon the 
 premises of the defendants, and causing injury to the plaintiffs. 
 
 In Bush V. Steinman, however, the servant of the lime-burner, 
 was, in no ordinary sense, the servant of the defendant. There 
 was no nuisance on the defendant's land. The lime was not on 
 the defendant's land at all, and he had no control over the person 
 who placed it where it actually was placed. 
 
 Heath, J., takes a short ground for supporting his decision. 
 " All the sub-contracting parties were in the employ of the 
 defendant." This is almost in terms a statement of the pro- 
 position that a person shall be answerable for an injury which 
 arises in carrying into execution that which he has employed 
 another to do. And Rooke, J., states the same proposition in 
 different words : " The person from whom the whole authority is 
 originally derived is the person who ought to be answerable, and 
 great inconvenience would follow if it were otherwise." 
 
 This position has long since ceased to be law. 
 
 Two Nisi Privs cases before Lord Ellenborough, however, gave 
 sanction to the leading decision. 
 Sly V. Edgeley. In Sly V. Edgeley," defendant, who owned cottages which were 
 subject to be overflowed, employed a bricklayer to sink a sewer 
 in the street. The brickl&yer was negligent, and the plaintiff 
 was injured. The defence was that the bricklayer was not 
 the servant to the defendant. Lord Ellenborough is reported 
 to have said : "It is the rule of Respondeat superior what the 
 bricklayer did was by the defendant's direction." It may well be, 
 then, that the bricklayer was, in the opinion of the jury, a 
 mere servant,' and the case may be thus sustained. The marginal 
 note, however, is : "If a person employs a tradesman to do 
 any work for him, and in the execution of it the tradesman or his 
 servants by their negligence cause an injury to any one, the person 
 employing them is liable for the injury arising from such neglect." 
 This is not borne out by the case as reported, and, if it were, has 
 long since been held to be incorrect. 
 
 1 " If I select a person in whom I place 
 confidence, can he employ another? " per 
 Lord Campbell, C.J., Sadler v. Henlock, 
 4 E. & B. 570, at p. 575. This point, if 
 it needs decision, has been definitely de- 
 cided in America. A servant, not having 
 authority to employ other servants, en- 
 gaged one G. to assist him in moving a 
 crate of crockery. Through the negligence 
 
 or inefficiency of G., combined with care- 
 lessness of the servant himself, the crate 
 was overturned. Held, that the employer 
 was not liable, as the acts done were out- 
 side the servant's authority. Jewell v. 
 Grand Trunk Bailway, 55 New Hamp. 
 84. 
 
 ^ 6 Esp. 6. 
 
 ' See Sadler v. Henlock, 4 E. & B. 570. 
 
PART III.] INDEPENDENT CONTRACTS. 301 
 
 The other Nisi Prius case, Matthew v. West London Water Matthew ». 
 Works,* defendant contracted with pipelayers to lay down pipes Waterwoi-ka" 
 for the conveyance of water through the streets of the city. The 
 workmen of the pipelayers were negligent. It was held that the 
 plaintiffs could recover, though no reason is given for Lord Ellen- 
 borough's decision. 
 
 Maule, J., in Overton v. Freeman,'' alluding to the case, says : Mauifi, J.,'s 
 " It is but a Nisi Prius case ; the report is short and unsatisfactory; °°™™''" ■ 
 and the particular circumstances are not detailed." 
 
 The case of Leslie v. Pounds' can be maintained altogether, Leslie ». 
 independently of Bush v. Steinman, and, therefore, lends no sup- 
 port to it. Defendant was the proprietor of a house ; Daniels was 
 his lessee, who, for about six months previously to the action being 
 brought, had ceased to •occupy for the purpose of having it 
 thoroughly repaired, which repairs were done at the expense of 
 the lessor, but under the superintendence of the defendant. 
 Defendant had been remonstrated with by the local authority on 
 the dangerous state of a cellar-door opening in the pavement ; 
 he had promised to take care of it, and had put some boards over 
 the cavity as a temporary covering. These got displaced ; the 
 plaintiff fell into the cellar, and was hurt. The CoiH-t held the 
 plaintiff could recover, for " the defendant takes on himself these 
 repairSj not as the agent of Daniels, but as the landlord of the 
 house." Neither of the grounds on which Bush v. Steinman was 
 decided — that all the sub-contracting parties were in the employ 
 of the defendants, and that the case was within the rule of the 
 three authorities" — either derives authority from, or affords it to, 
 Leslie v. Pounds. 
 
 In Bush V. Steinman, Heath, J., says' : " Where a person hires 
 a coach upon a job, and a job coachman is sent with it, the 
 person who hires the coach is liable for any mischief done by the 
 coachman while in his employ, though he is not his servant." 
 This is precisely the point that called for decision in Laugher v. Laugher v. 
 Pointer." At the trial, Abbott, O.J., directed a nonsuit. A rule ■''"°*^'^- 
 nisi for a new trial was afterwards granted, and, upon the argu- 
 ment, there being a difference of opinion on the bench, the case 
 was directed to be argued before the twelve judges, all of whom, 
 except the Chief Baron, met for that purpose in Serjeants' Inn 
 
 ^ 3 Campb. 403. referred to in the judgments; with reference 
 
 ^ 1 1 C. B. 872. to this class of cases, Penton «. Dublin 
 
 ' 4 Taunt. 649. Steam Packet Company, 8 A. & E. 835, I 
 
 * Stone 1). Cartwright, 6 T. R. 411. P. & D. 103; and Dalyell v. Tyrer, El. 
 Lonsdale v. Littledale, 2 H. Bl. 267. Bl. & El. 899, may be looked to. See, too, 
 Bnller, J.,'s case. for double liability on contract and in 
 
 ' I B. & P. 404, at p. 409. tort, Foulkes v. Metropolitan District 
 
 * (1826) s B. & C. 547. The case of Railway Company, 4 C. P. D. 267, 5 
 charterers of ships and shipowners was C. P, D. 157. 
 
302 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 
 
 Juclgments of 
 Holroyd and 
 Bayley, JJ. 
 
 Jadsjment 
 of Little - 
 dale, J. 
 
 Qnarraiin v, 
 Burnett. 
 
 View of Little 
 dale, J., and 
 Abbott, C.J,, 
 prevails. 
 
 Hall, and, the difference of opinion not being removed, judgment 
 was ultimately given by the judges of the King's Bench ; when 
 Littledale, J., and Abbott, O.J., were for discharging the rule, 
 and Holroyd and Bayley, JJ., held that the nonsuit was wrong. 
 Holroyd and Bayley, J J., founded themselves on the authority 
 of Bush V. Steinman, which was cited for the proposition that 
 " responsibility is not confined to the immediate master of the 
 person who committed the injury, and that the action may be 
 brought against the person from whom the authority flows to do 
 the act in the negligent execution of which the injury has arisen." 
 That proposition being established, the liability follows. 
 
 Littledale, J., controverts this in two ways' — First, by an exami- 
 nation of authorities tending to shew that the owner of the horse 
 would be liable ; and, since " the law does not recognize a several 
 liability in two principals who are unconnected," liable to the 
 exclusion of the traveller. Secondly, by drawing the distinction 
 that in Bush v. Steinman "the injury was done upon or near and 
 in respect of the property of the defendants, of which they were 
 in possession at the time. And the rule of law may be that in all 
 cases where a man is in possession of fixed property he must take 
 care that his property is so used and managed that other per- 
 sons are not injured, and that whether his property be managed 
 by his own immediate servants or by contractors or their servants." 
 Smith V. Lawrance^ came before the same Court that had differed 
 in Laugher v. Pointer ; the facts were identical, except only that 
 the horses were post-horses, and not job-horses, as in Laugher v. 
 Pointer. This distinction was taken hold of by Bayley, J., as 
 shewing that in this case " they are taken never to be out of the 
 possession of their actual owner,'' and the Court unanimously held 
 the defendant liable. 
 
 In the subsequent case of Quarman v. Burnett,' the view of 
 Littledale, J., and Abbott, C. J., with reference to the liability of the 
 hirer of a job carriage — ^viz., that the hirer was not liable, but the 
 job-master — was adopted, and has since been followed. 
 
 With reference to the rule of law suggested by Littledale, J., 
 as applicable to fixed property, Parke, B., says'* : It appears " to 
 us to be quite satisfactory; and the general proposition above 
 referred to (i.e., that a person is liable, not only for the acts of 
 
 1 5 B. & L. 5S6 ; Fletcher v. Braddiok, 
 2 N. R. 182 ; Nicholson v. Mouncey, 
 15 East 384 ; Sammell v. Wright, 5 Esp. 
 263 ; Dean v. Branthwaito, 5 Esp. 35. 
 
 a (1828) 2 Man. & Rv. i. 
 
 3 (1840) 6 M. & W. 499. It was 
 attempted to carry the cases somewhat 
 farther in M'Laughlin v. Pryor, 4 M. & 
 
 G. 48, but Tindal, C.J., there held that 
 the conduct of the defendant, who sat on 
 the box snd assented to the wrongful 
 action of the post-boys, made him 
 dominus pro tempore. Shiells v, Edin- 
 burgh and County Railway Company, 18 
 D. 1 199, is a Scotch decision in point. 
 * At p. Sio. 
 
PART III.] INDEPENDENT CONTRACTS. 303 
 
 his own servant, but for any injury which arises from the act of 
 another person in carrying into execution that which that other 
 person has contracted to do for his benefit), upon which only can 
 the defendants be liable for the acts of persons who are not their 
 servants, seems to us to be untenable." 
 
 Among the cases referred to in Quarman v. Burnett was Randle- Eandioson v. 
 son V. Murray.' A warehouseman employed a master porter to """^' 
 remove a barrel from his warehouse. The master porter employed 
 his own men and tackle, and, through the negligence of the men, 
 the tackle failed, and the barrel fell and injured the plaintifi". 
 The case was argued on the ground that the men whose negli- 
 gence caused the injury were not the servants of the warehouse- 
 man, or that at least the question was for the jury.^ Lord Denman, 
 C.J., based his decision on the assumption that, "had the jury 
 been asked whether the porters whose negligence occasioned the 
 accident were the servants of the defendants, there can be no 
 doubt they would have found in the affirmative." But Littledale, 
 J., probably with the rule he suggested in Laugher v. Pointer in 
 his mind, was of opinion that it made " no difference whether the 
 persons whose negligence occasions the injury be servants of the 
 defendant paid by daily wages, or be brought to the warehouse by 
 a person employed by the defendant." Had the jury taken Lord 
 Denman's view there could be no doubt as to the justice of the 
 decision. It is probably with reference to the other view that Pollock, O.B.,'s 
 Pollock, O.B., says in Murphy v. Oaralli,^ " The case of Randleson th™!™ 
 v. Murray seems at variance with the current of authority." Lord lord 
 Denman, commenting on Eandleson •;;. Murray in Milligan v. ™™'"'^- 
 Wedge,* says : " The work was, in effect, done by the defendant 
 himself at his own warehouse. If he chose, instead of keeping a 
 porter, to hire one by the day, he did not thereby cease to be liable 
 for injury done by the porter while under his control." In this 
 view, then, the case would be in accord with the later authorities.' 
 
 Milligan v. Wedge marks the first recession from the doctrine MiiUgan v. 
 advanced by Littledale, J., in Laugher v. Pointer as to the special 
 rule attributable to real property, and adopted by Pafke, B., in 
 Quarman v. Burnett. Referring to the latter case, Lord Denman, 
 
 ' 8 A. & £. log. -whether the persons who caused the rais- 
 
 ^ Brady v. Giles, l Mo. & Bo. 494. chief were the servants of the defendant, 
 
 ' 3 H. & C. 462, at p. 465. employed by him to do the work in the 
 
 * 12 A. &E. 737, at p. 741. panicular way they did. No doubt a 
 
 ° In Peachoy v. Kowland, 13 C. B. man may maintain an action for an injury 
 
 182, at p. 186, Maule, J., says : " Handle- negligently occasioned to him in a place 
 
 son V. Murray was not the case of a public where he lawfully was at the time, and in 
 
 wrong, but some one caused a board to fall some instances, and under some circum- 
 
 upon the plaintiff; it did not appear that stances — as in the much contested cases 
 
 the place where the accident happened of the dog-aponrs and the spring-gun — in 
 
 was a public way, and Lord Denman said places where be was trespassing." 
 
 there was evidence to go to the jury 
 
304 THE LAW OF NEGLIGENCE. [book i. 
 
 O.J., says : " It may be another question whether I should agree 
 in all the remarks delivered from the bench in that case ; if I felt 
 any doubt, it would be whether the distinction as to the law in 
 the case of fixed and of movable property can be relied upon." 
 
 Milligan v. Wedge, however, is valuable as throwing light upon 
 the suggested rule of law that would confound contractor and 
 contractee with master and servant, and with no discrimination as 
 to their liability. 
 
 The buyer of a bullock employed a licensed drover to d^ive it. 
 The drover employed a boy. Damage was done by the bullock 
 through the careless driving of the boy. The case was put on the 
 ground taken in Bush v. Steinman: — " the person from whom the 
 whole authority is originally derived is the person who ought to 
 be answerable, and great inconvenience would follow if it were 
 otherwise " — but the Court adhered to the opinion of Littledale, J., 
 and Abbott, O.J., in Laugher v. Pointer, confirmed by the Court 
 of Exchequer in Quarman v. Burnett, and held that the drover 
 was a " person carrying on a distinct employment of his own," 
 and that, " unless the relation of master and servant exist between 
 them, the act of the one creates no liability in the other." ' 
 Martin v. It' was sought, but unsuccessfully, to bring thQ facts in Martin 
 
 Temperiey. .^_ Temperley' under the rule in Milligan v. Wedge. There the 
 owner of a barge hired two licensed persons to navigate it ; by 
 their negligent management a boat of the plaintifE's was injured. 
 The distinction was pointed out and maintained that in Milligan 
 V. Wedge the drover was pursuing* a separate trade, while in 
 Martin v. Temperiey he was merely a servant selected out of a 
 number limited by Act of Parliament, but among whom "the 
 defendant had the power of selection, though from a limited 
 number, and no case has gone so far as to decide that the person 
 hired ceases to be the servant of the person hiring if he neces- 
 sarily selected from a number, though limited." 
 
 Assuming the facts to be correctly interpreted in Milligan v. 
 Wedge, the distinction in law between that and Martin v. Tem- 
 periey seems to be just, and in accordance with the authorities. 
 Hapson v. The decision in Eapson v. Oubitt' was entirely on the ground 
 
 that the relation between the defendant and the person through 
 whom the injury occurred was that of sub-contractor, and not 
 
 1 See too, Cuthbertson r. Parsons, 12 ^ (1842) 9 M. &W. 710. 
 C. B. 304, where oommiBsioners under ' 4 Q. B. 298. Slater v. Mersercau, 64 
 
 an Act of. Parliament entei-ed into an N. Y. 138 ; also a curious case where de- 
 
 arrangement with steam-boat proprietors fendant, an undertaker, was sued for 
 
 to provide boats. Held, that the commis- damage done to plaintiff by a carriage in 
 
 «oners were not liable on the ooourrenca the procession owned by the driver ; the 
 
 of an accident. Cuthbertson v. Parsons driver was held to be a sub-contractor : 
 
 is decided on its special facts, and does Boniface v. Belyea, 36 How. Pr. 457. 
 not seem to elucidate any principle. 
 
PAUTHi.] INDEPENDENT CONTEACTS. 305 
 
 servant. There the defendant, a builder, was employed by the 
 committee of a club to execute alterations at the club-house, 
 including the fixing of gas-fittings. He made a sub-contract with 
 a gas-fitter, through whose negligence the gas exploded and 
 injured the plaintiff. Parke, B., said: "The true rule on this 
 subject was laid down by the Court in the case of Quarman v. 
 Burnett, which is directly in point, and cannot be distinguished 
 from the present case. The Court there said : ' The liability by 
 virtue of the principle of relation of master and servant must 
 cease when the relation itself ceases to exist, and no other person 
 than the master of such servant can be liable on the simple 
 ground that the servant is the servant of another, and his act the 
 act of another. Consequently, a third person entering into a 
 contract with the master, which does not raise the relation of 
 master and servant at all, is not thereby rendered liable.' " The 
 same learned judge takes the occasion to reiterate his adhesion to 
 Littledale, J.,'s doctrine with reference to a different rule being 
 applicable to real and to movable property. It would seem, 
 however, that on this principle the action could also have been 
 brought against the club committee, unless the plaintiff, being 
 their servant, were disentitled to maintain it. 
 
 In Burgess v. Gray' the facts bore a great resemblance to the Burgess v, 
 facts in Bush v. Steinman. The owner of premises adjoining the '*^' 
 highway employed one Palmer to mate a drain. The men em- 
 ployed by Palmer put gravel on the highway, in consequence of 
 which the plaintiff was injured. The case turned upon whether 
 there was evidence that the defendant "sanctioned the placing 
 of the nuisance on the road," and the Court held aflBrmatively. 
 The case is important as shewing an anxiety on the part of the 
 Court not to base their decision on the controverted doctrines of 
 Bush V. Steinman, but to prefer the simpler and more indubitable 
 ground that " the defendant had, by his acts, made an admission 
 that he was exercising dominion.'' This, then, is the ground of 
 the 3ecision of the Court, and the case lends no countenance to 
 the views adopted in some earlier cases. 
 
 Allen V. Haywood^ is another case where the wrongful act was Alien r. 
 done in relation to real property, yet, notwithstanding the alleged ^^^°° ■ 
 rule, the Queen's Bench, Lord Denman, C.J., giving judgment, 
 held the defendants not liable, " On a careful reference," he says, 
 " to Laugher v. Pointer' (in which the opinions delivered by Lord 
 Tenterden and Littledale, J., must be taken to lay down the 
 correct law), Eandleson v. Murray,* Quarman v. Burnett,' Milligan 
 
 1 (1845) I C. B. 578. s s B. & C. S47- ' 6 M. & W. 499. 
 
 => (1840) 7 Q- B. 960. * 8 A. & E. 109. 
 
 U 
 
306 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Beedie v. 
 
 London 
 
 and North- 
 
 Westem 
 
 Ila^way 
 
 Oompany. 
 
 V. Wedge,^ and Rapson v. Oubitt,^ it seems perfectly clear that, m 
 an ordinary case, the contractor to do works of this description [i.e., 
 the diversion of a creek] is not to be considered as a servant, but 
 a person carrying on an independent business, such as the com- 
 missioners were fully justified in employing to perform works 
 which they could not execute for themselves, and who was known 
 to all the world as performing them." 
 
 We .have seen that the original ground on which Bush v. 
 Steinman had been decided — that "the person from whom the whole 
 authority is originally derived is the person who ought to be 
 answerable " — has, on nearly every occasion on which it has been 
 alluded to, been reflected on. In Reedie v. London and North- 
 Western Railway Company ^ the alternative ground suggested by 
 Littledale, J. — that where a man is in possession of fixed property 
 he must take care that his property is so used or managed that 
 other persons are not injured, and that whether his property be 
 managed by his own immediate servants or by contractors with 
 them or their servants — came ,up for discussion. 
 
 A railway company contracted for the 'construction of a bridge 
 over a highway. The contractor's workmen negligently allowed 
 a stone to fall, and killed a person passing beneath the bridge. 
 Rolfe, B., gave the considered judgment of the Court of Ex- 
 chequer — Parke, B. (who had on several occasions expressed 
 approval of Littledale, J.,'s suggested distinction), having been 
 present and taken part in the argument. Rolfe, B., said : " On full 
 consideration, we have come to the conclusion that there is no such 
 distinction [i.e., between the liabilities attaching to movable and 
 the liabilities attaching to real property] unless perhaps in cases 
 where the act complained of is such as to amount to a nuisance,** 
 and, in fact, that, according to the modern decisions. Bush v. 
 Steinman must be taken not to be law, or, at all events, that 
 it cannot be supported on the ground on which the judgment 
 of the Court proceeded." " In some cases it may be that the 
 owner of real property is so responsible. But then his liability 
 must be founded on the principle that he has not taken dufe 
 care to prevent the doing of acts which it was his duty to pre- 
 vent, whether done by his servants or others. If, for instance, 
 a person occupying a house or a field should permit another 
 to carry on there a noxious trade so as to be a nuisance to 
 his neighbours, it may be that he would be responsible, though 
 the acts complained of were neither his acts nor the acts of 
 
 1 12 A. & B. 737. 2 9 M. & W. 710. < Per Parke, B., in Kniglit v. Fox, s Ex. 
 
 = 4 Ex. 244. See two American cases, 721, at p. 724 : " That means a nuiaanoa 
 
 M'Cullongh V. Shoneman, 105 Penu. St. as connected with a man's house or with 
 
 169 ; Stevens r. Armstrong, 6 N. Y. 435. his fixed property," 
 
PABTiii.J INDEPENDENT OONTEACTS. 
 
 307 
 
 his servants. He would have violated the rule of law sic utere 
 tuo ut alienum non Icedas. This is referred to by Cresswell, J., 
 in delivering the judgment of the Court of Common Bench in 
 Rich v. Basterfield,^ as the principle on which parties possessed of 
 fixed property are responsible for acts of nuisance occasioned by 
 the mode in which property is enjoyed. .... The wrongful 
 act here could not in any possible sense be treated as a nuisance. 
 It was one single act of negligence, and, in such a case, there is 
 no principle for making any distinction by reason of the negli- 
 gence having arisen in reference to real and not to personal 
 property." A subsidiary point, decided by Reedie v. London and 
 North- Western Railway, should also be noticed. By the contract Power of 
 for the construction of the works the railway company had the eontrlSor-s 
 power of removing workmen appointed by the contractor who workmeu does 
 was yet not under their control. We must, however, conclude employer 
 from the case that a provision of this description does not make '* ^' 
 the owner responsible for the workman's negligence. 
 
 Another proposition involved in Reedie v. London and North- 
 western Railway Company is, that the rule oi Bespondeat superior 
 is applicable only to the immediate superior of the person who 
 does the injury, and that there can be but one such responsible 
 superior for the same subordinate at the same time and in respect 
 to the same transaction. 
 
 la. Knight v. Fox^ a distinction was sought to be drawn from Knight ». Fox. 
 Reedie v. London and North- Western Railway, that the con- 
 tractor was the general servant of the defendants^ being paid an 
 amiual salary. In the execution of the work, however, out of 
 which the plaintiff's claim arose, the defendants had entered into 
 a distinct contract, by which their general servant had specifi- 
 cally agreed to supply scaffolding for a fixed sum, independent 
 on his general salary. The accident arose from a defect of this 
 scaffold. The Court, however, defined the question to be whether Double 
 the neghgent act by which the injury was occasioned to the ^^TOnt'^d 
 plaiatiff was done in the capacity of the defendants' servant, or <=outractor. 
 whether, at the time of the injury, the admittedly general servant 
 of the defendants " was acting in the character of a sub-con- 
 tractor," and " did the work on his own individual account." 
 Overton v. Freeman' was decided on the authority of Knight v. Overton ». 
 Fox, from which the Court said they were unable to distinguish ^"«'"*"- 
 it; and Peachey v. Rowland "merely added to the number of the Peaoheyu. 
 authorities. Maule, J.,* in the course of the argument in that ^°^^*°''- 
 
 1 4 C. B. 8o2. marginal note in this report states the 
 
 = (1850) 5 Ex. 721. principle of the decision too broadly : per 
 
 
 1851) II C. B. 867. Lord Campbell, Sadler i>. Henlock, 4 
 
 853) 13 C. B. 182, at p, 185. The B. & B. 570, at p. 573. 
 
80§ 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 1. 
 
 Where the 
 work cannot 
 be done other- 
 v/ise than in 
 an unlawful 
 manner. 
 
 Ellis V. 
 ShefBeld Gas 
 Consumers' 
 Oompan^t 
 
 Gayford v. 
 Nioholls, 
 
 case, thus limiting his view of the absolute liability of contractors, 
 " if the thing complained of — that is, the work which the de- 
 fendants procured to be done — could not be done otherwise than 
 in an unlawful manner, no doubt they would be responsible for 
 the consequences." 
 
 It was on , the soundness of this limitation that the next 
 case, Ellis v. Sheffield Gas Consumers' Company turned.' The 
 defendants made a contract to break open the streets for the 
 purpose of laying gas pipes, there being no legal excuse for 
 breaking open the streets, which was a public nuisance. It was 
 objected that the cause of the accident was the negligence of the 
 servants of the contractors. But Lord Campbell said : " Mr. 
 Jones argues for a proposition absolutely untenable — namely, 
 that in no case can a man be responsible for the act of a person 
 with whom he has made a contract. I am clearly of opinion 
 that if the contractor does the thing which he is employed to do, 
 the employer is responsible for that thing as if he did it himself. 
 I perfectly approve of the cases which have been cited." In those 
 cases the contractor was employed to do a thing perfectly lawful. 
 The relation of master and servant did not subsist between the 
 employer and those actually doing the work, and therefore the 
 employer was not liable for their negligence. He was not 
 answerable for anything beyond what he employed the contractor 
 to do, and that being lawful, he was not liable at all. But in 
 the present case the defendants had no right to break up the 
 
 streets at all It would be monstrous if the party. causing 
 
 another to do a thing were exempted from liability for that act 
 merely because there was a contract between him and the person 
 immediately causing the act to be dope." The rest of the Court 
 concurred. 
 
 In Gayford v. Nicholls^ the defendant contracted with a bmlder 
 to erect buildings on the border of his land, which abutted on 
 land and certain modern buildings of the plaintiff. In doing 
 the work the plaintiff's wall was thrown down, and bricks 
 and other material fell upon the defendant's land, and were 
 carted away by the contractor's workmen. The county court judge 
 at the trial said that " if the jury should be of opinion that the 
 workmen whilst they were on the land by the defendant's per- 
 mission had from want of due care injured the plaintifiF's property, 
 or had carried away the plaintiff's materials the defendant would 
 be liable for those acts." This was held a misdirection. 
 Parke, B., saying: "I am clearly of opinion that no action 
 
 ^ (1853) 2 B. & B. ^67. The same point is decided in Congreve v. Morgan, 5 Duer. 
 495, affirmed tvh nom. Congreve v. Smith, 18 N. Y. 79. 
 ^ Knight V. Fox ; Overton v. Freeman ; Peachoy v, Rowland. • (1854) 9 Ex, 702. 
 
PARTiii.] INDEPENDENT CONTRACTS. 309 
 
 would lie against him unless he carried away the materials himself 
 or unless that was done by some servant authorized by him to 
 do so as his servant." 
 
 An attempt was made in Sadler v. Henlock^ to carry the Sadler «. 
 reasoning applicable to independent employment to an extreme ^'"''°* 
 by treating a common labourer employed for five shillings to clean 
 out a ditch as a contractor. The decision turned mainly on the 
 facts. The Lord Chief Justice said: "The defendant might 
 have said, ' Fill the hole in the road, but not as you are now 
 doing it, lest when a horse goes over the place he may be 
 injured.' Pearson was therefore the defendant's servant, and if 
 so cadit qucestio." The practical effect of this decision — ^though 
 this is not absolutely expressed — is, thait the whole circumstances 
 of the employment must be looked to, and that the real effect of 
 the actual relation existing must not be lost sight of by seizing 
 on one circumstance of a special payment or some special form 
 (as a provision for supervision or for dismissal) that does not go 
 to the root of the relation." 
 
 The case of Steel v. South-Eastern Eailway' may serve as steel «. Soutli- 
 auother illustration of this. There the work being done under Eaiiway. 
 a contract, and no negligence being shewn, the fact that the 
 defendants' surveyor directed the thing to be done was treated as 
 an immaterial circumstance, hamng regard to the existence of the 
 contract. 
 
 There is no liability on the part of the owner where plant or Hired plant 
 material has been hired, and with it the men who had charge of ° 
 the working while in the use of the owner, when an injury 
 occurs through negligence while in charge of the hirer;* and it 
 has been decided, and must appear self-evident, that where such 
 an accident occurs and the owner's men have not ascertained for 
 themselves the safety of a direction given to them in the course of 
 
 ' (1855) 4 E. & 6. 570. See Martin v. the negligence of the employees of the 
 Temperley, 4 Q. B. 298, at p. 312: "It is contractor. Tho question of liability de- 
 said that a dilTerenco arises where the pended upon the relation of master and 
 workman is paid so much for doing the servant, incident to which was the power 
 whole job. But the defendants might to select tho servant, direct him in the 
 pay either for a given time or a given performance of his work, to discharge him 
 work, and the men here were as much when found incompetent, and also the 
 under the defendant's control as a gentle- duty so to control his acts that no injury 
 man's coachman in under that of bi9 might be done to third persons. " 
 master." Compare the American cases ' (1855) 16 C. B. 550. The head-note 
 Heramer v. Webb, loi N. Y. 377 ; Linnei of this case is iucorrect. The ground of 
 han V. Eollins, 137 Mass. 123. the decision is " thatifthe direction given 
 
 ' As was said in Cuff v. Newark and by the company's, superintendent had 
 
 New York Eaiiway Company, 6 Vroom been obeyed by the contractor's men, the 
 
 17, as cited in Bigelow, Lead. Cas. on damage complained of would not have 
 
 the Law of Torts, p. 654: "The point occurred" : see per Jai-vis, C.J., at p. 552. 
 
 of inquiry was not under what circum- * Mun'ay v. Currie, L. E. 6 C. P. 24 ; 
 
 stances was the owner who lets the par-" Wallis v. Hine, 4 Times L. E. 472. 
 ticular contract exempt from liability for 
 
310 THE LAW OF NEGLIGENCE. [book i. 
 
 the work by the person entrusted with the- duty of giving, or 
 abstaining from giving, the order there is no liability on the 
 owner ; since the giver of the order has the consequent duty of 
 seeing to the propriety of it, and the only duty where it is given 
 is to see to its proper execution.' 
 Eeenitofthe The result of the cases and the general principles on which 
 by Lord they go have been well ' stated by Lord GiflFord in the Scotch 
 
 Court of" *''* Court of Session.'' He says : " On carefully considering the very 
 Session. numerous cases which have occurred, chiefly in England, on this 
 
 branch of the law, and of which we have had in the argument 
 a very full citation, I think that the principle which governs the 
 decision in such cases is, that the principal or superior, be he 
 called either master or employer, who has reserved or has 
 assumed the direct and personal control over the subordinate be 
 he called servant or workman who committed the fault or 
 negligence is liable to the damage thereby caused. In such case 
 Respondeat superior — the superior is answerable for the negligence 
 of his subordinate; and the test, I think, always is, had the superior 
 personal control or power over the acting or mode of acting of 
 the subordinate. I use the expression ' personal control,' because 
 I think that this is always the turning-point in such cases. 
 Was there a control or direction of the person in opposition to 
 a mere right to object to the quality or description of the work 
 done ? Where this element of personal control is found, then 
 responsibility, either for malfeasance or nonfeasance, for fault or 
 negligence, will attach, not only to the servant or workman (he 
 is always liable), but to him who had the personal control over 
 him — who was his superior in the sense of the maxim. On the 
 other hand, if an employer has no such personal control, but has 
 merely the right to reject work that is ill done or to stop work 
 that is not being rightly done, but has no power over the person 
 or time of the workman or artisan employed, then he will not be 
 their superior in the sense of the maxim, and not answerable for 
 their fault or negligence." 
 Enleia The rule in America is identical. Where work not necessarily 
 
 identical. a nuisance is let by an employer who merely indicates the end to 
 another who undertakes to attain it, the latter is responsible 
 alone for the means he uses. If in the course of the work a 
 third person sustains injury by the negligent conduct of the work 
 the employer is not answerable. The inquiry in the case is, Did 
 the relation of master and servant subsist between the person 
 for whom the work was done and the person whose negli- 
 
 1 Wilson V. Caledonian Railway Com- " (1876) Stephen v. Thurso Police Com- 
 pany, 24 So. L. R. S41. misBioners, 3 R. 542. 
 
PART III.] INDEPENDENT CONTEACTS. 311 
 
 gence occasioned the injury? If in doing tlie work tlie 
 negligent person was in course of accomplishing a given end 
 for his employer, over which the latter had no control, but which 
 were subject to the exclusive control of the person employed, 
 then such person was exercising an independent employment and 
 the employer is not liable. If on the otJier hand the end to be 
 accomplished was unlawful, or if in and of itself it necessarily 
 resulted in the creation of- a nuisance or the making a place 
 dangerous which the employer was under a peculiar obligation to 
 keep secure, then, regardless of the relation which existed between 
 the employer and the person whose negligent conduct caused the 
 injury, the employer is liable for breach of duty.' 
 
 We may, then, conclude that — I'l-ojiositions. 
 
 (i) The relation of contractor and contractee differs from that 
 of master and servant.'' 
 
 (2) Where the relation of contractor and contractee exists, 
 the employer is not liable for injuries not necessarily arising from 
 the careful execution of the works.' 
 
 (3) Where the relation of master and servant exists, the etii" 
 ployer is liable for all the acts of the servant done within the 
 scope of the employment." 
 
 (4) The relation of contractor and contractee may be some- 
 times so far merged in that of master and servant by acts of 
 the employer, as by taking the actual management of horses, or 
 ordering the work to be done in a particular way, or by the general 
 terms of the contract, that the employer is liable for the acts of 
 the contractor .* 
 
 (5) Though the relation of contractor and contractee exists, and 
 not that of master and servant, the employer may be liable, 
 with the servant of the contractor, as a joint tort feasor, for 
 wrongs done in carrying out the employer's business." 
 
 (6) Where the relation of contractor and contractee exist, the 
 employer will be liable where the work contracted to be done is 
 in itself unlawful or involves illegality in some stage of its 
 progress.' 
 
 (7) There is no distinction between fixed property and movable 
 
 ' See Wabasli Eailway Company v. L. R. 2 Ex. 259 ; 36 L. J. Ex. 147 ; 16 
 
 Farver, 60 Am. R. 696 ; and the Jong list L. T. N. S. 461 ; 15 W. R. 877. 
 
 of cases therein cited. The duty of aeon- ° M'Lauglilin v. Pryor, 4 M. & G. 48 ; 
 
 tractor to guard against danger is only Burgess v. Gray, i C. B. 578 ; 14 L. J. 
 
 while he continues at work on the premises, C. P. 184; Sadler u. Henlock, 4 E. & B. 
 
 Milne V. Smith, 2 Dow. 390. 570 ; 24 L. J. Q. B. 138. 
 
 ' Eapson V. Cubitt, 9 M. & W. 710 ; " Burgess w. Gray, i C, B. 578, and 
 
 Reedie v. London and North-Western Rail- note at p. 593. 
 
 way Company, 4 Ex. 244; 20 L. J. Ex. 65. ' Peachey v. Rowland, 13 C. B. 182 j 
 
 ' Peachey v. Rowland, 13 C. B. 182 ; Ellis v. Sheffield Gas Consumers' Com- 
 
 22 L. J. C. P. 81. pany, 2 E. & B. 767 ; 23 L. J. Q. B. 
 
 * Barwick v. English Joint Stock Bank, 42. 
 
 -V 
 
312 THE LAW OF NEGLIGENCE. [book i. 
 
 chattels, whereby, independent of other considerations, a greater 
 liability is imposed on the employer with respect to an injury 
 done on fixed property than one arising from movable chattels.' 
 
 (8) Where in the case of fixed property a greater liability 
 appears to be laid upon the employer than in the case of 
 movable chattels, the explanation is to be found, not in different 
 liabilities pertaining to different species of property, but to the 
 principle that every man must prevent his property becoming, or 
 being used in the nature of, a nuisance to others, therefore the 
 
 :,, greater liability of fixed property over movable property exists 
 only in those cases where, and to those person to whom, a duty is 
 constituted by statute, or by any other relation, of so using it 
 as not to become in the nature of a nuisance.' 
 
 (9) The test of who is liable, the contractor or the employer, 
 is, which retained the power of controlling the work. Where 
 the contractor can use his own means, and is bound only to the 
 attainment of certain ends, there the employer is not liable ; but 
 where the employer can authoritatively interfere in the choice of 
 means there he is liable.'' 
 
 1 Eeedie J). London and North-Western Railway Company, 4 Ex. 244; so L. J. 
 Ex. 65. 
 " Sadler v. Henlook, 4 E. & B. 570. 
 
CHAPTER III. 
 
 MASTEE'S DUTY TO HIS SEEVANT. 
 
 It has often been urged that the liability of the master for Master's 
 accident happening to his Servant has been treated on too narrow g'^rvant not ^ 
 a basis. The liability is not due to principles peculiar to the '^^^J. ™ ""y 
 
 ■' ■ . . peculiar 
 
 relation of master and servant so much as to the recognition of a principle. 
 
 general principle that where fault is there is liability ; with 
 
 which the complementary proposition also consists, that where 
 
 no fault is there is no liability. Thus, the duties of an owner of 
 
 fixed property in respect of the condition of that property arise 
 
 not out of a contract with the person injured, but out of general 
 
 principles that govern all relationships. So, too, when we 
 
 narrow the scope of our considerations from those general duties, 
 
 which the possession of property raise with regard to others, to 
 
 those, superficially appearing, more special duties which the law 
 
 casts on masters with regard to the safety of their servants while 
 
 working upon premises or with machinery, we shall see that the 
 
 latter is only a class of duties considered more in detail, or on 
 
 which more attention is concentrated as more frequently arising, 
 
 but which still fall under the more general principle that governs 
 
 the master's relations to the world at large, that where fault is, there 
 
 — and there alone — is liability. A common view is, that the view that 
 
 liability of the master arises from the contract made with the JH -vf ^'^"^'^ 
 
 •' . .-, . liability ansBS 
 
 servant ; but the contract is evidenced by the terms of it, and from the terms 
 
 ,1 , „ .,. • 1. ^ -T J. ij -v of the contract 
 
 the terms of providing against danger or accident seldom, it ever, as made with 
 appear. Then, it is contended, that the requisite terms to effect ^^° servant. 
 the object in view are implied. But why ? in what way ? And, 
 if implied, why should not every duty from the master to the 
 servant be implied ? Such a method of interpretation would 
 indeed extend the law of contracts indefinitely — almost univer- 
 sally — and would also cause needless and unsatisfactory compli- 
 cations in what is, after all, but a very simple matter. The 
 master is liable to the servant in the terms of the contract, 
 and for all those relations which are necessarily generated from 
 
314 THE LAW OF NEGLIGENCE, [book i. 
 
 the existence of the contract. But as regards the liability of the 
 
 master for his personal negligence, or for the condition of premises 
 
 or machinery, it is comprehended in the few simple principles 
 
 . that regulate his liability with regard to the outside world. The 
 
 master is liable for personal negligence whereby hurt is caused to 
 
 his servant ; so is one servant liable for injury caused to another 
 
 servant ; so is the master for his own personal negligence to the 
 
 world at large. The master also is liable when he knows, or 
 
 should know, that his premises or machinery are unsafe, and 
 
 when the servant is igiiorant of the fact ;' so is the master to 
 
 the outside world when an accident happens from their having 
 
 Maister's duty business relations with him. lu short, the duty which the master 
 
 that^whfch he owes the Servant is just the same that he owes to every other 
 
 has to the persou with whom he has business relations ; he must not conceal 
 
 generally, from him daugerous circumstances which, if known, might cause 
 
 him to alter his position to the master, nor personally, be negli- 
 
 but not liable gent in any respect. But for damage caused by the ordinary 
 
 for* damage™' ^'i^ks of the employment the master is not liable. Because, first, 
 
 caused by the there is no fault of the master : secondly, the risk arises out of 
 
 ordinary risks . ... 
 
 of the employ- the Very thing to be done — the coming in contact with agencies 
 '"™ ■ that may be dangerous and men who may be negligent, but with 
 
 respect to which the master can exercise no absolutely protective 
 power, or does not specifically contract to do so ; thirdly, because " 
 workmen undertaking a work must be supposed to have a pre- 
 vision of its ordinary risks as well as of its labours, and, as they 
 secure by their engagements remuneration for the one, they must 
 be held to secure insurance in their wages against the other. 
 That is, of course, by the common law, and independent of 
 statutory modification. With these cautions, then, we have 
 now to consider those cases which work out the duty owing to 
 the servant by the master in respect (i) of the dangerous 
 condition of property, machinery, or tools, and (2) of his own 
 personal negligence. 
 I. Duty owing I. The duty owing to the servant by the master in respect of 
 
 by the master ., ., -■.,. n , , . . ■, 
 
 to the servant the daugerous condition 01 property, machinery, or tools. 
 the"lngerous '^^° Scotch cases in the House of Lords, Paterson v. Wallace,' 
 
 property, ^ Griffiths «. London and St. Katharine in the master in the working of his sys- 
 inaohinery, DocksCompnny,6l3 Q. B. D.259; Groves tem. In Vose j). Lancashire and York- 
 er tools. ' V. Fuller, 4 Times L. E. 474. shire Railway Company, 2 H. & N. 728, 
 ^ (1&S4) I Maoqueen 748. In Sword v. at p. 732, Pollock, G.B., commenting on 
 Cameron, I D. 493, the liability of the em- Lord Cranworth's statement— It is the 
 ployer was attributable to the fact that the master's duty to he careful that his ser- 
 aystem was one calculated to produce in- vant is not induced to work under a notion 
 jury. To establish the authority of this case, that tackle or machinery is staunch and 
 another proposition must he involved— secure, when in fact the mastier knows, or 
 viz., either that the master had knowledge ought to know, that it is not so ; and if 
 of this while the servant was ignorant, 0* from any negligence in this respect 
 that there was some personal negligence damage arises, the master is responsib'e 
 
PART III.] MASTER'S DUTY TO HIS SERVANT. 315 
 
 and Biydon l: Stewart,' first authoritatively elucidate this 
 principle. In Paterson v. Wallace the jury were told the plaintiff Paterson i-. 
 could not recover, and that a verdict was returned for the de- ^''"*°°- 
 fender. The cause of action was that the husband of the pur- 
 suer had lost his life by reason of the masters, through their 
 agents having carelessly left a large stone on the roof of a mine 
 in so dangerous a position that it fell on the workman while 
 engaged in digging out coal, and killed him. 
 
 It was laid down that two propositions had to be established Two pro- 
 in order for the pursuer to succeed, and that this case must be ^restabUsbed 
 submitted to a jury for them to find them affirmatively : First, *° ^^ liability, 
 that the stone was dangerous owing to the negligence of the 
 master ; secondly, ' that the workman whose life was forfeited, 
 lost it by reason of that negligence, and not by reason of rashness 
 on his own part. 
 
 As to the first point. "It is good law," said the Lord Patereon v. 
 
 . ... Wallace dis- 
 
 Ohancellor, ' ■ that if the defendant's manager had failed in his cussed, 
 duty in timeously directing the stone in question to be removed, 
 it would afford no defence that the deceased continued to work 
 after the orders for the removal of the stone had been ultimately 
 given." 
 
 The decision of the House of Lords, it should be remarked, 
 turned entirely on the fact that the case had been withdrawn 
 from the jury by the Lord Ordinary, who himself decided the fact 
 against the pursuers that the death was occasioned by the work- 
 man's own rashness ; and the House, while by no means intimating 
 what the effect of the findings on the facts might be, merely 
 decided that the case was not to be disposed of without findings 
 by the jury, and indicated what the issues to be submitted to the 
 jury should be. In the course of the case, Lord Brougham re- 
 marked : "Workmen in .mines are proverbially reckless. This 
 makes it incumbent on the masters of such men to be more than 
 ordinary careful." This was probably based on the opinion of the 
 Lord Justice Clerk Hope, who in the Court below said: "We 
 have had occasion to lay down the doctrine that mere rashness on 
 the part of the workman would not exclude a claim of reparation 
 if the employer had neglected his duty." But in moving the 
 judgment of the House, the Lord Chancellor says : "It is said 
 that by the law of Scotland the master is bound to provide 
 against the rashness of his workmen. And I see in one of the 
 learned judge's opinions an expression which might give counte- 
 
 —says : " That is merely a dictum of the law has, however, long been so established 
 Lord Chancellor in a Scotch case, not a — see under, 
 decision of the House of Lords." The ^ 2 Macqueen 30. 
 
316 THE LAW OF NEGLIGENCE. [book i. 
 
 nance to such an opinion. But with great deference to the learned 
 judge, I apprehend the proposition is one which, as matter of law, 
 can never be sustained. In England, in Scotland, and in every 
 civilized country, a party who rashly rushes into danger himself, 
 and thereby sustains damage, cannot say to the master, ' This is 
 owing to your negligence.' As a question of fact it may very 
 well be laid down that that which would be reasonably treated as 
 rashness in other people might not be treated as rashness in a 
 workman if the master knew that the rashness was of a kind which 
 workmen ordinarily exhibit, and that, perhaps, was all the learned 
 judge meant." Expressions used in this case have been alleged as 
 tending to invalidate the rule first laid down in Priestley v. Fowler ; ' 
 lefroy, C.J., and in Potts v. Plunkett,* Lefroy, O.J., is reported as saying: " The 
 Piunkett. ' decision in that case [Paterson v. Wallace] did not rest upon any 
 supposed warranty on the part of the employer, but upon the fact 
 that the employer virtually knew and was aware of the cause by 
 which the mischief which occurred was occasioned, because the 
 person to whom he had delegated the superintendence of the mine 
 was called upon and warned by the persons employed in the mine. 
 .... The superintendent, however, disregarding the warning, 
 compelled the men under him to go on with the work, and as the 
 master is liable, as a matter of course, for the acts and defaults 
 of those whom he places in his stead, and to whom he deputes 
 his authority, in that case the master was properly held liable." 
 This is manifestly an inaccurate statement of the law, for had the 
 superintendent been negligent, the negligence would have been 
 that of a fellow-servant within the rule, and the employer would 
 not have been liable ; and were it law, the authority of Priestley 
 V. Fowler, though saved by the interpretation of the O.J. from 
 destruction in one way, would to a great extent have perished 
 through the interpretation that was to have saved it.' The real 
 ground on which Paterson v. Wallace was decided is much better 
 stated in the argument than in the judgment in Potts v. Piunkett. 
 In Paterson v. Wallace the employers o^l;ght to have known that 
 the condition of the works was insecure, for the jury found the 
 death was occasioned by the unsafe state of the roof of the mine, 
 and the negligence or unskUfulness of the owners in having left 
 it so when the workmen were sent to work there. Had there not 
 been the finding of the jury, the case might have been considered 
 to conflict with certain aspects of Priestley v. Fowler, The 
 finding of the jury took it under the limitation of that rule which 
 excepts matters in which the employer has a personal responsibility. 
 
 13M. &W. I. ^ 9 If. C. L. 290, at p. 299. 
 
 ' See Wilson v. Merry, i So. App. 326. 
 
PART HI.] MASTER'S DUTY TO HIS SERVANT. 817 
 
 The decision in Paterson v. Wallace may be better appreciated 
 by comparing it witli Hall v. Johnson' in the Exchequer Chamber. 
 The facts in that case were almost identical with the facts in 
 Paterson v. Wallace. The declaration set out that the defendant 
 neglected to see that " the person by them employed to see that 
 the roof of the mine was made secure for the safety of the plaintiff 
 should be a fit person to be so employed." On this point the 
 judgment of the Exchequer Chamber was, that there was no 
 evidence of such neglect, and that the fact that the person chosen 
 was negligent was only the negligence of a fellow-servant, which 
 did not import liability. There was also a count — and it was in 
 this that the likeness in Paterson v. Wallace consisted — setting 
 out that " the passage was dangerous and unsafe for the plaintiff 
 to work in, on account of the roof of the passage being liable to 
 fall down upon him whilst he was working, unless reasonable and 
 proper care and precautions were taken by the defendant to 
 prevent such roof from falling." But the evidence did not 
 sustain this, and showed, on the contrary, that the mine had 
 been worked in the ordinary course "for the past six years." 
 The distinction, then, between the two cases is clear. In Paterson 
 ■». Wallace, there was a question for the jury whether the master 
 had been personally negligent in respect to the condition of the 
 works, raised by the presence of facts that were consistent with 
 negligence ; in Hall v. Johnson, from the admitted facts, the master 
 could not have been personally negligent, for " the mine had been 
 worked in the ordinary course for the last six years." And the 
 negUgence was the negligence of a workman not shewn to be 
 incompetent ; and therefore the employer was not liable. It 
 is true that in Paterson v. Wallace, as in all the earlier cases, 
 expressions occur which point to the very indeterminate notions 
 prevalent as to the responsibility of the employer for the negli- 
 gence of a superintendent (this is true also of the case of Hall v. 
 Johnson itself) but the real ground of decision is, that there was 
 an allegation of the personal negligence of the master, and facts 
 that required to be determined by a jury in the one case, while 
 in Hall v. Johnson no such facts existed, or were adduced in 
 evidence. 
 
 The second case, Brydon v. Stewart,^ raised the point ofBrydon». 
 
 Stewart. 
 ^ 3 H. & 0. 587. place where his work happened to be." 
 '^ (185s) 2 Maoqneen 30. Compare The same point is raised by two American 
 Tnnney v. Midland Eailway Company, cases, Gilshannon v. Stony Brook Eail- 
 L. B. I C. P. 291. Plaintiff was return- road Corporation, 64 Mass. 228; and 
 ing from work in a " pick-np train " when Bussell v. Hudson Eiver Company, J 
 injured. Held, that he was injured while Duer. 39. The former of thesfe is con- 
 in the service of his employer, " for it sistent, the latter inconsistent, with the 
 was part of his csntract that he was to English case, 
 he carried by the train to and from the 
 
818 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Compared, 
 
 Principle 
 stated. 
 
 law wtether the master is responsible in respect to injury 
 occasioned by defect of machinery, and resulting not during the 
 progress of the work on which they are engaged, but while 
 pursuing their own business. The accident occasioning the 
 action occurred while the men were leaving, the mine, without 
 working, from no apprehension of danger, but of their own accord, 
 for a purpose of their own, against their employer's interest, and 
 in a body, in order to make some complaint tell more effectually 
 with the manager of the defendant, and not in the course of their 
 ordinary occupation. The House of Lords decided that the master 
 who let the men down was bound to bring them up, even if they 
 come up for their own business and not for his, and is answerable 
 for the state of his tackle. 
 
 These two Scotch cases, Paterson v. Wallace, and Brydon v. 
 Stewart, are aflSrmed by the House of Lords to be good 
 English, as well as Scotch, law. They both turn on the conditions 
 of the employment. In Paterson v. Wallace the decision, as we 
 have seen, turned on what questions were to be left to the jury 
 for them to find affirmatively before liability on the part of the 
 master could arise. In the second case, Brydon v. Stewart, the 
 accident arose from a defect collateral to the contract of the men 
 to perform work, and in respect of a matter that they could 
 not be supposed to have an equal knowledge with the master 
 about. His obligation was to convey them to their work, taking 
 due and proper care that his means of doing so were reasonably 
 safe and sufficient ; subject, however, to a limitation of liability if 
 they should waive any precaution by assenting to a more hazardous 
 way of his doing this part of his duty. The master did not per- 
 form his part of the contract, but exposed the men to a danger, 
 about which they were not supposed to have the means of know- 
 ledge that he had, while they were returning from work, and so 
 they were entitled to recover. 
 
 The principle, then, in these cases may be thus stated — 
 when a master employs his servant in a work of danger, he 
 is bound to exercise due care in order to have his tackle and 
 machinery in a safe and proper condition, so as to protect the 
 servant against unnecessary risks,' or as the law was expressed by 
 Lord Wensleydale in another Scotch case in the House of Lords :^ 
 " All that the master is bound to do is to provide machinery 
 
 1 BavtonBhill Coal Company v. Eeid, 
 3 Macqueen, 266, per Lord Cranworth, 
 at p. 288 _; per Bjles, J., after quoting the 
 sentence in the text, in Searle v. Lindsay, 
 II C. B. N. S. 429, at p. 439 : "That is 
 the extent of the mastei''s responsibility, 
 The obligation the law casts upon him is 
 
 to take due and proper care that his 
 machinery is sufficient and his workmen 
 reasonably competent." 
 
 ^ WeemsB.Mathieson, 4 Macqueen2l5; 
 see_ M'Kinney v. Irish North-Western 
 Eailway Company, Ir. E. 2 C. L. 600, in 
 Irish Exchequer Chamber on demurrer. 
 
PARTiii.] MASTER'S DUTY TO HIS SERVANT. 319 
 
 fit and proper for the work, and to take care to have it superin- 
 tended by himself or his workman in a fit and proper manner." 
 
 The case of Seymour v. Maddox' turned more on the point 
 of pleading than on any rule of law. The relation between 
 jdaintiff and defendant was that of master and servant ; facts 
 were alleged which did not raise a duty where that relation 
 existed ; but facts might have been alleged which, possibly, would 
 have raised a duty. It was held that a general allegation of 
 duty was insufficient to let in evidence of facts that were not set 
 out in the declaration, and on those facts that were, no charge of 
 action was shewn. But no rule of law ' whatever was laid down 
 in the case ; though, by implication, an absolute duty on the master 
 to supply machinery in all respects fit, without regard to the 
 workman's knowledge or gcquiesoence is negatived. Had the 
 declaration averred a concealed danger, it would probably have 
 been held good ; so, too, had it alleged a negligent or dangerous 
 state of things, known to the master, of which the servant was 
 ignorant and had not the means of knowing, all it did, however, was 
 to allege facts, all of which, from anything that appeared, were in 
 the knowledge of the plaintiff, and with reference to which he may 
 have accepted his employment. 
 
 2. The duty owing to the servant by the .master in respect of 2. Duty owing 
 his own personal negligence. by*the,m™v 
 
 This duty is threefold : to take care in the providing proper j^ "respect ot 
 materials ; and fellow servants ; ^ and to avoid any negligence personal 
 when the master is himself working with the servants, whereby "^^ 'senoe- 
 injury is occasioned to the servant.'* 
 
 1 16 Q. B. 326. This case is ques- In Davies i'. England, 33L. J. Q. B. 321, 
 tinned in Ryan v. Fowler, 24 N. Y. 410, the first count of the declaration setting 
 and followed in Murphy ». New York Cen- ofit that it "was the defendant's duty 
 tralSailroadCompany,n Daly, 122. Com- to take care that healthy and sound 
 pare Williams v. Clough, 3 H. & N. 258 ; heasts were supplied," was held bad, as 
 Grifiithsv.London and St.Katharine Docks alleging a duty without setting out facts 
 Company, 12 Q.B.D. 493; 13Q.B.D.259. that raised the duty. As to duties inferred 
 " I conceive that a party cannot merely by by law see M'Jvinney v. Irish North- 
 putting into a record a statement that a Western Bailway Company, Ir. E. 2 C. L. 
 duty lay upon the defender, compel the 600. 
 
 Court to grant him a jury trial. The ^ Eoberts v. Smith, 2 H. & N. 213 ; 
 
 question whether a duty exists or not may Hough v. Texas, &o. , Eailway Company, 
 
 sometimes be a mere question of fact, but 100 O. S. (10 Otto) 213. 
 
 in general it is not simply a question of ^ Ashworth v. Stanwiok, 3 E. & B. 
 
 fact. A duty -arises either out of the 701. This case was distinguished in 
 
 relation of parties, or out of express pac- Drew v. East Whitby, 46 Upper Canada 
 
 tion, or other special circumstances, and Q. B. 107. In Scotland the same pro- 
 
 in order to make a relevant allegation of position as in Ashworth v, Stanwick was 
 
 duty the foundation of it must be set laid down in Finningham v. Peters, 22 
 
 forth. It is easy to say that a duty D. 260 ; 33 J. 1 19. As to unreasonable 
 
 existed, but that allegation will be of no risks, see Warren v. Wildie, where a ser- 
 
 avail unless the ground on which it rests vant was injured by an explosion of gas 
 
 are relevantly avowed '* : per Lord Neaves, caused by the master's negligence : Weekly 
 
 Bobertson v. Adamson, 24 M. 1231, at p. Notes, 1872, p. 87 ; also as a note to 
 
 1232. M'Neill 1-; Wallace, 15 M. 818. Fowler i'. Look, 41 L. J. C. P, 104. 
 
320 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Principlo 
 stated by 
 Orompton, J., 
 in Ashworth 
 V. Stanwick. 
 
 Two excep- 
 tions to the 
 general 
 principle. 
 
 Skipp V. 
 Eastern 
 Counties 
 Bail way. 
 
 The principle is laid down by Crompton, J., giving judgment 
 in Ash worth v. Stanwick : " Now it has never been doubted that 
 for personal negligence of the master, whereby injury is occasioned 
 to the servant, the master will be liable."' And in the subsequent 
 case of Mellors v. Shaw^ the same judge quotes and confirms 
 certain observations made by himself in Ormond v. Holland': 
 " I think that the rule of law laid down by Mr. Hill is accurate — 
 viz., that the master is not liable unless there be personal negli- 
 gence on his part, which negligence may be either in personally 
 interfering in the work, or selecting the servants who do inter- 
 fere." He subsequently added : " I think it is neghgence for which 
 the master is liable, if he knows that the machinery or tackle 
 to be used by the persons employed by him is improper and unsafe, 
 and notwithstanding that knowledge sanctions its use."* 
 
 The general principle being as stated, there have been two 
 limitations engrafted upon it, under which the servant is dis- 
 entitled to recover. First, if he have the same means of 
 knowledge of the danger or inefficiency of machinery as the 
 master ;' and secondly, if he contracts to work under conditions 
 of greater risk. And whether he has contracted to do this may 
 be shewn either by antecedent agreement, or inferred from 
 subsequent conduct. 
 
 Skipp -y. Eastern Counties Eailway° is a case which maybe ranked 
 under the latter heading. The company's staff was insufficient ; 
 nevertheless the plaintiff had been engaged for three months, and 
 had never complained till he was injured. The Court refused to allow 
 the question to go to a jury of how many servants a railway com- 
 pany should employ . Any one contracting with them, and continu- 
 ing without complaint in their employment, is not entitled when 
 injured to tiu-n round and bring his action. " If he found that 
 he could not do j^e work that was set him, he ought to have 
 
 ' " For liis own personal negligence a 
 master was always liable, and still is 
 liable, at common law, both to liis own 
 workmen and to the general public who 
 come upon his premises at his invitation 
 on business in which he is concerned : " per 
 Bowen, L.J,, Thomas v. Quartermaine, 
 l8Q. B. D. 68s at p. 691. 
 
 ^ I B. & 8. 407, at p. 444. 
 
 8 E. B. &B. loi, at p. "^106. 
 
 * Compare Coombs v. New Bedford 
 Cordage Company, 102 Mass. 572, at p. 
 597, per Gray, J.: "An employer is under 
 an implied contract with his servant to 
 find suitable instruments and means of 
 carrying on the business, and a suitable 
 place in which the servant himself, ex- 
 ercising due care, may perform his duty 
 without exposure to dangers, not coming 
 within the obvious scope of his employ- 
 
 ment, and that the implied contract to 
 have the machinery in such a cafe and 
 proper condition as not to expose the 
 servant to unnecessary risk, is the founda- 
 tion of the master's liability." Holmes v. 
 Clarke, 6 H. & N. 349 ; 7 H. & N. 
 937, is an authority for the liability of 
 tbe_ master for personal negligence. This 
 obligation, however, does not import a 
 warranty. Searle v. Lindsay, ii C. B. 
 N. S. 429, at p. 439. 
 
 » Potts V. Plunkett, 9 Ir. C. L. 290, 298. 
 
 \ (1853) 9 Ex. 223 ; Northern Pacific 
 Railway Company v. Herbert, 1 16 U.S. (9 
 Davis) 642. If it were negligence to direct 
 a man to do work more or less dangerous, 
 it would be impossible to do such work : 
 per Lord Coleridge, C. J., Booker v, Higgs, 
 3 Times Law Bep. 618, 
 
PAwrin.] MASTER'S DUTY TO HIS SERVANT. 321 
 
 declined it in the first instance." The question as applicable to 
 merchant seamen, and the obligation of the shipowner to them, 
 was discussed in the case of Couch v. Steel.^ The declaration in Oouoh v. 
 the case contained two counts, the first alleged that a certain pojnt.' '*'^' 
 vessel in which the plaintiff was engaged as a sailor was " so 
 carelessly and negligently managed, fitted out and equipped," 
 that it " was wholly unsea worthy and in a leaky and dangerous 
 condition and unfit to be sent or to go to sea/' by reason, there- 
 fore, the plaintiff became sick. 
 
 The declaration was drawn in reliance on the authority of 
 certain expressions used by Martin and Parke, BB., in advising 
 the House of Lords in the ship insurance case of Gibson v. Small.^ Gibson v. 
 Baron Martin's words ^ were : " It is his [the owner's] bounden """ 
 legal duty towards the marijiers for the safety of their lives, and 
 towards the merchants who load their goods " that the ship should 
 be tight, staunch, and strong, and in every way fitted for the 
 voyage, " or, iu other words, ' seaworthy ; ' " and Parke, B., also 
 said :* " The owner of a ship is bound to make the ship seaworthy 
 at, the commencement of the voyage for the safety of his crew." 
 
 On the authority of these dicta it was contended that a different Attempt to 
 rule applied in the case of a seaman than what governed in the exception 
 ordinary law of employer and employee. The Court, however, J," geam^n* 
 negatived this contention both because there was no substan- 
 tive averment of fact that would raise a duty, and also on the 
 wider ground that the relation of shipowner and sailor was but a 
 case under the general law of master and servant. 
 
 The second point raised in Couch v. SteeP is of considerably Couch «. 
 ... , • Til It t. ' ' 'J-'" Steel ; second 
 
 greater interest — viz., whether those sustammg a private injury point. 
 
 from the breach of a statutory duty are entitled to maintain an 
 action to recover damages, but is not specially a part of the law 
 of employers' liability.' 
 
 Couch V. Steel,' if directly an authority that shipowner and sea- 
 men were not taken out of the general law of liability, is less 
 directly an authority for a wider proposition — that a servant has 
 no remedy against his master for want of care in the appliances 
 he provides for carrying on his business, even though that want 
 of care may be productive of actual harm to the servant. The 
 test that is suggested is, that " the defendant may have been 
 
 ' (1854), 3 E. & B. 402. See Merchant to shew that, as far back as 1803, there 
 
 ShippingAct, i876(39&4oVict.o.8o)B.S. was no doubt as to the law in the case. 
 
 The case of Eaken v. Thom, J Esp. 6, ^ 4 H. L. C. 350. 
 
 where Lord EUenborough held, that when ' At p. 37O, at the bottom. 
 
 a ship sails on a voyage, and through * At p. 404. 
 
 want of seaworthiness is unable to finish " See Atkinson v. Newcastle and Gates- 
 it, the sailors cannot recover their wages, head Waterworks, 2 Ex. Div. 441 ; Ste- 
 though not cited in the argument, seems vens v. Jeacocke, 11 Q. B. 731. 
 
 X 
 
322 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Dynen v, 
 Xeach, 
 
 Judgment of 
 Bramwell, B, 
 
 Principle as 
 stated by 
 Pollock, C.B. 
 
 perfectly ignorant of the defects of the vessel, whilst the plaintiff 
 may have examined the vessel before he engaged himself, and 
 have known her state well," That is, the defendant is not liable, 
 whatever the condition of the machinery, if only the plaintiil has 
 not been entrapped into working where he is exposed to dangers 
 of which he has no means of knowledge ; or where the master, 
 having knowledge of something in the condition of the work 
 which would be likely to render the risk different from that which 
 the servant could ordinarily consider to attend it, has not commu- 
 nicated the circumstances to him. 
 
 The case most frequently cited as the authority for the first 
 limitation above stated is Dynen v. Leach.' The defendant was a 
 sugar refiner, and had employed the intestate as a labourer, part 
 of whose duty it was to fill sugar moulds and hoist them up to 
 higher floors in the warehouse by means of machinery. From 
 motives of economy the defendant substituted a cheaper way of 
 raising the bags than the usual way. On the occasion in question 
 deceased filled the mould and fastened it to the clip by which, 
 under the defendant's new method, the moulds were raised. But 
 the mould slipped, fell on his head, and killed him. The Judge 
 nonsuited the plaintiff, but gave leave to move to set the nonsuit 
 aside. Blackburn moved accordingly, but a rule was refused; 
 Pollock, C.B., saying : " The deceased not only contributed to the 
 accident which caused his death, but did the act which directly 
 caused it." Channell, B., rested his judgment "on the ground that 
 the deceased himself continued in the employ of the defendant, 
 and in the use of the clip, with full knowledge of all the circum- 
 stances, so that he directly contributed to the accident"; while 
 Bramwell, B., whose judgment is most frequently cited, noting, 
 first, that the workman had known all the facts ; and, second, 
 though as well acquainted with the nature of the machineiy as 
 the master, had yet voluntarily used it, thus lays down the law 
 applicable : " There is nothing legally wrongful in the use by an 
 employer of works or machinery more or less dangerous to his 
 workmen, or less safe than others that might be adopted. It may 
 be inhuman so to carry on his works as to expose his workmen to 
 -peril of their lives, but it does not create a right of action for an 
 injury which it may occasion."^ Or, as the rule was more shortly 
 expressed by Pollock, C.B., during the argument: "A servant 
 
 ' 26 L. J. Ex. 221. 
 
 ° There is a note to Williams v. Clough, 
 3 H. & N. 258, as follows:— "The case 
 [i.e., Dynen v. Leach] was not reported in 
 2 H. & N. because no point of law was 
 decided by it. There was no evidence 
 that the machinery used was improper, 
 
 and it was consistent with the facts that 
 the workman's own negligence caused his 
 death." Coombs v. New Bedford Cordage 
 Company, 102 Mass. 583 ; Wheeler v. 
 Mason Manufacturing Company, 135 
 294. 
 
PART III.] MASTER'S DUTY TO HIS SERVANT. 323 
 
 cannot continue to use a maohine he knows to be dangerous at 
 the risk of his employer."' The distinction between cases like 
 Paterson v. Wallace^ and the present case was pointed out to be 
 that in the Scotch case the workman was injured by the fall of a 
 stone with which he had nothing to do, while in the present case 
 the injury was caused by the very machinery with which it was 
 the deceased's duty to work, and on which he was actually em- 
 ployed at the time of the accident, the actual occurrence of which 
 was not shewn not to be inconsistent with his "personal negligence 
 in the very matter. In a subsequent case in the Exchequer wiiies, j., in 
 Chamber, Willes, J.,' laid down the law in the following terms : — Hawkeaworth 
 "A master is not justified in exposing his servant to any risk or 
 danger of which the servant is ignorant ; and if the servant chooses 
 to enter into his employ without knowing of the risk, which is 
 known to the master and not to the servant, and the servant 
 suffers accordingly, then a consideration arises like that in the 
 case in the Court of Common Pleas,* where a person employed 
 another to carry a carboy of nitric acid, and, in the coarse of 
 carriage, the latter tripped and fell, and was injured by the acid. 
 The Court thought the employer was answerable because, knowing 
 the danger, he ought to have informed the person who was car- 
 rying the carboy of its dangerous character. But if a servant 
 enters into an employment knowing there is danger and is satis- 
 fied to take the risk, it becomes part of the contract between him 
 and his employer that the servant shall expose himself to such , 
 risks as he knows are consistent with the employment."' 
 
 With this must be taken the law as exemplified in Sword v. Sword ». 
 Cameron,^ together with Lord Oranworth's explanation. Defend- *"'®'^°"' 
 ants were lessees of a stone quarry, and the pursuer was employed 
 there by them working a crane. Other servants were employed to 
 
 ' On the same principle see Assop v. Whilst so employed, defendant came to 
 
 Tales, 2 H. & N. 768 ; Griffiths©. Gidlow, see, and said two struts were wanted to 
 
 3 H. & N. 648 ; Eain v. Smith, 89 N. Y. suppoi-t the bulk-head, but told the men to 
 
 975; Wannamaker V. Burke, iii Penn. get on with their work, and promised to 
 
 St. 423. send iron struts. Before they came the 
 
 ^ I Macqueen 748. accident happened. The Court was after- 
 
 ' Saxton V. Hawksworth (1872), 26 wards moved, bat no rule was granted. 
 
 L. T. N. S. 851. Compare the case of From the head-note it appears that any 
 
 Cowley V. Mayor, &o., of Sunderland, 6 direction given by defendant was to be 
 
 H. & N. 56s, where, apart from the rela- construed, not for them to do the dangev- 
 
 tion of master and servant, where the ous work, but to do other work that might 
 
 danger is one which the plaintiff might be proceeded with without danger. In 
 
 reasonably fail to appreciate, and there Ogaen v. Eummens, 3 F. &F. 751, Bram- 
 
 has been no contributory negligence, the well, B., laid down the law: "If a master 
 
 plaintiff may recover. knew of k danger, which his servant did 
 
 * Farrant v. Barnes, II C. B. N. S. not, and set him to do it, he would be 
 SS3 ; 31 Ij- J- 0. P. 137. liable ; but otherwise, if he did not know 
 
 * In Smith v. Dowell, 3 F. & F. 238, of it, or if his servant did — if a man chose 
 Martin, B., directed a nonsuit where to run a risk it was his own look-out." 
 plaintiffwas employed to make bulk-heads, " i D. 493. 
 
 between two bunkers, to be filled with coal. 
 
324 THE LAW OF NEGLIGENCE. [book i. 
 
 blast rock. When the blasting was going on notice was given. 
 On the occasion of the accident an insiiflBcient time to get out of 
 reach of the explosion consequent on the blasting was allowed, 
 and the plaintiff was severely injured. The piu-suer was held 
 entitled to recover. In Bartonshill Coal Company v. Eeid,' Lord 
 Cran worth, commenting on the decision, s&tSl: "The injury was 
 evidently the result of a defective system not adequately protecting 
 the workmen at. the time of the explosions. It is to be inferred 
 from the facts stated that the notices and signals given were those 
 which had been sanctioned by the employer, and that the work- 
 men had been directed to remain at their work near the crane till 
 the order to fire had been given, and then that after the interval 
 of a minute or two the explosion should take place. The accident 
 occurred, not from any neglect of the man who fired the shot, but 
 because the system was one which did not enable the workmen at 
 the crane to protect themselves by getting into a place of security." 
 The distinction between the cases may be thus expressed. The 
 master is liable for all unnecessary dangers in the system of work, 
 unless they are of a nature the servant either knows or can judge 
 of equally with him. In practice there would seem to be a pre- 
 sumption that the servant has this equal knowledge in all matters 
 with which his work is directly concerned, and a presumption "that 
 he has not equal knowledge where it is the " system " from which 
 the accident arises.^ 
 Cook V. stark. This is, the principle on which Cook v. Stark,^ another Scotch 
 case, was decided. A workman in a quarry had been sent by 
 the manager to assist an experienced man who had been engaged , , , 
 for half an hour in attempting to draw an unexploded charge of 
 gunpowder from a rock, and used a steel "pumper" for that pur- 
 pose, which generated sparks and caused an explosion, whereby 
 the man was injured. The Court looked on the operation as 
 " dangerous and unprecedented," though not " so obviously 
 dangerous that the pursuer, an inexperienced workman, is in- 
 excusable in continuing to assist " in obedience to the order of 
 the manager, and held the pursuer entitled to recover. 
 wiUiamsD. Williams v. Clough^ and Watling v. Oastler'' both turn on 
 
 ciough. questions of pleading. The former was on a special demurrer, 
 
 the point being that it was consistent with the declaration in the 
 case that the plaintiff had notice from the defendant that the 
 
 1 3 Macqueen 266, at p. 290. an engine-driver was killerl while looking 
 
 ^ Bobertson «._ Brown, 3 E. 652, may be over the side of his engine by his head 
 
 referred to on this point, though there the coming in contact with a bridge. Held, 
 
 facts, and not the law, were in dispute. he could not recover. 
 
 See also M'Ghie v. North-Western Bail- » 24 Sc. L. E. 5. 
 
 way Company, 24 Sc. L. E. 370, where * H. & N. 258. = L. R. 6 Ex. 73. 
 
PART III,] MASTER'S DUTY TO HIS SERVANT. 325 
 
 ladder, the rottenness of whidi was the cause of the accident, was 
 unsafe, or had the means of knowing its insecurity. It was 
 alleged that the defendant was possessed of a ladder unsafe and 
 unfit for use, yet, " well knowing the premises, wrongfully and 
 deceitfully ordered " the plaintiff, his servant, to carry corn up the 
 ladder into a granary, and the plaintiff, believing the ladder to be 
 fit for use, " and not knowing the contrary," carried the corn up 
 the ladder, and whilst doing so was hurt." The Court held that 
 this, in effect, if not in terms, sufficiently alleged the ignorance of 
 the servant, and the declaration was therefore held good. Bram- 
 well, B., differed from the rest of the Court to the extent of 
 holding that the declaration should have negatived the means of 
 knowing of the servant, in addition to the mere actual knowledge ; 
 but that actual knowledge should have been negatived — by impli- 
 cation, if not directly — the whole Court was agreed.^ 
 
 In Watling v. Oastler, again, the divergence from the strict Watling v. 
 doctrine of law was again more apparent than real. The de- 
 claration set out that the defendants were owners of a factory and 
 machine, and that G. W. was employed by them to work therein, 
 and in the course of his employment it was necessary for him to 
 enter the machine to clean it ; that by ,the negligence of the 
 defendant it was unsafely constructed and in a defective con- 
 dition, and was, by reason of its not being sufficiently guarded, 
 unfit to be used and entered, as the defendants well knew ; and 
 by reason of the premises, and also by reason, as the defendants 
 well knew, of no sufficient apparatus having been provided by 
 them to protect G. W., it was suddenly put in motion whilst he 
 was at work in the machine, and he thereby sustained injuries. 
 To this declaration there was a demurrer, on the ground that 
 it should have been averred ia the declaration that G. W. was 
 not aware of the danger and defect. But it was held sufficient, 
 on the ground that it raised the question of the plaintiff's personal 
 negligence. That is, assuming the necessity to negative G. W.'s 
 knowledge of the defect of the machine, or the danger of the 
 work, if the declaration must be construed strictly as setting up 
 a cause of action arising from an original defect in the machine ; 
 in this case the cause of action might not be this, but might be 
 construed to arise from the personal negligence of the defendant 
 apart from actual defective or dangerous condition of machinery — 
 the machine " was suddenly put in motion " — and in that view, 
 coupled with previous averments of the defendant's knowledge 
 and intervention, the declaration might be read as alleging a 
 
 1 The Jiciamof Cronipton, J.jinDavies is therefore not in accord with what was 
 ». England, 33 L. J. Q. B. 321, at p. 322, actually decided in Williams v. Clough, 
 
326 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Griffiths ». 
 London and 
 St. Eathaiine 
 Docks Com- 
 pany. 
 
 Clarke v. 
 Holmes. 
 
 personal and negligent interference by the master, to wHcli know- 
 ledge, or want of knowledge, of G. W. would be relevant, nnder 
 a defence of contributory negligence, but any sucli averments 
 would not be necessary for the constitution of the original cause 
 of action, which was complete when actual personal intervention 
 of the master with consequent negligence and hurt could be 
 considered raised.' 
 
 That this is the right interpretation of the case may be 
 gathered from Griffiths v. London and St. Katharine Docks 
 Company,'' where, in an action of negligence brought by a 
 servant against his master for the unsafe state of the premises 
 on which the servant was employed, it was held that the state- 
 ment of claim must contain averments of two facts : that " the 
 danger which caused the accident was known to the master and 
 unknown to the servant," without which there could be no cause 
 of action " — that is, for " wrongful condition of machinery on the 
 premises on which the servant is to act ; " but if the actionable 
 wrong is the personal negligence of the master, or may be so 
 construed, there is then nothing to prevent the servant recovering 
 as if he were a stranger; and knowledge must be set up by 
 pleading contributory negligence. 
 
 But even the conjunction of these circumstances is not ne- 
 cessarily conclusive against the servant's right to recover. In 
 Clarke v. Holmes,' a case where the judgment of the Exchequer 
 Chamber turned on the common law liability of the master for 
 defective machinery, Cockburn, C.J., thus expressed himself : 
 " No doubt when a servant enters on an employment from its 
 nature necessarily hazardous, he accepts the service subject to 
 the risks incidental to it ; or if he thinks proper to accept an 
 employment on machinery defective from its construction or from 
 the want of proper repair, and with knowledge of the facts enters 
 
 1 As to the averment of knowledge in a 
 declaration and a classification of the case 
 see Smyley v. Glasgow and Londonderry 
 Steam-packet Company, Ir. R. 2 C. L. 24, 
 by Pigot, C.B., p. 29. 
 
 2 (1884) 12 Q. B. D. 493, in Court of 
 Appeal, 13 Q. B. D. 259. In New York 
 the plaintiff must prove : — First, that the 
 appliances, whatever their nature, were 
 defective ; second, that the master had 
 knowledge of the fact ; third, that the 
 servant did not know, and had not the 
 means of knowing, Eeardon v. New York 
 Card Company, 51 N. Y. 134. 
 
 3 7 H. & N. 937. " I do not think the 
 majority of the Court in Clarke v. Holmes 
 coincided with what was said by twd of 
 the judges " : per Byles, J,, Murphy v. 
 Smith, 19 C. B. N. S. 361, at p. 365. 
 " I cannot follow the Teasoning of some of 
 
 the judges in the Exchequer Chamber, 
 inHolmeso. Clarke": perBramwell,B.,in 
 Britten v. Great Western Cotton Com- 
 pany, L. E. 7 Ex. 130, at p. 136. "The 
 case of Clarke o. Holmes is one which it is 
 not easy to place under any very well- 
 defined principle" : per Hoar, J., 102 Mass. 
 572, at p. 586. " The case of Clarke v. 
 Holmes has been observed upon, but it 
 has never been overruled ; and it seems to 
 me to be this case. It is binding upon 
 us, and, moreover, it is in my opinion 
 rightly decided" : per Lord Esher, M.B., 
 Thomas v. Quartermaine, 18 Q. B. D. 
 685, at p. 690. " The injured person may 
 have had a right to statutory protection, 
 as where an Act of Parliament requires 
 machinery to be fenced. The case of 
 Clarke v. Holmes is a case of that sort " : 
 per Bowen, L. J., S. C. p. 696. 
 
PART in.] MASTER'S DUTY TO HIS SERVANT. 327 
 
 on the service, the master cannot be held liable for injury to the 
 servant within the scope of the danger which both the con- 
 tracting parties contemplated as incidental to the employment. 
 The rule I am laying down goes only to this, that the danger 
 Contemplated on entering into the contract shall not be aggra- 
 vated by any omission on the part of the master to keep the 
 machinery in the condition in which, from the terms of the 
 contract or the nature of the employment, the servant had a 
 right to expect that it would be kept." 
 
 The judgment of Byles, J., went far beyond this ; he was of 
 opinion, first, " that the owner of dayigerous machinery is bound 
 to exercise due care that it is in a safe and proper condition ; 
 second, that it is in most cases impossible that a workman can 
 judge of the nature of a coftplex and dangerous machine wielding 
 irresistible power ; and, if he could, he is quite incapable of 
 estimating the degree of risk involved in different conditions 
 of the machine ; from this postulate he draws the rule. The 
 master is neither on the one hand at liberty to neglect all 
 care, nor on the other is he to insure safety, but he is to use 
 due and reasonable care. The degree and nature of that care are 
 to be estimated on a consideration of the facts of each particular 
 case. I do not say that the degree of care is in all cases the 
 same as the master must observe towards strangers." 
 
 Willes and Wightman, JJ., laid more stress on the statutory 
 liability.' 
 
 Three different views, therefore, appear to have been advocated Three view* 
 in Clarke v. Holmes. °n Clarke^-. 
 
 First. That of Byles, J., that there is a special duty with Holmos. 
 regard to dangerous machinery " wielding irresistible mechanical 
 power.'' 
 
 Second. That of Cockburn, C. J.," that there is an obligation on 
 the employer to keep machineiy without material deterioration 
 during the employment. 
 
 Third. That of Willes and Wightman, JJ., that a statutory 
 obligation imposes special duties. This we shall discuss sub- 
 sequently. 
 
 Setting this aside, then, the first opinion we have to con- 
 sider is that of Byles, J. The common law imposes no duty on 
 a master to safeguard his servant from the risks incident to the 
 employment,' provided only the servant has equal means of 
 
 ' 31 L. J. Ex. 356. "There was a neglect of duty on the part 
 ' Crompton, J., seems in part at least of the defendant in not keeping the 
 to lave concurred with Cockburn, C.J. machinery fenced, for which he is re- 
 After declining to give an opinion on the sponsible." 
 point of statutory liability, he says :— ' Bartonshill Coal Company «. Eeid, 3 
 
32& . THE LAW OF NEGLIGENCE. [book i. 
 
 knowing the risks with the master.' This being so, it is obvious 
 that the use of dangerous machinery in itself creates no greater 
 liability than the use of ordinary machinery. But that the pro- 
 bability of the circumstances which import liability — knowledge 
 on the part of the master, want of knowledge on the part of the 
 servant, and a failure to assume, from any cause, the risks of 
 the service — is veiy much greater where machinery is in its 
 nature dangerous, than where danger does not prominently exist. 
 Byles, J., states a principle which involves a shifting of the 
 ordinary legal presumption, for he lays it down that "it is in 
 most cases impossible that a workman can judge of the con- 
 dition of a complex and dangerous machine, wielding irresistible 
 mechanical power; and, if he could, he is quite incapable of 
 esfimating the degree of risk involved in different conditions of 
 the machine." Thus, in cases of this sort the injured servant 
 would have to give evidence, first, of injury ; then that the 
 machinery was dangerous ; and thereupon the master would have 
 to show what Byles, J., regards as "in most cases impossible," 
 that the servant correctly estimated the risks. But to do this, a 
 presumption of incapacity, similar to that made in the case of 
 young children, would have to be raised. Save for the opinion 
 of Byles, J., there does not appear to be the least authority for 
 this, and it seems to be contrary to principle to presume an 
 incapacity, and especially in a case where the fact of under- 
 taking the work would seem rather to presume a capacity, to 
 execute it.' 
 View of Cook- The next view to con,sider is that of Oockburn, O.J. His 
 opinion " that the danger contemplated on entering into the 
 contract shall not be aggravated by any omission on the part of- 
 the master to keep the machinery " without material deterioration 
 during the employment, has practically the assent of Kelly, C.B.,^ 
 and is recognized in the earlier cases.'' The proposition, how- 
 ever, is perhaps too broadly expressed, as importing an absolute 
 duty on the master, and ignoring the possible application of the 
 
 Macqueen 266, at p. 298 ; Dynen v. les incapadtSs sont eonsiquemment des ex- 
 
 Leach, 26 L. J. Ex. 221 ; Saxton v. ceptions, qui ne doiventjamaU s'entendrg 
 
 Hawkeswortb, 26 L. T. 851 : per Bram- aux cos non privut. In America it has 
 
 well, L. J., Lax v. Mayor and Corporation been held, that when, the master has notice 
 
 of Darlington, 5 Ex. D., at p. 35. of inexperience he is bound to give cx- 
 
 1 Ogden V. Eummens, 3' F. & F. 751 ; plicit warning, Bummell v. Dillworth, 1 1 1 
 
 Maoleod v. Caledonian Kailway Company, Penn. St. 343, and that where there is a 
 
 23 Sc. L. E. 68, at p. 70. duty to give notice, actual notice must be 
 
 * Cbitty on Contracts, p. 135. Tovte given: and ii is not enough to use reason- 
 
 peraonne pent eontracter si elle re'en est able care, Wheeler «. Wason Manufactur- 
 
 paa dSdarie incapabU par la hi, Code ing Company, 135 Mass. 294. 
 
 Ciril, liv. 3, tit. 3, s. 2, art. 1123. Upon ' Murphy v. Smith, 35 L. T. N. S. 477. 
 
 which Eognon observes : Le principe * See per Lord Cranworth, 3 Macqueed 
 
 gingral eit que tout le rmnde est capable; 266, at p. 290. 
 
 burn, CJ. 
 
PART in.] MASTER'S DUTY TO HIS SERVANT. 329 
 
 maxim, Volenti non Jit injuria. This we have already seen is 
 not excluded, and the master is not necessarily liable for even 
 the most dilapidated condition of machinery.' The most usual 
 limitations of the rule were shortly afterwards more distinctly 
 expressed in the Msi Prius ruling, in Holmes v. Worthington,'' Holmes v. 
 by Willes, J., one of the judges who restricted their concurrence ^o^Wngton. 
 in Glarke v. Holmes to the actual deddsion, apart from the reason- ^ew!°' "^'''^ 
 ing. That learned judge thus expresses himself, where from 
 defect of a rope used in hoisting casks, the rope broke and fell 
 upon plaiatiff: " There is no case deciding that where the 
 employer and the servant are both aware that the machinery is 
 in an unsafe state, and the servant goes on using it under a 
 reasonable belief that it will be set right by the employer, 
 and it is not set right, and»he suffers an injury, he cannot sustain 
 an action." And, again : "If the defendants knew of the 
 defect and undertook to repair it, and the plaintiff went on 
 working relying on their repairing it, then they may be liable. 
 If the plaintiff complained of the defect and the defendants 
 promised that it should be remedied, he is not to be deprived of 
 his remedy merely because, relying on their promise, he remained 
 in their employment. You must, however, be satisfied that they 
 (i.e., the defendants) were' aware and that the accident arose 
 from it — not from plaintiff's want of care. The law is succinctly Boweu, L.J., 
 stated by Bowen, L.J., in Thomas v. Quartermaine * : — " Know- Quartermaine. 
 ledge is not a conclusive defence in itself. But when it is a 
 knowledge under circumstances that leave no inference open but 
 one — viz., that the risk has been voluntarily encountered, the 
 defence seems to be complete." The judges, in the Scotch Court 
 - of Session, in Grichton v. Keir,° seem to have misread the English CHohtou v. 
 case of Clarke ■;;. Holmes," which they distinguish from the case 
 then before them on the ground that there was " an antecedent 
 statutory obligation on the master." This we have already seen 
 was not the ratio decidendi of that case. Proceeding, however, 
 on that assumption, they distinguish the case where the servant 
 was induced to continue in an employment by a promise of pro- 
 viding a young and efficient horse in place of an old and inefficient 
 one, and held' that " where a servant in face of manifest danger 
 chooses to go on with his work, he does so at his own risk and 
 not at the risk of the master" — that is, that knowledge is, j)er se, 
 
 ^ See cases ante, 321 et seg. Eailway, 4L. E. Ir. C. L. 386, appears to 
 
 " 2 F. & F. 533. ■ lean to the view that knowledge per se is 
 
 ' I.e., "Ought to have leen." See per enough. To the extent it does this it is 
 
 Cockbum, C.J., Webb v. B«nme, 4 F. &F. of courne not an aathority. 
 
 608. ^ I M. 407. 
 
 * l8 Q. B. D. 68s, P- 697. The Irish « 7 H. & N. 937. 
 
 case of Rattray v. Cork and Macroon ' i M. at p. 408. 
 
330 
 
 THE LAW OP NEGLIGENCE. 
 
 [book I. 
 
 Xanin^ v. 
 New York 
 Central 
 Sailroad 
 Company. 
 
 American law 
 Eummarized 
 in three 
 propositions. 
 
 an answer to the action. This is, as we have seen, quite contrary 
 to the English cases, by which knowledge is but an element for 
 consideration and not the sufficient test of voluntarily working. 
 
 The New York case of Laning v. New York Central Eailroad 
 Company' — a case in other respects at variance with the English 
 law — is on this point more in accord with Holmes v. Clarke. In 
 the leading opinion," alluding to that case, there is the following 
 passage : — "It has been held that there is a formal distinction 
 between the case of a servant who knowingly enters into a 
 contract to work on defective machinery and that of one who on 
 a temporary defect arising is induced by the master, after the 
 defect has been brought to the knowledge of the latter, to 
 continue to perform his service under promise that the defect 
 shall be remedied.' And the fact that after the plaintiff had 
 entered the service of the defendant he acquired knowledge of 
 the intemperate habits of the foreman was a fact in the case to 
 be submitted to the jury to be considered by them, together with 
 the promise of the superintendent, and all the other facts and 
 circumstances, in determining the question, whether the plaintiff 
 himself helped to bring about the accident for which he seeks to 
 charge the defendant. Knowledge in such a case is not of itself 
 in point of law an answer to the action."'' And this seems to be 
 in accord with the most authoritative English cases. The United 
 States case of Hough v. Texas, &c., Eailroad Company ° recognizes 
 and follows the law as laid down in Holmes v. Worthington, and 
 Clarke v. Holmes. The statement of the law, as there laid down, 
 may be reduced to three propositions : — 
 
 1 . Where a master has expressly promised to repair a defect, 
 the servant can recover for an injury caused thereby within such a 
 period of time after the promise as would be reasonable to allow 
 for its performance ; aiid for an injury suffered within any period 
 that would not preclude reasonable expectation that the promise 
 would be kept. 
 
 2. Where the servant, having the right to abandon the service, 
 because it is dangerous, refrains from doing so in consequence of 
 assurances that the danger shall be removed, the master is not 
 in the exercise of ordinary care unless, and until, he makes the 
 assurances good, and the assurances remove all ground for the 
 argument that the servant by continuing the employment under- 
 takes the risk. 
 
 3. Where the servant continues at a dangerous employment 
 
 1 49 N. y. 521. knowledge of tlie fact (of defect) in the 
 
 ' At p. 536, per Pcilger, J. plaintiff did not exonerate the defendanti 
 
 ' Per Cookbum, C.J., pp. 944-5. This was held correct, p. 537. 
 
 * The judge on circuit had charged that ^ 100 U. S. (lO Otto) 213. 
 
PART III.] MASTER'S DUTY TO HIS SERVANT. 381 
 
 after a promise to remedy a defect, it will be for the jury to say 
 whether the defect was of such a nature that only a reckless man 
 utterly careless of his own safety would have continued to work 
 without the application of a remedy.' 
 
 With these cases may be noted Riley v. Baxendale,^ which Eiley v. 
 followed shortly after Williams v. Clough,' and in which an ^*''*"*'''- 
 attempt was made to avoid the law as therein laid down by the 
 allegation in the declaration of a contract that " the defendants 
 should take due and ordinary care not to expose the said J. E. to 
 extraordinary danger and risk in the course of his said employ- 
 ment." The effect of this was, that it was impossible for the 
 defendant to demur, and all he could do was to deny any such 
 contract in fact. The judge at the trial nonsuited the plaintiff 
 on the opening of his counsel, and the nonsuit was upheld on 
 the motion. Pollock, C.B., saying : " Generally speaking, a mere 
 duty cannot be turned into a contract, and great inconvenience 
 would result if we were to permit it to be declared on as such. 
 If the obligation had been alleged as a duty the defendant 
 might have demurred ; but when it is alleged as a contract the 
 defendant cannot demur, because it is possible that there may be 
 such a contract in point of fact." But there is no such implied 
 contract. 
 
 What the obligation to the master is with regard to machinery obligation of 
 where the question of direct personal negligence is not raised, is trithTegard 
 pointed out in Vaughan v. Cork and Youghal Railway Company* *°ij™!|^t[°rg^ig 
 — an action in the Irish Courts, brought under Lord Campbell's no question 
 Act, which came before the Court on demurrer. On the argument personal 
 a question was raised whether the declaration shewed a good cause legi'gence. 
 of action. The declaration set out that the deceased was em- corland"' 
 ployed by the defendants to work in a passage where was a wall g°|}^*' 
 of which the defendants had absolute control, and " whilst " the Company, 
 deceased "was actually" engaged at his work "along the said 
 passage " for the said defendants as aforesaid, and at their re- 
 quest, that the said wall became, and was, ruinous, and fell upon 
 " the deceased." 
 
 " For some time," says Pigot, C.B., delivering the judgment Ju<Jg«»ent of 
 ' of the Court on this point, " I was disposed to think that the 
 plaint did not sufficiently disclose a cause of action. It is clearly 
 established that if a servant voluntarily undertakes an employ- 
 ment which in its nature is an employment of danger, he does so 
 
 1 District of ColumWa v. McEIligott, " (1861) 6 H. & N. 445. 
 
 117 U. S. (10 Davis) 621. See Greenleaf ' 3 H. & N. 258. 
 
 V. Illinois Central Bailroad, 29 Iowa, ■* Vaughan «, Cork &Youglial Bailway 
 
 14 ; also Kane v. Northern Central Bail- (i860), 12 Ir. C. L. E. 297. The Scotch 
 
 road Law Jimei newspaper, Jan. 12, cases are noted in Watt v. Nelson, 25 
 
 1889. So. L. E. 576. 
 
332 THE LAW OP NEGLIGENCE. [book i. 
 
 as his own insurer against the risk. The master is not respon- 
 sible to his servant for injuries resulting from the danger of an 
 employment into which the plaintiff voluntarily enters under 
 circumstances in which the risk is necessarily and obviously 
 connected with the employment. .... But the employer is 
 bound to use all reasonable care to protect his workmen from 
 dangers which are unknown to them, and which he knows and 
 must be presumed to know. And on looking more narrowly 
 into the frame of this summons and plaint, I think it must be 
 construed as shewing that the wall became ruinous and dangerous 
 by the defendant's negligence after the plaintiff was engaged in 
 the service and while he was actually employed in doing the 
 work, the wall being in the actual 'possession and under the 
 control and dominion of the defendants.' Upon that statement 
 • the defendants can hardly be treated otherwise than as directly 
 and personally cognizant of the altered condition of the wall; 
 and if the wall became ruinous and dangerous while the de- 
 ceased was engaged in the work near it, either he ought to have 
 been made acquainted with the change which caused new risk to 
 his employment, or precaution ought to have been taken to secure 
 him from the danger.'" 
 Euie indicated This case is important as laying stress on the fact that, with 
 i^nt.'^ ■"" ^ reference to the same man and the same machinery, there may be 
 two different species of obligation. If the machinery is in a 
 dangerous condition when he enters on the work, no obligation is 
 presumed on the employer to alter or improve it^ unless there 
 is any concealment about it ; but where the workman enters on 
 the work with all the accessories in a reasonably fit condition, 
 and by reason of non-repair or absence of supervision such con- 
 dition becomes altered so that an accident occurs, then the 
 presumption is that the employer is guilty of negligence ; for it 
 is not the duty of the workman to watch the gradual attrition of 
 machinery or plant until it is in such a state that danger may 
 probably arise, and then to give notice to the master so that 
 repair may be executed or, in the alternative, the contract varied. 
 But when the workman has entered upon an employment with 
 reasonably fit and proper machinery, and undertaking no more • 
 risks than the ordinary, the employer has a positive duty upon 
 him to keep all the surroundings of the work in suitable condition, 
 and the burthen of proof lies on him to shew he has done so. 
 Acted on in This is in accord with the law as subsequently laid down in the 
 
 Ph^ips."' Exchequer' Division in Murphy v. Phillips.' There the plaintiff 
 
 1 M'lnally v. King, 24 So. L. E. 15. " (1876) 3 L. T. N. S. 477 ; Spiccr t>. 
 
 2 Dynen v. Leach, 26'L. J. Ex. 221. South Boston Iron Company, 138 Mass. 
 
PARTiii,] MASTER'S DUTY TO HIS SERVANT. 333 
 
 was injured by the breaking of a chain, caused partly by bad 
 
 welding, and partly by its worn condition. Kelly, C.B., thus 
 
 expressed his view of the law : "It then became a question 
 
 whether, from whatever cause the accident may have occurred, it 
 
 was or not the duty of the defendant, as the master and employer 
 
 of the plaintiff, to see and examine from time to time the state 
 
 and condition of the chains and other machinery employed upon 
 
 his premises in his business. I am of opinion very clearly that it 
 
 was, and that the defendant was bound from time to time, as the 
 
 occasion might require, to have the chains used in his business, 
 
 and of course, therefore, the particular chain in question, properly 
 
 and duly examined and tested periodically." And also with the 
 
 direction of Oockburn, O.J., to the jury in the case of Webb v. "Webbw. 
 
 Eennie,' where injury arbse from the fall of a scaffold pole ^'""®' 
 
 through rottenness, and it was proved that the end had been in 
 
 the earth two years without examination, " the servant had a 
 
 right to expect that he shalt only be exposed to the ordinary 
 
 risks of the employment, and that the machinery or apparatus 
 
 about which he is to be employed, and out of which danger 
 
 arises, shall be attended to with reasonable care, to ensure its 
 
 being in a fit state to be worked without undue or extraordinary 
 
 danger to those employed in or about it ; and although in general 
 
 an employer was not liable unless he knew of the danger, yet it 
 
 was his business to know, if by reasonable care and precaution he 
 
 could ascertain, whether the apparatus or machinery were in a fit 
 
 state or not. It was not enough, therefore, that the master did 
 
 not know of the danger, if by reasonable care he might have 
 
 known, and if reasonably he ought to have known, and to have 
 
 taken the proper means of knowing. It followed that although 
 
 he would not be liable merely on account of the negligence of his 
 
 .servants, yet it was his duty either himself to take the proper 
 
 means of knowing of the danger, or to employ some competent 
 
 person to do so." These cases may further be supported as a second 
 
 coming within the rule that where the master has a greater ^'^ich these 
 
 means of knowing than the workman he owes a greater duty to ju^^^o™*^ '"' 
 
 him, for the matter in question being not within the ordinary 
 
 sphere of duties of the servant, he is not to be presumed to 
 
 concern himself with them, or to be acquainted with them, but 
 
 426, the case of a flaw in an iron hook used cient by skilfnl and competent men, had 
 
 to raise furnace door, which a careful in- not been discovered, 
 spection would have revealed, Warner v. ' 4 F. & I\ 608, at p. 613 ; O'Donnell 
 
 Erie Railroad Company, 39 N.y. 468. The 1). Allegheny Valley Eailroad Company, 
 
 case of a structure originally sufficient, 59 Penn. St. 239 ; case where wood gave 
 
 but rendered unsafe, by gradual decay, way that had been in the soil an unreason- 
 
 which, under the careful inspection of able length of time, 
 competent agents in modes deemed suffi- 
 
334 THE LAW OF NEGLIGENCE. [book r. 
 
 is entitled to assume, in the absence of a suggestion to the 
 contrary, that everything is efficiently and carefully^ provided for. 
 
 Allen ». New Allen V. New Gas Company' was argued and decided (at least 
 ompany. ^^ ^^^ ^^ appears from the report) exclusively on the ground 
 of the duty of the employers to employ a competent person to 
 take charge of their premises, and without reference to the duty 
 of the employer to see to the condition of the tackle and 
 machinery. The evidence was, that the plaintiff's injuries were 
 caused by the falling upon him of some gates^ which were built 
 into a framework on the premises of the defendant where the 
 plaintiff was at work. They had been out of repair for some 
 time, and had been gradually getting " from bad to worse." If 
 closed, or partially closed, they were unsafe, but if left open and 
 wedged up they were safe. The attention of the company's 
 manager had been called to the unsafe condition of the gates ; it 
 was, however, not shewn that anything had been done, though 
 directions to repair had been given. When the plaintiff went 
 out, the gates were open and wedged up ; when he returned, one 
 gate was open, the other shut. How this came about there was 
 no evidence. By reason of their defective condition they fell 
 upon the plaintiff and injured him. A verdict was given for the 
 plaintiff, but this was set aside by the Divisional Court, and a 
 verdict entered for the defendant, on the ground that the 
 plaintiff " had not shewn that the persons employed by the 
 defendants were incompetent, and the negligence, if any, which 
 caused the accident was that of a fellow-workman of the plaintiff."' 
 
 Discussed. The point that there is a personal duty on the employer to see 
 to the maintenance of his premises in a condition of reasonable 
 safety is thus glanced at in the judgment : " There was no 
 evidence to shew that the premises of the defendant were 
 dangerous,^ that these gates were defective in their original con- 
 struction, or that they had not been perfectly safe when first put 
 up. If they had fallen into a state of decay, and had been per- 
 mitted to remain in that state, it could scarcely be said that that 
 was the act of the defendants, but must have been that of the 
 persons whom they must have employed; and there was no 
 evidence to shew that such persons were not proper and com- 
 petent for the defendants to employ." However, what the 
 learned judge'' who delivered the judgment in Allen v. New Gas 
 Company considered "could scarcely be said," and dismissed 
 
 ' I Ex. D, 2$!. and also by consequence if they were left 
 
 " From the head-note. open but not wedged up. In aiiOTt, -with- 
 
 > " The evidence was, that these gates out additional and special precautions, they 
 
 if left open and wedged up were safe ; hut were dangerous. 
 
 if closed, or partiaUy closed, there was * Huddleston, B, 
 
 danger that they might faU," at p. 251 ; 
 
PART m.] MASTER'S DUTY TO HIS 'SERVANT. 335 
 
 accordingly, had actually been held, as we hare seen, by Pigot, 
 C.B., in Vanghan v. Cork and Youghal Railway/ and by 
 Cookburn, G.J., while the Exchequer Division itself, a few weeks 
 after the judgment in Allen v. New Gas Company, an-ived at a 
 decision in conflict with the learned baron's dictum? From any- 
 thing that appears in the report of the case, there is no pretence 
 of suggestion that it was the special duty of any one to see to 
 the condition of the working surroundings at the gas works,', 
 and if the fact of there being a foreman engaged were sufficient . , . 
 to discharge the employer's liability to see to the reasonably safe 
 condition of his premises, the special duty on the employer that 
 would be asserted in one breach, by requiring him personally to 
 see to machinery and plant, would be negatived and evaded by 
 the appointment of a fo^man with duties not differing from 
 ordinary. Moreover, as we have seen,^ the mere fact that the 
 attention of the manager had been directed, to the unsafe con- 
 dition of the gate, and orders given, but not carried out, to 
 remedy this, would not in itself be conclusive against the plaintiff's 
 right to recover ; and it seems to be assumed throughout that 
 though there was a complaint and a promise of remedy, the 
 plaintiif would be deprived of his right to recover, even sup- 
 posing him to have remained, merely because he relied on the 
 promise so made. To put the matter shortly, if the plaintiff had 
 no knowledge, or no sufficient knowledge, of the condition and 
 the dangers of the gates, he was held not to be able to recover, 
 because there was a foreman who, in the ordinary course of 
 things, should have looked after the gates, and did not ; and if 
 the plaintiif had knowledge, he, as a proposition of law, and 
 necessarily, could nqt recover, because he consented to the risk. 
 In either view the decision seems unsatisfactory.'' 
 
 In this connection it may be well to note a distinction that Distinction 
 
 ■,,,..1, .1 1 ±_t ' ' -I between cases 
 
 marks the une between those cases where the injured person where the 
 cannot recover against the employer on the ground that he is froj^" egieot 
 not responsible for the happening of the injurious event which is ii providing 
 
 ^ J. 1 <3 u proper ma- 
 
 chinery and 
 
 1 12 Ir. C. L. R. 297. 533; Stanforth «. Bumback Foundry °°™P^*™*, 
 
 = Murphy V. PhiUips, 35 L. T. N. S. Company. 24 Sc. L. R. 722. the ^ses 
 
 477 ; Spicer v. South Boston Iron Com- ° Another inaccuracy in the judgment where the 
 
 pany, 138 Mass. 426. may bs noted. Huddleston, B., says, p. injury arises 
 
 ' Huddleston, B., says, " assuming it 254: " We think the mischief in this case from the 
 
 to have been the neghgence of Farren, arose from the conduct of the plaintiff's management 
 
 that would be negligence of a i'ellow-ser- fellow-workmen as such, and not from the of machinery, 
 
 Tant." Quite so. But why assume it defendant's default, KOr /rom t/te de/aaK 
 
 at all? Why not discuss the case as of anymanager or vice-proprietor." It 
 
 raising the question of the duty of the is clear from the decision that the Courts 
 
 employer to see that the risks snr- refuse to recognise any such distinction, 
 
 rounding the work are not greater than Wilson v. Merry, L. B. i Sc. Ap. 326 ; 
 
 apparent? Howells v. Landore Siemens Steel Coin- 
 
 * Holmes V. Worthington, 2 F. & F. pany, L. R, id Q. B. 62. 
 
836 THE LAW OF NEGLIGENCE. [book i. 
 
 bronglit about through miscarriage of machinery, and those in 
 which he is held liable on account of the bad condition of 
 machinery. The master, it may be said, is liable in all cases 
 where there has been neglect in providing proper machinery and 
 competent servants. But he is not liable when the injury re- 
 sults from the management of the machinery by servants not 
 incompetent.' 
 statutory duty. The case of Senior v. Ward^ involved considerations raised by 
 Senior 1-. Ward, the violation of a statutory duty. Under the 1 8 & 1 9 Vict. c. 1 08, 
 rules for the regulation of the defendant's coal mine were approved. 
 By one of these rules every morning, before any one descended the 
 shaft of the mine, the cage was to be inspected by the engineman, 
 and " the ropes and loaded cages are then to be run slowly twice 
 up and down the pit before any person descends or ascends." But 
 the defendant, who superintended the working of his colliery, 
 allowed the rule to be entirely neglected. The night before the 
 accident the rope by which the cage was suspended was injured 
 by an accidental fire. On the morning of the accident the miners 
 were told by the banksman they had better examine the rope 
 before they went, they, however, neglected to do so, the rope broke 
 as the cage decended, and those in it were killed. The Court 
 held that the case came within the maxim, Volenti non Jit injivria, 
 by reason of the defendant's conduct ; yet indicated its opinion 
 that, apart from this knowledge and acceptance of the danger by 
 the deceased, the defendant would have been liable, though the 
 negligence was, in the last instance, the negligence of the banks- 
 man, who was a fellow-workman ; but there was most culpable 
 negligence on the part of the defendant personally in neglecting 
 to see to the observance of the statutory rule, and in keeping a 
 banksman who he knew habitually disregarded it ; and either of 
 these circumstances would be sufficient to import liability. 
 The maxim, Two. questions Suggested by the decision, and requiring more 
 
 fit Injuria^ attention for their elucidation than they received, are, what is the 
 precise import of the maxim, Volenti non fit injuria, and with what 
 circumstances, if any, does it apply in the case of the violation of 
 a statutory obligation. 
 
 First, it is pointed out by Bowen, L.J.,' that the effect of the 
 
 ' Bartonsliill Coal Company v. Eeid, ' i E. & E. 3S5; 28 L. J. Q. B. 139. 
 
 3 Macqueen 266 at p. 297. Compare * Thomas v. Quartermaiue, 18 Q. B. D. 
 
 Ormond v. Holland, El. Bl. & El. 102, 685, at p. 697. M'Evoy v. Waterfoid 
 
 ■wliere it was a ladder that caused the Steamship Company, Limited, 18 Ir. L. E. 
 
 accident, and the defendants " nsed more C. L. 159. " I was surprised to find that 
 
 than ordinary care, and took extraordinary any person could gravely raise a doubt on 
 
 precautions that the plant should be sufii- the question, as we have decided over and 
 
 cient." And again compare with this, over again in this Court, and notably in 
 
 Armour v. Hahn, in U. S. (4 Davis) the case of M'Carthy v. British Ship- 
 
 313. owners' Company, loL. K. Ir. C. L. 384, 
 
PART III.] MASTER'S DUTY TO HIS SERVANT. 337 
 
 maxim, Volenti non Jit injuria, is by no means conterminous with 
 the defence of contributory negligence. " Contributory negli- 
 gence," says he, " arises when there has been a breach of duty 
 on the defendant's part, not where, ex hypothesi, there has been 
 none. It rests upon the view that, though the defendant has, in 
 fact, been negligent, yet the plaintiff has, by his own careless- 
 ness, severed the causal connection between the defendant's negli- 
 gence and the accident which has occurred, and that the defend- 
 ant's negligence, accordingly, is not the true proximate cause of 
 the injury. It is for this reason that, under the old form of 
 pleading, the defence of contributory negligence was raised in 
 actions based on negligence under the plea of 'not guilty.' It 
 .was said, and said rightly,, in Weblin v. Ballard^ that, in an 
 "Soquiry whether the plaintiif has been guilty of contributory 
 negligence, the plaintiff's knowledge of the danger is not con- 
 clusive. Obviously such knowledge may have even led him , to 
 exercise extraordinary care. But the doctrine of Volenti non Jit 
 injuria stands outside the defence of contributory negligence, and 
 is in no way limited by it. In individual instances the two ideas 
 sometimes seem to cover the same ground, but carelessness is 
 not the same as intelligent choice, and the Latin maxim often 
 applies where there has been no carelessness at all. A confusion 
 of ideas has frequently been created in accident cases by an 
 assumption that negligence to the many who are ignorant may be 
 properly treated as negligence as regards the one individual who 
 knows and runs the risk, and by dealing with the case as if 
 it turned only on a subsequent investigation into contributory 
 negligence. In many instances it is immaterial to distinguish 
 between the two defences, but the importance of the distinction 
 was pointed out by Erie, O.J., in his summing up to the jury in 
 Indermaur v. Dames,^ and by Cockbum, C.J., in Woodley v. 
 Metropolitan District Eailway.' To prove negligence it is not 
 enough to shew that the defendant has been negligent to others ; 
 the plaintiff must shew that there has been a breach of duty 
 towards himself. These two defences, that which rests on the 
 doctrine Volenti non Jit injuria, and that which is popularly 
 described as contributory negligence, are quite diiferent." 
 
 That a person guilty of contributory negligence should not 
 recover even when the injury arises from neglect to observe a 
 statutory duty is not only reasonable, but clear law.** For, in 
 
 that a defence of contributory negligence ' 2 Ex. D. at p. 390. 
 
 is only an amplified form of denial that the ■* Senior «. "V\ ard, i E. & E. 385 ; 28 
 
 injury waa caused by the negligence of L. .T. Q. B. 139; Caswell v. Worth, S 
 
 the defendant, per Dowse " : B., at p. 165. E. B. & E. 849. The remark of Pigott,B., 
 
 ^ l^ Q. B. D. 122. "I should have been better satisfied if 
 
 " L. E. I C. P. at p. 277. Caswell v. Worth had been otherwise 
 
 Y 
 
\ 
 
 338 TPIE LAW OF NEGLIGENCE. [book i. 
 
 sucli a case, tlie plaintiff has failed to establish the proposition 
 on which alone he is entitled to recover damages — that the in- 
 jury happened through the defendant's negligence.' 
 
 But where there is no contributory negligence, and the injury 
 arises from the dangers of the work, the position of things is 
 different.^ There is, first, a duty on the employer to provide 
 reasonable and fit machinery. And his liability in this respect is 
 determined by considerations of whether he has knowledge, and 
 his servant is ignorant, of all falling short in the condition and 
 repair of the surroundings with which the servant has to work.^ 
 In that event — of knowledge of the master and ignorance of the 
 servant — the master is liable ; even though the condition of things 
 is the same as when the servant entered the employment. And 
 this because the law implies an obligation on the master to make 
 the servant as well acquainted with the circumstances of the work 
 as he is himself ; and failure to discharge this duty imposed by 
 law affects the master with a similar liability to that which would 
 arise if he were a fellow-workman with his servant, and negli- 
 gently or recklessly using tools caused an injury to his servant. 
 This brings us to a more detailed consideration of the meaning 
 and scope of the rule summarized in the maxim, Volenti non fit 
 injuria. 
 
 The maxim is applicable in diverse circumstances, though its 
 weight is by no means uniform. 
 
 A trespasser who injures himself by intermeddling cannot by 
 his wrongful act impose a duty upon another," and, his act being 
 wrong, he is held to have undertaken the risks with which it was 
 attended. 
 
 Again, he who roams over the property of another must be 
 held to do so subject to the liability of himself bearing all injury 
 from dangers encountered while so using the licence ; with this 
 proviso that the owner of the property is bound not wilfully to 
 
 decided, and that the master in that case M'Evoy v. Waterford Steamship Company, 
 should have been held liable, as he had i8 L. K. Ir. C. L. 159. 
 been clearly guilty of a breach of statutory 1 Wakelin v. London and South- 
 duty," overlooks the difference in the AVestern Railway Company, 12 App. Cas. 
 application of the maxim, Volenti non fit 41. In most cases it is well-nigh impos- 
 injuria, and the defence of contributory sible for the plaintiff to lay his evidence 
 negligence. That the distinction was before a jury or the Court without dis- 
 not absent altogether from his mind closingcircumstanoeswhicheither point to, 
 appears from the following passage ;— " It or tend to rebut, the conclusion that the 
 seems that even although there may be a injured party was guilty of contributory 
 statutory duty imposed on the employer, negligence : per Lord Watson, at p. 48. 
 the workman must still be careful of his ^ Mulligan v. M'Alpine, 25 Sc. L. R. 
 own safety " : Britton v. Great Western 589. 
 
 Cotton Company, L. B. 7 Ex. 130, at p. ^ Gnffiths j). London and St. Katharine 
 
 139. The case of Caswell ti. Worth was. Docks Company, 12 Q. B. D. 493, 13 
 
 however, decided on demurrer, when the Q. B. D. 259. 
 
 only point was whether a plea that set ■■ Degg v. Midland Railway, i H. & N, 
 
 up contributory negligence was good. at p. 782. 
 
PART HI.] MASTER'S DUTY TO HIS SERVANT. 339 
 
 deceive him, or to do any act which may place him in danger.' 
 But it is in the case of the existence of the relation of master and 
 servant that the application of the rule is now most frequently 
 invoked. 
 
 The existence of the risk from which the injury has arisen Eisk either 
 may either have been contemporaneous with, or subsequent to, the neouTwift," 
 entry upon the employment, and may consist in a state of things ™ subsequent 
 either indifferent in itself or forbidden by statutory enactment, by the servant 
 If the existence of the risk is contemporaneous with the entry pfoynient!™' 
 by the servant upon the employment, and manifest to him, and 
 there is no statutory duty to remedy it, then it forms one of the risk is con- 
 terms of the employment, and the rule, Volenti -non fit injuria, temporaneous. 
 applies, since the risk thus becomes a condition of the service. 
 
 This is expressed by Lord Bsher, M.E., in Yarmouth v. France^ : 
 " Before the Employers' Liability Act there was this condition in 
 the contract of hiring, that, if there was a defect in the premises 
 or machinery which was open and palpable, whether the servant 
 actually knew it or not, he accepted the employment subject to 
 the risk. That is the doctrine which is embodied in the maxim, 
 Volenti non fit injuria." 
 
 But, secondly, the conditions of an employment may be ii. Where the 
 altered and become dangerous after the contract of employment sequent, 
 is entered into. The case was, apparently, not for the moment 
 present to the mind of Lord Esher, M.R., when he said, in Yar- Dictum oi 
 mouth r. France' : " The maxim. Volenti non fit injuria, was not ji_r_ ° ^'' 
 wanted as between master and servant," since it seems one 
 where the maxim is most particularly applicable. In its origin 
 the contract of the workman with his employer is to work on 
 machinery in a certain condition. During the employment a 
 .change in the machinery followed by an accident raises, not the 
 •question of the original employment, but that of the eflFect of the 
 workman's subsequent conduct. The applications of the rule, and 
 flje difference in its operations from the former case, are noticed 
 by Cockburn, C.J., in Clarke v. Holmes." "I am, however, oi J>ictum oi 
 opinion," he says, " that there is a sound distinction between the 
 case of a servant who knowingly enters into a contract to work 
 on defective machinery, and that of one who on a temporary 
 defect arising is induced by the master, after the defect has been 
 brought to the knowledge of the latter, to continue to perform 
 bis service under a promise that the defect shall be remedied."' 
 In these circumstances a plea by the master that the servant 
 
 ' Gautret v. Egerton, L. K. 2 0. P. 371. ^ Comparft what Mellisb, L.J., says on 
 
 ^ 19 Q. B. D. at p. 653. the same point, Woodley v. Metropolitau 
 
 ' 19 Q. B. D. 647, at p. 651. District Bailway Company, 2 Ex. D. 384, 
 
 «7H.'&N. 937. at p. 393. 
 
340 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 What is a 
 voluntary 
 undertakiiig ? 
 
 undertook the risks is met by tlie replication tkat tlie existing 
 state of tlie macliinery, different from its Condition at the time of 
 entering on the employment, is not one of the risks, and a greater 
 burthen of proof would seem to be imposed on him than would 
 have fallen had the risk come under the other class, of those 
 contemporaneous with the entry Upon the service. It then falls 
 to the master to shew that the workman had voluntarily under- 
 taken the danger ; for the risk involved constitutes an addition 
 to those of the service ; and it is not more than these that the 
 common law holds the servant to undertake. Then came the 
 question, What is held to be a voluntary undertaking? In Woodley 
 Different views q). Metropolitan District Eailway,' Cockburn, C.J., puts the various 
 Metropollton* aspects of the case : "A man who enters on a necessarily 
 District dangerous employment with his eyes open, takes it with its 
 
 accompanying risks. On the other hand, if the danger is con- 
 cealed from him, and an accident happens before he becomes 
 aware of it, or if he is led to expect, or may reasonably expect, 
 that proper precautions will be adopted by the employer to 
 prevent or lessen the danger, and from the want of such pre- 
 cautions an accident happens to him before he has become aware 
 of their absence, he may hold the employer liable. If he becomes 
 aware of the danger which has been concealed from him, and 
 which he had not the means of becoming acquainted with before 
 he entered on the employment, or of the want of the necessary 
 means to prevent mischief, his proper course is to quit the 
 employment. If he continues in it, he is in the same position as 
 though he had accepted it with a full knowledge of its danger in 
 the first instance, and must be taken to waive his right to call 
 upon the employer to do what is necessary for his protection, or 
 in the alternative to quit the service.^ If he continues to take 
 the benefit of the employment, he must take it subject to its 
 disadvantages." But in the same case Mellish, L.J.,' refused his 
 assent to the proposition that it was " a necessary inference in point 
 of law," that working after knowledge of danger was an accept- 
 ance of the risk that was incurred. In the Lord Justice's opinion 
 the workman was entitled to say, " I know I was running a 
 great risk, and did not like it at all, but I could not afibrd to 
 give up my good place, from which I get my hvelihood, and I 
 supposed that, if I was injured by their carelessness, I should have 
 an action, against the company.'' 
 Discussed. The difference between the Lord Chief Justice and the Lord 
 
 Justice on this point is rather as to the extent to which inquiry 
 
 1 2 Ex. D. 384, at p. 388. 
 
 ' This sentence is scarcely a fair specimen of the Lord Chief Justice's luminousness 
 of expression. ' At p. 393. 
 
PART III.] MASTEE'S DUTY TO HIS SERVANT. 341 
 
 should be pursued than to difference in appreciating a particular 
 point of view when determined on. The Lord Chief Justice 
 probably never meant that the mere fact of the workman 
 continuing in an employment after knowledge of a new risk or 
 defect supervening was a preswmptio juris et de jure that he 
 was volens ; and such a meaning would be inconsistent with 
 his previous expression in Holmes v. Clarke, where he draws 
 a distinction between an original risk and a supervening risk. 
 The full force of what he says would be met by considering 
 that in the former case the fact of a workman undertaking 
 work even without knowledge of a danger which is existing 
 and apparent, would, if nothing else were shewn, throw the 
 onus on the plaintiff to shew that the maxim was not appli- 
 cable, and if he failed in* this he would fail to prove his case; 
 and in the latter case, if the evidence, while shewing that 
 the risk was a risk subsequent to the entry on the employment, 
 also shewed that the workman knew of it and continued working, 
 in the absence of anything else, the onus would be on the plaintiff 
 to oust the application of the maxim by other facts, or, failing 
 this, the defendant would be entitled to "a verdict, because the 
 plaintiff had not proved his case. But add the facts suggested 
 by the Lord Justice, that the workman though knowing was 
 not willing, because he was constrained. The expressions of the 
 Lord Chief Justice certainly do not indicate an opinion that 
 this evidence is inadmissible; nor do those of Mellish, L.J., that 
 it is more than an element in the case. The difference between 
 them is that the Lord Chief Justice confines himself to certain 
 facts and the conclusion from them. The Lord Justice admits 
 the possibility of more, and argues as to their effect.^ 
 
 The authority of Thomas v. Quartermaine^ points in the same Thomas v. 
 direction. "Mere knowledge," says Bowen, L.J., "may not be ""^™'* 
 a conclusive defence. There may be a perception of the exist- 
 ence of the danger without comprehension of the risk 
 
 There may, again, be concurrent facts which justify the inquiry 
 whether the risk though known was really encountered volun- 
 tarily." This conclusion, whether or not the risk was really 
 encountered voluntarily. Lord Esher, M.E., contends, in Yarmouth 
 V. France,' is itself a question of fact, and, he argues, should 
 therefore be left to the jury, and failure to ,do this makes the 
 decision in that case wrong. But though findings of fact must be 
 
 ^ Compare the American cases, Laning the law has been laid down in an identical 
 ■1), New York Central Kailroad Company, sense. Hough v. Texas Eailroad Com- 
 49 N. Y. 521 ; Clark v. Barnes, 37 Hun. pany, 100 U. S. (10 Otto) 213, 225 ; Haw- 
 
 Bnssell v. Tillotson, 140 Mass. 201. 82 N. Y. 370 ; Kain v. Smith, 89 N. Y. 375. 
 
 ^ 18 Q. B. D. at p. 696. In America ' 19 Q. 3. D. at p. 654. 
 
342 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I, 
 
 Judgment of 
 Lindley, I.J., 
 in Yarmouth 
 V. France, 
 
 View of the 
 majority of 
 the Court in 
 Yarmouth v. 
 France dis- 
 
 the basis for this conclusion, it does not follow that there is a 
 question for the jury unless there is what Lord Hatherley calls 
 " a contest of fact."' The finding of facts is for the jury. The 
 conclusion from the facts is strictly one of law ; therefore, where 
 facts have been established or admitted, as to which there is no 
 contest so as to warrant calling in the aid of a jury in settling 
 them, it is for the judge to say whether the conclusion of 
 negligence can be drawn from them or not, and if, in his opinion, 
 on an undisputed state of facts, the inference cannot be drawn, 
 there is no case to leave to the jury.^ 
 
 The opinion advanced that the cases may be reconciled- by 
 considering them with reference to the ornts of proof is, however, 
 not in accord with the statement of Lindley, L.J., in Yarmouth 
 V. France' : " If nothing more is proved than that the workman 
 saw danger, reported it, but, on being told to go on, went on as 
 before, in order to avoid dismissal, a jury may, in my opinion, 
 properly find that he had not agreed to take the risk, and had 
 not acted v'oluntaa'ily in the sense of having taken the risk upon 
 himself. Pear of dismissal rather than voluntaiy action might 
 properly be inferred." That of course assumes that where a 
 workman who never in fact engaged to incur a particular danger, 
 but who finds himself exposed to it and complains, yet continues 
 at his work, has discharged the oniis on him, a,nd thereby puts 
 the defendant to an affirmative proof of his case, else there would 
 not be enough evidence to leave to a jury. Lopes, L.J., however, 
 dissented, adopting the view of Cockbum, C.J.,* in Woodley's case. 
 
 It is difficult to see how the view of the majority of the Court in 
 Yarmouth v. France on this point is to be sustained with any regard 
 to the authority of legal analogies. If a man engages in any occu- 
 pation he is privid facie held to represent" himself as able to dis- 
 charge the duties he undertakes, whether he be a doctor or a lawyer 
 or a workman. Again, we have seen that if at the time he enters on 
 his work there is some plain and manifest defect, he is presumed 
 to have undertaken the work with reference to that defect.' It 
 is not that working in dangerous circumstances is more kindly 
 viewed by the law when the master has already given the man 
 
 1 In Dublin, Wicklow, and Wexford 
 Eailway Company v. Slatteiy, 2 App. 
 Cas. 1 169. See Wakelin v. London and 
 South- Western Bailway Company, 62 App. 
 Cas. 41. 
 
 " Metropolitan Eailway Company v. 
 Jackson, 3 App. Cas. 193, at p. 197. The 
 rule in America has been thus stated : — 
 "When the facts are agreed upon, or 
 otherwise appear, what is ordinary care 
 is a question for the Court. When the 
 
 facts are in dispute, the proper course for 
 the judge is to explain what would be 
 ordinary care under certain hypotheses as 
 to the facts as they find them " : Wallace 
 V. Western Bailroad Company, 2 Am. 
 St. R. 346. This case, in its facts, is veiy 
 like Jackson's case. 
 
 » 19 Q. B. D. 647. 
 
 * Ante, p. 340. 
 
 ' Per Lord Esher, M.B., Yarmouth v. 
 France, 19 Q. B. D. 647, at p. 653. 
 
PAETU1.J MASTER'S DUTY TO HIS SERVANT. 343 
 
 work than it is when the man is not already working for the 
 master ; but that the law treats both equally ; and as it presumes 
 that what every intelligent workman would see to be inyolved in 
 the doing of work is a risk he undertakes to encounter, so it 
 presumes that when he has entered upon work he prosecutes it 
 on the same conditions till he is shewn to depart from them. 
 But the ground why he is bound in the first case is because he 
 must have knowledge in the ordinary course of things.^ 
 
 Now, it would seem in the ordinaiy development of legal prin- 
 ciple that the introduction of a new element into the service 
 would work in the accustomed way, without more displacement of 
 principle than necessary. If, then, the new element were to go 
 the length of being a new employment, the rule would be that 
 the workman would, whethsr knowing it or not, be held in law to 
 have chosen to encounter any risk involved in it that was plain and 
 apparent, so long as he did not give any evidence to the contrary. 
 But the fact that he is already engaged in the work introduces a 
 modification, and the law will not place -him in the same position 
 as if the matter were wholly disengaged. In short, the contract 
 is to be varied : the question is, on what terms ? Now, working 
 on a new contract is evidence of an acceptance of its terms. In 
 the case of entering upon work with a plain and apparent danger, 
 the mere fact of working is primd facie sufficient to warrant the 
 inference that the workman undertakes the risk whether with or 
 without knowledge. The difficulty where there is new work on 
 an existing contract is to shew that it is the new work being done 
 under the new conditions and not a mere continuance of the old. 
 Knowledge, then, is what is desired, and if in the second case 
 actual knowledge is shewn, the cases of taking work on a new 
 contract and altering the conditions of work on an existing 
 contract would be equal. The mischief to be guarded against is 
 that the workman's employment should grow more hazardous 
 without his knowledge. The sure protection against this is 
 to require that he should have knowledge of the change. He is 
 then in the same position for choice and discrimination which he 
 is to exercise as if the matter were new. Even in the case 
 where the master promises to remedy the mischief and does not 
 do so, it would not follow that a conclusive presumption should 
 be made against him. In the United States this has been held Amerioan law. 
 no more than an implied engagement by the master to assume the 
 risks incident to the danger for a reasonable time, and, failing the 
 application of a remedy, he is then to leave the employment." 
 
 'Columbia v. McElligott, 117 U. S. ° Houghw.Texae,&c.,EaiIroad Company, 
 (10 Davis) 621, is an American case on the 100 U. S. (10 Otto) 213 ; see ante, p. 330 ; 
 point. £urekaCoinpan7f,BasB,6oAm.B. 152. A 
 
344 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 HawkinB, J., 
 in ThruBsell i 
 Handyside. 
 
 Bowen, L.J., 
 in Membury 
 V. Great 
 Western 
 Bail way 
 Company. 
 
 Onus changed. 
 
 In Thrussell v. nandyside, Hawkins, J.,' took the same view as 
 ■ was done in yarmoutli v. France : "It cannot be said, where a 
 man is carefully engaged in work, and is in danger of dismissal 
 if lie leaves Ms work, that he wilfnlly incurs any risk which he 
 may encounter in the course of such work ; and here the plaintiff 
 had asked the defendant's men to take care." Hawkins, J., 
 appealed to the receiitly decided case of Membury v. Great 
 WSsternEail way Company" as almost "identical in principle with 
 the present case;" but that case was, shortly after Hawkins, 
 J.,'s invocation of its authority, reversed in the Court of Appeal, 
 where Bowen, L.J.,' said : "If a man voluntarily incurred 
 a risk he could not afterwards complain. The question whether 
 his conduct was voluntary or not was an issue of fact, but 
 it was not always for the jury. If the evidence was all one 
 way, it was for the judge to withdraw the case from them. If 
 there was conflicting evidence, as if, for instance, there was 
 evidence of compulsion, as in Yarmouth v. France, the question 
 must be left to the jury." In the opinion of Bowen, L.J.,'' 
 then, the case of Yarmouth v. France turned on there being some 
 evidence of compulsion which the jury had to consider, and not 
 on the bare legal doctrine that admitted knowledge of a danger 
 and subsequent working in the circumstances of danger were not 
 enough to raise a presumption of the application of the maxim. 
 Lord Esher, M.R., was an assenting party to the decision, on 
 the same ground — that " there was no evidence whatever of 
 compulsion on the plaintiff to act as he did." 
 
 Where, then, "evidence of compulsion" is given, the oniis is 
 changed and thrown upon the employer. Where there is no 
 evidence of compulsion, the fact of knowledge points a pre- 
 sumption, though it is not conclusive. This is pointed out by 
 Bowen, L.J.,* giving judgment in Thomas v. Quartermaine : 
 " Knowledge, as we have seen, is not conclusive where it is con- 
 sistent with the facts that, from its imperfect character or other- 
 wise, the entire risk, though in one sense known, was not volun- 
 
 question for the jury as to the circum- 
 stances of the continuance is thus raised : 
 Hawley v. Korthern Central Eailway Com- 
 pany, 82 N. Y. 370. See, however, Shaw 
 V. Sheldon, 103 N. Y. 667. Where the 
 business is essentially attended with ex- 
 traordinary risks, it has been decided in 
 Massachusetts that the risk is taken: Joyce 
 V. Worcester, 140 Mass. 245. 
 
 1 20 Q. B. D. at p. 364. 
 
 - 4 Times Law Rep. 265 ; affirmed in the 
 House of Lords, 5 Times Law Kep. 468. 
 The House did not feel called on to give a 
 judgment on the limits of the application 
 of the maxim, Volenti nonfit injuria; but 
 
 decided the case on the ground of the 
 absence of obligation on the defendants to 
 take the precaution suggested. The re- 
 marks of Lord Bramwell and of Lord 
 Herschell are, therefore, extra-judicial. 
 Compare Leary v. Boston Bailroad Com- 
 pany, 139 Mass. 580 : if the plaintiff un- 
 dertake risks unwillingly for fear of losing 
 his place, the company is not liable. 
 
 ' 4 Times Law Eep. 504- 
 
 ■* Lindley, L.J., assented: "There w^ 
 no evidence of any compulsion, and in this 
 respect the case differed from Ifarmonth v. 
 France." 
 
 » 18Q.B.D.68S, atp. 699. 
 
PART III.] MASTER'S DUTY TO HIS SERVANT. 345 
 
 tai'ily encountered ; but here, on the plain facts of the case, know- 
 ledge on the plaintifE's part can mean only one thing. For many 
 months the plaintiff, a man of full intelligence, had seen this vat, 
 known all about it, appreciated its danger, elected to continue 
 w&rking near it. It seems to me that legal language has no mean- 
 ing unless it were held that knowledge such as this amounts to a 
 voluntary encountering of the risk." That is conclusive as to the 
 fact. But before a conclusive case is made out, there may be a pre- 
 sumptive case against the plaintiff liable to be ousted by further 
 proof — as, for instance, by evidence of compulsion, and this is the 
 position in which the plaintiff seems to be placed when he shews 
 knowledge of an added danger and continuous working with that 
 knowledge. He has not in that aspect proved his case. 
 
 Osborne v. London and* North- Western Railway Company ' Osbome «. 
 must be also noticed in this connection. It was a case where and Morth- 
 a railway passenger fell down a worn flight of steps and was in- ^^^f^^ 
 jured ; and which might apparently have been decided on the find- Company, 
 ing of fact by the county court judge " that the steps had not 
 been properly and efficiently swept and cleaned from the caked 
 snow, which, added to the worn condition of the steps, caused 
 the plaintiff to fall." The learned judge, however, who gave the 
 leading opinion preferred to lay down the wide proposition that 
 " where the existence of negligence on the part of the defendants 
 and the absence of contributory negligence on the part of the 
 plaintiff are specifically found as matters of fact, if the defendants 
 desire to succeed on the ground that the maxim. Volenti non fit 
 injuria, is applicable, they must obtain a finding of fact, that the 
 plaintiff freely and voluntarily, with full knowledge of the nature 
 and extent of the risk he ran, impliedly agreed to incur it." ^ It Wills, J.,'s 
 may be pointed out that the preliminary conditions to the applica- considered, 
 tion of this canon are, that the case is to go to the jury ; that 
 negligence in the defendant is to be found ; and the absence of 
 contributory negligence. But where the defendant is negligent, 
 the maxim. Volenti non fit injuria, does not apply, or, rather, is over- 
 powered ; and if the maxim, Volenti non fit injuria, does apply in 
 the particular otherwise negligent, there is no negligence.' If 
 Volenti non fit injuria applies, the finding of the jurylthat there 
 is negligence becomes perverse, since, ex hypothesi, there has 
 
 ^21 Q. B. D. 221. Pinkham -<;. Tops- JMriais the rule of law there as here : Ladd 
 
 field, 104 Mass. 83. "■ New Bedford Eailroad Company, 119 
 
 ^ Following the words of Lord Esher, Mass. 412. Or the point may be stated as 
 
 JI.E., in Yarmouth v. Prance. follows : — Negligence is failure to bestow 
 
 ' For example, in the United States no the care and skill which the situation de- 
 man can contract himself out of liability mands ; therefore, if the situation does not 
 fornegligence: Eailroad Company u. Lock- demand it, it is not negligence to omit 
 wood, 17 Wall 357 ; but Volenti non fit in- what the situation does not demand. 
 
346 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 1. 
 
 Churoli V. 
 Appluby. 
 
 Case of a man 
 working at a 
 dangeruiia 
 employment 
 ■vfhere there 
 is a statutory 
 Obligation. 
 
 Where duty 
 to the State 
 violated. 
 
 been none.' The defendant's contention apparently was, that 
 though the jury had found negligence, there was no evidence of 
 it, because the plaintiff was volens. The learned judge's ruling 
 was, that if the jury find negligence — apparently irrespective of 
 whether there was evidence or not to warrant the finding — the 
 onus is on the defendants to shew much more than would be 
 necessaiy in the ordinary case of entering an employment and 
 taking the risks^ — more even than is required in the case of a 
 risk supervening in an employment. The ground of this must be 
 the jury finding negligence. If, then, the existence of risk is 
 the same as negligence, there is harder measure meted out to a 
 defendant where a timid judge, instead of nonsuiting, takes a 
 provisional verdict, than where a strong one at once says there is 
 no evidence. If the existence of risk and negligence are different, 
 then, negligence being shewn, there is another cause of action, 
 and the proposition is irrelevant.^ 
 
 In the latest case, Ohurch v. Appleby,' an action under the 
 Employers' Liability Act, the Court followed Menibury v. Great 
 Western Eailway Company, and held "as to the man's know- 
 ledge of the danger there was no doubt, and as to his being 
 willing to incur it, the knowledge of it, and working with know- 
 ledge of it, was sufficient evidence." 
 
 We now come to consider the case of a man working at a 
 dangerous employment, where there is a statutory obligation on 
 the master to take precautions, and which precautions are neg- 
 lected. Whether the precautions are neglected contemporaneously 
 with the employment or subsequently will not determine this 
 case, since there is the independent obligation imposed on the 
 master by State authority to afford protection. Thus, by the 
 Factory Act, 1878,'' a penalty is imposed on the employer for 
 neglect of the provisions of the Act with regard to fencing, 
 enforceable under the criminal law, and independent of all agi-ee- 
 ments or consents whatever. 
 
 In a case like this, where the State has imposed a duty, and 
 annexed a penalty to its violation, a presumption would be raised 
 on grounds of public policy, if for no other reason, that the em- 
 ployer who has obviously violated his duty to the State has not 
 discharged his duty to his workpeople, rather than a presumption 
 that because a workman continued at work in illegal circum- 
 stances, even with knowledge of them, he must be taken to have 
 
 ' Per Bowen, L. J., Thomas v. Quarter- 
 maine, 18 Q. B. D. at p. 697. 
 
 2 "Negligence," says 'Wliarton, Law of 
 Negligence, § I32, " necessarily excludes 
 a condition of mind which is capable either 
 
 of designing an injury to another, or of 
 agreeing that an injury should be received 
 from another." 
 
 ' 5 Times Law Kep. 88. 
 
 < 41 & 42 Vict. I. 16. 
 
PART in.] MASTER'S DUTY TO HIS SERVANT. 347 
 
 waived their effect upon him ; or, to state the matter in another 
 way, criminal negligence on the part of the master is more con- 
 sistent with a neglect of civil duty to his workman than with the 
 existence of an agreement between master and workman to avoid 
 the obligation of the law ; and this reasoning is in accordance 
 with the weight of authority. 
 
 In the earliest case dealing with the fencing clauses of the Coe v. Piatt. 
 Factory Act, 1844/ Parke, B., said: "Though its main object 
 may have been to afford security to children and young persons 
 who are more likely to sustain injury tlian others, yet there is a 
 positive enactment that in all factories within the interpretation 
 clause, when any part of the machinery is used for any manufac- 
 turing process it shall be securely fenced ; consequently, if any 
 person sustains an injury thmugh the violation of this enactment, 
 he has a right to bring an action."^ 
 
 The matter, however, was most canvassed in the well-known Holmes ». 
 case of Holmes v. Clarke, but no certain result was struck out 
 from the discussion. In the Court of Exchequer,' Pollock, C.B., Opinion of 
 laid down the law with regard to the statutory obligation to fence 
 as follows : — " Where machinery is required by Act of Parliament 
 to be protected so as to guard against danger to persons working 
 it, if a servant enters into the employment when the machinery 
 is in a state of safety, and continues in the service after it has 
 become dangerous in consequence of the protection being decayed 
 or withdrawn, but complains of the want of protection, and the 
 master promises to restore it, but fails to do so, we think he is guilty 
 of negligence, and that if any accident occurs to the servant he is 
 responsible." The proposition of the Chief Baron seems to be ConBidered. 
 sedulously narrowed down to comprehend no more than the facts 
 of the case on which he was giving judgment. The actual asser- 
 tion of the duty in favour of the servant to fence machinery re- 
 quired by Act of Parliament to be protected is limited. First, to 
 those cases where it actually was so protected at the entry of the 
 servant into the service. Secondly, where complaint is made of its 
 deteriorated condition. Thirdly, where the master has promised to 
 restore it and fails to do so. Yet even this narrow proposition did Holmes «. 
 
 not commend itself to some of the judges in the Exchequer Chamber. Exchequer 
 
 OliamDer. 
 
 ' Cne V. Piatt, 6 Ex. 752, 7 Ex. 460, while ia motion for a manufacturing puv- 
 p. 923. This case, which was in airest pose, is to bo fenced." Britton v. Great 
 of judgment, turned on the point whether Western Cotton Company, L. E. 7 Ex. 130. 
 the declaration should allege that the "* 6 H. & N. 349, 7 H. & N. 937. _ The 
 
 machinery was in motion for some manu- Law Jmirnal fieport of the case in the 
 /actMrinjr process, and not allege that it Exchequer Chamber, 31 L. J. Ex. 356, is 
 was in motion simply. This was decided the better, as it contains, inter alia, some 
 affirmatively. important remarks by Wightman, J., 
 
 ^ See Doe v. Sheppard, 5 E. & B. which had the sanction of Willes, J., and 
 856, where it was held, " all mill-gearing, which are not in the other reports. 
 
348 THE LAW OF NEGLIGENCE. [book i. 
 
 Oockburn, O.J., thouglit the proposition that the plaintiff could 
 take advantage of the statutory requirements " open to con- 
 siderable doubt owing to the plaintiff being an adult," and decided 
 the case on the ground that the defendant was guilty of negli- 
 gence independent of statute. And he was followed by Crompton, 
 Byles, and Keating, JJ.' Wightman, J., however, expressly resei-ved 
 his assent from the reasoning of the Chief Justice, and said, " I 
 attribute more importance to the statutory obligation than has been 
 put upon it by my lord." And Willes, J., expressed concurrence. 
 Distinction The distinction between the case of a statutory liability and the 
 
 statutory* common law liability was more clearly pointed out in Britton v. Great 
 liability and "vVestern Cotton Company.'' There Bramwell, B., at the outset of 
 
 a common law c j ^ ^ _ ^ j ' 
 
 liability, as his judgment having expressed his inability to " follow the reason- 
 m Britton v. ing of some of the judges in the Exchequer Chamber " in Holmes 
 Cotton^om-'" '"• Clarke, proceeded to consider the applicability of the maxim 
 pany. Volenti nonfit injuria : " The jury have found the deceased not 
 
 guilty of contributory negligence either in going or being there 
 [i.e., where there was unfenced machinery which there was a 
 statutory duty to fence], and I cannot say they were wrong. I 
 do not myself see that the place was necessarily dangerous. At 
 any rate, the deceased may well have thought it was not. Indeed, 
 the accident seems to have resulted, not from the necessarily 
 dangerous character of the place, but from some misfortune which 
 might have happened anywhere. It is further contended that, 
 at any rate, the deceased knew the danger as well as his 
 employers. That may be doubtful in fact, for he seems not to 
 have been a skilled workman, but a coal trimmer. Assuming, 
 however, that he did share his employers' knowledge, it must be 
 remembered that the liability of the defendants is not at common 
 law, but by statute. They are in default to begin with, and the 
 mere circumstance that the deceased entered on a dangerous 
 employment does not exonerate them unless he knew the nature of 
 the risk to which, in consequence of that default, he was exposed." 
 The report of this judgment is somewhat different in the Law 
 Journal.^ In that report the sentence last extracted reads as 
 follows: — " Here the plaintiff is not placed in the dilemma which 
 arises when the action is for a breach of a duty at common law. 
 That dilemma is this — either the danger was obvious or it was 
 not. If obvious, the servant must have known it as well as the 
 employer ; if it was not obvious, there was no negligence in the 
 employer. That dilemma is not in the plaintiff's way here, for 
 the duty is a statutory one. If the deceased dispensed with the 
 
 1 31 L. .J. Ex. at p. 359. ' 41 L. J. Ex. 99, at p. loi. 
 
 ■' (1872) L. E. 7 Ex. 130, at p. 136. 
 
PART III.] MASTEE'S DUTY TO HIS SERVANT. 349 
 
 performance of it, knowing the duty and knowing the danger, I 
 think he would be volens, but not otherwise." The rest of the 
 Court agreed. There is, it is true, a want of precision in some 
 of these expressions. But it is manifest that a distinction is ' 
 drawn between the common law liability and the liability that 
 arises when there is a statutory duty imposed. It would be 
 gathered, however, that the statutory obligation is not of such a 
 nature that in no event can it be waived by the servant — as far, 
 that is, as his own rights under it are concerned, since Bramwell, 
 B., recognizes the servant's ability to dispense " with the per- 
 formance of it, knowing the duty and knowing the danger."' But 
 in the case of the ordinary law he is, with similar circumstances, 
 presumed to do this ; but the statutory obligation displaces " the 
 dilemma which arises when the action is for a breach of duty at 
 common law." The difEerence pointed at seems, therefore, to be Conclusion, 
 that, by the common law, working with circumstances of laiow- 
 ledge of the danger lets in the presumption Volenti nonfit injuria ; 
 but in the case of the statutory obligation, the onus remains on 
 the master, and he has to prove, not merely knowledge of the 
 risk, but also that, as a matter of fact, the servant has dispensed 
 with the performance of the master's statutory duty, with a 
 knowledge of what it is and what the danger involved is. 
 
 The distinction between the breach of duty at common law and 
 the breach of a statutory duty was also touched on by Bowen, Bowen, L.J., 
 L.J., in his masterly judgment in Thomas v. Quartermaine.^ " It is Quartermaine. 
 plain," he says, " that knowledge may not be a conclusive defence. 
 There may be a perception of the existence of the danger without 
 comprehension of the risk, as where the workman is of imperfect 
 intelligence, or, though he knows the danger, remains imperfectly 
 informed as to its nature and extent. There may, again, be con- 
 current facts which justify the inquiry whether the risk, though 
 known, was really encountered voluntarily. The injured person 
 may have had a statutory right to protection, as where an Act of 
 Parliament requires machinery to be fenced. The case of Clarke 
 V. Holmes is a case of that sort, and has been so explained sub- 
 sequently by judges of authority The defendant in such 
 
 circumstances does not discharge his legal obligation by merely 
 affecting the plaintiff ivith knowledge of a danger which, but for 
 a breach of duty on his own part, would not exist at all." And 
 Fry, L. J., in the same case, also alludes to the same distinction : 
 " Knowledge is not, of itself, conclusive of the voluntary character 
 of the plaintiff's actions ; there are cases in which the duty of the 
 
 P 
 
 ' Compare, as to this, Wincli v. CoDservators of the Thames, L. E. 9 C. P. 378, at 
 389. = 18 Q. B. D. 68s, at P- 696- 
 
350 THE LAW OF NEGLIGENOE. [book i. 
 
 master exists independently of the servant's knowledge, as when 
 there is a statutory obligation to fence machinery." The reason- 
 able conclusion from these dicta would have appeared to be that, 
 where a statutory duty exists, the maxim Volenti non fit injvna is 
 Wills, J., in not to be presumed, or, as Wills, J., says in his judgment in 
 EariGmi^ile. Baddeley v. Earl Granville,' "would not apply" at all where the 
 injury arose from a direct breabh by the defendant of a statutory 
 obligation." In that case, through breach of a statutory duty 
 imposed by the Mines Eegulation Act, 1877,' ^^^ plaintifE's 
 husband was killed ; and, in an action under the Employers' 
 Liability Act, it was held that the maxim Volenti non fit injuria 
 was not applicable where the injury was from the breach of a 
 statutory duty on the part of the employer. It should be pointed 
 out that, on the facts of the case, the defendant would have been 
 liable in any event, as, a statutory duty being shewn to exist and 
 to have been neglected, the defendant had not " dispensed with 
 the performance of it" within the meaning of Bramwell, B., in 
 Britton v. Great Western Cotton Company,^ and therefore the 
 decision would be sustained quite independent of the actual 
 leading reason alleged for it. The expressions of Wills, J., are, 
 however, very sweeping : " An obligation imposed by statute 
 ought to be capable of enforcement with respect to all future 
 dealings between persons affected by it. As to the result of past 
 breaches of the obligation people may come to what agreement 
 they like; but as to future breaches of it there ought to be no en- 
 couragement given to the making an agreement between A. and 
 B. that B. shall be at liberty to break the law which has been 
 passed for the protection of A. Such an agreement might be 
 illegal, though I do not hold as a matter of law that it would be 
 so. But it seems to me that, if the supposed agreement between 
 the deceased and the defendant, in consequence of which the 
 principle Volenti non fit injuria is sought to be applied, comes to 
 this, that the master employs the servant on the terms that the 
 latter shall waive the breach by the master of an obligation 
 imposed on him by statute, and shall connive at his disregard of 
 the statutory obligation imposed on him for the lenefit of others^ — 
 it seems to me that such an agreement would be in violation of 
 public policy, and ought not to be listened to on that ground. 
 
 ^ 19 Q. B. D. 423 ; s6L. J. Q. B. 501 ; then the reasoning that an agreement 
 57 L. T. 26S. between the master and the others should 
 2 I.e., primd facie. not avail to dispense with the ohliga- 
 " 35 & 36 Vict. c. 76. tion is not so obvious that the subjeot can 
 * 41 L. J. Ex. 99, at p. 102. be summarily dismissed. If the " others " 
 ° There is some indistinctness in this means other than the master and the par- 
 phrase. If " imposed for the benefit of ticular workmen who dispensed with the 
 others" means others than the master, Act, the fact asserted is by no weans clear. 
 
PAETiii.] MASTER'S DUTY TO HIS SERVAJSfT. 351 
 
 There is much to be said in favour of the opinion expressed in 
 the Court of Appeal, that where there has been a breach by a 
 defendant of a statutory obligation, the maxim Volenti non Jit 
 injuria has no application." 
 
 In this passage there is one statement of fact, oije of law, and Criticized. 
 two of opinion that must be noticed. 
 
 First, the statement of fact is inaccurate. The opinion expressed Inaccurate 
 in the Court of Appeal was not " where there had been a breach ^^u'^^°^ 
 by the defendant of a statutory obligation the maxim Volenti non 
 fit injuria has no application," but the very different opinion — 
 " There may be concurrent facts which justify the inquiry whether 
 the risk, though known, was really encountered voluntarily. The 
 injured person may have had a statutory right to protection, as 
 where an Act of Parliament requires machinery to be fenced. 
 .... The defendant in such circumstances does not discharge 
 his legal obligation by merely affecting the plaintiff with know- 
 ledge of a danger which, but for a breach of duty on his part, 
 would not exist at all;'" or, as Fry, L.J., expressed it: " Know- 
 ledge is not, of itself, conclitsive of the voluntary character of the 
 plaintiff's actions. There are cases in which the duty of the S 
 master exists independently of the servant's knowledge, as when 
 there is a statutory obligation to fence machinery ; " that is, in an 
 ordinary case knowledge may be enough, but where there is a 
 statutory obligation, not that volenti non fit has no application, 
 but has no application until some further facts are found to exist.^ 
 
 The statement of law is : "If the supposed agreement between statement 
 the deceased and the defendant, in consequence of which the ° *^' 
 principle of Volenti non fit injuria is sought to be applied, comes 
 to this, that the master employs the servant on the terms that 
 the latter shall waive the breach by the master of an obligation 
 imposed on him by statute, and shall connive at his disregard of 
 the statutory obligation imposed on him for the benefit of others, 
 it seems to me that such an agreement would be in violation of 
 public policy, and ought not to be listened to." 
 
 Before considering this proposition in the light of the authority 
 there is for it, attention should be directed to the statement in- 
 volved, that, by the Employers' Liability Act, there is "a statu- 
 tory obligation imposed on the master for others." The meaning 
 of this, it has already been pointed out, is very ambiguous.' The 
 title of the Act is, "An Act to Extend and Regulate the Liability 
 of Employers to make Compensation for Personal Injuries suffered 
 
 ' Per Bowen, L.J. The judgments of ceeding a dicto secundum quid ad dictum 
 Bonren and Fry, L.J J., were written. simpliciter.' 
 
 2 Mr. Justice WiUs's statement is pro- ' See note, ante. 
 
352 THE LAW OF NEGLIGENCE. [book i. 
 
 by Workmen in their Service,'" and the clauses of the Act through- 
 out point to giving pecuniary advantages to workmen who can 
 bring themselves within particular categories, rather than to the 
 imposition of any standard of safety in the conduct of works ; no 
 absolute duty binding on employers at large is imposed, but a 
 duty dependent upon specified negligence, which, it has been 
 authoritatively pointed out, varies in the same employment to 
 different servants, and even to the same servant at different times,'' 
 and " must in every case be as to the duty of the master to the 
 particular servant," and, therefore, clearly not " to others." The 
 right, too, that is conferred, being a right to compensation for 
 injuries, does not, by being waived, affect the interests of the public 
 nor of third parties. So that waiving it is not interfering with 
 -pacta quce contra leges cotistitutiones vel contra bonos mares fiunt 
 nullam vim habent,^ but is rather an instance where modus et con- 
 . ventio vincunt legem.' 
 Pnbiio policy. Such being the purview of the Act, the reasoning applicable/ 
 to it is stated by Jessel, M.R., in Printiug and Numerical Re- 
 gistering Company v. Sampson/ and adopted by Fry, J. " : " It 
 must not be forgotten that you are not to extend arbitrarily 
 those rules which say that a given contract is void as being 
 against public policy, because if there is one thing which more 
 than another public policy requires, it is, that men of full age and 
 competent understanding shall have the utmost liberty of con- 
 tracting, and that their contracts, when entered into freely and 
 voluntarily, shall be held sacred, and shall be enforced by courts 
 of justice. Therefore you have this paramount public policy to 
 consider, that you are not lightly to interfere with the freedom of 
 contract."' Hence, the maxim Quivis renunciare potest juri pro 
 se vntrodueto would, primd fa-cie, be applicable." 
 
 1 " The title of an Act of Parliament is it is presumed not to intend. One of 
 
 no part of the law, but it may tend to these presumptions is, that the Legisla- 
 
 shew the object of the Legislature " : per ture does not intend to make any altera- 
 
 Wightman, J., Johnson v. Upham, 2 E. tion in the law beyond what it explicitly 
 
 & E. 25 1 1 at p. 263. declares, either in express terms or by un- 
 
 ' Thomas V. Quartermaine, 18 Q. B.D. mistakable implication, or, in other 
 
 685, at p. 701. words, beyond the immediate scope and 
 
 ^ C. 2, 3, 6, which, " induhitati juris object of the statute " : Maxwell on Sta- 
 
 est." * 2 Rep. 73. tutes, 96, citing Arthur .«. Bokenhaoi, 11 
 
 , ^ L. E. 19 Eq. 462, at p. 465. Mod. 150 ; Harbert's case, 3 Kep. 136. 
 
 " Eousillon V. Eousillon, 14 Ch. D. ^ Bovill v. Wood, 2 M. & S. 23, per 
 
 351, at p. 365. Bayley, J., at p. 25. Invitoheneflcimn.'iwn 
 
 "It is found sometimes necessary to datwr: D. 50,17,69. "1 cannot perceive 
 _art not only from the primary and any reason, either at law or otherwise, 
 literal meaning of the words, but also from why parties should not be at liberty, by 
 
 the rules of grammatical construction, apt words, either to add to, or quali^, or 
 
 when it is improbable they express the make more or less extensive, the right 
 
 real intention of the Legislature, it being which the law of itself provides and im- 
 
 more reasonable to hold that the Legisla- poses; or if they think fit declare that 
 
 ture expressed its intention in a slovenly such rights shall not exist at all. Qui 
 
 manner, than it iptended something which llbet p^est renunciare jwri pro se intra- 
 
PABTiu.J MASTER'S DUTY TO HIS SERVAJSTT. 853 
 
 Since the mere fact that there is a statutory privilege conferred 
 upon a man is not conclnsive as to his inability to waive it, the 
 point arises, what is the test applicable to decide whether a 
 contract waiving such statutory privilege is void as against public j 
 policy? The whole law upon "public policy" is contained and 
 considered in Egerton v. Earl Brownlow.' Advising the House 
 of Lords, Pollock, G.B., says^ : " The result of the cases seems to 
 establish this distinction, that where a contract is directly opposed 
 to pvMic welfare it is void, though the parties may have a real 
 interest in the matter, and an apparent right to deal with it." 
 But the Employers' Liability Act is nowhere concerned with 
 " public welfare," but merely with the conferring greater pecu- 
 niaiy rights on individuals.^ Apart, however, from considerations 
 of this description, the very point had been previously raised and 
 decided in Griffiths r. Earl of Dudley.'' There the deceased workman, Griffiths ». 
 whose wife was the plaintiff in the case under Lord Campbell's ™ ° u ej . 
 Act, contracted " that neither the employer nor any other person 
 in his employment should be liable in respect of any defect, negli- 
 gent act, or omission under the Employers' Liability Act, 1880, 
 or otherwise, or in respect of any negligence occasioning such in- 
 jury," and the Queen's Bench, reversing the county court judge, who 
 held that the contract was against public policy, held that such 
 a contract was good; Eield, J., saying: "It is at least doubtful 
 whether, where a contract is said to be void as against public 
 poHcy, some public policy which affects all society is not meant. 
 Here the interest of the employed only would be affected." And 
 Cave, J. : " It is said that the contract was against public policy. 
 No authority has been cited in support of that proposition, and I 
 
 diuAo'' : per Mai-tin, B., Eowbotham v. That would be a moat mischievous inter- 
 Wilson, 2 £. & B. 123, at p. 151. " It ferenoe with the freedom of contract, and 
 is undoubtedly competent to any man to would give rise to gross injustice and fraud 
 renounce a privilege which is given to on the master. I cannot suppose any- 
 him by a statute": per Erie, C.J., Bum- thing so outrageous": per Bramwell, 
 sey V. North-Eastern Eailway, 14 C. B. L.J., letter to Sir Hemy Jackson, Q.C, 
 641, at p. 649. On the Liability of the Employer, June 
 ' 4H. L. C. I, at p. 2^6. ^ At p. 148. 1880. In a letter to the 'Kmes, 20th^ 
 ' If Wills, J., is right, and the master August 1880, signed C, understood to be' 
 cannot contract himself out of section i — Lord Cairns, there is the following pas- 
 e.g., by contributing to an insurance fund sage : — " It may be said that a contract 
 — the men cannot, by parity, contract may, as the Bill [i.e., the Employers' 
 themselves out of section 2, so that, in the Liability Bill, then having passed the 
 event of an accident happening within House of Commons] stands, be made to 
 that clause, the master could withhold supersede the Bill." My answer is, that 
 his contribution. " I suppose it is not in- the moral and social effect where Farlia- 
 tended to forbid the master and servant ment merely removes legal difficulties and 
 contracting themselves out of the law. invites parties to make their contracts in 
 That is to say, if a man prefers to take the way that best suits them,_ is very 
 S«. a day and no liability for accidents, different from the effect of a Bill which 
 rather than 48. dd., and the master prefers makes, as it were, a parliamentaiy con- 
 the former terms, it is not, as I under- tract for the parties, and then drives them 
 stand, proposed to prevent their entering by its inaptitude to make stipulations 
 into a binding agreement to that effect, against it. * 9 Q. B. D. 357. 
 
 Z 
 
354 THE LAW OF NEGLIGENCE. [book i. 
 
 can see no reason why sncli a contract Bhould beagainst public policy. 
 I should not hold it to be so, and thus interfere with freedom of con- 
 tract, unless the case was clearly brought within the principle of 
 the decisions as to the contracts which are against public policy.'" 
 But, as we have seen, the mere fact that the servant is not 
 ignorant, but has knowledge of the dangerous conditions in which 
 he works, is not of itself sufficient to affect adversely his right to 
 recover; for he might be selected as the workman for this 
 particular work for the very reason that it was dangerous, and 
 that he was willing to undertake it as such. There is nothing in 
 law to prevent such a contract, and, indeed, such a contract is the 
 fitting subject for the application of the maxim, Volenti non fit 
 injuria ;^ whether, in fact, such a contract is made or not has 
 obviously nothing whatever to do with negligence, but is an 
 inquiry, first, whether the workman had as full a knowledge of 
 the risks as his master; and, secondly, with this knowledge, 
 deliberately elected to run the risks-. 
 Statement of Thirdly, Wills, J., states, "an obligation imposed by statute 
 opinion. ought to be capable of enforcement with respect to all future 
 
 dealings between persons affected by it," and as to the result 
 of past breaches, people may come to what agreement they hke, 
 but as to future breaches of it, there ought to be no encourage- 
 ment given to the making an agreement between A. and B. that 
 B. shall be at liberty to break the law which has been passed 
 for the protection of A." It is clear that not only ought an 
 obligation imposed by statute to be capable of enforcement 
 with respect to all future dealings, but that it actually; is so en- 
 forceable, otherwise the statute would be simply nugatory — save 
 where there are transactions amounting to a contract to the 
 contrary. The question is, whether the law should not only 
 vresume contracts in favour of certain classes of persons, but 
 should also, in the absence of any enactment, presume them to be 
 precluded from contracting — even when of full age, with full 
 knowledge, and under no disability — in any other way to the 
 contrary to the statutory presumption.^ It by no means follows 
 that, because the Legislature may consider a certain form of 
 agreement very much preferable to any other so that a strong 
 presumption should be made in its favour, it regards it as essen- 
 tial for people to be placed under disability to agree to the 
 contrary. But, assuming that the distinction as to past and 
 future breaches is valid, an agreement between A. and B. that the 
 
 ' Ab to what those contracts are, see 685 ; Yarmouth v. France, 19 Q. B. D. 
 
 Egerton v. Earl Brownlow, 4 H. L. C. i. 647, per Lord Eaher, M.E., at p. 656. 
 
 Pollock on Contracts, 4th edit. p. 271. 3 See Maxwell, The Interpretation of 
 
 2 Thomas v, Quartermaine, 18 Q. B. D. Statutes, p. 96, and ante, note 7, p. 352. 
 
PARTin.J MASTER'S DUTY TO HIS SERVANT. 335 
 
 contract between them shall contain a term different from the 
 statutory contract made for them, but neither in express terms nor 
 by unmistakable implication forbidden by the statute regulating 
 the contract, is scarcely aptly and accurately described as "an 
 agreement between A. and B. that B. shall be at liberty to break 
 the law which has been passed for the protection of A." 
 
 The decision on the particular facts in Baddeley v. Earl Granville 
 will therefore, as we have seen, be accepted ; while it is highly 
 improbable the reasoning there will conclude any other case.' 
 
 At the end, then, of this long inquiry the results, as far as Eesuita as to 
 they relate to the application of the maxim, Volenti non fitl^^a!^'"* 
 injuria, maj be summed up in three propositions — 
 
 1 . Where the risk is a plain and apparent risk at the time of 
 entering on the employment, 'the presumption of law is, that the 
 workman entered on the employment on the terms of encountering 
 the risk, even though, in fact, he had no knowledge of it. 
 
 2. Where the risk is superadded after the commencement of 
 the employment, the workman is presumed not to undertake the 
 work subject to the risk till it appears that he has actual know- 
 ledge, and has continued in his employment after such knowledge 
 of the risk ; and not even then if his continuance in the employ- 
 ment is explained by other circumstances — e.g., a promise to 
 remove the danger.^ 
 
 3. Where the master is under a statutory liability to take 
 precautions, the presumption of law is that, as between the 
 master and the workman, working in the absence of the statutory 
 safeguards, the master is not discharged, and this presumption 
 can only be rebutted by clear proof of an undertaking of the 
 employment by the workman with a knowledge of the risk 
 iiivolved, and of the master's duty in respect thereof. 
 
 We have, while dealing with the question of the effect of the 
 implication raised by a statutory duty, incidentally, but in effect, 
 investigated the question whether a workman can definitely 
 contract to undertake risks, and in what circumstances. This 
 we have seen he can do, unless when prohibited by. any statute.^ 
 And he is prohibited when a penalty is imposed for doing or 
 omitting the act which is the subject of legislation," but he is 
 not prohibited where an Act of Parliament makes a contract for 
 him, and does not in doing so impose a general rule of conduct, 
 
 1 See Caswell v. Worth, 5 B. & B. 849. and after complaint pending the applioa- 
 Also an article on the case of Baddeley v. tion of a promised remedy : see ante, p. 
 Earl Granville, Law Magazine for Nov. 330. 
 
 1887. ^ Eedpath ». Allen, L. E. 4 P. C. 511. 
 
 2 Ante, p. 343. There is a manifest ^ 7re re Cork and Youghal Railway Com- 
 differencehetween continuing to work with pany, L. E. 4 Ch. 748, per Lord Hather- 
 fcnowledge of a danger without complaint, ley, C., at p. 758. 
 
S56 
 
 THE LAW OF NEGLICtENOE. 
 
 [book 1. 
 
 but confines itself to presuming a benefit for either an individual 
 
 or a 
 
 Duty of 
 the master to 
 the servant 
 with regard 
 to the employ- 
 ment of fellow- 
 servants. 
 
 Hutchinson v. 
 York, New- 
 castle, and 
 Benrick 
 Eailway 
 Company. 
 
 Tarrant v. 
 Webb. 
 
 Potts V. Port 
 Carlisle Sock 
 and Bailway. 
 
 Next, the duty of the master to the servant vcith regard to 
 the employment of fellow-servants. The legal expression of 
 this was first formulated by Alderson, B., in Hutchinson v. 
 York, Newcastle, and Berwick Railway Company, as follows': — 
 " The servant, when he engages to run the risks of his service, 
 including those arising from the negligence of fellow-servants, has 
 a right to understand that the master has taken reasonable care to 
 protect him from such risks by associating him only with persons 
 of ordinary skill and care ;" and was more definitely specified in 
 Tarrant v. Webb' as meaning that " the master ??ia?/ be responsible 
 where he is personally guilty of negligence, but certainly not where 
 he does his best to get competent persons. He is not bound to 
 warrant their competency."* In that case the judge had directed 
 the jury that " if they were of opinion that if work had been 
 done undpr the personal direction and interference of the defend- 
 ant, and was insufficient, or that the person employed by the 
 defendant was incompetent, the plaintiff was entitled to recover." 
 And this was held a misdirection, as failing to point out that 
 the defendant might have used every possible care, and yet the 
 servant he had selected might, notwithstanding, turn out in- 
 competent ; in which case the injured servant could not recover. 
 This case was recognized in Wilson v. Merry, where the Lord 
 Chancellor (Cairns) says : "As was said in the case of Tarrant v. 
 Webb, negligence cannot exist if the master does his best to 
 engage competent persons ; he cannot warrant the competency of 
 his servants." 
 
 To the same effect is Potts v. Port Carlisle Dock and Eailway." 
 There an accident was caused by the breaking of a turntable, 
 which was originally defectively constructed. Cockbum, J., thus 
 expresses his view of the law : — " In order to establish the 
 liability of the defendants and to sustain this action, it is neces- 
 sary that the plaintiff should make out, not only that the tum- 
 
 " Griffiths V. Earl of Dudley, 9 Q. B. D. 
 357 ; and the oases cited sv/pra. 
 
 2 (1850) 5 Ex. 343.. at P- 353- Deverill 
 V. Grand Trunk Eailway Company, 25 
 Dpper Canada Q. B. 517. 
 
 3 (1856) 18 C. B. 797. 
 
 ■* Compare Potts v. Plunkett, 9 Ir. C. L. 
 290. 
 
 5 (i860) L. E. 1 So. App. 326, at p. 332 ; 
 8 W. E. 524; 2 L. T. N. S. 283. The 
 Law Times' report of this case is much the 
 fuller, but the report in the Weekly Jte- 
 porter is much clearer, but the head-note 
 m the WeeMy .Reporter runs : " In order to 
 
 render a master liable for an injury to his 
 servant caused by the breaking of a 
 machine belonging to the master, it is 
 not sufficient to shew that the machine 
 was defectively constructed, but there 
 must be evidence that the master em- 
 ployed incompetent persons to construct 
 the machine." This is putting the mas- 
 ter's duty much too high. His duty is no 
 more than to use reasonable care to em- 
 ploy competent seiTants. If after that 
 they prove incompetent, the master is not 
 liable. See the argument in Brown v. 
 Aocrington Cotton Company, 3 H.&C. 51 j. 
 
PART III.] MASTER'S DUTY TO HIS SERVANT. 357 
 
 table was so defective in its construction as to shew that there 
 had been negligence somewhere, but also that the defendants had 
 been guilty of negligence in this, that they had not used due 
 care in employing competent persons to do the work. Negli- 
 gence on the part of the person employed is not sufficient ; there 
 must also be negligence on the part of the employers. If the 
 plaintiff had given evidence of the incompetence of the persons 
 employed to construct this turntable, she would have been en- 
 titled to recover damageis in this action ; ^ or if she had shewn 
 that the turntable was grossly defective, and that the defect was 
 so clear and apparent as unmistakably to lead to the inference 
 that an incompetent person had been employed in its con- 
 struction, she would in that case also have been able to sustain 
 this action." The law, as laid down by Cockbum, C.J., in as far 
 as it may import that the plaintiff, having given evidence of the 
 incompetency of a servant, is entitled to recovery without further 
 evidence, is not only inconsistent with the earlier, but also with 
 the latir cases, and is clearly not law. As was pointed out in 
 Tarrant v. Webb, it is quite consistent with the master using 
 every care that the servant may, notwithstanding, prove incom- 
 petent ; but though the servant be incompetent, if the master 
 have used all reasonable care in the selection he is not liable. 
 Two facts have to be established — incompetency of the servant^ 
 want of care on the master's part ; and proof of neither, singly, 
 is enough to import liability.^ 
 
 This is illustrated by the case of Smith v. Howard.^ An Smith «. 
 action was brought by reason of a boy having been employed 
 to act as the plaintiff's assistant who was incompetent. The boy 
 was engaged by the defendant's foreman, and complaint was 
 made of his incompetence to the foreman. It was held that the 
 claim could not be sustained — for if the ground of action was the 
 incompetency of the servant, it must be shewn that the foreman, 
 and not the boy merely, was incompetent ; otherwise the case was 
 merely that of the negligence of a fellow-servant in employing an 
 incompetent boy. A master, that is to say, is not bound to the 
 persona] selection of the servant he employs ; but if he makes 
 all reasonable provision for the selection of competent servants, 
 
 ^ This sentence in the Law Times' report rather infer that he was made gatekeeper 
 
 reads thus : — " If the negligence of com- because he had been selected to examine 
 
 panies is to be deduced from the badness the materials ; but, at all events, there was 
 
 of the work itself, then the plaintiif must no evidence that he was incompetent, or, 
 
 shew that the accident arose fiom the even if he was, that there was any negli- 
 
 dear negligence of the defendant." gence in the defendants personally " : per 
 
 ^ "It IS said that the person appointed to Wightman, J., Ormond o. HolIand,EI. Bl. 
 
 examine the materials was selected because & El. 102, at p. 105. 
 
 he was gatekeeper, and that he is there- ' (1870) 22 L. T. K. S. 131. 
 fore presumably incompetent. I should 
 
358 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Not law in 
 America. 
 
 Lord Gautis 
 in 'Wilson ». . 
 Merry. 
 
 Oims changed 
 on proof of 
 the incom- 
 petency of 
 the servant. 
 
 Conflict of 
 opinion. 
 
 fetter opinion 
 
 his duty is discharged, even though, through the negligence of 
 his deputy, the provision in any case may prove inadequate. 
 
 This does not appear to be law in America ; for example, in 
 Laning v. New York Central Raiboad Company' it was decided 
 that the duty of the master is not discharged by the appointment 
 of a competent superintendent where that superintendent places 
 by the side of a servant another who is unskilled and incompetent. 
 But that this is not good English law, and that the law is in 
 accordance with the decision in Howard v. Smith appears from 
 Lord Cairns's statement of the law in Wilson v. Merry^ : " In the 
 event of his — i.e., the employer's — not personally superintending, 
 and directing the work, he is bound to select proper and com- 
 petent persons to do so, and to furnish them with adequate 
 materials and resources for the work. When he has done this, he 
 has in my opinion done all that he is bound to do ; and if the 
 persons so selected are guilty of negligence, this is not the negli- 
 gence of the master." 
 
 But when proof of the incompetency of the servant — that is, 
 of the servant responsible for competency, as illustrated by the 
 last case, is given — it has been held that the omi^ of proof is 
 changed. For proof of incompetency of the employee is pHmd 
 facie evidence of want of care on the part of the employer in 
 employing him; and the fact of requisite care having been 
 exercised lying peculiarly within the knowledge of the employer, 
 there is no injustice on him when the servant has been shewn to 
 be incompetent to shew that he exercised due care in his selec- 
 tion.^ On the other hand, it has been said that, as the negligence , 
 was the not taking due care to employ a competent servant, the 
 burden of proving the whole proposition on which the negligence 
 depended lay on the party asserting it. 
 
 The better opinion, however, seems to be that " When it is 
 shewn that a servant is incompetent, and that through his 
 incompetency injury results to his fellow-servant, the mere 
 fact of his incompetency throws the onvs on the master of 
 shewing that he exercised due and reasonable care in selecting 
 him, and in the absence of such evidence justifies the question 
 of negligence in the master being left to the jury j* and this 
 
 i_49 N. Y. 521, at p. 533; Chicago 
 Railroad Company v. Eosb, ii2 U. S. 
 (5 Davis) 377; Darrigan v. New York 
 andjNew England Eailroad Company, 52 
 Conn. 285. , 
 
 2 L. K. I So. App. 332. The opinion 
 of Messrs. Shearman and Kedfield as 
 to the law laid down in this case, and 
 specially their manner of expressing it, 
 may prove amusing to English lawyers : 
 Law of Negligence, 4th edit. §§ 227, 228. 
 
 " Murphy v. Pollock, 15 Ir. C. L. 224; 
 Culman v. Eastern Eailroad Corporation, 
 92 Mass. 233. The case of Wanstall v. 
 Pooley, 6 CI. &T". 910, n., shews "that 
 the employment of a drunken man is 
 itself an act of negligence ; but it does 
 not throw light on the proposition in the 
 text, for on other grounds the master was 
 clearly liable for the negligence of his 
 servant whereby a stranger was injured." 
 
 < Per Palles, C.B., Skerritt v. Scallan, 
 
PART III.] MASTER'S DUTY TO HIS SERVAJSfT. 359 
 
 was the course adopted in Edwards v. London and Brighton 
 Eailway Company,' where evidence having been given that 
 deceased was a person of inferior grade, and the work he was 
 employed on required skill ; evidence to rebut this was at once 
 given, without putting the plaintifl to prove independently the 
 want of care in the appointment. It seems doubtful, notwith- 
 standing, whether this can be laid down as a rule of law. It is 
 clear that incompetency may be so gross and pdilpable that it may 
 raise an irresistible presumption of negligence in the appointment 
 of the incompetent person, but it is equally true that incompetency 
 as undoubted and as harmful may be so subtily disguised that its 
 existence may conceivably be consistent with a due care on the 
 part of the master. The result would seem to be that the 
 question in each case is for Jhe judge whether the proof given of 
 incompetency is sufficient to I'aise a presumption of want of due 
 and reasonable care in the selection of the servant, for the jury 
 whether it does.^ 
 
 There remains, then, to consider what is sufficient, evidence M'Carthj- o. 
 of incompetency to affect the master. In M'Carthy v. British overs' Com- 
 Shipowners' Company,* Dowse, B., thus states the law : — " It is J":y,- ^^, 
 not true, as a general proposition of law, that all negligence is Dowse, B. 
 evidence of incompetency. It may, I admit, in some cases be 
 evidence of incompetency, but I think that sometimes the most 
 competent people are the most negligeiit, whether out of care- 
 lessnessj or temper, or negligence in the real sense of the word. 
 I say, therefore, that it is not correct to assume that all negli- 
 gence is evidence of incompetency." That, however, in some 
 circumstances a single act of negligence might conceivably be 
 sufficient had been pointed out by Fitzgerald, B.,* and quoted 
 with approval by Palles, C.B., in Skerritt v. Scallan.' Fitz- Bkerritt ». 
 gerald, B., said : " I can conceive that even the single act of a 
 man may be evidence — nay, satisfactory evidence — of incom- 
 petency ; but it seems to me that this is where the act is of such 
 a nature, or done under circumstances such that the doing of it 
 may be reasonably thought only accountable for on the supposition 
 of malice, which is not to be presumed of incompetency." It 
 should be pointed out that, in the case of malice the master would 
 not be liable in any event." Fitzgerald, B., then goes on to deal 
 with a difficult point. " Assuming, however, that a reasonable man 
 might from this single instance reasonably infer want of ordinary 
 
 Ir. R. II C. L. 389, at p. 401. See per * Mui'phy «. Pollock, 15 Ir. 0. L. 224, 
 
 Dowse, B., Swift v. Maoken, Ir. R. 8 at p. 233. 
 
 C.L. 140, at p. 141. I4F.&F.S30. 5 Xr.R. II C.L.389; Harvey K. New York 
 
 2 Metropolitan Railway Company v. Central Railroad Company, 88 N. Y. 481. 
 
 Jackson, 3 App. Cas. 193. " Croft v. Alison, 4 B. & Aid. 590, 
 
 ' 10 L. R. Ir. C. L, 384. and the cases following it. 
 
.^60 
 
 THE LAW OP NEGLIGENCE. 
 
 [book I. 
 
 Discussed. 
 
 skill and care in Lineham, will incompetence thus inferred from 
 a single act in a man, as to whose conduct on other occasions 
 there is no evidence, be itself evidence from which a reasonable 
 man can infer want of reasonable care on the master's part in 
 selecting him, or knowledge of his incompetency ? I cannot go 
 General rule, this length." The result of all this comes out, then, that, as a 
 general rule, several acts of negligence are requisite to shew 
 incsmpetency ; and that where one act of negligence is of a 
 character that will raise a presumption of negligence, the Court 
 will not hold that sufficient to raise also the presumption that 
 there was want of due care on the part of the master in the selec- 
 tion of the servant. This conclusion is on principle unsatisfac- 
 tory, for the single act of negligence which is sufficient to warrant 
 a conclusion of incompetency may sometimes at least be of such a 
 character that it would argue no less powerfully want of due care 
 and skill on the part of a master. For instance, an act of the 
 servant shewing unequivocal idiocy would probably be sufficient 
 to raise the presumption of incompetency from a single act. It 
 is difficult to see why in such a case the general rule of law, 
 which holds that it is some evidence from which a jury might 
 draw the inference of want of due care and skill in the employ- 
 ment of the servant, should be displaced where the circumstances 
 would argue strongly that the fact of idiocy would have been 
 detected had the master used the least care or trouble. The 
 correct rule would seem to be that if the conclusion from the single 
 fact were consistent with care or want of care, then additional 
 evidence should be given; if it were consistent only with the 
 hypothesis of want of care, that it arose from a single fact would 
 be irrelevant.' When the incompetency of the servant has been 
 established, the law differs nothing from that which is applicable 
 to machinery tackle. The obligation of the master is to see that 
 they are reasonably sufficient. So, too, with servants, but there 
 may be a waiver by conduct on the part of the servant of his right 
 to suitable machinery or competent fellow-servan,ts. And in both 
 cases the mere allegation that the servant had knowledge is not 
 sufficient; for as knowledge of defective machinery may be 
 consistent with a reasonable belief that the master was to remedy 
 it, and his continuance in the work may be only on this assumption:" 
 so with incompetent servants, the plaintiff may have knowledge 
 of their incompetence, but this, though evidence to disentitle him 
 from recovering, is not in itself a complete legal answer to the 
 claim ; for knowledge may be consistent with many circum- 
 
 1 Aveiy V. Bowden, 6 El. & B. 974, cited by Wightman, J., in MacMahon v. 
 Leonard, 6 H. L. C. 970, at p. 993. 
 " Clarke v. Holmes, 6 H. & N. 349, 7 H, & N. 937. 
 
 Bule 
 
PARTin.] MASTER'S DUTY TO HIS SERVAJSTT. 361 
 
 stances that warranted the plaintiff continuing in the employ- 
 ment.' 
 
 We have considered so far the duty owing to servants who Duty to young 
 are adults. But a different and greater duty is owing by the master P^"°°^- 
 to young persons. The principles by which this is determined 
 have been already treated of in connection with the general 
 principle regulating contributory negligence. The point of view 
 of the master's duty remains shortly to be illustrated. 
 
 The leading expression on this is that of Cockbum, O.J., at Nisi Cookbum, c.J., 
 Prills, in Grizzle v. Frost.^ " I am of opinion that if the owners of ^^o^^^ * "" 
 dangerous machinery by their foreman employ a young person 
 about it quite inexperienced in its use, either without proper 
 directions as to its use or with directions which are improper and 
 which are likely to lead to danger of which the young person 
 is not aware, and of which they are aware, as it is their duty to 
 take reasonable care to avert such danger, they are responsible for 
 any injury which may ensue from the use of such machinery." 
 By common law there does not appear to have been any disability 
 on the employment of young children, but the ordinary rule of 
 law that when a workman is employed on any work he is presumed 
 to undertake the plain and apparent risks of the employment, 
 would, in the case of young children to whom plain and apparent 
 risks mean something very different from what would pass as such 
 in the case of adults, work its own mitigation. 
 
 This is touched on by Lord Chelmsford in Bartonshill Coal Bartonsiiiii 
 Company v. McGuire.* Commenting on a Scotch case of O'Byrne v. MoGuiie. 
 V. Bum,^ and pointing out that it is hardly possible to apply the 
 principle of the servant having undertaken the service with a 
 knowledge of the risks incident to it, since "she was an inex- 
 perienced girl employed in a hazardous manufactory, placed 
 under the control and, it may be added, the protection of an 
 overseer who was appointed by the defender and intrusted with the 
 duty, and it might well be considered that by employing such a 
 helpless and ignorant child the master contracted to keep her out 
 of harm's way in assigning to her any work to be performed ; " 
 and Lord Cranworth,' glancing at the same point, suggests that 
 the rule of common service is modified in the then case to the 
 extent of holding that they are not engaged in the common work 
 with the superintendent. This might, perhaps, be better stated 
 that the superintendent has additional duties in their case, engen- 
 
 1 Hoey V. Dublin and Belfast Junction York Central Railroad Company, 88 N. Y. 
 
 Eailway (1870), Ir. E. 5 C, L. 206. See 481. 
 the American cases, Wabash Railroad ^ (1863) 3 F. & F. 633. 
 
 Company v. McDaniels, 107 U. S. (7 ' 3 Maoqueen 311. 
 
 Otto) 454; Baolee v. Harlem Railroad * (1854) 16 D. 1025. 
 Company, S9 N. Y. 356 ; Harrey v. New = At p. 394. 
 
362 
 
 THE LAW OP NEGLIGENCE. 
 
 [book I. 
 
 Gemmill v. 
 Gourock. 
 
 Murphy v. 
 Smith. 
 
 dered by their incapacity to protect their own interests, than in 
 the case of ordinary workpeople ; since it is not the scheme of 
 work that is altered, but the mutual relations of those engaged in 
 it. The contention that an additional duty is thrown on the 
 master by the employment of children and young peraons, and 
 that the extent of the additional obligation is measured by their 
 presumed incapacity, is borne out by the Scotch case of Gemmill 
 V. Gourock Rope Work Company,' where it was held that the 
 particular machinery described in the case should have been 
 fenced as against children or young persons. This, as a decision 
 that such an obligation actually exists, is stronger than the 
 earlier case of 'Byrne v. Bum^ and the contemporaneous case 
 of M'Millan v. M'Millan,' that, though pointing in the same 
 direction, go no further than to hold that an allegation of a 
 greater duty towards an inexperienced child is not demurrable. 
 
 The English case of Murphy v. Smith'' has sometimes been cited 
 for a contrary view. But the facts of the case may explain that 
 decision. A boy engaged in making lucifer matches interfered in 
 a part of the work that he had no business to, and which was 
 dangerous; an explosion took place through the meddling, and 
 the boy was injured. A man, not a foreman, was standing by, 
 and did not prevent the mischief, and was thus guilty of negligence 
 in permitting an inexperienced person to act thus. The Court 
 assumed that if the man had been a foreman the employer would 
 have been liable, thus recognizing the distinction that is set up on 
 behalf of inexperienced persons. But as the man was not foreman, 
 but only a fellow- workman, they held there was no liability on the 
 employer, though the accident was caused through the negligence 
 of a fellowr workman. It should be noted that the boy was not 
 employed on the work, and there was no evidence that any direction 
 was given to him in the matter, or that he was doing else than 
 intermeddling. Had a liability been imposed on the master in 
 this case, it would have been a great extension of his liability 
 beyond previous cases, and would have imputed not only an 
 obligation not to employ inexperienced workmen on dangerous 
 work without an increase of liability, but an obligation not to 
 employ them where they should be able to injure themselves by 
 interfering with dangerous work. 
 Traill ;•. Small. In Traill V. Small and Boase,* the Second Division of the Court 
 of Session held " the pursuer, being under fourteen and engaged at 
 the time " (i.e., of an accident by which he lost his arm) " in his 
 ordinary occupation, had not liberated the defenders from their 
 
 1 23 D. 425 
 
 ^ 23 u. 425. => 16 
 
 * (1865) 19 C. B. N. S. 361 
 
 2 16 D. 1025. 
 
 ' 23 D. 1082. 
 » (1873) II M. 888. 
 
PART in.] MASTER'S DUTY TO HIS SERVANT. 363 
 
 responsibility " by actiag in a way which, in the case of an ordinary 
 workman, would have amounted to contributory negligence. The 
 decision expressly avoids saying that a boy under fourteen cannot 
 be guilty of contributory negligence, nor yet does it say there is a 
 different rule for those under fourteen years of age. It, however, 
 considered the pursuer's youth as an element in the evidence on 
 which it decided — that is, that the duty of the employer was 
 increased by reason of employing youthful workpeople. Again, 
 the Court of Session, in Darby v. Duncan," held that the master Darby f. 
 was liable where a machine, not, indeed, defective in itself, but ""''*"• 
 incapable from its very nature from being used in an unfenced 
 state without danger to life and limb, is left without due and 
 sufficient fencing, the proposition as laid down is broad and 
 without qualification; but in the case in question the injured 
 person was a boy of thirteen, and, further, Lord Deas, in his 
 judgment, appears to have decided on the authority of O'Byme v. 
 Burn," which turned entirely on the inexperience of the plaintiff, 
 so that this case should, it is submitted, be similarly limited, and at 
 least goes to prove the existence of the rule in the circumstances 
 now being considered. 
 
 An American case in the Supreme Court of the United States, American 
 Union Pacific Eailroad Company v. Fort,^ carries the exception to ®'^'"°°- 
 the general rule of the employer's liability, first enunciated in 
 O'Byme r. Burn,^ further than any of the English cases, and 
 appears to be irreconcilable with the case of Murphy v. Smith.'' 
 A boy, sixteen years of age, was ordered by the person under 
 whose superintendence he was working to do dangerous work not 
 within the scope of his employment, but within that of the super- 
 intendent's. While obeying, he was injured. The contract for 
 the boy's service was made by the father with the company. In 
 Murphy v. Smith,^ Erie, C.J., defined the question as being 
 whether the master was responsible, and his answer to it was that 
 he was not, becatose the wrongful command was the act of a fellow- 
 servant. In the present case the Court held that the disability of 
 a fellow-servant did not attach. " The father had a right to 
 presume when he made the contract of service that the company 
 would not expose his son to such a peril [i.e., dangerous work]. 
 Indeed, it is not possible to conceive that the contract would have 
 been made at all if the father had supposed that his son would 
 have been ordered to do so hazardous a thing. If the order had 
 been given to a person of mature years who had not engaged to do 
 
 ^ (1861) 23 D. 529. The decision of the First Division of the Court of Session in 
 M'Millan v. M'Millan, 23 D. 1082, turned mainly on the facts that should he hrought 
 before the jury. 
 
 2 16 D. 1026. ' 17 Wall. SS3. * 19 C. B. N. S. 361. 
 
364 THE LAW OF NEGLIGENCE. [book i. 
 
 such work, althougli enjoined to obey the directions of his superior, 
 it might with some plausibility be argued that he should have 
 disobeyed it, as he must have known that its execution was 
 attended with danger ; or, at any rate, if he chose to obey, that he 
 took upon himself the risks incident to the service. But this boy 
 occupied a very different position. How could he be expected to 
 know the peril of the undertaking ? He was a mere youth, 
 without experience and not familiar with machinery. Not being 
 able to judge for himself, he had a right to rely on the judgment of 
 the foreman." 
 Bunker «. A verv similar point arose in Bunker v. Midland Railway 
 
 Baiiway Company,' where a boy of fifteen was injured through obeying an 
 
 Company. order of a foreman which the boy knew the foreman was not em- 
 powered to give. The action was under the Employers' Liability 
 Act, 1880,^ and was decided under sub-section 3 of section i of 
 that Act, on the ground that the boy was not " bound to conform " 
 to the order of the foreman. But if the rule laid down in the 
 American case was a just one, then the boy would have had a 
 common law right of action, on the ground of the constraint put 
 upon him by the foreman's position and authority, and his "right 
 to rely on the judgment " of the superintendent. But this does 
 not seem even to have been suggested. 
 
 The tendency of some of the later English cases seems strongly 
 in the direction of the American case. Thus, in Crocker v. 
 Banks' the Court of Appeal adopted the rule that a greater duty 
 was owing from the master to young persons in their employ- 
 ment than to adults, where a girl of seventeen was injured by the 
 bursting of a soda-water bottle while she was engaged in filling 
 it as part of her duty in the employment of a soda-water 
 manufacturer. The evidence was that the girl " was an expert 
 hand." " There was on the machine an automatic guard during 
 the period of filling and corking the bottles ; but when it became 
 necessary to take the bottle from the machine that guard dropped 
 and the operator was unprotected." Then a mask was provided, 
 but the girl did not use it. As to to this Lord Esher, M.E., is 
 reported as saying : " The fact that the defendant provided 
 masks for all at this time was strong evidence that he knew of 
 the danger which then existed." The girl — who was described 
 as an " expert hand " — swore that she did not know of- the 
 danger against which the mask was provided. Lord Esher, 
 M.R.,'s opinion was : "It was not negligent for a girl of 
 her age to omit to put on the mask if she did not know 
 that she was bound to do so at that period of the operation." 
 
 1 47 L. T. N. S. 476. = 43 & 44 Vict. c. 42. 3 4 Times L. E. 324. 
 
PARTUi.] MASTER'S DUTY TO HIS SERVANT. 365 
 
 The Court sustained the verdict of the jury in favour of the 
 plaintifE.' 
 
 The cases, then, shew : — 
 
 1 . There is a duty on the part of the employer to safeguard Summary, 
 the servant from his own personal negligence.'' 
 
 2. What the law considers personal negligence of the em- 
 ployer may be constituted — 
 
 (a) By his personal intervention in the work.' 
 (6) By the machinery or tackle supplied by him for the 
 i purposes of the employment being improper.'' 
 
 (c) By want of care in securing the employment of com- 
 
 petent servants.' 
 
 (d) By neglect to observe statutory requirements." 
 
 3. Where the master works with his servants his liability to them 
 for negligence differs nothing from his liability to strangers." 
 
 4. The master's duty is not discharged by appointing com- 
 petent servants to provide fit and proper machinery, if by the 
 exercise of reasonable care the master might have known, and 
 ought to have known, of the defective condition of the machinery 
 actually supplied.' 
 
 5. The master is not liable for supplying improper machinery 
 or tackle — 
 
 (a) Where the servant enters on the service haviag the 
 same means of knowledge of the danger or ineffi- 
 ciency of the machinery as the master.' 
 
 (6) If the servant, either expressly or impliedly, undertakes 
 to work under conditions of greater risk." 
 
 6. Where it is sought to render the master liable for 
 supplying improper or defective machinery or tackle, to make 
 a cause of action there must be not only knowledge, express 
 
 ' The Scotch Courts seem disposed to " Senior v. Ward, i E. & E. 385 ; 28 
 
 take a more exacting view of the intelli- L. J. Q. B. 139; 7 W. R. 261. 
 
 gence of a " boy of sixteen " than the ' Ashworth v. Stanwiok, 3 E. & E. 70 ; 
 
 English Court of Appeal of a " girl of Mellors v. Shaw, i B. & S. 437. 
 
 sevent«en," which Lord Esher, M.R., de- » Webb v. Eennie, 4 F. & F. 608. 
 
 scribes as a "tender age." Forbes v. ' Seymour v. Maddox, 16 Q. B. 326; 
 
 Aberdeen Harbour Commissioners, 25 Sc. 20 L. J. Q. B. 327 ; Griffiths v. Gidlow, 
 
 L. R. 239. 3 H. & N. 648 ; 27 L. J. Ex. 404 ; Dynen 
 
 2 Roberts v. Smith, 2 H, & N. 213 ; v. Leach, 26 L. J. Ex. 221 ; Couch v. 
 
 26 L. J. Ex. 319 ; Ashworth v. Stanwick, Steel, 3 B. & B. 402. See the Merchant 
 
 3 E. & E. 701 ; 30 L. J. Q. B. 183 ; Shipping Act, 1876 (39 & 40 Vict. 0. 80), 
 
 4 L. T. N. S. 85 ; Mellors v. Shaw, I B. s. S- 
 
 & S. 437 • 30 L. J. Q. B. 333 ; Ormond " Skipp v. Eastern Counties Railway 
 
 V. Holland, El. Bl. & El. 102. Company, 2 Ex. 223 ; 23 L. J. Ex. 23 ; 
 
 = Mellors v. Shaw, I B. & S. 437. Assop v. Yates, 27 L. J. Ex. 156 j Riley 
 
 * Paterson «. Wallace, I Macqueen 748 ; v. Baxendale, 6 H . & N. 445 ; 30 L. J. Ex. 
 
 Hutchinson v. York, Newcastle, and Ber- 87 ; Senior v. Ward, i E. & E. 385 ; 28 
 
 wick Railway, 5 Ex. 343; 19 L. J. Ex. 296. Tj. J. Q. B. 139; 7 W. R. 261; Ogden v. 
 
 5 Tarrant v. AVebb, 18 C. B. 797 ; 25 Rummens, 3 F. & F. 755. 
 L J. C. P. 261, 
 
366 THE LAW OF NEaLIGENOE. [book i. 
 
 or constructive, of the master, but also ignorance of the 
 servant.* 
 
 7. Where personal negligence of the master is the cause of 
 action, the ignorance of the servant is not necessary to constitute 
 the cause of action, but knowledge may be alleged by way of 
 defence of contributory negligence.^ 
 
 8. There is a duty on the master not only to provide reason- 
 ably efficient machinery and tackle at the outset of the work, but 
 also to take means to prevent such a deterioration of the same 
 as may increase the danger to the servant.' 
 
 9. Mere knowledge on the part of the servant of the dangerous 
 condition of the machinery affecting work in which he is engaged 
 is not in itself sufficient to preclude his recovering from the 
 employer,* 
 
 10. Knowledge on the part of the servant of the dangerous 
 condition of the machinery affecting work in which he is about to 
 engage himself is sufficient to preclude his recovering from the 
 employer, provided, that is, that the knowledge is actively present 
 to his mind at the time of entering upon the contract — i.e., he 
 has an understanding of the risk." 
 
 1 1 . Knowledge by the servant of dangers incidental to the 
 work in which ,he engaged is to be presumed, but not know- 
 ledge of dangers incidental to the general system." 
 
 12. There is no distinction between machinery dangerous 
 by its nature and machinery that becomes dangerous through 
 want of condition with regard to the imposing a liability on the 
 servant who enters upon the employment with a knowledge of 
 such dangers or want of condition.' 
 
 13. No obligation is presumed on the employer to alter or 
 
 1 Williams v. Clougli, 3 H. & N. 258 ; v. Worthington, 2 F. & F. 533 ; Thomas 
 27 L. J. Ex. 325 ; Davies v. England, 33 v. Qnartermaine, 18 Q. B. D. 685 ; 56 
 L. J. Q. B. 321. Smyly v. Glasgow and L. J. Q. B. 340 ; 57 L. 'J\ 537 ; 35 W. E, 
 Londonderry Steam Packet Company, Ir. 555. In Scotland, however, see Criohton 
 R. 2 C. L. 24, contains an exhaustive v. Keir, i M. 407. 
 
 enumeration of the constituent elements '^ Thomas v. Quartermaine, swpra; 
 
 reqiiisite to an actionable wrong. Griffiths Yarmouth v. France, 19 Q. B. D. 647 j 
 
 1!. London and St. Katharine Docks Com- 57 L. J. Q. B. 7 ; Uynen v. Leach, 26 
 
 pany, 12 Q. B. D. 493 ; 17 Q. B. D. L. J. Ex. 221 ; Saxton v. Eawkesworth, 
 
 259. 26 L. T. N. 8. 851 ; Dowel! v. Smith, 3 
 
 2 Watling V. Oastler, L. E. 6 Ex. 73 ; F. & F. 238. 
 
 40 L. J. Ex. 43 ; 23 L. T. N. S. 815 ; « Sword v. Cameron, i D. 493, as ex- 
 
 19 W. R. 388; Smyly v. Glasgow and plained byLordCranworth,BartonshilI Coal 
 Londonderry Steam Packet Company, Ir. E. Company v. Eeid, 3 Macqueen at p. 289. 
 
 2 C. L. 24, at p. 29 ; 16 W. E. 483. ' Bartonshill Coal Company ». Eeid, 3 
 
 2 Vaugnan v. Cork and Youghal Eail- Macqueen 266, at p. 298 ; per Braniwell, 
 way, 12 Ir. C. L. K. 297 ; Murphy v. L.J., Lax v. Mayor and Corporation of 
 
 Phillips, 3 L. T. N. S. 477 ; Webb v. Darlington, 5 Ex. D. 35 ; 48 L. J. Q. B. 
 Eennie, 4 F. &P. 608. On the contrary, 143 ; Ogden v. Eummens, 3 P. & F. 751 ; 
 
 see Allen v. New Gas Company, i £!x. I), Macleod v. Caledonian Railway Company, 
 
 51. 23S0. L. R. 68,atp. 70. On the other hand, 
 
 * Clarke v. Holmes, 7 H. & N. 937 ; see per Byles, J., Clarke -0, Holmes, 7 
 
 251. 23S0. L. R. 68,atp. 70. On the other hand, 
 
 * Clarke v. Holmes, 7 H. & N. 937 ; see per Byles, J., Clai' " ' 
 
 31 L. J. Ex. 356 ; 10 W. R. 405 ; Holmes H. & N. 937, at p. 947, 
 
PARTiii.J MASTER'S DUTY TO HIS SERVANT. 367 
 
 improve the defective condition of macliinery with reference to 
 which and with knowledge of which and without concealment 
 the servant enters on the employment ; but an obligation is 
 presumed where, by reason of non-repair or absence of supervision, 
 it becomes altered and deteriorated.' 
 
 14. Although there is a duty on the master to provide proper 
 machinery and competent servants, yet there is no liability on 
 the master where the injury results from the defective manage- 
 ment of machinery by servants not incompetent.^ 
 
 I s . Where there is a statutory duty imposed on the employer 
 in order to discharge the employer from the obligation so 
 imposed, it must be shewn — First, that the statutory obligation is 
 imposed for the benefit of a class, and not for the benefit of the 
 community at large. '^ Secondly, that a workman, being a member 
 of the class for whose benefit, as apart from the benefit of the 
 community at large, the obligation was imposed, with knowledge of 
 the duty owing to him, and with a full appreciation of the risk, 
 has undertaken the work on the terms that the rights conferred 
 by statute on him, as a member of the class, should be excluded.'' 
 
 16. In the case of an ordinary common law liability, when 
 a servant is shewn to have equal knowledge, or means of know- 
 ledge, of the risks of an employment as his master, the maxim, 
 Volenti non fit injuria, becomes applicable, and marks a pre- 
 sumption of law that must be excluded (if at all) by evidence.'' 
 
 1 7. In the case of the non-performance of a statutory duty, 
 the liability of the master for personal injury to his servant 
 arising out of the same is to be presumed, and this presumption 
 is not displaced by proof that the servant had equal knowledge 
 or means of knowledge of the risks of the employment as the 
 master.' 
 
 18. Where there has been breach of a statutory duty by a 
 master, and injury to the servant has followed thereon, the 
 master may displace the presumption of his liability for the same 
 by proving those facts which, in the case of an ordinary common 
 law liability, are connoted by the maxim. Volenti non fit injuria — 
 i.e., knowledge of the duty and of the danger, with acceptance of 
 the danger, and a dispensation to the master from its consequences," 
 with regard to the employment of servants." 
 
 ' Vaughan r. Cork and Youglial Rail- '' Printing and Numerical Registering 
 
 way Company, 12 Ir. C. L. R. 297. Company ?-. Sampson, L. R. 19 Eq. 462, 
 
 2 Bartonshill Coal Company v. Reid, 3 at p. 465 ; 44 L. J. Ch. 705 ; 32 L. T. 
 
 Macqneen 266, at p. 297 ; Ormond r. 354 ; 23 W. R. 463. 
 
 Holland, El. Bl. & KI. 102. ^ Thomaar. Quartermaine, 18 Q. B. D 
 
 = Griffiths r. Earl of Dudley, 9 Q. B. D. 685 ; supra, pp. 330, 339, 355. 
 
 357; 51 L. J. Q. B. 543 ; 47 L. T. 10; " Thomas?-. Quartermaine, 18 Q. B. D. 
 
 30 W. R. 797. 685 ; supra. Britton v. Great Western 
 
368 THE LAW OF NEGLIGEISICE. [book i. 
 
 1 9. The master's duty has been discharged, with reference to 
 the engagement of servants, when he has used due care to engage 
 competent persons.' 
 
 20. To affect the master with liability for the employment of 
 incompetent servants there must be shewn : 
 
 (a) Incompetence on the part of the servant. 
 (6) Want of care on the part of the master.^ 
 
 2 1 . Incompetence differs from negligence, and consists in the 
 inability either to perform the duties contracted for with the 
 exercise of care, or to exercise care, while negligence is mere 
 disability to perform them by reason of want of care.' 
 
 22. Incompetency may be manifested by a single act.* 
 
 23. On proof of the incompetency of the servant being given, 
 the onus is on the master to shew that he used due care in his 
 selection.^ 
 
 24. The maxim. Volenti nan fit, applies in the case of incom- 
 petent servants." 
 
 2 S . Mere knowledge of the incompetency of the servant is not 
 in itself necessarily an acceptance of the risk arising from such 
 incompetency." 
 
 26. Where young people are engaged in an employment, there 
 is a greater duty on the employer to take care to avert danger 
 than in the case of an adult,' and the degree of care is graduated 
 by the youth and inexperience of the young persons so em- 
 ployed." 
 
 Cotton Company, 41 L. J. Ex. 99 : L. R. ' M'Garthy v. British Shipowners' 
 
 7 Ex. 130 ; 27 L. T. N. S. 125 ; 20 Company, 10 L. R. Ir. C. L. 384. 
 
 W. R. 525. "There may, again, he con- * Murphy «. Pollock, 15 Ir. C. L. 224. 
 
 current facts which justify the inquiry Skerritt v. Scallan, Ir. R. 1 1 C. L. 389. 
 
 whetherthe risk, though known, was rolun- ' Smith v. Howard, 22 L. T. N. S. 
 
 tarily encountered": per Bowen, L.J., 131. Skerritt «. Scallan, Ir. R. 11 0. L. 
 
 Thomas u. Quartermaine, 18 Q. B. D. 389. Swift m. Macken, Ir. R. 8 C. L. 140. 
 
 685, at p. 696. Edwards v. London and Brighton Rail- 
 
 ^ Tarrant v. Webb, 18 C. B. 797 ; 25 way Company, 4 F. & F. 530. 
 
 L. J. C. P. 261 ; Potts V. Plunkett, 9 Ir. " Hoey v. Dublin and Belfast Junction 
 
 C. L. R. 290. Railway, Ir. R. 5 C. L. 206. 
 
 2 Smith V. Howard, 22 L. T. N. S. ' Thomas v. Quartermaine, 18 Q. B. D. 
 
 131 ; Ormond v Holland, El. Bl. & El. 685 ; supra. 
 
 102 ; Potts V. Port Carlisle Dock and * Grizzle v. Frost, 3 F. & F. 622. 
 
 Railway Company, 24 L. T. N. S. 283. ' Crocker v. Banks, 4 Times L. R. 324. 
 
CHAPTEE IV. 
 
 DISABILITIES OF THE SEEVANT AT COMMON LAW 
 TO EECOVER FOE INJUEIES EEGEIVED IN THE, 
 COUESE OF HIS EMPLOYMENT. , 
 
 There is no general rule that makes one man liable for the negli- 
 gence of another. The rule of law is the other way, Gvl'pa fome^ Eulo of law, 
 mos aucfores tantum? To this law there has long been an exception Sor^tltmi. 
 established — that the master should answer for the act of his 
 servants when strangers are injured thereby. This exception we 
 have already considered. It is referred to the maxim of agency, 
 Qui facit per alium facet per se, and the legal conclusion is, Be- sespondeat 
 spondeat superior — ^that where the existence of the relation of master ^raption" 
 and servant has been established, the master is to answer for acts *° ^*' 
 done by the servant within the sphere of the agency, and on 
 grounds of policy, not merely for those authorized by him, but. 
 sometimes even for those actually forbidden, where the position of 
 servant prompts the wrongful act, and not merely affords oppor- 
 tunity for it. In addition, we have considered certain aspects of 
 the rule, Culpa tenet svss auctores tantwm, as it extends to make 
 the master liable for his own personal negligence whereby those 
 in his employment are injured. We have seen that the master 
 is liable to his servants for his own personal negligence in the 
 actual performg,nce of work, or in failing to provide appliances for 
 the proper carrying on the work, or for default in the appoint- 
 ment of competent servants. 
 
 We are now to consider a further exception that has been Master's 
 grafted on the rule of Respondeat superior, itself an exception to scttom fw h'fs 
 the wider rule, Culpa teriet sues auctores tantum, that the master is si^rvant in the 
 
 ' -^ .... , same business 
 
 not liable to his servants for injuries to them produced by the an exception 
 negligence of a fellow-servant engaged in the same business, ° '°" 
 provided there be no negligence in the appointment of such 
 
 ^ Wbodhead «. Gartness Mineral Company, 4 E. 469 j also per Bramwell, L.J., 
 Evidence before House of Commons' Committee on Employers' Liability for Injuries to 
 their Servants, 1877. 
 
 A A 
 
370 
 
 THE LAW OF NEGLIGEKCE. 
 
 [book I. 
 
 The ground 
 of the ex- 
 emption. 
 
 Priestley v. 
 Fowler. 
 
 negligent servant, or in the retention of snch. servant after notice 
 of Ms incompetency." 
 
 The ground of this exemption has been much canvassed. On 
 the one hand it has been said to arise from an implied contract 
 that the workman should take the risks of the employment ; one 
 of which risks being the danger of sustaining injury from work- 
 men engaged in the same scheme of labour. On the other hand 
 it has been urged that the workman is not entitled to recover 
 from the master, because he had not contracted to be indemnified ; 
 and, therefore, the original rule of law, Cidpa tenet suos auetores 
 tantum remained unaffected.^ But whichever explanation is 
 adopted the germ of the law laying down the master's immunity 
 from liability in the case of injury caused by a servant to a servant, 
 is traced no higher up than the case of Priestley v. Fowler,' 
 decided in 1837. 
 
 Priestley v. Fowler was a decision given on motion to arrest 
 judgment, non obstante veredicto, and thus, as was pointed out in 
 Wigmore v. Jay,'' was a decision of the greater authority, since, as 
 the question was raised on the record, it might, had the decision 
 been doubtful, have been taken to the Exchequer Chamber. The 
 declaration set out th^t the defendant was a butcher, and the 
 plaintiff his servant, who was directed to take goods in a van with 
 another servant that it was the duty of the defendant to see that 
 the van was in a proper state of repair, and not overloaded, never- 
 theless, the defendant did not use proper care that the van should 
 be in a sufficient state of repair, or that it should not be over- 
 
 ^ Wharton, Law of Negligence, § 224 ; 
 and the cases cited in the notes. 
 
 ^ See Evidence of Bramwell and Brett, 
 L.JJ., before House of Commons' Com- 
 mittee on Employers' Liability, 1877. 
 
 ' (1837) 3 M. & W. I. Brett, L.J., 
 says : " I think it may be suggested that 
 the law as to the non-liability of masters 
 with regard to fellow-servants arises princi- 
 pally from the ingenuity of Lord Abinger 
 in suggesting analogies in the case of 
 Priestley v. Fowler": Evidence before 
 House of Commons' Committee on Em- 
 ployers' Liability, 1877, q. 1919. The ac- 
 tually first decision on the precise point is 
 alleged to be Murray ». South Carolina 
 Kailroad Company, i McMul. 385. See 
 Chicago and Milwaukee Eailroad v. Boy, 
 112 U. S. (5 Davis) 377, at p. 384, per 
 Field, J. 
 
 * S Ex. 358. Brett, L.J., in his evi- 
 dence before House of Commons' Com- 
 mittee on the Employers' Liability for 
 Injuries to their Servants (1877, at q. 
 1922), says : " Priestley v. Fowler is one 
 of those unsatisfactory cases in which, 
 under the old system, the question did 
 
 not arise upon what were the real facts, 
 but upon how they were stated on the 
 record ; which meant that, although the 
 proof at the trial might even have gone 
 somewhat beyond the declaration, the 
 question was, whether the declaration 
 itself was good when you came to look at 
 it." This remark may be of the greatest 
 force as applied to the difficulty of doing 
 substantial justice in the particular case, 
 as a^art from justice in a technical con- 
 formity to rule, but as a means of eliciting 
 a definite rule of law, it would appear 
 better calculated to reach its end, as the 
 facts are necessarily definitely formulated, 
 than where the facts are to be collected in 
 a less precise and accurate form. " The 
 case of Priestley was decided on a general 
 view of mixed facts ; the causes of the 
 accident being : (i) defect in the waggon ; 
 (2) overloading ; and (3) careless driving ; 
 and the Court held that, as the servant 
 injured knew the waggon, and knew of 
 the loading, he was as well able to judge 
 of the risk as the master could be : " per 
 Lord Justice Clerk, Gregory v. Hill, 9 
 M. 282, at p. 285. 
 
PABT III.] COMMON LAW DISABILITY OF SERVANT. 37 1 
 
 loaded, or that the plaintiff should be safely and securely carried, 
 thereby in consequence of which neglects the van gave way, and 
 the plaintiff was injured. 
 
 At the trial the evidence was that the injury arose from 
 the overloading the van, and that the defendant knew that 
 it was so overloaded. The plaintiff obtained a verdicb for 
 i^ioo. 
 
 The Court of Exchequer, however, directed judgment to be 
 arrested, on the ground that the declaration disclosed no legal 
 liability. 
 
 The objection to the declaration was, that from the mere objection to 
 relation of master and servant no contract, and therefore no ""^ declaration, 
 duty, could be implied on the part of the master to cause the 
 servant to be safely and securely carried, or to make the master 
 liable for damage to the servant arising from any vice or imper- 
 fection unknown to the master in the carriage, or in the mode of 
 loading and conducting it. 
 
 Lord Abinger, in delivering the judgment of the Court, thus Lord Abingei's 
 expressed the general principle of law: "The mere relation of ■'"'^^™^"'' 
 the master and the servant never can imply an obligation on the 
 part of the master to take more care of the servant than he may 
 reasonably be expected to do of himself. He is, no doubt, bound 
 to provide for the safety of his servant, in the course of his 
 employment, to the best of his judgment, information, and belief. 
 The servant is not bound to risk his safety in the service of his 
 master, and may, if he thinks fit, decline any service in which he 
 reasonably apprehends injury to himself; and in most of the 
 cases in which danger may be incurred, if not in all, he is just 
 as likely to be acquainted with the probability and extent of it as 
 the master." 
 
 It has been suggested that the injury in this case was occa- Suggested 
 sioned either through a want of care in loading the van, or feciebn." 
 through a defect in the van itself. If the former, the decision 
 might be justified on the ground that it was the duty of the 
 servant to see that the van was not more than properly loaded ; 
 which duty he neglected, and was in consequence injured through 
 what was his own contributory negligence. In that view no 
 priaciple of law had to be applied in any new sense. Or, 
 secondly, assuming the servant had nothing to do with the 
 overloading the van, that the case might still be sustained 
 on the principle that the master was not bound to warrant 
 the van, and he was not shewn to be guilty of any negligence 
 in providing it for the work. But Parke, B., one of the 
 Court in Priestley r. Fowler, remarking on that case in giving 
 
372 
 
 THE LAW OF NEGLIGENCE. 
 
 [book : 
 
 The question 
 of the legal 
 relationship 
 of fellow- 
 servants not 
 raised. 
 
 Farwell v. 
 Boston and 
 Worcester 
 Bailroad 
 Goiporatiou. 
 
 judgment in Metcalfe v. Hetherington,' said: "The Court 
 considered the allegation of duty as altogether insufficient, the 
 declaration not stating facts from which duty could be inferred." 
 This being so, the decision goes the full length of asserting that 
 there was no duty on a master to see that the van should be in a 
 sufficient state of repair and not overloaded, or that the plaintiff 
 should be safely and securely carried, but that the workman 
 should take the work in just the state it was, without implying 
 any obligations on the master in respect of its safety. The 
 question as to what would be the effect of knowledge by the 
 defendant of a defect is not raised ; and the Court expressly 
 avoided giving any expression of opinion upon it, their decision 
 being confined to cases where the servant must be taken to know 
 as well as his master the condition of the work on which he is 
 engaged. Neither is the case any authority — as has sometimes 
 been stated — for the proposition that the master is liable for 
 personal neglect. The decision merely enunciates the broad 
 proposition — if Parke, B.,'s explanation of it is to be taken as 
 authoritative — ^that there is no duty implied by law in certain 
 cases for the master to take those precautions for the safety of 
 his servant that he would be held to with regard to strangers. 
 
 As to the analogies with which Lord Abinger illustrated his 
 judgment, they are very loose and inaccurate : "for instance, 
 all those dicta about a negligent chambermaid and a negUgent 
 cook and so on are quite equally applicable to the relation 
 between innkeeper and guest, and most of his remarks are 
 equally applicable to the relation between carrier and passenger, 
 and there is no reason why they should apply exclusively to the 
 relation between master and servant."^ 
 
 In any view, the legal relationship of fellow-servants as 
 affecting their employer is not raised, siace the case does not 
 even suggest that the defendant had another servant than the 
 plaintiff. The broad proposition that can be founded on the case 
 is no more than that the rights of servants against their masters 
 are not identical with the rights of strangers in the case of 
 suffering personal injury. 
 
 Farwell v. Boston and Worcester Eailroad Corporation, though 
 not strictly binding on the English courts, has so often been 
 
 down wWle asleep and injure himself ; for 
 the negligence of the cook in not properly 
 cleaning the copper vessels used in the 
 kitchen ; of the butcher in supplying the 
 family with meat of a quality injurious to 
 the health ; of the builder for a defect in 
 the foundations of the house, whereby it 
 fell and injured both the master and the 
 servant by the ruins." 
 
 ' 1 1 Ex. p. 270, 
 
 = Mr. C. P. Ubert, Evidence House of 
 Commons' Committee on Employers' Lia- 
 bility, 1876, p. 282: "The master; for 
 example, would be liable to the servant 
 for the negligence of the chambermaid, for 
 putting him in a damp bed ; for that of 
 the upholsterer for sending in a crazy 
 bedstead, whereby he was made to fall 
 
PART III.] COMMON LAW DISABILITY OF SEEYANT. 373 
 
 mentioned with approbation by the English courts, and more 
 particularly by the law lords in the case of Bartonshill Colliery 
 Company v. Reid,' that it must be considered in the histoiy of 
 the English decisions which defined the law. 
 
 The facts of the case were thus stated by Shaw, C.J., who 
 delirered the judgment of the Court : " Two persons are in the 
 service and employment of one company, whose business it is to 
 construct and maintain a railroad, and to employ their trains of 
 cars to carry persons and merchandise for hire. They are ap- 
 pointed and employed by the same company to perform separate . 
 duties and services all tending to the accomplishment of one and 
 the same purpose — that of the safe and rapid transmission of the 
 trains ; and they are paid for their respective services according 
 to the nature of their respegtive duties, and the labour and skill 
 required for their proper performance. The question is, whether, 
 for damages sustained by one of the persons so employed by 
 means of the carelessness and negligence of another, the party 
 injured has a remedy against the common employer." This 
 question the Court answered in the negative. 
 
 The case, it will be observed, raised a somewhat different 
 question from that in Priestley v. Fowler. In Priestley v. Fowler 
 the plaintiff actively undertook the risk, and had full knowledge 
 of all the circumstances which constituted it, and therefore in 
 Parwell v. Boston and Worcester Railway Corporation the counsel 
 for the plaintiff admitted that Priestley v. Fowler was rightly 
 decided, although he questioned several of the expressions used 
 in the judgment. , But in Farwell v. Boston and Worcester 
 Bailroad Company the servants though employed by the same 
 Company were to perform separate duties, though tending to the 
 accomplishment of the same purpose. 
 
 The reasoning of the Chief Justice was as follows : — Where a Judgment of 
 servant injures a stranger in the course of his employment, and suramari'ze'd. 
 acting within the scope of his authority, the master will be liable 
 in a civil action in an action of trespass on the case. 
 
 But where the servant is injured in the course of his employ- 
 ment, and acting within the scope of his authority, this does 
 not apply, for the risks and perils the servant and the employer 
 respectively intend to assume may be regulated by express or 
 implied contract between them. Thus, the maxim of Respondeat 
 superior, which binds the master to indemnify a stranger for 
 damage caused by acts of the servant done in fulfilling his ser- 
 vice, does not cover the case of injury done to a servant in the 
 course of his employment. As there is no contract expressed, 
 
 \ 4 Met. 49 ; 3 Maoqueen 316, 
 
involved. 
 
 374 THE LAW OF NEGLIGENCE. [book i. 
 
 the right of the servant to recover must depend on an implied 
 contract of indemnity. But the authorities shew no such im- 
 plication, and are to that extent against the contention. 
 Principle To turn to the question of principle. The perils to which a 
 
 servant is exposed are such as, being equally apparent to him 
 and his master, are, in addition, perils incident to the service, and 
 the happening of which may be averted by care and forethought. 
 To say that the master should be liable because the acts are 
 caused by his agent is the very point to be proved. They are 
 agents to some extent and for some purposes, but whether he 
 is respoiisible in a particular case is not decided by the single 
 fact that they are for some purposes his agents. 
 
 Authority failing, the Court must consider the policy of the 
 law; now implied contracts are "duties legally inferred from 
 a consideration" of what is best adapted to promote the benefit 
 of all persons concerned under given circumstances ;" as, for 
 example, in the case of common carriers, innkeepers, or pas- 
 senger carriers. With fellow-servants, then, " each is an ob- 
 server of the conduct of others, can give* notice of any miscon- 
 duct, incapacity, or neglect of duty, and leave the service if 
 the common employer will not take such precautions and em- 
 ploy such agents as the safety of the whole party may require. 
 By these means the safety of each will be much more effec- 
 tually secured than could be done by a resort to the common 
 employer for indemnity in case of loss by the negligence of each 
 other. Eegarding it in this light, it is the ordinary case of one 
 sustaining an injury in the course of his own employment, in 
 which he must bear the loss himself, or seek his remedy, if he 
 have any, against the actual wrongdoer." ' 
 
 But it is objected that the principle applies only where 
 servants are employed in the same department of duty. Such a 
 rule would vary in each case. What is to constitute a depart- 
 ment ? What a distinct department of duty ? Further, the reason 
 of the rule is not that the servant has better means of providiug 
 for his safety, but that the implied contract does not extend to 
 indemnify the servant against the negligence of any one but 
 himself; and there is no tort, as the relation is regulated by 
 contract. 
 
 This case, therefore, may be cited as the first reasoned develop- 
 ment of the proposition that where a master uses due diligence in 
 the selection of servants he is not answerable to one of them for 
 an injury received by him in consequence of the carelessness of 
 another while both are engaged in the same service. 
 
 1 Winterbottom v. Wright, lo M, & W. 109 ; Milligan v. Wedge, la A. & E. 737. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT 875 
 
 In 1850, the two cases of Hutchinson ■!;. York, Newcastle, and Hutohinsoni). 
 Berwick Eailway Company' and Wigmore v. Jay^ were decided ^stie.'and' 
 on the same day in the Court of Exchequer. They were both Berwick 
 actions brought under Lord Campbell's Act (9 & 10 Vict. c. 93) Company, 
 for deaths caused by the negligence of fellow-servants in the w^igmo™ "• 
 course of their duty. 
 
 In Priestley i;.. Fowler the element of negligence of one servant 
 causing danger to another was entirely absent. The question 
 there was whether duty of the master to his servant in providing 
 machinery or appliances for the carrying on his work by his 
 servant were the same as, or different from, what they were with 
 regard to strangers. The present cases raised the same question 
 as in Parwell v. Boston and Worcester Railroad Corporation ; and 
 the facts in Hutchinson v. York, Newcastle, and Berwick Railway 
 Company were not dissimilar from those in that case. The Court, 
 however, after consideration, held that there was no distinction in 
 principle between the case of an injury occasioned to one servant 
 while discharging his duty as such by the negligence of another 
 servant in the discharge of his duty and the case of Priestley v. 
 Fowler, where the injury resulted from the insecurity of a van, 
 which insecurity might have been rendered dangerous either by 
 original construction, or by neglect of the fellow-servant, or by 
 the want of care of the injured servant. The rule and the reasons Judgment of 
 for it were thus enunciated by Alderson, B., in a written judg- ' 
 
 ment. " The difficulty is as to the principle applicable to the 
 case of several servants employed by the same master and injury 
 resulting to one of ithem from the negligence of another. In 
 such a case, however, we are of opinion that the master is not in 
 general responsible when he has selected persons of competent 
 care and skill. They have both engaged in a common service, 
 the duties of which impose a certain risk on eachi of them, also 
 in case of negligence on the part of the other the party injured 
 knows that the negligence is that of his fellow-servant, and not 
 of his master. He knew when he engaged in the service that he 
 was exposed to the risk of injury, not only from his own want of 
 skill or care, but also from the want of it on the part of his fellow^ 
 servant, and he must be supposed to have contracted on the terms 
 that as between himself and his master he would run the risk." 
 " The principle is, that a servant, when he engages to serve a master, 
 undertakes, as between him and his master, to run all the ordinary 
 risks of the service, and this includes the risk of negligence on the 
 part of a fellow-servant whenever he is " acting in discharge of his 
 duty as servant of him who is the common master of both." 
 
 1 5 Ex. 343. 2 S Ex. 3S4. 
 
376 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Scotch de- 
 cisions follow 
 a, different 
 course from 
 the English. 
 
 BartonshiU 
 Coal Company 
 nj. Beid. 
 
 BartonshiU 
 Coal Company 
 V. McGuire, 
 
 Facts. 
 
 Decision of 
 Scotch CourtB, 
 
 Appellants' 
 contention. 
 
 lord 
 
 Cranworth's 
 
 opinion. 
 
 The Englisli cases' that immediately succeeded dealt more with 
 the question of what were risks incident to the service than the 
 mere relationship between servants in the same employment with 
 reference to their masters and the class of questions more im- 
 mediately arising out of this relationship.. But in Scotland 
 there was a series of decisions which shewed the very strong dis- 
 position on the part of the Scotch judges to follow a different 
 course of decision from that which had been marked out by 
 the English cases.^ The law of the two countries was, however, 
 declared to be identical in two cases that were carried up to 
 the House of Lords and there very carefully and deliberately 
 considered. 
 
 BartonshiU Coal Company v. Eeid,' and BartonshiU Coal Com- 
 pany V. McGuire were two cases arising out of the same facts. 
 The former was heard before Lord Chancellor Cranworth, sittiag 
 as the sole law lord ; the latter was heard two years afterwards, 
 before Lord Chancellor Chelmsford, and Lords Brougham and 
 Cranworth. Judgment was given in both cases on the same day. 
 The accident which resulted in the death of two miners, whose 
 widows were respectively pursuers in -the cases, was caused by the 
 negligence of a competent workman in drawing them up from the 
 pit in which they had been working, in consequence of which the 
 cage in which they were being drawn up was upset, and they 
 were thrown out and killed. The Scotch judges held that a 
 direction that, if the jury were satisfied on the evidence that the 
 injury was caused by the culpable negligence and fault of the 
 person having the management of the machinery, the defendants 
 were in law liable. The appellants contended that such a direction 
 was wrong, and that the jury should have been directed that, if 
 the jury were satisfied on the evidence that the defendants used 
 due and reasonable diligence in the selection of the workman, and 
 that the workman was fully qualified for his work and furnished 
 with proper machinery, then the defenders were not Uable for his 
 carelessness. 
 
 It was assumed that the machinery was sufficient, and the 
 workman generally competent; and the claim of the pursuers 
 was rested entirely on the hability of the appellants, the defenders, 
 for the fault of their workman. 
 
 The opinion of Lord Cranworth is a masterly analysis of this 
 branch of the law. 
 
 ^ E.g., Seymour v. Maddox, 16 Q. B. 
 326 ; Skipp V. Eastern Counties Railway 
 Company, 9 Ex. 223 ; Couch v. Steel, 3 
 E. & B. 402. 
 ■.i__EM., Dixon V, Bankin, 14 D. 420 ; 
 Gray ©."^Brassey, 15 D. 135 ; Baird v. 
 
 Addie, 16 D. 490 ; Brownlie v. Tennant, 
 16 D. 998; O'Byme v. Bum, 16 D. 
 1025. 
 
 ' (1856, 1858) 3 Maoqueen 266, p. 3CX51 
 Bandall v. Baltimore and Ohio Eaifioad 
 Company, 17 U. S. (2 Davis) 478. 
 
PABT III,] COMMON LAW DISABILITY OF SERVANT. 877 
 
 The general rule is, that where an injury is occasioned to any- General rule 
 one by the negligence of another, if the person injured seeks °' ""^ '*^" 
 to charge with its consequences any person other than the actual 
 wrongdoer, it lies on the person injured to shew that the circum- 
 stances were such as to make some other person responsible. In 
 general it is sufficient for the purpose to shew that the wrongdoer 
 was acting in the course of his employment as a servant, when the 
 maxim. Respondeat superior, applies and the master is responsible, 
 
 An exception to the rule is, however, found in the case of Exception, 
 workmen injured by the want of care of other workmen in the 
 same employment. But when a master employs a servant in a 
 work of danger he is bound to exercise due care in order to have 
 his tackle and machinery in a safe and proper condition, so as to 
 protect the servant against unnecessary risks. 
 
 Again, the master may be responsible for a defective system 
 of working which does not adequately protect the workman. A 
 further limitation is, that the servant injured and the servant 
 injuring must be employed on the same work — " If a gentleman's 
 coachman were to drive over his gamekeeper the master would be 
 just as responsible as if the coachman had driven over a stranger."' 
 
 And, lastly, it may be that if a master employs inexperienced inoxporionoed 
 workmen, and directs them to act under the superintendence and ^™' ""'^°' 
 obey the orders of a deputy, they are not within the meaning of 
 the rule employed in a common work with the superintendent. 
 
 To constitute workmen employed in the same work it is not Workmen 
 necessary that the workman causing, and the workman sustaining, the^samo "^ 
 the injury should be engaged in performing the same, or similar, ■^°*- 
 acts. "The driver and the guard of a stage-coach, the steersman 
 and the rowers of a boat, the workman who draws the red-hot iron 
 from the forge, and those who hammer it into shape, the engine- 
 man who conducts a train, and the man who regulates the switches 
 or the signals, are all engaged in a common work. And so in this 
 case. The man who let the miners down into the mine .... 
 and afterwards brings them up .... is certainly engaged in a 
 common work with the miners themselves." 
 
 ^ Per Bramwell, L.J., evidence before damage received to herself, and even con- 
 
 tlie Commons' Committee on Employers' ceded she might, though the injuries were 
 
 Liability. This principle is illnstrated by a caused by the negligence of her husband, 
 
 curious American case, Gannon v. Housa- but urged that the obligation on the ser- 
 
 tonic Railroad Company, 17 Am. E. 82, vant was to protect the master's business, 
 
 where, on a bill of exceptions, it was con- so far as care and diligence could, from 
 
 tended, in the Supreme Court of Massa- liabilities incident to his business. The 
 
 chusetts, that a husband could not recover Court, however, laid down what is the 
 
 for consequential damage sustained by English rule, that the servant is only pre- 
 
 the wife while travelling on the husband's eluded from an action against the master 
 
 employers' line of railway. The argu- in the case of " those direct injuries to 
 
 meutthat sought to maintain the position which he is exposed in the courne of his 
 
 admitted that the wife could recover for employment." 
 
378 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 by Lord 
 Chelmsford. 
 
 Common 
 employment. 
 
 Lords Chelmsford and Brougham, in giving their opinions in 
 Suggested McGuire's case, assented to the opinion of Lord Cranworth. Lord 
 empioymMiT°" Chelmsford suggests for a test as to what is a common employment 
 that what the servant must have known or expected to have been 
 involved in the service which he undertakes must he kept in mind, 
 and that he undertakes all such risks by his contract. 
 
 Bartonshill Coal Company v. Eeid was the starting-point of a 
 large number of decisions, the general effect of which was indefi- 
 nitely to extend the application of the term " common employ- 
 ment," which rapidly came to cover the most dissimilar occupations 
 within limits which excluded the liability of the master. Thus it 
 was decided that a labourer is the fellow- servant with an engine- 
 driver,' a third engineer with a chief engineer,' a ganger of plate- 
 layers with the guard of a train,^ a platelayer with one whose duty 
 it was to assist in pushing the trucks,^ a scaffolder with builder's 
 manager,' a miner with an underlooker of the mine,' the manager 
 of a lucifer manufactory with a boy about sixteen years of age 
 engaged in the manufactory,' a carpenter engaged in mending the 
 roof of a station with the men engaged in shifting a locomotive 
 engine on a turntable in the station,* a labourer employed by a 
 railway company in loading waggons with ballast and the guard of 
 a train by which he was returning from his work,' a workman in 
 the employment of a maker of locomotive engines with the fore-i 
 man of the workshop,'" and a railway labourer with an inspector." 
 The tendency of these decisions was strongly towards iacluding 
 all grades of service, to the very highest, within the principle of 
 non-liability in the case of common employment. But in several 
 of the cases allusion was made to a possible exception in the case 
 of an alter ego, or vice-principal ; yet in none were the pre- 
 scribed constituents met ; " and the possibility of such a case 
 existing was at length set at rest by the decision in Wilson v. 
 Merry and Cunningham. 
 
 1 M'Eniry v. Waterforil and Kilkenny 
 Eailway (1858), 8 Ii*. C. L. 312. 
 
 ^ Searle v. Lindsay (1861), 11 C. B. 
 N. S. 429 ; 31 L. .T. 0. P. 106. 
 
 ' Waller v. South-Eastem Eailway 
 Company (1863), 2 H. & C. 102 ; 32 
 L. J. Ex. 205. 
 
 * Lovegrove v. London, Brighton, and 
 South Coast Eailway Company (1864), 
 16 C. B. N. S. 669; 33 L. J. G. P. 329. 
 
 6 Gallagher v. Piper, 16 C. B. N. S. 
 669 ; 22 L. J. 0. P. 327. 
 
 « Johnson v. Hall, 3 H. & C. 589 ; 34 
 L. J. Ex. 222. 
 
 7 Murphy v. Smith (1865), 19 C. B. 
 N. S. 361 ; 12 L. T. N. S. 605. In this 
 case, Erie, O.J., seemed to think that if 
 the negligent manager were a "rice- 
 
 principal of the factory," common em- 
 ployment would not have existed. The 
 point was taken that the hoy was of ten- 
 der years, and the employer could not 
 shift his duty to safeguard him. But no 
 decision was given as to this. 
 
 8 Morgan v. Vale of Neath Eailway 
 Company (1864), 5 B. & S. 570, 736 ; 
 L. E. I Q. B. 149. 
 
 ' Tunney v. Midland Eailway Company 
 (1865), L. E. I G. P. 291. 
 
 " Feltham v. England (1866), L. E. 2 
 Q. B. 33 ; 36 L. J. Q. B. 14. 
 
 1^ Macfarlane v. Caledonian Eailway 
 Company (1867), 6 M. io2. 
 
 " See especially Feltham v. England, 
 L. E. 2 Q. B. 33 ; 36 L. J. Q. B. 14. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 879 
 
 The case of Wilson v. Merry and Cunningham' was the com- Wilson r. 
 plete development of the principle that was adopted in Bartons- ■'"^^''T- 
 hill Coal Company v. Eeid. Bartonshill Coal Company v. Reid 
 may be regarded as giving the ultimate sanction to the position 
 that one of the incidents of a common employment is the under- 
 taking all the risks known or involved in the service. But 
 there it was not necessary to define the extent to which this dis- 
 ability of the servant from recovering extended. Such a defi- 
 nition had, however, to be given in the case of Wilson v. Merry, 
 for the negligence was imputable to the pit manager. 
 
 The pursuer raised her action as mother of Henry Wilson, 
 whose death was caused by an explosion of fire-damp which blew 
 up a scaffold or platform' whereon the deceased was working at the 
 time. The explosion was the result of the faulty construction of 
 a scaffold, no sufficient provision being made for the passage of 
 air upwards. The scaffold had been erected for a merely tem- 
 porary purpose, and was no part of the system of ventilation of 
 the pit, but it obstructed the free action of the system of venti- 
 lation, which was not alleged to have been previously imperfect. 
 The person who ordered the erection of the scaffold was the pit 
 manager, the persons who actually constructed it were the under- 
 ground manager and a miner. The work was finished before the 
 deceased was engaged at the mine. The explosion happened 
 immediately after he began to work. 
 
 Lord Ormidale charged the jury that if they were satisfied on lordOrmi- 
 the evidence that the arrangement or system of ventilation in the to the jury, 
 pit at the time of the accident had been designed and completed 
 by the pit manager before the deceased was engaged to work in 
 the pit, and that the defendants had delegated to the pit manager 
 their whole power, authority, and duty in regard to that matter, 
 and also in regard generally to all underground operations, with- 
 out control or interference on their part, the deceased and the 
 pit manager did not stand in the relation of fellow-workmen 
 engaged in the same common employment, and the defenders 
 were not, on that ground, relieved from liability to the pursuer 
 for the consequences of fault, if there was any, on the ,part of 
 Neiah in designing and completing an arrangement or system of 
 ventilation. 
 
 The Court of Session granted a new trial, and the pursuer Held inado- 
 appealed to the House of Lords, which upheld the decision of Jourtrf 
 the Court of Session. ^tT^.. 
 
 The direction of Lord Ormidale was held objectionable — First, of Lords. 
 draw a distinction beti 
 
 1 (1868) l! E. I Sc. App. 326, 
 
 Because it failed to draw a distinction between a defect in the °" *H** 
 
 grounds. 
 
380 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I, 
 
 Common 
 employment 
 described 
 by Lord 
 C»irns, C. 
 
 By Lord 
 Coloosay. 
 
 Effect of the 
 
 decision 
 
 summivrized. 
 
 general system of ventilation of the pit for which in certain 
 views the defenders might be regarded as liable, and a defect in 
 the construction of a temporary structure erected by order of the 
 pit manager for certain working operations, whereby the free 
 action of a good system of ventilation was temporarily interfered 
 with. 
 
 Secondly, Because it suggested that if the faulty scaffold were 
 completed before the deceased entered the employment of the 
 defenders the pit manager and the sub-manager would not be 
 fellow-servants, but that the injury arose, not from the mere 
 erection of the scaffold, but from the maintenance of it in a 
 defective state, which it was the duty of the competent servants 
 to guard against. 
 
 Thirdly, Because it did not sufficiently indicate what consti- 
 tuted a common employment, and explain that diversity of 
 duties and gradation of authority are not inconsistent with that 
 relation. 
 
 As to what constitutes a common employment, the descrip- 
 tion of the Lord Chancellor (Cairns) was : " When the master 
 has selected proper and competent persons to superintend and 
 direct the work he has done all that he is bound to do. And if 
 the persons so selected are guilty of negligence this is not the 
 negligence of the master, and if an accident occurs to a work- 
 man to-day in consequence of the negligence of another workman, 
 skilful and competent, who was formerly, but is no longer, in 
 the employment of the master, the master is, in my opinion, not 
 liable, although the two workmen cannot technically be described 
 as fellow-workmen." That of Lord Cranworth : " Workmen do not 
 cease to be fellow- work men because they are not all equal in point of 
 station or authority." That of Lord Oolonsay : " The terms ' fellow- 
 workmen ' and ' collaborateurs ' are not expressions well suited to 
 indicate the relation on which the liability or non-liability of a 
 master depends, especially with reference to the great systems of 
 organization that now exist, and these expressions, if taken in a 
 strict or limited sense, are calculated to mislead. The same may 
 be said of such words as ' foreman ' or ' manager.' We must 
 look to the functions the party discharges, and his position in the 
 organization of the force employed, and of which he forms a 
 constituent part. Nor is it of any consequence that the position 
 he occupies in such organization implies some special authority, 
 or duty, or charge, for that is of the essence of such organizations." 
 
 The effect of this decision has been thus summarized : — " First, 
 to reject the view that the foreman might be considered the 
 delegate of his employer, or that the question of his position 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 381 
 
 miglit be left to the jury ; secondly, to enforce the wide-meaning 
 which the English judges had given to the term common 
 employment ; and, lastly, to place the doctrine of the master's 
 immunity on broader grounds, and to shew that the true criterion 
 is, not whether the person causing, and the person suffering from, 
 the accident are fellow-workmen in any strict sense of the word, 
 but whether the damage was within the risk incident to the 
 service undertaken for reward — that is to say, the rule is based, 
 not on the phrase ' common employment,' but on the meaning 
 of the contract, on the terms expressed or implied in the contract 
 between the employer and the person employed."' 
 
 A definition of a " common employment " is succinctly Doflnition in 
 expressed in an American case:^ "All who are engaged in cLe.™^""*" 
 accomplishing the ultimata purpose in view .... must be re- 
 garded as engaged in the same general business within the 
 meaning of the rule," but to make this a strictly accurate guide 
 in practice, some stricter imitations than those suggested by the 
 phrase " engaged in accomplishing " would seem advisable, since 
 in its present form the definition covers all the different stages of 
 a manufacture carried on, not only at different times and places, 
 but also under several independent controls, whereas the funda- 
 mental notion that has to be granted is, that of co-operation under 
 one control. 
 
 A question that was not decided in terms, in Wilson v. Merry, 
 came up for decision in Howells v, Landore Siemens Steel Com- Howelis v. 
 pany. Limited.^ There it was conceded by Field, Q.C., in argu- mens steel 
 ment, that the liability of the master for the acts of a person Company, 
 whom he leaves, as it were, as his vice-principal, in the manage- 
 ment of the concern was exploded. And it was contended — 
 first, that the defendants, being a corporation, could only act 
 by their manager, for whom, therefore, they were liable ; but on 
 Blackburn, J., saying, " that cannot make any difference ; in 
 Morgan ■;;. Vale of Neath Railway Company the defendants were a 
 corporation, and nobody thdught of suggesting any distinction on 
 that ground," the contention was abandoned, and a second point 
 urged — ^that under s. 26 of the Coal Mines Eegulations Act, 
 '872 (35 & 36 Vict. c. 76), by which the owner of a coal mine 
 
 1 Evidence of Mr. C. P. Ubei't before on examination, does not appear to be 
 
 House of Commons' Committee on Em- bo. The Law Journal report is very 
 
 ployers' Liability, 1876, p. 296. muoh shorter, but to precisely the same 
 
 ^ Hard v. Vermont and Canada Rail- eflect as the Law Eeport. From that re- 
 way Company, 32 Verm. 473. port it would seem that the very point bf 
 
 ■* (1874) L. R. 10 Q. B. 62. In Ir. E. the distinction between a manager and an 
 
 9C. L. SOI, the report of this case in nfter ejro was taken. Theeffeot of the act 
 
 44 L. J. Q. B. 25 is noticed as being " a is to make the manager a principal, and 
 
 materially different report of the case not a servant under the control of the 
 
 from that in the Law Reports." This, owner. 
 
3S2 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Leddy v. 
 Gibson. 
 
 Quinu. 
 
 Judgment of 
 Moms, J. 
 
 is obliged to appoirit a certified manager, the manager so ap- 
 pointed was in a different position from an ordinary manager. 
 The Court, however, would not even grant a rule on the point. 
 Cockburn, O.J., saying: "I cannot say that Thomas here was 
 anything more than a vice-principal or manager, and he was, 
 therefore, a fellow-servant." 
 
 Almost at the same time as this case an attempt was made 
 in the Scotqh Courts to distinguish the case of the captain of 
 a ship from the principle laid down in Wilson v. Merry and 
 Cunningham. This was in Leddy v. Gibson,' where a sailor sued 
 the owners for injuries caused by the captain's negligence during 
 the voyage. The Lord Ordinary dismissed the summons, on the 
 authority of Lord Cranworth's dictum in Wilson v. Merry and 
 Cunningham, that " workmen do not cease to be fellow-workmen 
 because they are not all equal in point of station or authority. 
 A gang of labourers employed in making an excavation, and their 
 captain, whose directions the labourers are bound to follow, are 
 all fellow- labourers under a common master, as has been more than 
 once decided in England, and on this subject there is no difference 
 between the laws of England and Scotland." On appeal it was 
 argued that there was no analogy between such a case as WUson v. 
 Merry and Cunningham and the present, and that the captain was, 
 in all matters connected with the management of the ship, absolute 
 master of the sailors, that even the owners themselves could not 
 interfere. The Lord Ordinary's decision was, however, unani- 
 mously aflSrmed, and the Court pointed out that if an injury was 
 done to third persons the owners would be liable, because the 
 captain is the servant of the owner ; and that if he was the servant 
 of the owner, then the owners are not liable, because the captain 
 and crew are fellow-servants according to any recognized test, as 
 they are "all equally and wholly interested in " the navigation of 
 their vessel, and in a safe prosecution of its voyage. 
 
 Shortly afterwards a very similar case came before the Irish 
 Court of Common Pleas on demurrer." The negligence alleged 
 was that the captain of a ship " so unskilfully and improperly 
 ordered the said John Eamsay " "to abandon the said ship," that 
 the said John Eamsay was drowned. The demurrer raised the 
 point that the captain was a fellow-servant. The Court 
 (Monahan, C.J., and Morris, J.) overruled the demurrer. Morris, 
 J., on the ground that there was no necessary conflict between 
 Wilson V. Merry and Cunningham, and Murphy v. Smith, which 
 latter case " recognised the principle that where an employer 
 has an agent or representative, held to be so by the jury, and who 
 
 1 (1873) n M. 304. 
 
 BumBay v. Quinn, Ir. B. 8 C. L. 322. 
 
PART III.] COMMON LAW DISABILITY OF SBRYANT. 383 
 
 is not merely a, fellow- workman of the party sustaining the injury, 
 the employer is liable for an injury to his servant occasioned by 
 the negligence or unskilfulness of his agent or representative." 
 "Under which category, then," says Morris, J., "is the captain or 
 master of the vessel in, this case to be placed ? Are we to regard 
 him merely as a fellow- servant of the deceased, or as the agent 
 and representative of the defendants ? In my opinion he comes 
 within the latter description, and if so — cadit qucesto. He is the 
 agent and representative of the owners during the voyage. He has 
 authority to bind the owners for repairs and necessaries. He can 
 even settle claims for demurrage." Monahan, O.J. , concurred. Judgment of 
 bnt preferred to rest his decision on the facts alleged in the ^'""■'""'' '^•'^• 
 plaint, " that the deceased was bound to obey the orders of the 
 captain, independently of any authority which the latter would 
 from his position of captain or master of the vessel possess." 
 The decision is, therefore, in direct conflict with the decision of the 
 Scotch Court of Session. That decision was not, however referred 
 to. In the present instance the judgment proceeded on a supposed 
 principle of law recognised in Murphy v. Smith. Reference to 
 that case,' however, will shew that the determination of the 
 question whether a "vice-principal" is a fellow-sei-vant was not 
 necessary to its decision, and was not even argued ; while all 
 the decision need go to is, that the fellow-servant who there 
 did the injury was not even a manager, and the master was, 
 therefore, not liable for the negligence of one who was clearly a 
 fellow-servant and nothing more. True, there are strong ex- 
 pressions of the Chief Justice indicating an impression that 
 a " vice-principal " was not a fellow-servant, but the decision , 
 of the case was in no way involved in them. But Morris, J., The case 
 further enumerates the powers of a ship's captain that warrant '^^ ™^° ' 
 the inference that he is not a fellow-servant with one of the 
 crew; but surely the powers of a colliery manager are as great 
 and as independent, and they are confessedly within Wilson 
 V. Merry and Cunningham. While in answer to the argument of 
 Monahan, 0. J., it may be urged, that the obligation of the crew 
 to obey the captain, as alleged in the plaint, if a personal one 
 and distinguishable from his right as commander of, and while 
 commanding, the vessel is still dependent upon, and arises out of, 
 the contractual obligations that in their entirety constitute the 
 relation between shipowner and men — i.e., the relation of master 
 and servant. The contract may equally be to sail in a ship with 
 the implied condition that there is to be a captain to give orders 
 or to sail in a ship with an e3q)ress condition that the captain is 
 
 1 19C.B.N.S. 361, 
 
384 THE LAW OP NEGLIGENCE. [book i. 
 
 to be a certain named person, and an implied condition that 
 failing tim, some other competent person is to be in command. 
 It would seem that in the second case the liabilities of the 
 shipowners are lessened rather than increased. For they have 
 contracted that a certain man shall be captain, and in default of 
 any representation or concealment on their parts their obligation 
 is complied with, although that man should prove incompetent. 
 If the contract were implied, the man selected might be incom- 
 petent to a degree that would permit of the sailors recovering, 
 while they could not do so if he were expressly named in the 
 contract. 
 
 It is difficult, again, to see how the case can be taken outside 
 the terms of Lord Caims's judgment in Wilson v. Merry and 
 Cunningham, even if it is not inconsistent with the judgment in 
 Howells V. Landore Siemens Steel Company. It may, therefore, 
 be considered that Ramsay v. Quinn is against the current authori- 
 ties, and .would not be followed, at any rate in England or 
 Scotland. 
 Smith O.Steele. In Connection with these cases should be noticed the case 
 of Smith V. Steele.' There the question arose whether a com- 
 pulsory pilot under the Merchant Shipping Acts is a fellow- 
 servant within the rule that excludes such from recovering from 
 their masters, on the ground of a common employment. In a 
 considered judgment' it was said: "By 35 'and 36 Vict. c. 73 
 s. 9 power is given to allow any pilot or class of pilots any 
 rate less thaji the rate for the time being demandable by law, 
 but no power is given to enable a pilot to demand more. He 
 cannot, therefore, make any special bargain to receive larger pay 
 in consideration of his taking the risk upon him. An ordinary 
 servant has, as Lord Caims points out' (at least theoretically) 
 the power of choosing whether he will enter into the employment 
 of a master who does not agree to act personally in the manage- 
 ment of his business, or, as an alternative, to be responsible for 
 the negligence of those he employs. The pilot has no such 
 choice ; he must conduct the ship on the terms fixed by the 
 statutes which regulate pilotage; and we can find nothing in 
 those statutes to justify the conclusion that the pilot is to take 
 upon himself the risk." The result, therefore, was that an action 
 
 1 (1875) L. B. 10 Q. B. 125 ; 32 L. T. Stettin, i Brown & Lush. 199 ; 31 L. J. 
 
 N. S. 19s ; 44 L. J. Q. B. 60 ; 23 W. R. (P. M. & A.) 208, where the vessel was 
 
 388. In the Exchequer Chamber in The within her port and exempt from compul- 
 
 General Steam Navigation Company v. Rory pilotage. Bowoher v. Nordalrom, i 
 
 British and Colonial Steam Navigation Taunt. 568. 
 
 Company, Limited, L. E. 4 Ex. 238, it was * Of Cockburn, C. J., Blackburn, Mellor, 
 
 held that the relation of master and servant and Lush, JJ. 
 
 did not exist between the owner of a vessel, ^ Referring to Wilson ». Meny and Can- 
 
 and the compulsory pilot. Compare The ningham, L. E. i Sc. App. 326. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. SS5 
 
 was held to lie by the pilot against the shipowners for injuries 
 caused to him while acting on the defendants' vessel, by the 
 negligence of their servants. 
 
 In a subsequent case in the Irish Courts a very strenuous Irish cases 
 attempt was made to set up again the doctrine of a special to rSIsert 
 liability attaching for the acts of an alter ego, on the authority of li»l'^i''y *«' 
 dieta in Murjihy v. Smith,' and Feltham v. England.^ an alter ego. 
 
 Conway v. Belfast and Northern Counties Eailway Company,' 
 as reported in the authorized Irish reports, is a curious case. 
 The action was brought under Lord Campbell's Act for damages 
 for the death of Conway, a workman on the defendants' line, 
 alleged to have been caused through the negligence of the traffic 
 manager in giving directions. The defendants contended that 
 the traffic manager was not a fellow-servant with a milesman, 
 but was a vice-principal or representative, and therefore they 
 were not liable. The Common Pleas, in giving judgment, cited 
 the cases of Wilson v. Merry, and Howells v. Landore Siemens 
 Steel Company, and decided that they were, " therefore, obliged 
 to hold that the defendants are not liable for the neglect of 
 their manager Cotton." The case was then taken to the Irish 
 Exchequer Chamber, and heard before six judges. A long con- Judgment of 
 sidered judgment was delivered by Palles, C.B., in which he in*iriah ' 
 cites the list of cases from Clarke v. Holmes, to Murphy v; ^^^^3^^^ 
 Smith, and Wilson v. Merry, and draws two conclusions — 
 
 *' First — ^that there is no distinction as to the exemption of 
 a common employer from liability to answer for an injury to one 
 of his workmen from the negligence of another in the same em- 
 ployment, in consequence of their being workmen of dififerent 
 classes : But, 
 
 " Secondly — ^that a master may so depute to another the entire 
 control of his establishment as to constitute such other person, as 
 between himself and the workmen in the establishment, not a 
 fellow-servant having greater authority, but the alter ego or repre- 
 sentative of the master ; and that for the acts of such a person the 
 master would be responsible to a fellow-servant." The Chief Baron 
 then proceeds as follows : "I cannot find in any of the cases 
 
 ' 19 C. B. N. S. 361, Erie, C.J., is there says : " We think the foreman or manager 
 
 reported as sajring: "The question is was not in the sense contended for the 
 
 whether Dehor is to be considered as the representative of the master. The master 
 
 Tioe-principal of the factory. I avoid the still retained the control of the establish- 
 
 word manager, which is an ambiguous one, ment, and there was nothing to shew that 
 
 and may mean either a person retained the manager or foreman was other than a 
 
 generally to represent the principal in his fellow-servant of the plainti£F though he 
 
 absence, or one who has the superintendence was a servant having greater authority." 
 of a particular contract or job, in which " (1875 &i877)Ir. E. 9C. L._498, Ir.R. 
 
 latter case he would be in no different 1 1 C. L. 345. As to the American Law, 
 
 position from that of a fellow-workman." see Shearman and Eedfield, Law of Negli- 
 
 ^ L. E. 2 Q. B. 35, where Mellor, J., gence, 4th edit. S 241. 
 
 B B 
 
386 . THE LAW OF NEGLIGENCE. [book i. 
 
 an attempt to define with any degree of strictness when the 
 character of ' servant having greater authority than others ' 
 ceases, and that of representative, vice-principal, or alter ego 
 of the master is acquired. Possibly it may hereafter be held 
 that it is essential to the latter character that he should have 
 been invested by the master with such authority that, as between 
 him and the master, nothing done by him in relation to the 
 business of which he has control would be an act unauthorized 
 by the master. It is, however, unnecessary for us to draw this 
 line. The application to the case before us of conceded principles 
 is, in our view, sufficient for our decision." The Chief Baron 
 then decided that in cases of the kind before him %la.e primd facie 
 inference is that those employed by the company are fellow- 
 servants, but that it is competent for the plaintiff to rebut this 
 inference by showing that the status of the negligent person is 
 that of vice-principal or representative. 
 
 The peculiarity of this case as reported — and the peculiarity is 
 the greater as the judgment was considered and most probably 
 written — is, that while the Court of Common Pleas decide a 
 question of principle on the authority of a very recent English 
 case, the Exchequer Chamber, while affirming the Common Pleas 
 on a question of fact, at the same time expressed an opinion 
 distinctly adverse to that of the Common Pleas on the point of 
 principle, and that, too, without even noticing the case upon the 
 authority of which the judgment in the Common Pleas had been 
 based. If the case of Howell v. Landore Siemens Steel Company 
 had been brought to the attention of the Exchequer Chamber it is 
 difficult to understand how the Court could have avoided noticing 
 it, and as the case was so distinctly referred to in the judgment 
 of the Court below, it is equally difficult to see how it could fail 
 to be brought to their notice.' 
 Discussed. There, however, appears to be a distinct divergence of opinion 
 
 between the Exchequer Chamber in Ireland and the English Court 
 of Queen's Bench on the point. The difference must be referred to 
 the authority of the House of Lords in Wilson v. Merry. There 
 the Lord Chancellor says : " What the master is, in my opinion, 
 bound to his servant to do, in the event of his not personally 
 superintending and directing the work, is to select proper and 
 competent persons to do so, and to furnish them with adequate 
 materials and resources for the work. When he has done this 
 
 1 The reporter in It. E. 9 C. L. 501, testiblo that in that case the certificated 
 alleges a " materially different report " of manager by statute was to have " the 
 Howells V. Landore Siemens Steel Com- control " of the mine. Notwithstanding 
 pany, to have been given in 44 L. J. Q. B. this the Court held that he did not hold a 
 25,, from that in L. K. 10 Q. B. 62, but, position different from that of a fellow- 
 whatever the term of the report, it is incon- workman. 
 
PAHT III.] COMMON LAW DISABILITY OF SERVANT. 387 
 
 he has, in my opinion, done all he is bound to do, and if the 
 persons so selected are guilty of negligence, this is not the negli- 
 gence of the master." This opinion does not seem to have been 
 excepted to by any of the other law lords, and if Blackburn, J., 
 is right in the concluding sentence of his judgment in Howell v. 
 Landore Siemens Steel Company, the decision of the House of 
 Lords is distinct, at least so far as this, that the fact that the 
 servant held the position of vice-prijicipal does not affect the non- 
 liabiUty of the master for his negligence as regards a fellow-servant. 
 The case of Conway v. Belfast and Northern Counties Eailway 
 Company, then, as far it would draw a distinction between a 
 "vice-principal" and a manager or foreman, runs counter to the 
 other cases. 
 
 The Scotch Courts, on the* other hand, seem at once to have Sneddon v. 
 taken in the full effect of Lord Cairns's judgment in Wilson v. company. 
 Merry and Cunningham, and this appears from the case of 
 Sneddon v. Moss End Iron Company,' which is unimportant 
 save for the recognition of this principle. Giving judgment in 
 that case, and referring to Wilson v. Meny and Cunningham, 
 Lord Ardmillan said : "In that case I attempted to make a dis- LordArd- 
 tinction and exception in regard to the position of a superior OTetation o "" 
 manager with general superintendence, whom I was disposed the decision 
 to regard as the representative of the master rather than as Merry, 
 a fellow-workman of the man injured. This distinction was 
 not accepted. The House of Lords, in affirming the judg- 
 ment, placed the case on the broader ground that in a question 
 of damages for injury inflicted by the fault of one servant on 
 another down through the whole gradation of servants, the 
 employer is not responsible unless personal fault on his part is 
 instructed. The opinion of Lord Chancellor Cairns leaves no 
 doubt on this matter." " It is true .... that these observa- 
 tions were not absolutely necessary to the decision of the case. 
 .... It is vain to contend against the conviction that the 
 law is now as Lord Cairns has declared it." The conclusion is. Conclusion. 
 therefore, inevitable that persons in all grades of employment that 
 can be comprehended as " common," are included within the 
 disability to recover against the employer for injuries sustained 
 from the negligence of persons of all grades whatever in the same 
 employment. 
 
 In Charles v. Taylor, Walker, & Co.,' however, Brett, L.J., 
 
 ' (1876) 3 K. 868. In America a con- ordinate servantB." Chicago and MilwaB- 
 
 ductor having the charge of a train "is kee Railroad v. Boss, 112 U. S. (5 Davis) 
 
 in fact, and ehoiild be treated as, the per- 377, and the American law is moulded on 
 
 Bonal representative of the corporation for this principle, 
 
 whose negligence it is responsible to sub- ^ 3 C. P. D. 492. 
 
388 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Formula o{ 
 Brett, IiJ. 
 
 Wftrburtou v. 
 
 in the Oonrt of Appeal, reduced this principle then clearly estab- 
 lished to the following formula : " When the two servants are 
 servants of the same master, and where the service of each will 
 bring them so far to work in the same place and at the same time, 
 that the negligence of one in what he is doing as part of the work 
 which he is bound to do may injure the other whilst doing the work 
 which he is bound to do, the master is not liable to the one servant 
 for the negligence of the othen" This was expressed almost in the 
 very terms of the judgment of Kelly, C.B., in an earlier case,' argued 
 Great Western i^ ^.j^g Lord Justice when at the bar, and which marks a class of 
 
 Eailway •' 
 
 Company. cases wanting the element of a common master, though the em- 
 ployment is a common employment. The plaintiff was in the 
 employment of the London and North-Western Eailway Company, 
 and was at work at the Victoria Station in Manchester, which was 
 used in common by the plaintiff's employers and the defendant's 
 under an agreement, when an engine-driver in the employment of 
 the Great Western Railway shunted a train belonging to the 
 defendants, and in so doing was guilty of the negligence com- 
 plained of. On motion for a new trial, Brett, Q.O., argued that 
 the test of fellow service was not the doing work for a common 
 object, or being engaged in a common work ; neither was it being 
 paid by the same person, as was shown by the case of Degg v. 
 Midland Railway Company,^ for there the volunteer who was paid 
 nothing was considered as on the same footing as the defendants' 
 paid servants; but it was the working subject to a common 
 direction and control. Both the plaintiff's and the defendant's 
 servants were bound to work according to the regulations of the 
 London and North-Westem Railway Company and under the 
 control of their station-master. Kelly, C.B., however, stated the 
 proposition of law applicable to the case as follows : " Where two 
 or more persons are the servants of one master and engaged in 
 one common employment, the master is not liable to an action for 
 any injury sustained by one servant by reason of the negligence of 
 another in the work or employment which is common to both and 
 incidental to the carrying on of the general business or the 
 operations in which the one and the other are engaged." The 
 Chief Baron, having thus enunciated the proposition, goes on to 
 comment on it thus : " The ground upon which these decisions 
 have been pronounced is, that it must be presumed that a servant 
 takes upon himself the risk of any injury he may sustain by the 
 
 Formula of 
 Kelly, C.B. 
 
 His comment 
 on it. 
 
 1 Warburton v. Great Western Bailway 
 Company, L. B. 2 Ex. 30 ; see a somewhat 
 similar case, Vose v. Lancashire and York- 
 shire Eailway Company, 2 H. & N. 728, 
 where a blacksmith, working for the East 
 Lancashire Railway Company, was killed 
 
 by servants ot the Lancashire and York- 
 shire Company, working under .joint rules; 
 also Graham v. Nortn-Eastern Bailway 
 Company, 18 C. B. N. S. 229 ; Avilla v. 
 Kash, 117 Mass. 318. 
 2 I H. &N. 773 ; 26 L. J. Ex. 171. 
 
PART in.] COMMON LAW DISABILITY OF SERVANT. 389 
 
 negligence of another servant under the same master and in the 
 same employment, and that such risk is part of the consideration 
 for the wages which he is entitled to receive. This proposition, to 
 the extent to which I have stated it, and which is to be deduced 
 from the case of Morgan v. Vale of Neath Railway Company, and 
 many other authorities, has now become established law. But we 
 are of opinion that, inasmuch as the injury sustained by the 
 plaintifE was occasioned by the servant of the defendants, not in 
 tlic course of any common employment or operations under the same 
 master, but by negligence in the discharge of his ordinary duty to 
 the defendants alone, this case is distinguishable from all which 
 have been decided in relation to the above doctrine of exemption, 
 and that therefore the action is maintainable."' 
 
 Swainson i-. North-Eastern Railway Company" was a very Swainson !•. 
 similar case, which was taken up to the Court of Appeal Railway 
 a few months previously to the decision in Charles v. Taylor. Company. 
 Bramwell, L. J., there gives the test as being whether "a relation Test sug- 
 has been established between the person who complains and the Bramwell, 
 master of the person who does the injury," and Brett, L.J., ^•^^ 
 aaticipating the formula he shortly subsequently framed in Charles 
 v. Taylor,' said : " I think that the authorities bear out the pro- 
 position .... that in order to give rise to the exemption there 
 must be a common employment and a common master. It is not 
 necessary that there should be a common service for a definite 
 time or at fixed wages, for the exemption exists in the case of 
 volunteers and of other persons, where plainly there has been no 
 contract for payment. A volunteer puts himself under the 
 control of another person, and in respect to that other person he 
 
 is for the time being in the position of a servant The 
 
 question is, Did the deceased adopt such terms of service as placed 
 him under the orders of the defendants ? If he did, I think that 
 would be sufficient to exempt them from liability." 
 
 These later cases of Swainson v. North-Eastern Railway 
 Company and Charles v. Taylor are, however, only important 
 as shewing the working out in practice of Lord Cairns's 
 principle, and not as marking any further development of legal 
 principle. 
 
 From the cases, then, the following propositions are Piopositious, 
 deduced : — 
 
 I . The rights of servants against their masters in the case of 
 personal injury occurring during the continuance of the service 
 
 ' Brett, Q.C., offered to pay the whole = 3 Ex. D. 341 ; Page c'. Metropolitan 
 
 damage at once if leave to appeal were Railway Company, 4 Times L. K. 103. 
 given. It was, however, refuted. ^3C.P. D. 492. 
 
390 THE, LAW OF NEGLIGEifCE. [book i. 
 
 are not identical with the rights of strangers suffering injury in 
 their relations with the master.' 
 
 2. Where the master uses due diligence in the selection of 
 servants he is not answerable to one of them for an injury 
 received by such servant in consequence of the negligence of 
 another servant, while both are engaged in a common employ- 
 ment.^ 
 
 3 . A common employment exists where the work is done upon 
 one of any number of connected occupations carried on so far in 
 common that a servant working at one might reasonably anticipate 
 being exposed to dangers arising from work done in advance- 
 ment of the others.' 
 
 4. Fellow- servants are all those, irrespective of grades or occu- 
 pations, who are engaged in a common employment, and are under 
 common control, who either themselves come into contact during 
 the progress of their work, or whose work is so performed as to 
 affect others engaged in the same employment and under the same 
 control, though performed antecedently to the person so affected 
 being engaged in the service.* 
 
 5. A manager appointed under a statutory obligation and 
 endued with statutory powers does not legally differ from an 
 ordinary manager, and is a fellow-servant.* 
 
 6. The captain of a ship and the sailors are fellow-servantsj* 
 but a compulsory pilot is not fellow-servant with either the 
 captain or the sailors.' 
 
 7. Servants of different masters working at the same place and 
 at the same time, and in circumstances in which mutual co- 
 operation for the purpose of carrying out the general business of 
 the united work is necessary, are not fellow-servants, so as to 
 relieve the one from a liability to compensate the servants of the 
 other for injuries inflicted by the negligence of his servants in 
 the course of the employment.' 
 
 Work done But there is a class of cases where matter of greater diflSculty 
 
 under a sub- ° ■' 
 
 1 Priestley v. Fowler, 3 M. & W. 1. 44 L. J. Q. B. 25 ; 32 L. T. N. S. 19 ; 
 ' Farwell«. Boston and Worcester Bail- 23 W. R. 335 ; Arilla v. Nash, 117 Mass. 
 
 road Corporation, 4 Met. 49 ; 3 Macqueen 318. 
 
 224, 71. ; Hutchinson ». 'York, Newcastle, ' Leddy w. Gibson, 11 M. 304. 
 
 and BerwickEailway Company, 5 Ex. 343 ; ' Smith v. Steele, L. R. 10 Q. B. 125 ; 
 
 19 L. J. Ex. 296 ; Wigmore v. Jay, 5 Ex. 44 L. J. Q. B. 60 ; 32 L. T. N. S. 195 ; 
 
 354 ; 19 L. J. Ex. 300. 23 W. R. 388. 
 
 2 Reid V. BartonshiU Coal Company, 3 s Charles k. Taylor, 3 C. P. D. 492 ; 
 Macqueen 266 ; Wilson v. Merry and 38 L. T. 773 ; 27 W. R. 32 ; Warburton 
 Cunningham, L. R. i So. App. 326 ; 19 t>. Great Western Railway Company, L. R. 
 L. T. N. S. 30. 2 Ex. 30 ; 36 L. J. Ex. 9 ; 15 L. T. N. S, 
 
 ^ Reid V. Eartonshill Coal Company, 3 361 ; 15 W. R. 108 ; Swainson v. North- 
 
 Macqueen 266 ; Wilson v. Merry and Eastern Railway Company, 3 Ex. D. 34I ; 
 
 Cunningham, L. R. i Sc. App. 326. 47 L. J. Ex. 372 ; 38 L. T. 201 ; 26 
 
 ' Howells V. Landore Siemens Steel W. R. 413. 
 Company, Limited, L. R. 10 Q. B. 62; 
 
 contract. 
 
PAET III.] COMMON LAW DISABILITY OJP SERVANT. 391 
 
 emerges. We have seen that though employments may be so 
 implicated in the working that they become in effect one com- 
 bined operation, the employment in law is yet held distinct. For 
 the purpose of imputing liability in the event of accident arising 
 from negligence when the employment can be referred to one or 
 other of the employed between whom no position of superiority 
 exists — when the work that is carried on is carried on inde- 
 pendently. There remains to be considered whether the fact of 
 the one employer being dependent on the other — the work being 
 done under a sub-contract — malies any difference in the liability. 
 Wiggett V. Fox' is the first case in which this point is raised. 
 The facts, as stated in the judgment, are as follows : — The 
 deceased had been a workman employed under a sub-contractor 
 at the Crystal Palace to do work there. The death arose from 
 carele.ssness or negligence of another workman engaged in doing 
 business for the defendants — who were the general contractors 
 for the whole — under whom the sub-contractor, whose servant 
 the deceased was, had been engaged to perform a definite part 
 of the whole contract. The jury found that the deceased was 
 , so employed by the sub-contractor, and not directly by the 
 defendants. 
 
 The Court directed a nonsuit, on the ground that the true 
 piinciple was, that a master is not in general responsible to one 
 servant for an injury occasioned to him by the negligence of a 
 fellow-servant whilst they were acting in one common service. 
 " We think," it was added, " that the sub-contractor and all his 
 servants must be considered as being for this purpose the servants 
 of the defendants whilst engaged in doing work, each devoting 
 his attention to the work necessary for the completion of the 
 whole, and working together for that purpose." 
 
 Wiggett V. Fox was followed by Abraham v. Eeynolds" — a Abraham v. 
 decision thus summarized in the marginal note. The plaintiff, "^^ 
 a servant of J. & Co., who were employed by the defendants 
 to carry cotton from a warehouse, was receiving the cotton into 
 his lorry when, in consequence of the negligence of the defendant's 
 porters in lowering the bales from the upper floor of the ware- 
 house, a bale fell upon him. Held, that the plaintiff and the 
 defendants' servants, not being under the same control or forming 
 part of the same establishment, were not so employed upon a 
 common object as to deprive the plaintiff of a right of action 
 against the defendants for such negligence. 
 
 These cases have sometimes been treated as not readily recon- Compared. 
 
 ^ (1856) II Ex. 832; 25 L. J. Ex. Railway Company, 9 Maoph; 463, is a 
 188. Scotch case, very similar in principle, and 
 
 ' 5 H. & N. 143 ; Wyllie v. Caledonian decided upon similar principles. 
 
S92 THE LAW OF NEGLIGENCE. [book i. 
 
 cilable. A caxeful consideration of them will, howeyer, shew 
 that they proceed upon distinctive principles. Even without the 
 gloss on Wiggett v. Fox, expressed by Ohannell, B.,' in his 
 judgment in Abraham v. Eeynolds, these different principles are 
 distinguishable, and may be indicated by considering that in 
 Wiggett V. Fox the injured and the injuring persons were 
 members of the same establishment — that is, were worlring 
 under the same direction and under the same rules, and were 
 besides working jointly for a common object ; while in Abraham 
 V. Reynolds they were not members of the same establishment, 
 and there was mere contact in work, not co-operation in a com- 
 mon scheme. As Watson, B., points out: "It is not a joint 
 operation. Suppose a woman went to a grocer's shop to buy 
 vinegar, and the grocer's boy in giving what he supposed to be 
 vinegar poured oil of vitriol over her hands, could she be said 
 to be the master of the shop because in one sense assisting in 
 the operation ? Abraham v. Reynolds can in no sense be 
 said to be the case where two persons serve the same master, 
 since there exists no subordination between them. But the 
 contract to carry the bales is independent work, complete in 
 itself, and distinct ; while the sub-contract to build the Crystal 
 Palace was a step in the co-operation towards the completion of 
 a general scheme of work in which each portion was in subordi- 
 nation to the carrying out of the general design, and the whole 
 under a paramount direction." The gloss of Channell, B. — " It 
 was proved that the deceased was paid by the defendants, and 
 it further appeared by the printed rules which were given in 
 evidence, and by the evidence of Moss, one of the sub-contractOK^ 
 that the defendants had a control over, and a power to dismiss, 
 Wiggett, though engaged by the contractor" — accentuates the 
 principle, but even without these additional circumstances the 
 principle appears intelligible. When the relation between the 
 employed is that of superiority and inferiority in carrying out a 
 common scheme of work — ^that is, where the general control of 
 work and the arrangements for its progress are in the hands of 
 one, and the detail performance of some department in the hands 
 of the other — then the servant of the inferior is not to recover 
 against the superior ; but where there is no relation of superiority 
 or inferiority in the carrying out a common scheme of work, but the 
 relation is a mere relationship of co-operation, then the employ- 
 ments are distinct, and the se^'vant of the one can recover against 
 the servant of the other. 
 
 1 Channell, B., was connsel for Pox in of Cookbmn, C.J., in Eourke v. White 
 Wiggett V. Fox. See, too, the case as re- Moss Colliery Company, 2 0. P. D. 205, 
 ported, 52 L. J. Ex. 188 ; and remarks at pp. 207, 208. 
 
PAET III.] COMMON LAW DISABILITY OF SERVANT. 393 
 
 Murray v. Cume' is consistent with this distinction. There, Murray w. 
 a servant of a stevedore, while engaged in unloading a ship, was '^""'^• 
 injured by the negligence of one of the ship's crew, who had 
 been temporarily engaged for the same purpose. The injured 
 man sued the shipowner in whose general employment the 
 injming man was. The judgment of Willes, J., went on the 
 fact that the stevedore and his men " were acting altogether 
 independent of the shipowner's control." The same ground is 
 taken by Bovill, C.J. : " The stevedore had entire control over 
 the work, and employed such persons as he thought proper to act 
 under him." " The defendant did not stand in the relation of a 
 superior." And Turner v. Great Eastern Railway Company^ — Turner ». 
 a case, according to Lord Coleridge, C.J., " exceedingly near the ^j'lw^''''^'^" 
 line " — ^recognizes a similar principle. There the railway com- tSompany. 
 pany employed a contractor to unload coal trucks. The contractor 
 engaged his own men, and had entire control over them. The 
 plaiutiff, while working for the contractor, under the contract, 
 was injured by the negligent shunting of one of the defendant's 
 engiues lainging coal trucks to the sidings. The Court held 
 that the case was within the principle of Abraham v. Reynolds, 
 and not within the principle of Wiggett v. Fox, " for the de- 
 fendant did not pay the plaintiff, and had no control over him so 
 as to be able to engage and dismiss him." Grove, J., says : " No 
 doubt the cases do run into fine distractions, but there is suffi- 
 cient breadth of distinction here, in my opinion, to entitle the 
 plaintiff to our judgment." This distinction, though not thus 
 expressed by the Court, may perhaps be described as that between 
 a " sub-contractor " and an " independent contractor," where the 
 relation is one of contact in doing an independent work, and not 
 of co-operation in doing a common work. The Court, on the 
 facts of the case, held, that the work of the contractor was inde- 
 pendent, and not a portion of a scheme. Lord Coleridge, O.J., 
 using the caution: "The case is a difficult one, as I have said, 
 because it is so near the line ; and the line to be drawn is one 
 which it is not easy to state in language, and I will not attempt 
 to give a definition calculated to meet all cases. Each case must 
 depend upon its particular circumstances, and no single circum- 
 stance can be stated as being a certain and siugle test of general 
 application ; but several circumstances may, at any rate, be re- 
 marked upon, all or some of which, when they occur, may shew 
 what is on one side or the other of the line which is not itself 
 easy to be drawn." 
 
 1 (1870) L. E. 6 C. P. 24 ; Manning Company, 31 Upper Canada Q. B. 350 ; 
 V. Adams, 32 W. B. 430. See also Sweeney v. Murphy, 32 La. Ann. 628. 
 Cunningham v. Grand Trunk Bailway = (1875) 34 L. T. N, S. 431. 
 
394 THE LAW OF NEGLIGENCE. [book i. 
 
 Ameiicau law. The case of Wiggett V. Fox was held to be directly in poiat, 
 and was followed in the Supreme Court of Massachusetts in 
 Johnson v. Boston.' There the Boston corporation were engaged 
 in digging a sewer. The plaintiff was in the employment of one 
 Tinkham, whose business was drilling and blasting rock, in 
 which he employed a large number of men. The plaintiff and 
 eight other men were sent to drill and blast rock in the de- 
 fendant's sewer under a man appointed by Tinkham, who worked 
 with the others, and directed them where and how the drilliog 
 was to be done, and superintended the blasting. The whole 
 work, including the drilling and blasting, was prosecuted under 
 the general supervision of the defendant's superintendent of 
 sewers, and under the direct charge and management of a fore- 
 man of the sewer department, employed and paid by the defendant 
 corporation. Tinkham paid his men, gave them orders where to 
 go and what to do, and retained control over them so far that he 
 coxild change them from one place of work to another, and could 
 also dismiss them. By reason of the negligence of those em- 
 ployed by the city the plaintiff was injured. The Court held, that 
 the plaintiff and the corporation men were fellow-servants. The 
 case was put— if, supposing Tinkham had himself executed the 
 work and had been injured, then " he would clearly have been 
 in the position of a fellow-servant with those who excavated 
 the earth. The only point of difference in the position of 
 the plaintiff is that, by virtue of a previous agreement between 
 himself and Tinkham, the latter was entitled to determine 
 whether, and how long, he should be employed upon any 
 part of the defendant's work, and to receive from the defendant 
 the compensation due for such service. But while he was so 
 employed he was in the service of the defendant, doing the work 
 of the defendant of which Tinkham had no control, and in the 
 result of which he had no further interest than to receive the 
 stipulated or reasonable rate of wages as for a personal service. 
 The existence of this general relation of master and servant 
 between the plaintiff and Tinkham does not exclude a like rela- 
 tion with the defendant to the extent of the special service in 
 which he was actually engaged." 
 
 English cases Tried by this principle, the result of the English cases would 
 be unaffected. In Wiggett v. Fox, had the sub-contractor been 
 able to perform the work he undertook without the plaintiff's 
 assistance, and had he actually worked in the matter, it would 
 have been impossible to have distinguished his case from Sadler v. 
 Henlock ; " while in Abraham v. Eeynolds, and Turner v. Great 
 
 1 Ii8 Mass. 114. Compare Cudley v. Harris, 93 Mass. 112. - 4 E. & B. 570. 
 
 considered. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 395 
 
 Eastern Railway Company, the application of the same test would 
 shew that what was contracted for there was not co-opei'ation in 
 labom-, but an independent province of work, in the method of 
 the performance of which the defendants respectively had no 
 interest, and over which they exercised no control. 
 
 But the American case went further, and held that, if the 
 engagement did not contemplate the actual temporary transfer of 
 services to the control of the defendants, the entry upon the 
 work and continuance in it must be taken to have been an 
 assumption of the liabilities. 
 
 The facts of the subsequent case of Rourke v. White Moss Bom-ke v. 
 Colliery Company' are thus stated by Lord Coleridge, C.J., in coUieV '" 
 giving judgment in the Common Pleas Division: "The de- '^"'"P*"^- 
 fendants are the proprietors jsf a coal mine, and had been sinking 
 a shaft themselves, but ultimately they entered into a contract 
 with one Whittle to continue the work. The plaintiB", who up 
 to that time had been employed by the defendants, then became 
 the servant of Whittle, and was paid wages by him. The injury 
 sustained by the plaintiff arose from the negligence of one 
 Lawrence, an engineer, appointed by the defendants to work a 
 steam-engine, which, under the contract with Whittle, was pro- 
 \'ided by the defendants to facilitate the work. Lawrence, 
 though employed and paid by the .defendants, was, with the 
 engine, placed under the sole orders and control of Whittle." 
 Lord Coleridge, C.J., then proceeds to state the question he 
 considered involved as follows: "If, under these circumstances, 
 the plaintiff and Lawrence were both in the employ of Whittle, 
 the plaintiff is, upon the principle laid down in Priestley v. Fowler,^ 
 and several subsequent cases, debarred of remedy against the 
 defendants. If Lawrence was not in Whittle's employ, then the 
 defendants are liable." The Lord Chief Justice then decides that 
 the case fell within Pri,estley v. Fowler. In the Court of Appeal, 
 Mellish, L.J., guards against an adoption of Lord Coleridge, 
 C.J.,'s opinion, that, " if Lawrence was not in Whittle's employ, 
 then the defendants were liable." He states the point thus : 
 " There are two questions — first, whether Lawrence, in doing the 
 act complained of, was acting as the servant of the defendant or 
 of Whittle. If he was not acting as the defendant's servant 
 they would not be liable, but if he was acting as the servant of 
 the defendant they might be liable. But then the second ques- 
 tion would arise whether or not the plaintiff was his fellow - 
 servant." In the result, the Court of Appeal affirmed the 
 
 1 (1876) I C. P. D. 556 ; in Court of Appeal, 2 C. P. D. 205. 
 » 3 M. & W. I. 
 
3% 
 
 I'HE LAW OF NEGLIGENCE. 
 
 [book 
 
 Woodlcy V. 
 
 Metropolitan 
 
 District 
 
 Bulwiiy 
 
 Company. 
 
 Cockbum, 
 C.J.,'s judg- 
 ment. 
 
 Common Pleas Division, on " the narrow ground that Lawrence 
 was practically in Whittle's service at the time he was guilty of 
 the negligence complained of.'" 
 
 Within a few weeks of the decision in Eourke v. White Moss 
 Colliery Company, the Court of Appeal gave their judgment in the 
 case of Woodley v. Metropolitan District Railway Company,' which 
 had been argued two years previously. There plaintiff was a 
 workman in the employment of a contractor, engaged by the 
 defendants to execute work on a side wall on their railway in a 
 dark tunnel, through which trains were passing every ten minutes ; 
 and the line at the- spot where the work was going on being on a 
 curve, the workmen would not be aware of the approach of a 
 train tUl it was within twenty or thirty yards of them. The 
 plaintiff was injured, and sued the company for compensation. 
 Three judges in the Court of Appeal held him entitled,' two' 
 disentitled, to recover. 
 
 The case did not involve the point now under consideration, 
 being decided on the ground of the application of the principle, 
 Volenti iion fit injuria ; while the dissentient judges considered 
 that the defendants had not discharged the duty that lay upon 
 them to take reasonable care against exposing the workmen to 
 risk of injury. But there are expressions in the judgments of 
 the majority of the Court that may throw light on the question 
 now under consideration. Thus, Cockbum, C.J., treated the 
 plaintiff either as a servant of the company, or as not being in 
 the service of the company at all ; and, in either event, gave 
 judgment for the defendant. In the former case, because he 
 would come under the rule in Priestley v. Fowler, which the 
 Lord Chancellor (Cairns), in Wilson v. Merry and Cunningham,' 
 says does not " depend upon the question whether the author of 
 the accident is not, or is, in any technical sense the fellow- 
 workman or coUaborateur of the sufferer. In the majority of 
 cases in which accidents have occurred the negligence has no 
 doubt been the negligence of a fellow-workman. But the case of 
 a fellow-workman appears to me to be an example of the rule, 
 and not the rule itself, The rule, as I think, must stand upon 
 higher and broader grounds." In the latter, because, " with 
 full knowledge of the manner in which the traffic was carried on. 
 
 i This case is noteworthy from the fact 
 that, in the Divisional Court, the judges. 
 Lord Coleridge, C.J., Archibald and Lmd- 
 ley, JJ ., express doubt about the decision 
 of Abrahams v. Beynolds ; while in the 
 Court of Appeal, Cockbum, C. J., doubts as 
 to Wiggett V. Fox. The other judges, 
 however, as may be seen from the extract 
 
 in the text, from the judgment of Mellisb,- 
 L.J., studiously refrain from comment on 
 either of the cases. 
 
 2 3 Ex. D. 384. 
 
 ' Cockbum, C.J., Mellor and Gfrove, 
 JJ. 
 
 * Mellish and Baggallay, L.J J. 
 
 ''■ L. K. I Sc. App. 326. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 397 
 
 and of the danger attendant on it, the plaintiff thought proper to 
 
 remain in the employment." And Mellor, J., in giving a judg- Judgment of 
 
 ment in which Grove, J., concurred, said : " When, therefore, the Woodky's™ 
 
 contractor in this case undertook to perform the work in question, '"'^''• 
 
 and in the performance of which the plaintiff was engaged at the 
 
 time of the accident, it is reasonable to assume that the character 
 
 and nature of the work was duly considered and included in the 
 
 price paid for it ; and if the plaintiff thought that there was 
 
 danger of an unusual character in the nature of the work, he 
 
 ought either to have stipulated with his master or the company 
 
 to provide some additional means or precaution against such 
 
 possible danger, or, as he was better able to judge than they 
 
 whether the work could safely be performed without additional 
 
 precautions, he ought to have refused the cash unless they were 
 
 provided." These expressions seem to point to two classes of Two classes 
 
 oases — ^firstj where men are engaged to work generally, and in i_ where the 
 
 the course of their employment are brought into contact with ?°'"^i^'li^in°'5,3 
 
 employments wherein there is danger, but with reference to employment, 
 
 which they were not necessarily engaged, in which case, if 
 
 injured, they can of course recover from the employer of the 
 
 injurious person for any injury they receive ; and, secondly, ii. where the 
 
 where men are engaged with reference to some particular work invdved in 
 
 to be carried on under defined conditions, when for all natural ** empioy- 
 
 meDt. 
 
 risks and perils incident to the performance of their duty they are 
 disentitled to recover. 
 
 Almost simultaneously with the judgment in Woodley's case, Woodhead r. 
 the question of the liability of a superior employer for an injury Mineral 
 caused by the negligence of a servant in his direct employment ^"""P*"?- 
 to the workman of a sub-contractor engaged in carrying out a 
 common scheme of work, was discussed and decided by six 
 judges of the second division of the Court of Session, the Lord 
 Justice Clerk dissenting in the case of Woodhead v. Gartness 
 Mineral Company.' The material facts were : — Two miners of 
 the name of Gardner contracted with the defenders to drive a 
 level in a mine on payment of a certain rate per fathom, and 
 also a tonnage rate. The Gardners engaged other miners to do 
 the work, amongst whom was Woodhead. At the time of the 
 accident there were two sets of workmen engaged in the mine — 
 one in sinking, the other, under the Gardners, in driving the level. 
 A servant of the defenders named Beveridge, unconnected with 
 either of the working sets of servants, was underground manager. 
 He had entire control of the ventilation, and was charged with 
 the duty of keeping the pit safe, under special rules made by 
 
 1 4 R. 469. 
 
398 THE LAW OF NEGLIGENCE. [sooi t. 
 
 virtue of the Coal Mines Eegulation Act (35 &'36 Vict. c. ^6), 
 s. 52, The defenders do not seem to have approved of the em- 
 ployment of Woodhead further than by allowing him to work ; 
 they had nothing to do with his- wages, either as to amount or 
 as to conditions of payment, and he might have been dismissed 
 by the Gardners without the consent or even against the will of 
 the defenders. Beveridge might also have dismissed Woodhead 
 under special rules made for the conduct and guidance of the 
 persons acting in the management of this mine, or employed in or 
 about the same, " to prevent dangerous accidents, and to provide 
 for the safety and proper discipline of the persons employed in 
 or about the inine," which Woodhead had signed.^ The death 
 of Woodhead was caused by the negligence of the overman, 
 Beveridge, in having incautiously removed a plank while making 
 an alteration in the arrangement for the ventilation of that part 
 of the mine that was at the time occupied by the sinkers. 
 Lord Justice The Lord Justice Clerk directed the iury — First, That it is not 
 tion to the a Sufficient ground in law to exclude liability on the part of the 
 ''"'^' defenders for the negligence of their servant Beveridge ; that 
 
 Beveridge was a competent person, and that the colliery was well 
 appointed ; that the deceased was not a fellow -servant with 
 Beveridge under the defenders, but was the servant of an inde- 
 pendent contractor. 
 
 Secondly, That on the terms of the contract Woodhead was an 
 independent contractor. 
 
 Thirdly, That the provisions of the Goal Mines Regulation 
 Act did not create the relation of master and servant between the 
 mineral owner and the servant of an independent contractor 
 under a contract for part of the work in the mine. 
 
 The jury found a verdict for the pursuer, and the case was 
 taken to the Second Division of the Court of Session, where the 
 Lord Justice Clerk adhered to the opinion he had expressed at 
 ' the trial, while the other six judges concurred in entering up a 
 verdict for the defenders on the grounds — First, that the Mines 
 Eegulation Act (35 & 36 Vict. c. 76), s. 52, provided for rules, 
 which were subscribed to by Woodhead, that subjected all those 
 who were working in the pit to the control of the defenders' over- 
 man, and thus constituted a case of interference and control on 
 the part of the defenders. 
 
 Secondly, that the facts of the case negatived an independent 
 contract, and that the Gardners and Woodhead were merely 
 fellow-workmen. 
 
 'By the same rule it was provided that "miners and other workmen should be 
 subject tn the control and orders of the agent, where one had been appointed, and of 
 the manager and OTermau," 
 
PART III.] COMMON LAW DISABILITY OF SEEVANT. 399 
 
 Thirdly, that every one who enters on the work as a member 
 of an organization must be held to accept the risk of the 
 accidental carelessness or negligence of the other members, and 
 that his only remedy lies against the individual wrongdoer. 
 The first of these grounds of liability depends on the construction 
 of a particular clause of a statute which had not before been the 
 subject of judicial decision; the second was confined to the 
 particular facts of the case, and therefore was not of general 
 importance ; but the third is the enunciation of a general principle 
 about the existence and limits of which there was some 
 uncertainty. 
 
 The principle of the decision was thus expressed by the Lord Judgment of 
 President : " The whole of the persons engaged in a mine form President, 
 one organization of labour fo^ one common end (however different 
 their functions may be), and are all subject to one general control, 
 exercised by the mine-owner or those to whom his authority is 
 delegated. This community of labour and of subjection to control 
 arises from the very nature of the work, and from the necessity 
 of providing against danger, and ensuring for that purpose the 
 maintenance of discipline. But it is systematized and made even 
 more directly binding on all by the statute and the special rules 
 enacted under its authority. The persons employed in a mine, 
 superior and inferior, contractor and workmen, of whatever class 
 or whatever their functions may be, are by those rules erected, 
 BO to speak, into one community, who have all their relative duties 
 assigned to them, and who owe each to his neighbour many duties 
 which it would be impossible to enumerate. To such a community 
 as this, and to its individual members, the mine-owner is imder 
 certain well-defined obligations ; but to hold that his obligations 
 and liabilities to the individual workmen depend on whether they 
 are technically his servants or employed by a contractor on 
 piecework in some limited portion of the mine, while it would be 
 inconsistent with legal principle, would also, I think, introduce 
 great confusion where it is desirable that everything should be as 
 clear as possible, and where the statute makes the interdependence 
 of the whole community and their necessary reliance on oae 
 another for safety the regulating principle of their association, 
 and the basis of all the special rules for their guidance." This Considered. 
 " community of labour and of subjection to control," which the Lord 
 President considers differentiates cases such as Wiggett v. Fox 
 from those like Abraham v. Eeynolds, is the identical test which 
 is proposed by the members of the English Court of Appeal in 
 Swainson v. North-Eastem Eailway.' There, Bramwell, L.J., 
 
 1 (1878) 3 Ex. D. 341. 
 
400 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 1, 
 
 Firat conten- 
 tion in Wood- 
 head's case. 
 
 speaking of Abraham v. Eeynolds, said: "Per the cai-men and 
 the servants of the brokers were not tinder the same control, and 
 were not members of a common establishment; the work was 
 joint, but the employment was different." And Brett, L.J., 
 defines the conditions that give rise to this exemption : " There 
 must be a common employment and a common master ; it is not 
 necessary that there should be a common service for a definite 
 time or at fixed wages. For the exemption exists in the case of 
 volunteers and of other persons where plainly there has been no 
 contract for payment." Cotton, L. J., is more emphatic ; he says : 
 "It is clear that if a person takes upon himself to act as a 
 member of an establishment he cannot maintain an action 
 against the head of it for an injury occasioned by the negligence 
 of any person belonging to it.' 
 
 The first contention for Woodhead was, that in order to relieve 
 the owners of the pit from liability, the men should have been 
 hired by the same person, but, as is pointed out in the passage 
 from the judgment of Brett, C.J., in Swainson v. North-Eastem 
 
 1 In Maodonell's Law of Master and 
 Servant, p. 313, Woodhead [there cited as 
 Woodnees] v. Gartness Mineral Company, 
 is thus commented on : — " No English de- 
 cision, not even Wiggett v. Fox, goes so 
 far as this case, which seems to carry to 
 an illegitimate extent the theory of a 
 fictitious undertaking; and some of the 
 English cases^for example, Turner v. 
 Great Eastern EaiWay Company — are 
 not reconcilable with the views of the 
 Scotch judges." There is, it may be 
 mentioned, no trace in any of the judg- 
 ments of extending a fictitious undertak- 
 ing, the inquiry being limited to whether 
 the plaintiff brought himself within the 
 rule of law as to strangers, or as it is 
 stated in the judgment of Lord Deas, p. 
 490 : " We must take it, as I have said, as 
 a fixed principle in the law of master and 
 servant, that the servant undertakes to 
 relieve the master of all injury from the 
 fault or negligence of others employed in 
 the common service, and understood to be 
 reasonably qualified to be so employed. 
 The only inquiry, therefore, in each case 
 — and consequently the only inquiry in 
 this case — is, what is to be regarded as the 
 common service ? " That being so, any 
 carrying " to an illegitimate extent the 
 theory of a fictitious undertaking," would 
 irrelevant. Messrs, Boberts and Wallace, 
 Duty and Liability of Employers, 3rd edit. 
 p. 195, commenting on the same case, say : 
 '■' It is submitted that upon a review of 
 the English authorities, this doctrine can- 
 not be supported, and that the opinion of 
 the Lord Justice Clerk, dissenting, is cor- 
 rect — ^namely, that in every case to exempt 
 
 the master of the wrongdoer from liability, 
 there must be nqt only co-operation in the 
 work, but also a common master." It has 
 been pointed out that this is not the 
 ground of the dissent, for on this proposi- 
 tion all the judges are agreed ; but as to 
 what constitutes a common master, the 
 majority of the Court contended that the 
 test of a " common master " was " common 
 control." The Lord Justice Clerk wished 
 to limit this to a common immediate con- 
 trol, his proposition being, "When two 
 persons enter into a mutual agreement 
 that a certain operation shall be performed 
 either by both jointly, or by one on the 
 premises of the othei', and that for a valu- 
 able consideration, neither can complain 
 against the other of the accidental conse- 
 quences of the act, for they are both agreed 
 it shall be done," p. 482. The proposi- 
 tion of the majority of the judges was 
 based upon Lord Cairns, in V^ilson v. 
 MeiTy V. Cunningham, who did not think 
 " the liability or non- liability of the mas- 
 ter to bis workmen can depend upon the 
 question whether the author of the acci- 
 dent is not, or is, in any technical sense the' 
 fellow-workman or coUaboratew of the 
 
 sufferer The rule, as I think, must 
 
 stand upon a higher and broader ground." 
 And they found this higher and broader 
 ground in the conjunction of common em- 
 ployment and common control, even though 
 that control is not technically that of mas- 
 ter over servant. In Smith, Law of Negli- 
 gence, 2nd edit., and Manley Smith, Law 
 of Master and Servant, 4th edit.. Wood- 
 head's case is not even mentioned. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 401 
 
 Railway Company ' •' contract for payment " is plainly not essential.' 
 
 And the Lord Justice Clerk in liis dissentient judgment says : 
 
 " The true test of whether one man is a fellow-servant of another is 
 
 not necessarily either engagement or payment of wages, it is 
 
 whether the two men are responsible to the same master, and the 
 
 same master responsible to them." Neither is the existence of a 
 
 contract.^ The ground of the Lord Justice Clerk's dissent is thus-Grovmds of 
 
 expressed by him : " When two persons enter into a contract for justice cua-k's 
 
 the execution of work to be done, either by the servants of both '^^^™*- 
 
 or by the servants of one, there is no such identity of relations or 
 
 interest, each party to the contract is liable for his own servants, 
 
 but he is not liable for the servants of the other. The servants 
 
 of each work for the interest of their own master, and represent 
 
 him only. As neither select^ the servants of the other, neither can 
 
 have any responsibility as to their qualifications. And thus it is 
 
 fixed — first, that neither is liable for the neglect of the servant 
 
 of the other party to the contract ; and, secondly, that each is 
 
 liable for the neglect of his own servant if the servant of the 
 
 other is thereby injured." This is manifestly an analysis of the Oonaideved. 
 
 principles at the root of cases like Abraham v. Reynolds, and 
 
 Turner v. Great Eastern Eailway, but it seems insufficient to 
 
 explain cases like Woodhead, where " subject to the control and 
 
 supervision of the manager, the whole operative details shall be 
 
 under the care and charge of the overman. The overman shall 
 
 see that the workmen of every class in their several departments 
 
 discharge their duties ; and shall receive and attend to all reports 
 
 made to him as to the state of repair of the air-courses, machinery, 
 
 ;nid-wall, trap-doors, roads, tubes, and working-places. He shall 
 
 cause remedies to be provided where needed, and shall see the 
 
 general and special rules faithfully and vigorously enforced ; he 
 
 shall have power to hire and discharge workmen."" 
 
 Three more of the Scotch judges^ concurred in the decision in Woodhead's 
 Woodhead's case, in Wingate v. Monkland Iron Company,' which I'n wingate'^t-. 
 was decided on almost identical facts. Monkland 
 
 Iron Company. 
 
 In Maguire v. Russell," a further extension was given to the Maguire r. 
 doctrine in Woodhead's case so as to bring it directly into 
 conflict with the English dicta and decisions. The facts were 
 — the Val de Travers Company had a contract with Messrs. 
 Wylie and Lockhead for laying with concrete buildings in 
 course of erection by them. The defendant was the contractor 
 
 ' See, too. Laugher v. Pointer, 5 B. & ^ Eule 3. 
 
 C. 547, at p. 555 ; Qoarman v. Burnett, * Lords Young, Craybill, and Euther- 
 
 6 M. & W. 499 ; Bather v. Day, 32 furd Clark. 
 
 L. J. Ex. 171. ° 12 R. 91. 
 
 - Degg V. Midland Eailwav Company, " 22 Sc. L, R. 706. 
 iH. &N. 773;26L. J, Ex."i7i. 
 
 CC 
 
402 THE LAW OF NEGLIGENCE. [book i. 
 
 for the plumbing and gas-fitting work of the same buildings. 
 The plaintiff, who was in the employment of the Val de Travers 
 Company, was injured by the workmen of the other contractor. 
 On the case coming before the Court, the Lord Justice Clerk 
 said : " The case of Woodhead v. Gartness Mineral Company 
 settled the point. These workmen, though directly employed by 
 different masters, were fellow-workmen, or, at least, were engaged 
 in a common employment." Lord Craighill : " It is not possible 
 to distinguish this case from that of Woodhead." Lord Kinnear : 
 " I cannot do so. The assertion of the identity in principle 
 between Woodhead's case and the present case seems to attribute 
 far too little importance to several important circumstances of 
 difference." In Woodhead's case the Lord President based his 
 judgment on there being "community of labour and community 
 of control ;" but, in the present case, the master of the injured 
 man, and the master of the injuring man, had no relation 
 other than that of working for the benefit of a third, who 
 was not invoked in the suit. In Woodhead's case the action 
 was against the master of the injuring person, who exercised 
 control over the whole work ; in the present case the action was 
 by the servant of one contractor against the master of another, 
 who was engaged, indeed, in a common work, but who exercised 
 no control whatever. In Woodhead's case it was a necessary 
 condition of the working that Woodhead should work in con- 
 junction with the servant who injured him, who had to see to 
 the ventilating and general regulating of the mine ; in the 
 present case there was no necessity that the plumber should be 
 engaged at the same time as the pursuer, or, indeed, at all ; 
 and no evidence seems to have been given to shew that the 
 pursuer knew that the plumber's men were so employed, or 
 whether the defenders were not put upon the building sub- 
 sequently to the pursuer's employers. 
 Considered in On the authority of the English cases, Abraham v. Eeynolds, 
 the«i^es,° ^^^ Turner v. Great Eastern Eailway Company,' the defender 
 would have been clearly liable, and almost the identical case has 
 been put by Bramwell, L.J., and answered in the affirmative. 
 " Suppose there are two tradesmen that have got jobs at one 
 house, the one is a plasterer, and the other is a plumber ; if the 
 plasterer's servant does an injury to the plumber's servant, the 
 plumber's servant may maintain an action against the master 
 plasterer ; and if the plumber's servant does an injury to the 
 plasterer's servant, the plasterer's servant may maintain an action 
 
 1 House of Commons Commiitec on Employers' Liability for Injuries to their Servants, 
 Pari. Papers, 1877 (285) x. 551, q. 1198. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 403 
 
 against the master plumber. It would be a prudent thing for 
 those two persons, if engaged in a difficult and dangerous job, to 
 say : ' Let us go into partnership and have our servants in com- 
 mon,' and then the plumber might injure the plasterer and the 
 plasterer might injm-e the plumber, and nobody be liable." What- 
 ever, then, the extent of the correct rule, the case of Maguire i: 
 Russell' is not consistent with the English authorities. That case 
 went even further than the dictum of the Lord Justice Olerk re- 
 ported at the end of the report in Woodhead v. Gartness Mineral 
 Company. "It is now conclusively settled that, however inde- 
 pendent a contract may be, if the work is a common one, such as 
 the working of a pit, or the building of a house, the master or 
 owner cannot be made liable for injury, unless his subordinate be 
 proved to have been incompetent, or the material supplied by him 
 insufficient." " For that was confined to an action against the master 
 or owner. But in Maguire's case the decision was, that the work- 
 man of one contractor was precluded bringing an action against 
 another contractor who was engaged in carrying out the work of one 
 common principal. Neither do the reasons involved in overruling 
 the decision of Gregory v. Hill bear out the proposition. There 
 a person employed masons to do work for him, paying their wages 
 directly, and having a foreman to superintend for him. He also 
 made a contract with a joiner. The joiner being injured by the 
 masons, brought his action against the defendant with whom he 
 had made his contract. The Lord Justice Clerk gave judgment 
 holding the employer liable, because the exemption from liability 
 could " only take effect where the person injured has become a 
 party to a contract of service, and it has never been employed in 
 any case in which that relation does not exist." This decision 
 was oveiTuled in Woodhead's case, not as being impossible to 
 
 ' 22 Sc. L. R. 706. control the miners in whatever way may 
 
 2 It should be pointed out that the Lord appear necessary to secure safety, order, 
 
 .Justice Clerk's dictum is by no means and efficiency in working the mine," at p. 
 
 borne out either by the facts of the case, 491 ; by Lord Ormidale, "the defenders 
 
 or by the judgments of the other judges. reserved and retained such a power of 
 
 The facts were, that besides a common control and interference as to prevent 
 
 work there was a common control by the Messrs. Gardner being held as indepen- 
 
 defenders. " The defenders produced at the dent contractors," at p. 494 ; by Lord 
 
 trial special rules framed under the Coal Mure, " the rule, as I understand it, is this : 
 
 Mines fiegulation Act, and founded upon that where workmen are engaged in one 
 
 section 52 of that Act, and the terms of common employment with a common 
 
 many of the special rules as showing that object, and subject to the same regulations 
 
 all the workmen in the mine were under and control," &g., at p. 499 ; by Lord 
 
 the control of the owners, and that they Gifford, at p. 506 ; and by Lord Shand, 
 
 were all engaged in a common work," at " where the parties were not only working 
 
 p. 471. The law as laid down by the towards one common object, but were each 
 
 Lord President, being that there must be members of the same community or estab- 
 
 " labour for a' common end," and "all lisbment, standing in a relation which 
 
 subject to one general control," at p. 479; implied important duties to each other 
 
 by Lord Deas, that the defender's servants and the defenders," at p. 5 1 1 . 
 were invested with power to " direct and 
 
404 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Decision in 
 Maguire v. 
 Bussell does 
 not flow from 
 the principles 
 laid down in 
 Woodhead r, 
 Gartness 
 Mineral 
 Company, 
 
 Conclusions. 
 
 sustain on tte particular facts on any ground, but because " the 
 grounds of judgment adopted by the judges then sitting" " are 
 not reconcilable with the principle which I hold to be involved in 
 the previous cases.'" That principle was the essentiality of a 
 hiring which, we have seen above,^ is no more essential in the 
 English cases than it was ultimately held to be iu the Scotch, 
 and in no aspect of the decision does it involve the princiiDle 
 asserted for the first time in Maguire v. Russell.' Woodhead v. 
 Gartness Mineral Company,'' then, is not out of accord with the 
 English decisions in so far as it asserts the necessity of the 
 conjunction of a common employment and a common control 
 between workmen in order to exempt the employer from pecuniary 
 responsibility^ for an injury done by one to another, nor in drawing 
 a distinction between those cases where there is mere contact of 
 contractors carrying on a common work, independently of each 
 other, though with reference to a common employer ; those 
 where a mere contact of work exists between the servants of the 
 contractor and the servants of the contractee in the carrying out 
 a common object ; and those where, although a portion of the 
 work may be entrusted to a separate department as a sub-contract, 
 the workmen of the sub-contractor and the common employer 
 co-operate in carrying out a common scheme of work to a 
 common end, and are subject to the regulation and control of the 
 common employer. 
 
 The following conclusions from these cases are submitted : — 
 I . Where the servants of a contractor are merely co-operating 
 
 ^ Per Lord President,4 R. 469, at p. 481. 
 
 2 Swaineon v. Nortli-Bastem Eailway 
 Company, 3 Ex. D. 341 : per Brett, L.J., 
 at p. 349; per Cotton, L.J., at p. 351. 
 
 '■> 22 Sc. L. E. 706. 
 
 ■* 4 E. 469. 
 
 ^ For the difficulty io arise at all the 
 injury must he done by the directly con- 
 trolled servant of the employer, from whom 
 the scheme of work on which they are en- 
 gaged emanates, to the servant of the 
 suh-oontractor, and the question then 
 comes, Is there a common control ? For 
 if the injury is done by the sei-vant of one 
 sub-contractor to another where there is 
 no control, it is obvious'that the head em- 
 ployer would not be liable, on the 
 authority of Burgess v. Gray, I C. B. 592. 
 If, however, the employer retains control ; 
 it must, on the authority of the same class 
 of cases, be assumed that he adopts all 
 that is done in carrying on the work ; so 
 that in that event he might be liable to 
 the outside world, because he has control, 
 and, if the contention of those adopting the 
 view of the ,Lord Justice Clerk were fol- 
 lowed, would be liable to the workmen in 
 
 the mino injured amongst themselves, * 
 because he was not technically the mas- 
 ter. But control may be exclusive or 
 partial : if exclusive, then the employer 
 can alone be charged, and the difficulty in 
 Woodhead's case could not then arise ; but 
 if partial, for certain "purposes the sub- 
 contractor might be the employer, while 
 for other purposes, the head employer 
 might be so regarded ; and this is pointed 
 out in the judgment in Woodhead's case, 
 4 E. 469, which, indeed, merely marks the 
 distinction that, as to certain of his special 
 functions, a workman is the servant of a 
 sub-contractor, and has the rights and 
 liabilities attaching to that position, yet 
 he also occupies a position with different 
 duties and responsibilities as a member of 
 the organization of the mine. Or to put 
 the decision in another way, that the con- 
 trol over workmen working in a common 
 organization may be so divided that a por- 
 tion of the rights and immunities attach- 
 ing thereto, may be enjoyed by one person, 
 while other rights and immunities, as also 
 duties and liabilities, may full to some 
 wholly distinct person. 
 
PART III.] OOMMOK LAW DISABILITY OF SERVANT. 405 
 
 vritli the servants of the common employer in the prosecution of 
 work in which both are interested, the servants of the contractor 
 can recover against the common employer for injuries sustained 
 from the negligence of his servants during the j)rogress of the 
 work.' 
 
 2. Where the servants of a contractor are co-operating with 
 the servants of the common employer under the direction and in 
 the work of the contractor, the servants of the contractor cannot 
 recover against the, common employer for injuries sustained from 
 the negligence of his servants whilst co-operating in the work of 
 the contractor and under his directions.^ 
 
 3. Where the servants of a contractor are employed with 
 .reference to particular work to he carried on under ascertained 
 .circumstances of risk, they,cannot recover against the employer 
 for injuries in the course of the employment which arise out of 
 such ascertained circumstances.' 
 
 4. Where the servants of a contractor are co-operating with 
 the servants of the common employer as members of the same 
 establishment, and are both subject to the control of the common 
 employer, the servants of the contractor cannot recover against the 
 common employer for injuries sustained from the negligence of 
 his servants during the progress of the work so carried on in 
 common and under a common control.'' 
 
 5 . To constitute subjection to the control of a common employer, 
 it is not necessary that the employment should be exclusive or for 
 a fixed time or for fixed wages.^ 
 
 6. Where the servants of one contractor are engaged with the 
 servants of another contractor under a common employer in per- 
 forming a common work, the servants of one contractor can 
 recover against the servants of the other contractor for injuries 
 sustained from the negligence of the servants of the other con- 
 tractor during the progress of the common work." 
 
 The case of Degg v. Midland Railway Company' has already Volunteers. 
 
 > Abraham v. EeynoldB, 5 H. & N. 143 ; 3 Ex. Diir. 341 ; 47 L. J. Ex. 372 ; 38 £^f Railwly 
 
 8 W. E. 181 ; Turner v. Great Eastern L. T. 201 ; 26 W. E. 413, Company. 
 
 Eailway Company, 34 L. T. N. S. 431. ' Swainson v. Nortli-JEastern Railway 
 
 ^ Murray B. Currie, L. E. 6 C. P. 24; Company, 3 Ex. D. 341 ; MiiiTay v. 
 
 40 L. J. C. P. 26; 23 L. T. N. S. 557; Cume, L. E. 6 C. P. 24; Eonrke v. 
 
 19 AV. E. 104 ; Eonrke v. White Moea White Moss Colliery Company, 2 C. P. D. 
 
 Colliery Company, i C. P. D. 556, 2 205. 
 
 C. P. D. 205; 46 L. J. C. P. 283 ; 36 « Per Bramwel), L..T., House of Com- 
 
 L. T. 49 ; 25 W. E. 263. mons'Committee on Employ era' Liabilities 
 
 ' Woodley v. Metropolitan Eailway for Injuries to their Servants, Pari. Papers 
 
 Company, 3 Ex. D. 384; 46 L. J. Ex. 1877 (285) x. 551, q. 1198. Contra 
 
 521. Maguire v. Eussell, 22 Sc. L. R. 706. 
 
 * Wiggett V. Fox, II Ex. 832; 25 '' (1857) i H. & N. 773; a passer-by 
 
 L. J. Ex. 188 ; Johnson v. Lindsay, S casually appealed to by a workman for 
 
 •Times Law Eep. 54 ; Woodhead v. Gait- information does not make himself a 
 
 ness Mineral Company, 4 E. 469 ; Swain- volunteer by affording it, Cleveland v. 
 
 son ; . Nurtli-Eastern Eailway Comp.iny, Spier, 16 C, B. N. S. 399. 
 
406 
 
 THE LAW OP liTEaLiaENCE. 
 
 [book I. 
 
 Distinction 
 between in- 
 juries directly 
 inflicted on 
 trespassers 
 and those 
 incidentally 
 arising. 
 
 Potter V. 
 Faulkner. 
 
 been alluded to as an authority for the proposition that the 
 immunity of employers from liability for the negligence of their 
 servants is more extensive than the mere payment and receipt of 
 wages would warrant. We have now to consider the class of 
 cases, of which it is the leading authority, where persons unsohcited, 
 and as volunteers, place themselves in the position of servants for 
 the benefit of other persons. 
 
 Degg V. Midland Eailway Company was an action under Lord 
 Campbell's Act. The widow sued for damage caused by the 
 death of her husband while assisting in the turning of a railway 
 truck of the defendants. The deceased was engaged in unloading 
 a truck upon a siding. Next to the truck was a turn-table, at 
 which servants of the Company were attempting to turn a truck. 
 The deceased, who was not in the employ of the Railway Company, 
 went to assist them. Whilst he was doing so a steam-engine 
 came into the siding, where the turn-table was, for the purpose of 
 shunting some empty trucks. The deceased was struck, injured, 
 and ultimately died from the effects of the injuries he received. 
 Bramwell, B., in giving judgment for the defendants, drew a 
 distinction between injuries deliberately inflicted on trespassers" 
 and injuries consequentially arising to them from their trespass 
 and without design on the part of the injuring party. For in- 
 stance, if a man steps on the rotten cover of a well while tres- 
 passing on another person's property and falls in ; or by walking 
 in a park where the owner is driving, who, though seeing him, 
 yet recklessly drives over him. In the former case the trespasser 
 could not recover, in the latter he could. No man, Bramwell, B., 
 adds, by his wrongful act, can impose a duty. The defendants * 
 might have directed thei^ servants to act in the way they were 
 doing, when the accident happened, without violating any duty, 
 and the coming there of the deceased could not constitute a duty, 
 BO that the action could not be maintained. 
 
 Potter v. Faulkner,'' in the Exchequer Chamber, distinctly affirmed 
 the principle of Degg -y. Midland Railway. Potter v. Faulkner 
 was decided on a special case, which set out that the plaintiff had 
 been injured by the fall of a bale of cotton in the course of re- 
 moving cotton from the warehouse of the defendant. Some of 
 the servants of the defendant were employed in lowering bales of 
 cotton from the warehouse, and another of the servants was re- 
 
 1 Deane w. Clayton, 7 Tannt. 489 ; Holt 11. Wilkes, 3 B. & Aid. 304 ; Bird ». Holbrook, 
 4 Bing. 628. As to this case, Erie, C.J., in Potter «. Faulkner, said: "The law of 
 England, in its care for human life, requires consummate caution in the person who 
 deals with dangerous weapons. You may put aside that class of cases." 
 
 = (1861) I B. & S. 800 ; 31 L. J. Q. B. 30; 8 Jur. N. S. 259 ; 10 W. B. 93 j J L. T. 
 N. S. 455. Compare Kelly v. Johnson, 128 Mass. 530 ; and a Scotch case, Little i>. 
 Bummerloe Iron and Coal Company, 17 I). 310. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 407 
 
 ceiving them into the defendant's cart. The plaintiff was wait- 
 ing on the premises of the defendant for his turn to load his cart. 
 He intervened to assist the servant who was in the cart, and, so 
 far as the master was concerned, made himself a volunteer. A 
 hale fell and injured Mm. The Queen's Bench, on the authority 
 of Degg r. Midland Railway, and without hearing argument, 
 held that the "judge at the trial would be bound to nonsuit, and 
 suggested that the case should be taken to a court of error, and 
 stated a case without pleadings to effect that object. In the 
 Exchequer Chamber, Erie, C.J., laid down the principle that in 
 such circumstances no one can stand in a better position than 
 those with whom he associates himself in respect of his master's 
 liability. 
 
 In the subsequent case of Holmes v. North-Eastern Eailway Limitation on 
 Company," however, a limitation of the rule in Degg v. ne^v. Mid- 
 Midland Railway was imposed in favour of those who had a ^""^ Baiiway. 
 
 . , , . , . . Holmes v. 
 
 personal interest in the work at which they were assisting. It North-Eastem 
 
 was the custom for waggons consigned to a certain station on the compRny. 
 
 defendant's line, and containing coal or lime, to be shunted on a 
 
 siding, and there unloaded by means of drops or cells into which 
 
 the contents of the waggons were shot. It was also customary 
 
 for the consignees of goods, or their servants, to assist in unloading, 
 
 and for that pui-pose to pass along a flagged way, which was by 
 
 the side of the shunted waggons and above the cells into which 
 
 they were unloaded. A coal waggon was consigned to the 
 
 plaintiff, and was shunted, but could not be immediately unloaded 
 
 as no drop was vacant. The plaintiff, being in want of coal, went 
 
 to the station and was told by the station-master that he could 
 
 not get delivery till some lime was removed. Plaintiff said he 
 
 must have some coal, and would get on the waggon and take what 
 
 he needed thence. The station-master made no reply, and the 
 
 plaintiff, with his servant, proceeded towards the waggon, got 
 
 upon the buffer, took some coal, and descended on the flagged 
 
 way. The flag,, being worn, gave way, and the plaintiff was 
 
 thrown to the'Dottom of the cell and injured. A verdict was 
 
 given in his favour, and a rule was afterwards granted to enter it 
 
 for the defendants, but was discharged, after argument, on the 
 
 ground that there was a duty on the defendants to keep the way 
 
 in such a secure condition as to enable persons coming to assist in 
 
 unloading the waggons in the ordinary way to pass safely, so that 
 
 they would be liable to such persons for the consequences of its 
 
 insecurity, and there was equally a duty to the plaintiff when, 
 
 ' Holmes v. Noith-Easteru Railway Company (1869, 1871), L. K. 4 Ex. 254, L. E. 
 6 Ex 123. 
 
408 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 "Licensees" 
 and " mere 
 licensees." 
 
 Principle 
 state'd. 
 
 Wyllie V. 
 
 Caledonian 
 
 Eailway. 
 
 instead of his unloading his waggon by tipping, he did the same 
 thing by transferring the coals by hand from the waggon into his 
 own cart. The Exchequer Chamber affirmed the Court of 
 Exchequer, and without adding anything to the judgment given 
 there. 
 
 In the Court of Exchequer, Bramwell and Channell, BB., drew 
 a distinction similar to that drawn by Willes, J., in Indermaur v. 
 'Dames, between " licensees " and " mere licensees." By a mere 
 licensee it appears is to be understood a person who has permission 
 to go upon ground for his own purposes without any relation to 
 the occupier, and who goes taking all the risks attending his so 
 doing, and not imposing any liability on his licensor;' while by 
 licensee is to be understood one who is invited on land by the 
 occupier for some purpose in which he and the occupier have some 
 common interest. The two learned judges acquiesced in the 
 decision of the Court with some little difficulty, not from dissent 
 to the principle, but from difficulty in its application to the facts 
 of the existing case. The principle of the case may be stated 
 thus : Where a person is on premises of others, with their assent, 
 engaged in a transaction of common interest to both parties, the 
 owners of the premises are liable for the negligence of their 
 servants in the course of the transaction. ° 
 
 The Scotch case of Wyllie v. Caledonian Railway," which was 
 decided almost simultaneously, and was somewhat similar in its 
 facts, will be found on examination to be referable to another 
 principle of law. There a drover in the employiaent of a cattle- 
 dealer was engaged along with the company's servants in trucking 
 his master's cattle, when an engine, negligently driven by one of 
 the company's servants, entered the siding where plaintiff was 
 engaged and injured him. The Lord President beld, that the 
 true effect of what was being done, considering the difficulty 
 involved in driving cattle, was, that the railway company's servants 
 were taking delivery in pursuance of the contract of carriage, and 
 the servants of the cattle-dealer were engaged in giving delivery, 
 consequently a duty to take care was owing. This ratio decidendi 
 seems satisfactory. Although the other English cases were cited 
 in the argument, no mention seems to have been made of Holmes 
 V. North-Eastem Railway Company, nor of the wider principle 
 that was laid down in the Exchequer. The case would, however, 
 clearly come under the principle there advanced, of co-operation 
 joined with an interest in the work. 
 
 1 Boloh V. Smith, 7 H. & N. 36 ; 31 
 L. J. Ex. 201 ; 10 W. E. 387, and the 
 cases* following it. 
 
 2 Bramwell, B., in his judgment in the 
 
 Court of Exchequei', cited the case of 
 Nicholson v. Lancashire and Yorkshire 
 Eailway Company, 34 L. J. Ex. 84, as an 
 authority. ' 9 M. 463. 
 
PAETiii.] COMMON LAW DISABILITY OF SERVANT. 409 
 
 Next came the case of Wright v. London and North-Western "Wrigiit v. 
 Railway Company/ in the Court of Appeal, where the facts were : L™ North- 
 PlaintifE sent a heifer by defendants' train. On the arrival of the ^^stem 
 
 T . . 1 /« . Hallway 
 
 heifer at its destmation there were not suincient porters to shunt Company, 
 the box, in which the heifer had been carried, to a siding, from 
 which only it could be delivered. The plaintiff went to assist, 
 and by the negligence of the defendants' servants he was injured. 
 The judgment of Hellish, L. J., varies, and in so doing explains, 
 the phrase " a mere licensee," used by Ohannell, B., in Holmes v. 
 North-Eastem Railway Company. " The plaintiff," he says, 
 " was not a mere volunteer, but was assisting to get his own 
 heifer." The distinction to be drawn is, that where the company Distinction, 
 is doing its own work in its own way and some bystander is 
 prompted to interfere from some motive peculiar to himself and 
 not importing a duty, then he does so at his own risk ; but if a 
 company allows persons to do what they ought to have an efficient 
 stafE to do, it must take the consequences if the person so inter- 
 fering — supposing him to have an interest in the work — is 
 injured. 
 
 The ground of decision in the Scotch case would have seemed 
 available here also, with the difference that there the drover was 
 giving, here he was taking, delivery. 
 
 In the Scotch case of Little v. Neilson,' where defendant's Little v. 
 manager asked the pursuer to turn out of the road and assist •'^^''^'"'' 
 him, the Lord Justice Clerk found the claim relevant, on the 
 ground that the manager was authorized to make the request ; 
 but this was before the decision in Reid v. Bartonshill Coal 
 Company. Since then it would seem that where such assistance 
 is given at the request of the servants, the volunteer , would be 
 constituted a fellow-servant, unless he acted in pursuance of an 
 interest, and if he did not assist at the request of the servants, 
 but from his own meddlesomeness, then his rights are no greater 
 than a servant's. A distinction should, however, be drawn Fmtlior 
 between acts done with a view to assist, and acts done the effect ^'^*'"'°*""'- 
 of which is to assist, though no such object originally prompted 
 them. The one class would render the person acting a volunteer, 
 the other would not. Thus it is pointed out' — if a runaway 
 horse is stopped by a person whose safety is jeopardized by its 
 course, such person does not, by stopping the horse, become the 
 servant of the owner. Nor, when a house is burning does an im- 
 perilled neighbour lose his rights as a stranger by assisting to put 
 out the fire. 
 
 ' Wright V. London and North Western " 17 D. 310. 
 
 Railway Company (187S, 1876), L. B. 10 ' Shearman and Eedfield, Law of Neg- 
 Q. B, 298, I Q. B. r>. 252. ligence, 4th edit, § 183. 
 
410 
 
 THE LAW OP NEGLIGENCE. 
 
 [book I. 
 
 Flower v. 
 Pennsylvania 
 I^ailroad 
 Company, 
 
 rropositions. 
 
 Actions done for the purpose of protecting person or property 
 will not be construed as done with any object inconsistent with 
 that purpose. Difficulty, however, exists in determining the pur- 
 pose of action in these cases. The learned authors just cited 
 suggest as one test — " to inquire whether the person rendering 
 the assistance would probably have done so if the property with 
 which he interfered had no owner." But the test seems an un- 
 necessary complication of the proposition that each case must be 
 decided, as it arises, on its own facts. 
 
 An American case,' decided by the Supreme Court of Pennsyl- 
 vania, forcibly sets out the considerations of which the law on the 
 point we have been considering is based. A boy of ten was asked 
 by a foreman watering an engine to fix the hose on the boiler 
 while he cleaned out the ash-pan. Some trucks without a breaks- 
 man ran against the engine, threw the boy off, and killed him. 
 Agnew, J., giving the judgment of the Court, said : " Here the 
 boy was voluntarily where he had no right to claim protection 
 when the company was in the use of its pi'ivate ground, and was 
 not abusing its privileges or trespassing on the rights or immuni- 
 ties of the public. The only apology for his presence there is the 
 unauthorized request of one who could not delegate his duty, and 
 had no excuse for visiting his principal with his own thoughtless 
 and foolish act. Nor can the mere youth of the boy change the 
 relation of the case. That might, excuse him from conciu'ring 
 negligence, but cannot supply the j)lace of negligence on the part 
 of the company, or confer an authority on one who has none. It 
 may excite our sympathy, but cannot create rights or duties which 
 have no other foundation." 
 
 These cases, then, illustrate the propositions : — 
 
 1 . Where one is permitted voluntarily to undertake work along 
 with another man's servants, in which he has no interest arising, 
 out of a duty, he can stand in no better position than those with 
 whom he associates himself in respect of their master's liability.^ 
 
 2. Where one is permitted voluntarily to undertake work in 
 which he has an interest arising out of a duty along with another 
 man's servants with the view to the advancement of that interest 
 the master is responsible for any injury that may result from want 
 of care and prudence of the servants in the course of the work, or 
 from the insecure condition or user of the premises on which the 
 work is carried on.' 
 
 1 Flower r. Pennsjlvania Railroad Com- 
 pany (1871), 69_Pcnn. 210. 
 
 ^ Degg v. Midland Eailway Company, 
 1 Hurl. & N. 773 ; 26 L. J. Ex. 171 ; 
 Potter V. Faiilkner, i B. & S. 800; 31 
 
 L. J. Q. B. 30; sL.T. N. S.4S5; 10 
 W. E. 93. 
 
 ' Holmes v. North Eastern Railway 
 Company, L. R. 4 Ex. 254; 40 L. J. 
 Ex, 121 ; 24 L. T. N. S. 69 ; L. R. 6 Ex. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 411 
 
 Murray v. Carrie' has already been cited for another proposition, MniTay ». 
 It is also an authority for the proposition that, " If I lend my ser- "™^" 
 vant to a contractor who is to have the sole control and superin- 
 tendence of the work contracted for, the independent contractor is 
 alone liable for any wrongful act done by the servant while so 
 employed. The servant is doing not my work but the work of the 
 independent contractor."^ And this proposition was subsequently 
 affirmed in the Court of Appeal in Rourke ■;;. White Moss Colliery 
 Company.' 
 
 This principle is well illustrated by an American case.'' Plaintiff American case. 
 was injured by a boy in the general employment of the defendants. 
 It was proved that defendants employed a " truckman " to deliver 
 their parcels once a week. He, being ill and unable to drive, sent 
 up his team, and told the defendants they could have it if they 
 wanted it, and would let their boy drive for him. The boy, on 
 being asked, said he must ask the defendant, and the defendant 
 said he might drive. Bigelow, C.J., on these facts, held, that at 
 the time the injury was done to the plaintiff the person in charge 
 of the horse and waggon " was not in the employment or service 
 of the defendants, but was acting as the servant of a third person, 
 who exercised an independent employment in no way subject to 
 the command or control of the defendants as to the mode in which 
 it should be carried on." 
 
 This case is thus generalized in the subsequent Massachusetts Pi'indple, 
 case of Kimball v. Oushman :^ "It is not necessary the plaintiff 
 should be shewn to have been in the general employment of the 
 defendant [in that case the special master was being sued], nor 
 that he should be under any special engagement of service to 
 him, or entitled to receive compensation from him directly. It is 
 enough that at the time of the accident he was in charge of the 
 defendant's property, by his assent and authority engaged in his 
 business, and, in respect' of that property and business, under his 
 control." 
 
 The case of Kimball v. Cushman may be cited also for the further 
 proposition : " The fact that there is an intermediate party in whose 
 general employment the person whose acts are in question is 
 engaged does not prevent the principal from being held liable for 
 the negligent conduct of the sub-agent or under-servant unless 
 the relation of such intermediate party to the subject-matter 
 of the business to which the under servant is engaged be such 
 
 123; Wyllie V. Caledonian Eailway, 9 " Per Brett, J,, at p. 28. 
 
 M. 463 ; Wright v. London and North' ' 2 C. P. D. 205 ; Moore v. Palmer, 2 
 
 Western Eailway, L. E. 10 Q. B. 298 ; Times L. E. 781 ; Wallis v. Hine, 4 
 
 I Q. B. D. 252 ; 45 L. J. Q. B. 570 ; 33 Times, L. E. 472. 
 •L T. N. S. 830. ''■ Wood V. Cobb, 95 Mass. 58. 
 
 " L. E. 6 C. P. 24. ^ 103 Mass. 194. 
 
412 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Liability of 
 servants. 
 I. Pcrsoually 
 to strangers. 
 
 II. To fellow- 
 servants. 
 
 as to give him exclusive control of the means and manner of its 
 accomplishment, and exclusive direction of the persons employed 
 therefor." 
 
 There remains to be considered the responsibilities incurred by 
 servants either to strangers or one to another. Those obligations 
 which the law imposes on all persons independently of contract 
 can manifestly not be affected by the constitution of relations to 
 which the injured person is not consenting, and, as he is liable 
 for any injury he may do to the person or property of another by 
 force of his position as a member of the community and subject 
 to its laws, so his own act in putting himself in relations of 
 subordination to another will not excuse him from answering for 
 the consequences of acts or omissions he would otherwise have been 
 bound to. 
 
 The same considerations would seem to apply in the case of 
 fellow-servants, and to need no exposition but for the decision of 
 a well-known Massachusetts case, Albro v. Jaquith,' and for a 
 dictum of Pollock, C.B., in Southcote v. Stanley. 
 
 In the former, the Court held that the considerations that led 
 to the adoption of the rule, " that a party who employs several 
 persons in the conduct of some common enterprise or undertaking 
 is not responsible to any of them for the injurious consequences 
 of the mere negligence or carelessness of the others in the per- 
 formance of their respective duties, have an equal significancy 
 and force when applied to actions brought for like causes by one 
 servant against another;" and, in the latter case,^ Pollock, O.B., 
 says: " The rule [i.e., that the servant undertakes to run all the 
 ordinary risks of service, including those arising from the negli- 
 gence of fellow-servants] applies to all the members of a domestic 
 establishment, so that the master is not in general liable to a 
 servant for injury resulting from the negligence of a fellow-ser- 
 . vant ; neither can one servant maintain an action against another 
 for negligence whilst engaged in their common employment." 
 
 These expressions of opinion have caused some uncertainty in 
 a case which, both in principle and on authority, there was no 
 room for doubt. On principle, it would seem the injuring servant 
 could claim no greater rights under the contract than the master 
 and the injured servant between whom the contract is made, 
 yet for his own personal negligence the master is liable to the 
 servant.' What pretence, then, can there be to maintain that the 
 
 - 70 Mass. 99 ; this decision has since been overruled in the same State, Osborne v. 
 Morgan, 130 Mass. 102. 
 
 3 Southcote V. Stanley, 1 H. & N. 247 ; 25 L. J. Ex. 339. 
 
 " Per Lord Cianworln : Brydon v, Stewart, 2 Macqueen 30 ; and see Roberts V. 
 Smith, 2H.&N. 213. 
 
PART III.] COMMON LAW DISABILITY OF SERVANT. 413 
 
 master impliedly secures an immunity for his servants that he 
 does not obtain in his own behalf ? But the authorities on the Authorities, 
 point are numerous and conclusive. It will suffice to call special 
 attention to one of the earliest assertions of this liability by Lord 
 Kenyon in Stone v. Cartwright,' where he says: "There is no 
 pretence for bringing an action against the manager, and such an 
 action must be brought either against the hand that commits the 
 injury or against the owner for whom the act is done ; " and to one 
 of the most emphatic of the latest, when Bramwell, L.J., giving 
 evidence before the House of Commons' Committee on the Em- 
 ployers' Liability, said^: " A workman would undoubtedly be able 
 to maintain an action against the fellow-workman who had done 
 the mischief if he were worth suin^"' 
 
 ' 6 T. B. 411. 736, per Blackburn, J., at p. 578 ; Swain- 
 
 = Pari,Papers,l877(28s)x.SSi,q.iiS6- son d. North-Eastern Eailway, 3 Ex. D. 
 
 ' For other authorities see Laugher r. 341, per Pollock, B.,at p. 344 ; Wharton's 
 
 Pointer, 5 B. & C. 547, per Littledale, J., Law of Negligence, § 245-; Shearman and 
 
 at p. 558; Wiggett V. Fox, 11 Ex. 832, Eedfield's Law of Negligence (4th edit.) 
 
 perAlderson, B., at p. 839; Morgan v. § 245; the judgment of Gray, CJ., in 
 
 Valeof Nealh Railway Company, 5 B. & S. Osborne i-^ Morgan, 130 Mass, I02, 
 
CHAPTER V. 
 
 Proposition 
 stating the 
 common law. 
 
 Exceptions. 
 
 Amendmeuts 
 suggested by 
 the Eeport of 
 the House of 
 Commons' 
 Committee 
 on Employers' 
 Iiiitbility, 
 
 THE EMPLOYERS' LIABILITY ACT, 1880 
 (43 & 44 Vict. c. 42). 
 
 The common law as applied to the relation of master and ser- 
 vant, and as developed in the preceding chapters, may shortly be 
 stated in the following proposition : A master is not liable to 
 any servant for an injury which arises from the act or default 
 of any fellow-servant, whether that fellow-servant be in a position 
 of authority or not, and, in ascertaining whether the person to 
 whose acts or default the injury is due is a fellow-servant, 
 the widest possible construction is given to the term common 
 employment.' But to this governing principle there are certain 
 exceptions ; for the servant is held to be saved from the 
 operation of the general rule, and to have his action, if he shews 
 either — 
 
 first, that the master has omitted to provide suitable materials 
 and facilities for the work ; or, 
 
 Secondly, that the master has been in default in engaging 
 incompetent workmen through whose incompetence the injury 
 happens; or 
 
 Thirdly, that the master has personally been guilty of the 
 negligence that causes the injury. 
 
 The Report of the House of Commons' Committee laid down 
 two principles of amendment of the common law — 
 
 First, to render the master liable in cases where he has dele- 
 gated his authority. 
 
 Secondly, to narrow the doctrine of common employment to 
 those cases where each servant is an observer of the conduct of 
 the other, and can give notice of any misconduct, incapacity, or 
 neglect of duty, and leave the service if the common employer 
 will not take such precautions and employ such agents as the 
 safety of the whole party may require. 
 
 ^ Eeport of House of Commons' Committee on Employers' Iiialjility, Pari. Papers, 
 1877 (28s) X. 551, 
 
FART HI.] THE EMPLOYEES' LIABILITY ACT, 1880. 415 
 
 The outcome of this Report was the Employers' Liability Act, 
 1880, which we are now to consider.' ' 
 
 The leading provision of the Act is that, in certain circum- Leading pro- 
 stances presently to be considered, a workman^ "shall have the^^'T"^"!® 
 same rights of compensation and remedies against the employer Kabuity Act, 
 as if the workman had not been in the service of the employer." ^ °" 
 
 The object of the statute has been most diversely regarded, 
 but the most accurate estimate of it seems to be that of Lord lord Young 
 Yoang in Morrison v. Baird & Co.,^ where he says that it " does j,°Mrd!™" 
 no more than remove a defence, in the class of actions to which 
 it refers, which was theretofore competent by providing that an 
 employer against whom such action is raised shall not, in certain 
 circumstances specified in the statute, be entitled to plead what 
 the common law entitled him to plead — ^that he is not responsible 
 to one employee for the fault of others. The statute does no 
 more than remove that defence in certain specified circum- 
 stances ; " or, as it is put by Smith, J., in Weblin v. Ballard,'' Webiin «. 
 " That the workman when he sues his master under the provisions ■^''^^"'^• 
 of the Act for any of the five matters designated in it shall be 
 in the position of one of the public suing, and shall not be in the 
 position a servant theretofore was when he sued his master ; in 
 other words, that the master shall have all the defences he there- 
 tofore had against any one of the public suing him, but shall not 
 have the special defences he theretofore had when sued by his 
 servant." The same learned judge, in the same judgment, states 
 that he regards the result of this to be that " the defence of 
 common employment, and also the defence that the servant had 
 contracted to take upon himself the known risks attending upon 
 the engagement, are taken away from him when sued by a work- 
 man under the Act." To the same effect is Lord Esher, M.R.': LordEsher, 
 "It has been suggested that this Act has only the effect of doing Thoililsr. 
 away with the doctrine of the immunity of the master from Quar'ermaino. 
 damage arising from the negligence of another servant in the 
 common employment of the master. To my mind it is clear that 
 
 1 43 & 44 Vict. 42. Ill New South seems still to prevail in Quebec, New 
 
 Wales the Act is enacted with the Brunswick, aud Nova Scotia. In New 
 
 addition of a section amending or dispens- Zealand the Act is 46 Yict. No. 20, and 
 
 ing with notices : 46 Vict. No. 6. In .applies to Crown servants. 
 Queensland, 50 Vict. No. 24, with one for- ^ Section i. 
 
 bidding contracts to exclude the Act. In ^10 E. 271; M'Avoy 0. Young's 
 
 Victoria, 50 Vict. No. 894, in terms almost Paraffin Company, 9 E. 100; Dailly w. 
 
 identical with the Act of the United King- Beattie, 20 So. L. E. 92. 
 dom, and for seven years only. In On- * 17 Q. B. D. 122; 55L. J. Q. B. 249; 
 
 tario, an Act very similar to the Bill of S4 L- '!'• 532 ; 34 W. E. 455. 
 1888 in the Parliament of the United ° Thomas v. Quartermaine, 18 Q. B. D. 
 
 Kingdom is in force, 49 Vict. cap. 28, at p. 688 ; 55 L. J. Q. B. 439 ; 55 L. T. 
 
 vol. i. Kevised Statutes of Ontario, 1294. 460 ; 34 W. B. 741. 
 Tlie old rule as to common employment 
 
41C THE LAW OF NEGLIGENCE. [book i. 
 
 the statute has taken away from the master another defence " — 
 that the servant undertook to take all the ordinary risks incident, 
 to the employment, unless they were concealed or known to the 
 master and not to the servant.* But it is obvious that the Act has 
 not " the effect of doing away with the doctrine of the immunity 
 of the master for damage arising from the negligence of another, 
 servant," else the limitations in sub-sections 2, 3, 4, and 5 of 
 section i would be unnecessary' ; while the operation of the sub- 
 sections is to do away with so much of the " doctrine," &c., as is 
 included within their scope, and the absence of any other legisla- 
 tion leaves what is not included within them still subsisting. Then, 
 as to the second alleged operation of the Act — that " it has taken 
 away the defence from the master that the man undertook to take 
 all the ordinary risks incident thereto.'' On the assumption that 
 this is so, it is curious to note that the objects laid down by the 
 House of Commons' Committee's Report on the Employers' Liability 
 specifically excluded this. The suggestion was " to narrmo the 
 doctrine of common employment to those cases where each servant 
 is an observer of the conduct of the other, and can give notice of 
 any misconduct, incapacity, or neglect of duty, and leave the service 
 if the common employer will not take such precaution and employ 
 View of the such agrents as the safety of the whole party may require." How- 
 
 majority of the ° , , , „ ,, . ., \. ^/ _, •' \ _,, 
 
 CourtofAppeai ever, the judgment 01 the majority 01 the Court m Thomas v. 
 QuIrteXainc. Quartermaiue' establishes that the view of Lord Esher, M.E., is' 
 Bowen, L.J. not the effect of the Act.'' " An enactment," says Bowen, L-J.,'' 
 quoting the ist section, "which distinctly declares that the work- 
 man is to have the same rights as if he were not a workman cannot,- 
 except by violent distention of its terms, be strained into an enact- 
 ment that the workman is to have the same rights as if he were 
 not a workman and other rights in addition. It cannot in the case 
 of a defect in the employer's works be distorted into the meaning- 
 that a new standard of duty is to be imposed on the employer as 
 regards a workman which would not exist as regards anybody else. 
 If the language of the section were not even so precise, the point- 
 
 1 Lord Esliev, M.E., in Yarmouth v. v. General Steam Navigation Company, 
 
 France, 19 Q. B. D. at p. 654, says : " I 10 Q. B. B. 356 ; 52 L. J. Q. B. 260; 48 
 
 never entertained » doubt that the Em- L. T. 228; 31 W. E. 656; Kellard v. 
 
 ployers' .Liability Act does not prevent Eooke, 19 Q. B. D. 585; (C. A.) 21 
 
 the proper application of the maxim, . Q. B. D. 367 ; 57 L. J. Q. B. 599 ; 36 
 
 Vdknti iwnfit injuria ; and I can only W. E. 875. 
 
 say, as an excuse for the part I took in ' 18 Q. B. D. 685. 
 
 Thomas v. Quartermaine, that that doc- * The New Sonth Wales case of Simat 
 
 trine had never been mentioned on the v. Silva is at common law, and holds that, 
 
 argument of that case, but was for the where a plaintilT's knowledge is equal to 
 
 first time suggested in the judgment of my the defendant's, the rule involved in Fofejjfi 
 
 brother Bowen." nonfit injuria applies. There the plaintiff 
 
 , - M'GifSn V. Palmer's Shipbuilding was the engineer of a steam-tug ; 8 
 
 Company, 10 Q. B. D. 5 ; 52 L. .T. Q. B. N. S. W. E. C. L. 415. 
 
 25 ; 47 L. T. 346 ; 31 W. R, 1 18 ; Siiaffers = At p. 692. 
 
PABTiii.] THE EMPLOYEES' LIABILITY ACT, 1880. 417 
 
 would be concluded, one might well think, by the observation 
 that if the Act had intended to prescribe some new measure of 
 duty the least one might expect would be that it should define 
 it." And Fry, L. J., adds on the same point : " If the workman Fi-y, L.J. 
 is to have the same rights as if he were not a workman, whose 
 rights is he to have ? Who are we to suppose him to be ? I 
 think that we ought to consider him to be a member of the public 
 entering on the defendant's property by his invitation. Can such 
 a person maintain an action in respect of an injury arising 
 from a defect, of which defect and of the resulting damage 
 he was as well informed as the defendant ? I think not. To 
 such a person it appears to me that the maxim Volenti non fit 
 injuria applies."' And after quoting from, and concurring in, 
 the judgment of Cockburn, .O.J., in Woodley v. Metropolitan 
 District Railway Company,^ the Lord Justice adds : "If I invite 
 a man who has no knowledge of the locality to walk along a 
 dangerous cliif which is my property, I owe him a duty different 
 from that which I owe to a man who has all his life bird-nesited 
 on my rocks." 
 
 By the Employers' Liability Bill, 1888,^ it was provided that Employers' 
 a workman should not " by reason only of continuing in his bIu^iS^s. 
 employment with knowledge of a defect, negligence, act, or 
 omission which caused his injury be deemed to have voluntarily 
 incurred the risk of the injury ;"* but this was guarded by the 
 further provision that where, having knowledge, he "failed with- 
 out reasonable excuse to give or cause to be given within a reason- 
 able time information thereof to his employer or to some person 
 superior to himself in the service of his employer,"^ he should not 
 recover. 
 
 The effect of this latter provision would seem to be to place the Effect of this. 
 workman in a somewhat worse position than that it has been con- 
 tended in these pages ° he would have been in at common law, 
 where his employer had failed to discharge a statutory obligation, 
 by specifying a mode of proof that would exonerate the master, 
 which if the view before contended for in these pages be correct 
 would not at common law have been conclusive to do so ; while 
 the former sub-section marks what is conceived to be his position 
 at common law apart from a statutory obligation on the master. 
 
 In Scotland the law is stated by the Lord Justice Clerk (Inglis) iw of ^ 
 
 ^ The Supreme Court of Victoria had 2 2 Ex. D. 384. 
 
 previously arrived at the same conclusion : ^ As amended by the standing Commit- 
 
 Davidson ». Wright, 13 V. L. E. 351. tee on Law, bill 325. 
 
 See, too, the Scotch cases, M'Avoy v, * Section I, proviso I. 
 
 Young's Paraffin Company, 9 R. 100; ^ Section i, proviso 2. 
 
 Morrison v. Baird, 10 K. 271 ; Robertson ' At p, 355. 
 V. Russell, 12 R. 634. 
 
 D D 
 
418 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 View of tho 
 
 Second 
 
 Division, 
 
 to be : "If a servant in the face of a danger chooses to go on 
 with his work, he does so at his own risk. The averments of the 
 pursuer are such, if true, as would have entitled him to refuse to 
 continue working, and I cannot in such circumstances allow the 
 servant to say to his master, I went on at your risk." The case 
 in which this was said was that of injury resulting from a horse 
 unfit to work.' 
 
 There seems, however, to be a difference in the decisions as 
 the cases respectively came before the First or the Second Division 
 View of the of the Court of Session. In the First Division the Court has held 
 irs msion. ^-^^^ ^-^^ knowledge of the danger incurred is sufficient to fix the 
 workman with the risk of it.'-' In the Second Division the Court has 
 held that " voluntarily encountering danger " means no more than 
 doing so unnecessarily, and seems to regard the defence as "the 
 typical case of contributory negligence."" Of these propositions 
 the contention as to the law of England in this respect in this 
 treatise* lis more nearly in accord with that of the First Division 
 of the Court of Session ; but this limitation must be borne in mind, 
 that, though knowledge of the danger may shift the onus of proof — 
 where the common law is unobstructed by statutory requirements 
 — ^to the workman from the employer, but slight evidence is 
 required to shew that he did not acquiesce in the risk involved. 
 
 The English common law doctrine may be taken from the 
 statement of Lord Esher, M.R.,' a judge who has manifested a 
 not entire friendliness to its application : " Before the Employers' 
 Liability Act there was this condition in the contract of hiring, 
 that, if there was a defect in the premises or machinery which 
 was open and palpable, whether the servant actually knew it 
 or not, he accepted the employment subject to the risk." There 
 are, doubtless, expressions by other judges, and by the same 
 judge in other cases, apparently at variance with this, which have 
 been elsewhere collected and considered;^ but the main question 
 is, What is the effect worked by the Employers' Liability Act on 
 the principle of the common law ? The effect may be worked 
 either by intrinsic or extrinsic principle, by some provision of the 
 Act, or by the operation of general principles, in the interpretation 
 of the Act. The decisions have, however, shewn that there is no 
 
 English 
 common law 
 doctrine. 
 
 ' Crichton v. Keir, i M. 407, where 
 Holmes v. Clarke is distinguished. As to 
 statutory obligations, see M'Monaglo v. 
 Baird, 9 R. 364. _ 
 
 2 "Wilson V. Wishaw Coal Company, 10 
 E. 1021 ; M'Gee v. Eglinton, 10 R. 955, 
 where the action was dismissed, though 
 there was an averment that the pursuer 
 had made complaint of the danger. Com- 
 pare Hutchison v. Eothwell, 12 E. 463, 
 
 where the distinction between the case of 
 a seaman working with defective appara- 
 tus, and the case of an ordinary workman 
 doing so, was pointed out. 
 
 s Per I<ord Young, Grant v. Drysdale, 
 10 R. 1129,; Murdook». M'Kinnon, 12 B. 
 810. 
 
 * See p. 340, et seq. 
 
 ^ Yarmouth v. France, 19 Q. B. D. at 
 p. 653. » At p. 336. 
 
PABTin.] THE EMPLOYERS' LIABILITY ACT, 1880. 419 
 
 peculiar mode of interpretation special to the Act, while the general 
 effect of a statutory obligation has been elsewhere considered.' 
 
 We have already seen that the central conception of the Em- Scope of the 
 ployers' Liability Act, 1880,^ is to place the workman in the "^ ' • 
 same position with regard to the employer and as to certain 
 relations that would be held by any person not in the employ- 
 ment suffering injury. The consideration of the precise definition 
 of a workman under the Act, which is a matter of some little 
 complication, will for the present be deferred ; and we shall now 
 proceed to consider the different relations in which the old 
 common law is affected by the Act. 
 
 The first' is, the workman is to be in the same position as "if I. Workman 
 ' the workman had not been a workman of, nor in the service of, wheratho 
 the employer nor engaged id his work " — in other words, had 'aused by 
 been engaged in the business as a licensee''-^where the injury defect iu the 
 is caused by reason of any defect in the condition" of the ways, ways, works, 
 works, machinery, or plant connected with or used in the business Xnt' &™^' °' 
 of the employer, where the defect arose from or had not been 
 discovered or remedied owing to — 
 
 1 . The negligence of the employer." 
 
 2. The negligence of some person in the service of the em- 
 ployer, and entrusted by him with the duty of seeing that' the 
 ways, works, machinery, or plant were in proper condition.' 
 
 To constitute a right of action it is therefore necessary there Defect. 
 should be a defect in some of the specified appliances. In Heske 
 v. Samuelson," Lord Coleridge, 0. J., suggests, as a test of what is 
 a defect, the question whether the impugned particular " was 
 not in a proper condition for the purpose for which it was 
 applied." And this was adopted by the Couit of Appeal in 
 Oripps V. Judge." Thus, where a crane was used to tear up sleepers, 
 
 'At p. 336. national feeling will not admit this snggos- 
 
 ^ 43 & 44 Vict. c. 42. tion : Law of Employer and Employed, p. 
 
 ' Section i, sub-section I. 183. In the Bill of 1888 there is a 
 
 ' Per Bowen, L.J., Thomas v. Quarter- clause (12) that provides for an action 
 
 maine, 18 Q. B. D. at p. 693. at common law being brought "in the like 
 
 ■^ In the Employers' Liability Bill, 1 888, court and in the like manner, but within the 
 
 as amended by the Standing Committee same time and after the same notice, as if 
 
 on Law, "or arrangement" is inserted it had been brought under this Act ;" and 
 
 after " condition," and " buildings or pre- the claim may be in the alternative, 
 mises " after " plant." ' In the Bill all after " that " isomitted, 
 
 ' In Boberts and "Wallace's Employers' and " such condition or aiTarigement is 
 
 liability, p. zo8, it is pointed out that the proper." 
 Act makes no pretence of dealing with the ' Section 2, sub-section i. 
 employer's own personal liability, and that ' 12 Q. B. D. 30 ; 53 L. J. Q. B. 45 ; 
 
 probably these words were inserted to 49 L. T. 474; Corcoran v. East Surrey 
 
 enable the workman to recover more than Iron Works, j Times L. E. 103, where a 
 
 ;f S° against the employer in a county trolly " was in the usual form, and it was 
 
 court, and not drive him to a second admitted that there was no danger if the. 
 
 action in the High Court, if at the trial stancheon were packed as usual." 
 the fact shewed a common law liability " 13 Q. B. D. 583 ; S3 L. J. Q. B. 517 ; 
 
 pierely. Messrs, Spens and Younger s 51 L. T. 182 ; 33 W. B. 922. 
 
Esher, M.E. 
 
 420 THE LAW OF NEGLIGENCE. [book i. 
 
 and injury resulted, there was held to be defect in the condition 
 of the machine.' 
 
 Walsh ». In Walsh v. Whiteley' there was a division of opinion in 
 
 ''* ^^" the Court of Appeal on the question as to what constituted evidence 
 of defect in the condition of a machine. The county court judge 
 had left it to the jury to say whether there was in fact a defect 
 in the condition of the machine — a carding machine, the disc of 
 the wheel of which was not solid throughout ; had the disc been 
 solid the accident would not have happened — telling them that to 
 be defective it must be such as a reasonable, careful, experienced 
 man, reasonably careful of the safety of his workmen, would not 
 use. The jury found there was a defect, and Wills, J., in the 
 Divisional Court, was of opinion that there was evidence to warrant 
 
 View of iiord the conclusion, Grantham, J., being of the contrary opinion. Lord 
 Esher, M.R., expressed his view as follows : — " The true question 
 seems to me to be whether the machine is dangerous, and whether 
 a careful consideration would shew it to be dangerous to the 
 workmen using it. I am prepared to say that if a careful con- 
 sideration would shew a master that the machine was dangerous 
 to the workman using it, even although that machine coidd not 
 be improved upon, it is negligence on the part of the master to 
 use for his profit a machine which is dangerous to his workman, 
 and, if he does use it, he can only do so upon the terms of being 
 liable to pay compensation to the workman if he is thereby 
 
 Judgment of injured." The proposition adopted by the majority of the Court 
 
 of*tS*Oourt. (Lindley and Lopes, L.JJ.) was : " We think there must be a 
 defect implying neghgence in the employer. The negligence 
 of the employer appears to be a necessary element, without which 
 the workman is not to be entitled to any compensation or remedy. 
 It must be a defect in the condition of the machine, having regard 
 to the use to which it is to be applied or to the mode in which 
 it is to be used. It may be a defeot either in the original con- 
 struction of the machine, or a defect arising from its not being 
 kept up to the mark,' but it is essential that there should be 
 
 ' Welsh «. Moil', 12 E. 590; Bacon w. also it was decided that an employer is not 
 
 Dawes, 3 Times L. R. 557. bound to furnish the best machinery, in 
 
 • ' 21 Q. B. D. 371 ; Smith v. Harrison, Payne ». Eeese, 100 Penn. St. 301. 
 
 S Times L. K. 406. In Scotland the pur- " As an instance how judicial interpte- 
 
 snermust aver speciflcally in what respect tation differs sometimes. from the legisla- 
 
 the ways, works, &c., are insufficient or de- tive conception of a measure, the following 
 
 fcctive : Waterson v. Mnrray, 21 So. L. K. quotation from the limee' report of the 
 
 695. In America it has been decided in the aiscussion in the House of Commons' Coip- 
 
 Conrt of Appeals of NewYork that where mittec on the Employers' Liability Bill 
 
 injury has happened, the mere fact that a may be noted : — " Lord B. Churchill asked 
 
 machine ianotofthenewest,andthatanew whether a farmer would be liable if his 
 
 one could have been obtained free from dan- servant were injured while riding a horse 
 
 ger, does not enable the servant to recover : which, to the knowledge of the owner, was 
 
 Sweeney v. Berlin, &c., Envelope Com- aJBicted with nervous disease, or disease in 
 
 pany, loi N. Y. 520. In Pennsylvania the foot. The Solicitor-General (Sir F. 
 
PART in.] THE EMPLOYERS' LIABILITY ACT, 1880. 421 
 
 evidence of negligence of tlie employer, or some person in his 
 service entrusted with the duty of seeing that the machine is in 
 proper condition." 
 
 The basis of Lord Esher, M.E.,'s argument is derived from Lord Ester, 
 the analogy of the law of locomotive engines,' but there must JJ^j^ered."^ 
 be a not inconsiderable diiference between the principle on which 
 a man is answerable for interfering with another's property, and 
 that on which he is answerable for another's deaUngs with one's 
 own property ; indeed, it seems easier to find points of difference 
 than points of resemblance between the two." 
 
 The effect of adopting the principle contended for by Lord 
 Esher, M.E., would, using an illustration given by Lopes, L.J.,° 
 involve the consequence that giving a workman " an ordinary 
 sharp knife" with which Ije managed to cut himself would 
 import liability. But apart from the argument by reductio ad 
 ahsurdum, the Act, as we have seen,'' requires negligence either 
 of the employer or of a supervisor in his employment. In the 
 opinion of Lord Esher, M.R., the using a dangerous machine is 
 convertible with negligence, and the question of negligence is for 
 the jury. This, however, is clearly not the common law. By 
 that, all that the master is bound to do is to provide machinery fit 
 and proper fco- the work, and to take care to have it superintended 
 by himself or by his workmen in a fit and proper manner .' At 
 
 HerscLell) said the employer in tbat case is he hound to ohtain all the so-called 
 
 would not he liable, as the disease would improvement in machinery for the use of 
 
 not have arisen from his neglect" those in his employ ; (3) If machinery is 
 
 ' Apparently referring to Jones v. Fes- wanting in some appliance at the time of 
 
 tiniog Bailway Company, L. B. 3 Q. B. its construction, it would not be necessary 
 
 733 ; Powell V. Fall, 5 Q. B. D. 597. If to shew further notice or knowledge on 
 
 so, "the true test" was not "whether the defendant's part ; (4) But if, though at 
 
 a carefal man would have seen that it was one time possessing all reasonable appli- 
 
 an engine which would emit sparks," for ances, they b&d been removed by accident 
 
 the cases were decided on the well-worn or otherwise, then it should be shewn that 
 
 rule Iflid down in Fletcher v. Kylands : see defendant either had notice thereof, or 
 
 per Blackburn, J., L. K. 3 Q. B. 736 ; per ought to have had by the use of ordinary 
 
 Mellor, J. , 5 Q. B. D. 600. As to the care, before workmen could claim liability 
 
 ground of decision of the other cases, Eex on account of such defect ; (5) When once 
 
 V. Pease, and Vaughan v. Taff Vale Bail- this knowledge is shewn, or negligence in 
 
 way Company, see, per the Jjord Chan- not obtaining it, to discharge the employer 
 
 cellor. Hammersmith Railway Company v. knowledge of the workman must be shewn, 
 
 Brand, L. K. 4 H. of L. at p. 201. and that the service was commenced or 
 
 ^ In Greenleaf v. Illinois Central Bail- continued with such knowledge, 
 road Company (1870), 29 Iowa 14, there ' At p. 379. 
 is a valuable judgment, following a most * Section 2, sub-section i. 
 exhaustive argument, on the duty of an ^ Per Lord Wcnsleydale, Wecma v. 
 emplojerwithregard to defects. Amongst Mathieson, 4 Maoquecn 215; Uvington 
 others, the following propositions are v. M'Vicar, 2 M. 106 ; Maofarlane 
 laid down : — (i) The employer must v. Thompson, 12 R. 202 ; Mulligan v, 
 use all reasonable precautions for the M'Alpine, 25 Sc. L, R. 589. In How- 
 safety of his work-people, and is bound to son v. Barrett, 4 Times L. R. 449, the 
 furnish suitable machinery, materials safe Lord' Chancellor propounded the question 
 and jonnd, and to keep them in such a whether machinery which had been safely 
 condition as would not endanger their used for three years could be called defect- 
 safety ; (2) The employer is not bound to ive. The point, however, was not decided, 
 use extraordinary care and diligence, nor the case turning on the facta, though an 
 
42g 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 M'Giffia r. 
 Palmer's 
 Shipbuilding 
 Company. 
 
 Mitchell V. 
 Coats Iron 
 and ^teel 
 Company. 
 
 common law, then, the matter for the consideration of the jmy 
 would not be whether the machine was dangerous, and therefore 
 defective, but whether the machinery, even if dangerous, was 
 " fit and proper for the work" and. was properly superintended. 
 Defective is not inclusive of dangerous at common law.' What 
 ground, then, exists for putting a different meaning on the term 
 under the Act? for nowhere is there any difierent meaning given 
 to it by the Act, and nowhere in the Act is the word ever used 
 but in a sense rigidly consistent with its accustomed usage. 
 
 In M'Giffin v. Palmer's Shipbuilding Company ''the question 
 was considered whether the Act drew any distinction between a 
 " defect " merely and a " defect in the condition " of the ways, &c. 
 A workman was employed in the defendants' iron-works, whose 
 duty it was to take puddled iron, while still at a white heat, upon a, 
 two-wheeled car, drawn by hand, along a roadway of iron platep 
 to a steam hammer. While so engaged the car struck against 
 a piece of substance, used for lining the furnaces, which had got 
 upon the roadway, and some of the iron fell upon the workman, 
 who was killed. The Court (Field and Stephen, J J.) held that 
 there- was not a defect in the condition of the way. " A defect," 
 said Stephen, J., " in the machinery would be the absence of 
 some part of the machinery, or a crack, or anything of that kind. 
 A defect in the condition of the way, or works, or machinery, or 
 plant is certainly wider, but I do not think it is very much 
 wider; It means, I should be inclined to say, such a state of 
 things that the power and quality of the subject to which the 
 word ' condition ' is applied are for the time being altered in 
 such a manner as to interfere with their use. For instemoe, if 
 the way is made to be muddy by water, or if it is made slippery 
 by ice, in either of these cases I should say that the way itself is 
 not defective, but the condition of the way by reason of the 
 water which is incorporated with it, or from its being in a 
 freezing state, is affected." Or, as Field, J., said with regard to 
 the same illustration : " That would be a defect in the condition 
 of the way, because the way is the thing which people walk upon, 
 and the thing itself is actually altered." The Scotch case of 
 Mitchell V. Coats Iron and Steel Company,' in which M'Giffin's 
 
 absolute obligation to have the best 
 machinery was negatived. 
 
 1 Lord Esher, M.R., seems to have 
 applied the rule, prevailing in the case of 
 young children engaged on dangerous 
 machinery, generally : Grizzle v. 'Frost, 
 3 F. & F. 622 ; Coombs v. New Bedford 
 Cordage Company, 102 Mass. 572. If 
 dangerous machinery at common lawwere 
 considered defective, there would then be 
 
 a duty to fence apart from statute, which 
 there is not : Britton v. Great Western 
 Cotton Company, L. R. 7 Ex., per 
 Brett, J., on the first count, at p. 137; 
 Bobertaon v. Adamson, 24 D. 1231. 
 
 2 10 Q. B. D. 5; 52 L. J. g. B. 25; 
 47 L. T. 346 ; 31 W. K. 118. Compare 
 Thomas v. Qnartermaine, 17 Q. B. D. at 
 p. 417, per Wills, J. 
 
 ' 23 So. L. B. 108. 
 
PART III.] THE EMPLOYERS' LIABILITY ACT, 1880. 423 
 
 case was cited, seems to lean to a different view from tliat taken 
 in tlie English case, as the employer was held liable for an injury- 
 arising by a bar of iron projecting over the way where the injured 
 man was. The Lord Justice Clerk, however, said : " We have had 
 difficulty and some difference of opinion in arriving at a decision 
 in the present case. But on the whole matter we are not inclined 
 to distm'b the judgment of the sheriff." So that in any view the 
 decision is not a strong one. The subsequent case of M'Quade v. M'Quado v. 
 Dixon' still leaves the point open, for there it is merely decided 
 that when an obstruction is taken off and put by the side of a 
 way, and there causes injury, the employer is not liable.' The 
 head-note is much too wide for the actual decision, and more 
 than supports the English decision. The distinction between the 
 two cases must be noted to be that, in the case where liability 
 was held to exist, the obstruction was on the way ; in the other 
 case only 6y the side of it ; ^ and it is probable that the tendency 
 would be to follow the earlier case."* 
 
 In England, however, M'Giffin's case was followed by Pegram Pegram «. 
 V. Dixon,^ and it must be taken that the defect in the condition of 
 any of the specified particulars must be of a permanent or quasi- 
 permanent nature. This, of course, would not exclude liability 
 on some other ground — as, for example, for " negligence of any 
 person in the service of the employer who has superintendence 
 entrusted to him." " 
 
 But, besides, the defect must be in the condition of ways, &c., 
 " connected with or used in the business of the employer." This 
 was pointed out in Howe v. Finch,' where it was sought to 
 recover for injury caused by the fall of a wall forming part of the 
 defendant's works, which wall at the time of the accident had 
 not been completed, and had never been used, though it was 
 intended to be used for the business. But the Divisional Court 
 held the plaintiff disentitled to recover. " Ways," says Smith, J., " Ways." 
 " means the ways used in the business, not partly made ways not 
 used. If that is to be so as to ' ways,' it is so as to works. I " Works." 
 do not agree that if a whole structure fell or caused damage to a 
 workman he would not have a right of action, for I think that 
 he would. But here it was partly finished. I think 'ways, 
 
 ' 24 Sc. L. E. 727. •* Spens and Younger's Law of Em- 
 
 ^ See per Lord Young. ployer and Employed, p. 200. 
 
 ' In the Englisli case of Wood v. Donall, ° 55 L. J. Q. B. 447, the case of a boy 
 
 2 Times L. IJ. 550, the injury was caused throwing a board down an opening through 
 
 bythe absence of a rail to a staircase, which which workmen ascended to the upper por- 
 
 left an opening through which the plaintiff tion of a building, the opening having been 
 
 fell ; this was held to be a defect in the previously used for the purpose, 
 
 condition of the way, and rightly, since the " Conway v. Clemence, 2 Times L. E. 
 
 sides are as much part of the wav as the 80 ; Ayres v. Bull, 5 Times L. E. 202. 
 
 ground. " ' 17 Q. B. D. 187 ; 34 W. E. 593. 
 
424 THE LAW OF NEGLIGENCE. [book i. 
 
 works, &c.,' mean the existing and completed works.'" This 
 decision is, of course, directed only to an action brought under 
 the Employers' Liability Act, and extends to the case of 
 machinery, &c., brought into a place for the purpose of being 
 used, but not fixed for use. At common law, however, there 
 would be a liability, either arising from want of ordinary ' and 
 reasonable care or from injuries caused by patent defects. But 
 this would not extend to a case where danger had existed, but 
 where the master had been certified that the dangerous element 
 was removed before the accident by some competent man retained 
 by him for the purpose of investigating and seeing to a remedy, 
 and where the danger was not apparent,^ nor to the case where 
 the very nature of the work manifestly involved considerable risk, 
 as in securing a tottering wall, and the accident happened in the 
 circumstances connoting the risk.' 
 
 Where a heavy machine had to be moved over a portion of 
 premises where there was an uneven depression which was filled 
 in with slips of wood covered by a thin covering of iron, and in 
 the progress of the moving the slips of wood gave way, and an 
 accident resulted, the Second Division of the Scotch Court of 
 Session held that there was a defect in the condition of a way.* 
 And in a somewhat similar case, where the plaintiff came out of 
 a mill-yard where she was engaged, and was obliged to pass over 
 a hole in the ground where a weighing machine was being set 
 up, and over which certain planks were placed, one of which, 
 being loose, tipped up as she was walking on it, and caused her 
 injury, the Court of Appeal held that "the place was a ' way' ^ 
 within the meaning of the sub- section, and the way was defective, 
 and defective owing to the negligence of the defendants, and the 
 defendants were liable."* 
 
 The cases on defects in the condition of machinery have 
 already incidentally been treated. 
 Maohme. j^ machine has been defined to include "every mechanical 
 
 device or combination of mechanical powers and devices to 
 perform some function and produce a certain effect or result,"" 
 and it is defective in its condition if it is not in a proper 
 condition for the purpose for which it was applied.' This is well 
 
 1 See Conway v, Clemence, 2 Times horse that he knew to he vicious, was dis- 
 
 L. E. 80. entitled to recover for injuries received 
 
 " Compare Kiddle «. Lovett, 16 Q. B. D. from it ; and Mulligan v. M'AIpine, 25 
 
 605 ; 34 W. E. 518 ; Kettlewell v. Pater- So. L. E. 589. Also Elliott v. Tempest, 
 
 son, 24 Sc. L. E. 95. 5 Times L. R. 154 j Moore v. Gimson, 
 
 ' Seeper Day, J., inGrifBths «.London 5 Times L. E. 177. 
 
 and St. Katharine Docks Company, 12 * Bowie «. Eankin, 23 Sc. L. E. 706. 
 
 Q. B. D. 493 i Ogden v. Eummens, 3 ' Bromley v. Cavendish Spinning Com- 
 
 1''. & F. 751. Also the Scotch cases, pany, 2 Times L. E. 881. 
 
 Fraser V. Hood, 25 Sc. L. E. 164, where a " Coming v. Burden, IS How. 267. 
 
 stableman,^who undertook the care of a ' Paley v. Gamett, 16 Q. B. D. $2 ; 
 
PART in.] THE EMPLOYERS' LIABILITY ACT, 1880. 425 
 
 illustrated by the Scotch case of Johnson v. Mitchell/ which was Johnson v. 
 an action to recover damages for injui-ies sustained by crushing ''" " " 
 a hand while shutting a sliding door on the occasion of an alarm 
 of fire, it being proved that the door was constructed for the 
 purpose of preventing fire communication from one room to 
 another, but that, when hastily closed, it would run on till brought 
 up by the handle. The Court held the plaintiff entitled to re- 
 cover, on the ground that though the door, if shut quietly and 
 deliberately, could hurt no one, and if the man had looked to 
 see how the door shut there would have been no chance of 
 danger, yet, as the door was intended to be used on the occasion 
 of a sudden fire, when people act very hurriedly, its construction 
 was not suitable for the purpose for which it was to be applied.- 
 
 In Bacon v. Dawes" it waa argued that there was a difference Distinction 
 between a defect in the condition of a machine and a defective i.^'hrcondi-'"' 
 result from working it caused by the negligence of the man in tion of a 
 charge of it. This may well be. But in the case in question defective 
 the evidence pointed to a defect in the machine itself, and was working, 
 held to be included in the Act. The jury had found that the 
 injury was caused by defective pressure in the machine, and this 
 was held to warrant a verdict for the plaintiff. 
 
 The question of what is plant within the Act is of somewhat Plant, 
 more difficulty. Lindley, L.J., in Yarmouth v. France,' says : " In 
 its ordinary sense it includes whatever apparatus is used by a 
 business man for carrying on his business — ^not his stock-in- 
 trade which he buys or makes for sale — but all goods and 
 chattels, fixed or movable, live or dead, which he keeps for per- 
 manent employment in his business."* The question arose in 
 that case whether a horse was plant within the sub-section. On 
 that the Lord Justice observed: "The word 'defect' and the 
 words ' way and machinery,' which occur in the section, throw 
 some doubt on whether plant can include horses ; but I do not 
 think the doubt sufficient to require the Court to hold that plant 
 cannot include horses, or to hold that plant must be confined to 
 inanimate chattels. The defendant in this case has a number of 
 horses for use in his business ; they were part of his plant, not 
 only in the ordinary sense of the word, but also, in my opinion, 
 in the sense in which the word is used in section i , sub-section i , 
 
 34 W. E. 295. Compare Walsh «. ^ 22 So. L. E. 6g8. 
 
 Whiteley, 21 Q. B. D. 371 ; S7 L. J. Q. B. ^ 3 ximos L. R. 557. 
 
 S86 ; 36 W. E. 876 ; Baxter v. Wyiaan, ■> 19 Q. B. D. at p. 658 ; 57 L. J. Q. B. 
 
 4 Times L. E. 255. Where the evidence 7 ; 36 W. K. 281. Plant must be the 
 
 shewed that a machine was the one in defendant's : Perry v. Brass, 5 Times 
 
 general uae it was held, that its partionlar L. E. 253. 
 
 construction was not a defect : Claoton v. * Blake v. Shaw, .Tohna, 73a, 
 
 Mowlem, 4 Times L. E. 756. 
 
426 
 
 THE LAW OF NEGLIGENCE, 
 
 [book I. 
 
 Haston v. 
 Edinburgh 
 Street Tram- 
 
 o£ the Employers' Liability Act," and the horse, being vicious, 
 was held to be defective plant, on the ground that whatever 
 renders plant unfit for the use for which it was intended, when 
 used in a reasonable way and with reasonable care, is a " defect " 
 in the condition within the Act. Lord Bsher, M.R., was of the 
 same opinion, only more emphatic in his expression of it.' 
 Lopes, L.J., expressed no opinion on the point. 
 
 In the Scotch case of Haston v. Edinburgh Street Tramway 
 Company ' the sheriff held that the word " plant " includes 
 way Company, animals used for the purpose of a busiaess ; but when the case 
 came before the Second Division of the Court of Session there 
 appears to have been no argument on the point, and Lord Young 
 in his judgment takes it as indisputable that horses are plant 
 within the Act, and that permitting a horse unfit to be used to 
 continue at work is conduct that makes an employer liable for a 
 defect in the condition of his plant." 
 
 But, lastly, the injury must be " caused " by the defect ; for 
 it is not enough that a defect exists in some particular, and that 
 injury from the works, ways, &c., occurs subsequently to the 
 existence of the defect. There is further required the relation of 
 cause and effect in natural and ordinary sequence before a liability 
 on the part of the master can be established.'' 
 
 In connection with what we have been considering must be 
 taken sub-section 3 of section 2, which provides that the work- 
 man shall not be entitled to recover where he knew of the 
 defect' or negligence (for the sub-section is of general application 
 and is to be read into all the provisions of the Act) which caused 
 the injury, and did not within a reasonable time' give, or cause 
 to be given, information, either to the employer or to some 
 person superior to himself in the service of the employer, unless 
 
 Injury 
 ".cause 
 the defect, 
 
 'caused" by 
 
 Knowledge. 
 
 1 Per Lord Esher, M.E.: The defendant 
 " must use horses and carts or waggons. 
 They are all necessary for the carrying on 
 of the business. It cannot be contended 
 that the carts and waggons are not ' plant.' 
 Can it be said that the horses, without 
 which the carts and waggons would be use- 
 less, arc not?" This method of reasoning 
 might he yet further extended ; e.g., can 
 it he said that drivers, without which 
 horses and carts and waggons would be 
 worse than useless— positively injurious — 
 are not ? 
 
 " 24 Sc. L. B. 435. 
 
 ' The subject was much discussed dur- 
 ing the passage of the Bill through the 
 House of Commons, and an amendment 
 was unsuccessfully proposed on the Beport 
 to exclude horses from the definition of 
 plant. 
 
 * Martin v. Connah's Quay Company, 
 33 W. E.. 216. 
 
 ^ In Britton v. Great Western Cotton 
 Company, L. E. 7 Ex. 130, it was said 
 that mere knowledge of a defect does not 
 bar the servant's 5aim. There must bo 
 knowledge of the danger conseq^uent on tbe 
 defect. 
 
 ° "BeasonaUe time" is a matter 
 dependent upon the particular facts, and 
 variable according to circumstances: 
 Washburn Company v. Patterson, 29 
 Cb. D. 49. See per Lord Coleridge, C.J., 
 Slattery v. Dublin, &c., Bail way, 3 App. 
 Cas. at p. 1197. 
 
 ' There does not seem ever to have 
 been any question raised as to who is a 
 " person superior to himself in the service 
 of the employer." 
 
PART III.] THE . EMPLOYEES' LIABILITY ACT, 1880. j 427 
 
 lie was aware that the employer or such superior already knew of 
 the defect or negligence. 
 
 This has been described by Smith, J.,* as a " statutory de- statutory 
 fence," " which theretofore did not exist." Its effect seems to be ^^^^°°' 
 twofold : — First, the workman who knows of a defect or negli- 
 gence has a reasonable time in which to communicate it to the 
 master or his representative under the section. If, before the 
 "reasonable time" is elapsed, an injury happens, the workman 
 has his right of action unaffected. If the " reasonable time" is 
 elapsed, and no notice is given, then the presumption that the 
 workman takes the risk would be raised. This is probably no 
 more than the expression of the workman's right at common 
 law, on the assumption that the defect is not plain and 
 patent at the time whea he enters the servic"6.^ But, 
 secondly, where the workman knows that the employer or the 
 superior has already knowledge of the defect or negligence, he is 
 not bound to renew information of it. At common law in this 
 case his acquiescence will go to shew an acceptance of the risk, 
 unless he have, whether explicitly or implicitly, the master's 
 assurance that the defect shall be remedied.' 
 
 ' Contributory negligence is not affected by this section,'' which Contributory 
 must be construed to limit an employer's liability, not to extend 
 it.* Consequently, it does not designate an exclusive case in 
 which the rule, as expressed by the maxim, Volenti non fit 
 injuria, comes in ; but it rather appears to specify certain re- 
 quisites — viz., failure to communicate defects or negligence to 
 the master, the proof of. which will exonerate him, even though 
 at common law in the case of a statutory obligation proof of the 
 same would not be sufficient. 
 
 But, secondly, the workman is to be in the same position as a ii. Negligence 
 hcensee^ where he is injured by reason of the negligence of any his superin- 
 person in the service of the employer who has any superintendence ^^^^^^^^ 
 entrusted to him whilst in the exercise of such superintendence, him. 
 The definition clause' limits those having superintendence, which 
 enables them to charge the master, to persons whose sole or prin- 
 cipal duty is that of superintendence, and who are not ordinarily 
 engaged in manual labour."' 
 
 ' Weblin «. Ballard, 17 Q. B. D. at L.J., at p. 703; Ayres v. Bull, 5 Times 
 
 p. 125 ; 55 L. J- Q- B. 39S ; 54 L. T. L. K. 202. 
 532 ; 34 W. E. 4SS. " See p. 419. 
 
 ' Eureka Company V. Bass, 60 Am. E. ^ Section 1, sub-section 2. The provi- 
 
 152- sicn in the Bill of 1888 is practically 
 
 ^ Holmes v. Wortbington, 3 F. & F. identical, though more clearly expressed. 
 335- * Section 8. By the definition clause 
 
 . * Stuart V. Evans, 31 W. E. 706. in the Bill of 1888, superintendence is ex- 
 
 ° Thomas v. Quartermaine, per Bowen' plained to mean ." snob general superin- 
 
 L.J., 18 Q. B. D. at p. 693 5 per Fry, tendence over workmen as is esercised by 
 
428 THE LAW OF NEGLIGENCE. [book i. 
 
 The words of the sub-section do not confine the superintendence 
 to the particular work in which the workman injured is engaged, 
 but rather extends the employer's liability to the negligence of 
 any person in his service entrusted with superintendence, and 
 through which negligence the accident happens. That this at 
 least is the view of Denman, J., appears from the report of a case, 
 Unreported Kearney V. Nicholls,' tried before him on the Northern Circuit, 
 ^NiohoU™^ where the negligence was that of the clerk of works engaged in 
 superintending structural alterations in the premises where the 
 plaintiff's intestate was working, which alterations were not con- 
 nected with the business of the employer. Denman, J., held the 
 employer liable ; and apparently rightly so, since the sub-section 
 distinctly provides for the negligence of any person in any super- 
 intendence in the service of the employer, and is not limited, 
 like the preceding sub-section, to negligence " connected with " 
 the business of the employer.'' But the negligence must be both 
 that of a person whose principal duty is superintendence, and 
 must be negligence while in the exercise of the suiDerintendence. 
 Thus, as to the first requisite, in Kellard u Eooke^ the injury 
 was caused by the foreman of a gang of labourers, who was 
 working with them, not giving sufficient warning of the coming 
 of a bale of goods which the gang was engaged in packing, so 
 that the plaintiff was injured. The plaintiff was held disentitled 
 to recover, because a ganger, the foreman of a gang of labourers, 
 who is working with his hands all the day, is not ordinarily 
 engaged in manual labour, and so not within the Act. In this 
 Wright ». case the earlier case of Wright ■y. Wallis* was mentioned, where 
 
 Wallis 
 
 the Court of Appeal, apparently sitting as a Divisional Court, set 
 aside a nonsuit by the county court judge where a plaintiff was 
 injured by iron thrown into a barge by a person, according to 
 the evidence of the plaintiff, "at work on the stage, and giving 
 all orders at the time of the accident." Prom the report it would 
 have seemed that the Court set aside the nonsuit without reference 
 to the fact whether the person giving the order was ordinarily 
 engaged in manual labour or not ; and possibly because the injury 
 was by reason of the act of a person to whose orders the workman 
 at the time of the injury was bound to conform and did conform, 
 and in consequence of which conformity the accident happened, 
 since Lord Esher, M.E., said : " An argument addressed to the 
 Court was that if you ordered a man to stand in a certain place, 
 
 a foreman, or person in a like position to ^ Howe v. Finch, 17 Q. B. D. 187 ; 34 
 
 a foreman, whether the person exercising W. K. 593. 
 
 superintendence is or is not ordinarily en- '^ 19 Q. B. D. 585 ; (C. A.) 21 Q. B. D. 
 
 gaged in manual labour." 367 ; S7 L. J. Q. B. 599 ; 36 W. K. 875. 
 
 1 (1883) 76 L. T. newspaper, p. 63. * 3 Times L. B. 779. 
 
PART in.] THE EMPLOYERS' LIABILITY ACT, 1880. 429 
 
 and then threw something at him and injured him, the injury was 
 not caused by the conforming to the order, but solely by the 
 subsequent act ;" but Lindley, L.J., in Kellard ■;;. Eooke' explains 
 the decision to have been that there was no sufficient evidence to 
 shew what was the real position of the person whose negligence 
 caused the injury, and the Court had not the materials to decide 
 it, and sent the case down for further investigations. 
 
 As to the second point, Shaffers v. General Steam Navigation Shaffers ■». 
 Company^ may be referred to. The plaintiff was employed with Navigation^"'" 
 other workmen in loading corn on board a ship, and, at the time of Company, 
 the accident, was in the hold stowing away the sacks as they were 
 lowered by means of a steam crane. In order to control the 
 motions of the crane there was a "guy-rope" fastened to it, 
 which was in charge of a maai whose duty it was to stand by the 
 hatchway and to warn the men working below to stand from 
 under, to guide the beam of the crane by means of the guy-rope, 
 and to tell the man who was actually working the crane when to 
 lower and when to hoist. In consequence of the negligence of 
 this man, who neglected to check the movements of the crane by 
 — means of the guy-rope, an accident happened, and the plaintiff 
 was injured. The Court was of opinion that, assuming the man 
 whose negligence caused the accident to have been in superin- 
 tendence, the accident did not occur whilst he was in the exercise 
 of it. The accident arose from his negligence in the capacity of 
 a workman, and not in the capacity of superintendent. How- 
 ever, in the Scotch case of Sweeney v. M'Gilvray' the distinction Sweeney ». 
 between negligence in superintendence and negligence in manual 
 labour does not seem to have commended itself to the judges, 
 since, though urged in argument, it is not alluded to in the 
 judgment, while Shaffers's case does not seem to have been cited 
 to them ; and the decision goes to establish that in Scotland no 
 distinction will be drawn between negligent superintendence and 
 neghgence of a superintendent. 
 
 Osborne v. Jackson and Todd" has also been instanced as un- Osbome v. 
 favourable to the distinction.' There the defendants' f oreman t^q"]! _°" """^ 
 handed a scaffold plank to a labourer, and called to him to take it, 
 but, though he attempted to do so, it proved too heavy for him 
 to hold, so that the plank slipped and knocked down a shoring, 
 which fell upon the plaintiff, who brought his action for the 
 injury. The Court here held that the foreman was in the exer- 
 
 1 21 Q. B. D. 367 ; 57 L. J. Q. B. 599 ; ' 24 Sc. L. E. 91. 
 
 36 W. E. 875. * n Q. B. D. 619 ; 48 L. T. 642. 
 
 ' 10 Q. B. D. 356 ; 52 L. J. Q. B. 260 ; ^ Spens and younger, Law of Em- 
 
 48 L. T. 228 ; 31 W. B. 656; Harris v. ployer and Employed, 226. 
 Tinn, 5 Times L. E, 221, 
 
from Shaffer's 
 
 430 THE LAW OP NEGLIGENCE. [book i. 
 
 oise of superintendence, and the order to take the plank, which 
 it was impossible to do safely, was an order in the exercise of 
 superintendence, for the results of which the defendants were 
 liable, and not mere manual negligence, for which they would 
 
 Distinguished not be liable. The facts appear sufficiently to discriminate the case 
 from Shaffers's case, since the injury was a direct consequence of 
 an improvident order — ^viz., an inability to execute it ; while in 
 ShaflFers's case the negligence was the result of no order, but of 
 mere want of attention on the part of a manual labourer in his 
 sphere of work. It is not negligence for a person in superin- 
 tendence merely to give an order for the execution of dangerous 
 work where the nature of the work is obvious, though injury 
 happens in the course of doing what is enjoined;' nor is the 
 employer liable where an injury occurs through an accident arising 
 from the unsafeness of premises when the person in charge of the 
 work has consulted an expert, and been advised by him that they 
 are safe — that is, where the actual condition is not self-evident — 
 before ordering his workman to work upon them, but, through the 
 fault of the expert, they are not in fact safe as they were re- 
 presented;' nor yet where in carrying out an order an injury is 
 inflicted on a workman by a " pure accident."' 
 
 Oook V. staclE. The Scotch case of Cook v. Stack," decided under this Act, 
 seems to go rather too far. There it was held by the Second 
 Division of the Court of Session that, though the manager of a 
 work may delegate to others the ordinary operations in use in the 
 work, yet it is his duty to give his personal superintendence to 
 an operation which is dangerous and unprecedented, and that his 
 failure to do so will, in the event of an accident, amount to such 
 culpa as will render his master liable in damages under the Act. 
 The learned lords who held this seem to have overlooked the con- 
 sideration pointed out by Lord Cairns, C, in Wilson ■;;. Merry*: 
 " The result of an obligation on the master personally to execute 
 the work connected with his business in place of being beneficial 
 might be disastrous to his servants, for the master might be 
 incompetent personally to perform the work." In the case in 
 point this view would appear to have special force, since it would 
 not improbably be disastrous for a general manager personally to 
 have the superintendence of blasting operations, which might 
 much more efficiently be entrusted to an ordinary engineer, not 
 to say to an eminent engineer. The case is, however, in accord 
 with the great bulk of American authority. 
 
 1 Booker v. Higgs, 3 Times L. R. 618. ' Harris v. Tinn, S T; L. R. 221. 
 
 ^ Moore v. Gimson, S Times L. K. 177 ; ^ 24 So. L. E. 5. 
 
 Kottlewell v. PatersoD, 24 So. L. K. 95. ^ 2 L. E. So, App. 326, at p. 332, 
 
PARTin.] THE EMPLOYEES' LIABILITY ACT, 1880. 431 
 
 Thirdly, the workman is to be in the same position as a licensee' iii. Where 
 where he is injured by reason of the negligence of any person in i^LluredT" 
 the service of the employer to whose orders or directions the "^"aaou of the 
 woi'kman at the time of the injury was bound to conform, and did some one to° 
 conform, ai^d where the injury resulted from his having so con- he'^^l^s boS 
 formed.' t" conform. 
 
 The scope of this section is indicated in a judgment of Lord 
 Oraighill's in the Scotch case of Dolan v. Anderson.^ He says : "I Doian ». 
 see in. the terms of the enactment no foundation for any distinc- ■^°'^®™°'^' 
 tion of classes upon this subject. The question is not whether the 
 person who gave the orders or directions occupied a high or a 
 humble position in the works. It is simply whether, whatever was 
 his position, he was one to whose orders or directions at the time 
 of the accident the workman injured was bound to conform. If 
 he was, the words of the statute are satisfied, and a limitation of 
 their operation for the purpose of restricting the benefit the statute 
 was intended to confer would be, not an interpretation of the words 
 of the clause, but a capricious interference with its application." 
 To the same efEect is Lord Young in M'Manus v. Hay'': " The lord Young 
 expression in the statute, ' to whose orders or directions the work- Hay. 
 man at the time of the injury was bound to conform,' means 
 that the relative position of the parties was such that the one 
 owed obedience to the other, and that the order was such that 
 it could not be declined without contumacy." 
 
 In Bunker v. Midland EaUway Company* the Court laid con- Bunker ». 
 siderable stress on the provision that the injured person not,vayCompauy. 
 only does conform to orders, but is lound so to do. The plaintifi 
 in that case was van guard in the defendants' service, and was 
 under the age of fifteen. There was a rule of the company 
 known to the plaintiff that no van guard under the age of fifteen 
 was to drive a van. The defendants' foreman promised plaintiff 
 extra money to drive a van ; the plaintiff consented, and whilst 
 so engaged was injured. The Queen's Bench Division, however, 
 held that he had no right of action, since he was not bound to 
 obey the order given to him. But, assuming the plaintiff is bound 
 to obey an order, there is no need for the order to be in express 
 words ; but it will be for the jury to say whether the order was 
 to be implied from the circumstances.' 
 
 The facts in Millward v. Midland Eailway Company' shewed Miiiward v. 
 that plaintiff, a boy, was engaged under a carman in unloading way Company. 
 
 ^ Ante, p. 419, note 4. 361 ; and the American case, Union Pacific 
 
 " Section i, sub-section 3 ; the provi- Bailroad Company v. Fort, 17 Wall. 553. 
 
 sions in the Bill of 1888 are identical. " Millward v. Midland Eailway Com- 
 
 ^ 12 E. 804. ^ 9 E. 425. pany, 14 Q. B. D. 68, per Day, J., at-p. 70. 
 
 = 47 L. T. N. S. 476 ; 31 W. B. 231, ' 14 Q. B. D. 68 ; 54 L. J. Q. B. 202 ; 
 
 Compare Murphy v. Smith, 19 C, B, N. S. 52 L. T. 255 ; 33 W. E. 366. 
 
432 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Sweeney v. 
 Sl'Gilvray. 
 
 M'Manns v. 
 Hay. 
 
 Martin v. 
 Connah's 
 ^uay Alkali 
 Company, 
 
 three frames from a van. The method that ought to have been 
 adopted was that of untying the three frames, then tying two of 
 them up again, and removing the third. The method that was 
 adopted was to untie the three frames and then to remove the 
 first, without waiting to see the two remaining frames secure. 
 The boy, without express orders, assisted in this operation and 
 was injured. lu the opinion of the Court there was evidence 
 that he had conformed to the carman's orders, which, though not 
 expressly given, were implied from the course adopted in co- 
 operating with the carman. 
 
 To this sub-section may more appropriately be referred the 
 case of Sweeney v. M'Gilvray,' before alluded to. There evidence 
 was given that if the workmen had refused to do what was 
 required of them they would have been told to " look for another 
 job," and this, in the opinion of the majority of the Court, seemed 
 to conclude the case, though, as has before been noticed, there 
 was the point that the injury did not result from conformity to 
 an order which in itself was reasonable and which could be 
 safely carried out, but through negligent co-operation in the 
 -execution of an order not negligent. In M'Manus v. Hay^ the 
 sheriff was of opinion that if the order is a proper one, then 
 subsequent negligence is not actionable merely because it occurs 
 in the carrying of it out. But that view has been disputed,' 
 though on grounds sounding somewhat dogmatic : " It seems 
 that that construction is not correct, and that the wording of the 
 sub-section is wide enough to include some injuries resulting 
 from obedience to an order not itself negligent, where the injury 
 has been caused by the negligence- of the person who gave the 
 order." To this it may be replied, that the liability of the master 
 in the case in point is dependent on conformity of the workman 
 to orders " where the injury resulted from his having so con- 
 formed." But in law the injury must be the ordinary natural 
 sequence from the neglect which produces it ;" and it would seem 
 in the case under examination the injury must be the natural 
 sequence of conformity. But to produce the injury another cause 
 must be introduced — negligence, of which the injury is the con- 
 sequence ; while the workman's having so conformed is but a 
 condition and not a cause of the injury. 
 
 This argument would appear to derive countenance from Martia 
 V. Connah's Quay Alkali Company.* The plaintiff was engaged upon 
 a defective waggon. The foreman called to him to be quick ; 
 
 1 24 Sc. L. E. 91. 2 g K 42^ 
 
 ^ Eoberts and Wallace, Employers' Liability, p. 276. 
 
 * See Wharton, Law of Negligence, §§ 97 e« scj. » 33 W. R. 216, 
 
PABTni.] THE EMPLOYERS' LIABILITY AOT, 1880. 433 
 
 whereupon, in order to save time, he gave a signal for the engine 
 to which the waggon was attached to move. The effect of this 
 was that, having started the engine, he tripped over loose bricks, 
 lost his footing, and was injured. The Court drew a distinction 
 between " the immediate cause " and the " remote cause " of the 
 accident, and held that the plaintiff could not recover, as the 
 accident was not " caused " by the defect, though it appears that 
 had there been no " defect" there would have been no accident, 
 since the condition of things from which the accident arose would 
 not have existed. 
 
 Both in Scotland' and in England^ it has been held that where Workmen 
 workmen are in the employ of " butty-men," who enter into a S * butty?'°^ 
 contract with the owners of the mine to get coal, and are injured "'™-" 
 by others engaged in the samq, system of work, they are within the 
 provisions of the Act. When, however, two workmen are work- 
 ing together; for example, in cleaning and working a machine, 
 and the one who has charge of the working too hastily starts the 
 machine, so that the other is injured, this is no more than the 
 negligence of a fellow-workman, to which the Act does not 
 apply.' 
 
 Under this sub-section the case of Kettlewell v. Paterson^ was Kettleweii v. 
 also decided. A working glazier, who had been supplied by his, 
 employer with suitable scaffolding for doing the glazier work at 
 a building, was directed by the foreman to make use of another 
 scaffold, which had been erected by persons who had the contract 
 at the same building for joinery work. This scaffold gave way in 
 consequence of the joiner having carelessly constructed it of 
 defective materials, and in consequence the glazier was injured. 
 The scaffold had been erected by a competent workman, and it 
 was not shewn that the defect could have been observed by such 
 examination as the foreman glazier was bound to make. The Court 
 held that there was no negligence, since the foreman of the glazier 
 was warranted in making use of a scaffold erected by a competent 
 tradesman. This same ground would have protected the employer 
 had the negligence alleged been a defect in the condition of ways, 
 works, &c., under the ist section. 
 
 Fourthly, the workman is to be in the same position as a licensee^ IV- Wortmnu 
 
 , 1 ... T 1 i- .1 . • • t injured by act 
 
 where he is injured by reason 01 the act or omission or any or omission 
 person in the service of the employer done or made in obedience "ng under"'' 
 to the mles or bye-laws of the employerj or in obedience to parti- tye-iaws, &c. 
 cular instructions given' by any person delegated with the authority 
 
 ' Morrison v. Baird, 10 B. 280. ' 24 So. L. E. 95. 
 
 ' Brown ». Bntterley Coal Company, 2 ° Ante, p. 419, note 4. 
 
 Times L. E. 159. " In the Bill of 1888 the words " by the 
 
 ' Howard V. Bennett, 5 Times L. E, 1 36. employer or " are inserted. 
 
 EE 
 
434 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Two limita- 
 tions : — 
 i. Where 
 workman not 
 equal means 
 of knowing. 
 
 ii. Where 
 dangers un- 
 necessarily 
 increased. 
 
 of the employer in that behalf , unless the injury results from some 
 impropriety or defect in the rules, bye-laws, or instructions therein 
 mentioned.* But where a rule or bye-law has been approved or 
 accepted as a proper rule or bye-law by one of her Majesty's 
 principal Secretaries of State or by the Board of Trade or any 
 other Department of the Government, under or by virtue of any 
 Act of Parliament, it is not to be deemed for the purposes of the 
 Act to be an improper or defective bye-law.^ 
 
 There does not appear to be any reported decision on the effect 
 of this sub-section.' By the common law where a business is 
 carried on in obedience to rules or bye-laws, such rules and bye- 
 laws are part of the employment, and accidents arising from 
 them would be within the scope of the danger which both of the 
 contracting parties are held to contemplate as incidental to the 
 employment.^ This is subject, of course, to two limitations—- 
 
 First, that where the employer is cognizant of a latent defect 
 of which the workman has not knowledge or not equal means of 
 knowledge, the employer is liable for injury received through the 
 risk;' and 
 
 Second, that the .employer is bound to see that the dangers 
 attendant on the system of working are not unnecessarily in- 
 creased by the absence of due care and reasonable means of 
 prevention.* 
 
 The section seems to work a change in the law by providing 
 that where anything is done under a rule or bye-law regulating 
 an establishment, the natural result of which is to work injury to 
 a workman, the employer is liable. The same applies where, under 
 a rule or bye-law, some act is omitted which would otherwise have 
 been 'done, and injury is caused. In other words, if the working of 
 a rule or bye-law results in injury, inefficiency of the rule or bye-law 
 is to be presumed, and this though at common law the working 
 might be said to be under the conditions imposed by the rule or 
 bye-law. This appears more clearly to be the meaning from a 
 consideration of the proviso that where the rule or bye-law is 
 approved or sanctioned by the Government authorities therein 
 specified, the employer shall not be liable, even though in its work- 
 ing the rule or bye-law shall have brought injury to a workman. 
 
 ' Section 2, sub-section 2. The Bill of 
 1 888 Las the words "where the rule, 
 bye-law, or instructions was or were im- 
 proper or defective " at the end of the 
 nub-aection, and not forming part of an 
 independent sub-section. 
 
 ^ Section 2, sub-section 2. In the Bill 
 of i888 this is an independent sub-section. 
 
 * As to the effect of defective rales at 
 common law, Vose v, Lancashire and 
 
 Yorkshire Eailway Company, 2 H. & N. 
 728 ; 27 L. .1. Ex. 249. 
 
 •• Clarke v. Holmes, 7 H. & N. 944, 
 per Cockburn, C.J. ; 31 L. .1. Ex. 356; 
 10 W. E. 405 ; Weems v. MathiesouJ 4 
 Macqueen2i5. 
 
 ' Bartonshill Coal Company v. EeiJ, 3 
 Macqueeh 266. 
 
 8 Wilh'ams ». Clough, 3 H. & N. 258; 
 27 L. J. Ex. 325. 
 
PART iii.J THE. EMPLOYERS' LIABILITY ACT, 1880. 435 
 
 But the inquiry is suggested, What is the effect of this upon Effect of this 
 the defence involved in the maxim, Vbknti non fit mjm-ia ? The dppUcation 
 decisions* say that that defence remains to the employer. The °f ^''^ ?™*™' 
 
 " ... r J Volenti: nem fit 
 
 Act says that the workman is to be in the position of a licensee mjuria. 
 where the injury occurs through the injurious operation of bye- 
 laws, &c., which form part of the system under which the workman 
 is employed, unless in certain excepted cases. Effect would 
 probably be given to the words of the Act, and to the law as laid 
 down by the decisions, by the consideration that before the Act the 
 fact of working on a system governed by rules would imply a 
 voluntary undertaking of the risks involved in them ; while by 
 the provisions of the sub-section a change is made in the onus ; 
 and on proof that injury has resulted from bye-laws a pre.sumption 
 is raised that the employer is Ifable for their ill operation, which 
 may be rebutted by shewing that their working was known and 
 might have been anticipated by both parties. 
 
 But, again, the rules may have been imposed subsequently to 
 the workman entering the employment. Then, at common law, 
 the rights of the workman can be placed somewhat higher than 
 when he enters upon an employment under conditions prescribed 
 and manifest.^ 
 
 It may well be that the effect of this sub-section is to place 
 a workman, in the particulars enumerated, in the same position 
 under the statute as he would have been in at common law 
 where he went on working after discovering a risk without a 
 full and conscious acceptance of its danger. 
 
 It is pretty obvious that the act or omission must be under 
 the rules or bye-laws, and that an act or an omission not con- 
 templated by the bye-laws cannot be brought under the section. 
 
 Particular instructions seem to mean orders given through a Particular 
 person without authority acting as the mouthpiece of a person with ™^'™'=''°°^- 
 authority. 
 
 A distinction has been taken between definite instructions 
 given by the employer to a person and instructions afterwards 
 to be particularly formulated and delivered by the delegate. It 
 seems useless to canvass the origin of the instructions, since the 
 Act merely requires that they should be particular instructions 
 when promulgated to the workman, as distinguished and apart 
 from rules and bye-laws which are in the nature of gene'ral 
 iastructions, so that, however they emanate, they would seem to 
 affect the employer with liability if they are issued by his authority, 
 are improper or defective, and injury has resulted therefrom. 
 
 ' Thomas v. Quartennaine, 19 Q. B. D. ^ Clarke v. Holmes, 7 H. & N. 937 ; 
 
 ■ 685 ; 56 L. J. Q. B. 340 ; 57 L. T. 537 ; 31 L. J. Ex. 356 ; 10 W. R. 405 ; Holmes 
 35 W. B. 555. V. Worthington, 3 F. & F. 335. 
 
436 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 V, Workman 
 may recover 
 where injured 
 by the negli- 
 gence of any 
 person in the 
 service of the 
 employer who 
 has the charge 
 or control of 
 any signal 
 points, &B., on 
 a railway. 
 
 Doughty v, 
 Fairbank, 
 
 Cox V. Great 
 Western Rail- 
 way Company. 
 
 Scope of the 
 sub-section. 
 
 " Charge or 
 control." 
 
 FiftHy-j the workman is to be in the same position as a licensee 
 where he is injured by reason of the negligence of any person in 
 the service of the employer who has the charge or control of any 
 signal points, locomotive engine, or train upon a railway. 
 
 The definition clause of the Act,' which presently we shall 
 consider more minutely, provides that the expression " workman " 
 means, amongst other things, " a railway servant." The present 
 sub-section appears to have been introduced for their benefit. 
 
 The decisions upon the scope of the section have placed the 
 natural, as distinguished from a technical, meaning on the terms 
 used. Thus, in Doughty v. Fairbank'' it was held that railways 
 used by colliery owners and others upon which trains run are 
 within the section, which is not to be limited in its application to 
 railways used by railway companies, and in Cox v. Great Western 
 Eailway Company^ trucks coupled together in the usual way, 
 though there was no locomotive engine attached to them, but a 
 stationary hydraulic engine and a capstan by which they were 
 moved, were held to constitute a train; while in Murphy v. 
 Wilson'' an attempt to comprehend under the term " locomotive 
 engine " a steam crane so fixed on a trolly that, by means of 
 shifting gear working on the axles of the trolly, the crane and 
 trolly could be moved from one place to another along rails, was 
 unsuccessful. Pollock, B., there said: "The term 'locomotive 
 engine ' has a well-known significance, and is used generally for an 
 engine to draw a train of trucks or cars along a permanent or tem- 
 porary set of rails ; there is also a well-known class of engines, such 
 as traction engines, which, though they are capable of being moved 
 from place to place, are never spoken of as locomotive engines.' 
 .... If the Legislature had intended to include any such 
 machine, they would have used proper terms. I can see no 
 reason why the defendants in this case should be held hable 
 under this section any more than if it were a case of a steam 
 printing engine or a punching machine." 
 
 We have seen that by the interpretation clause " workman " 
 means a railway servant ; so that any person who can bring 
 himself within the meaning of the term would be entitled to 
 recover, not, indeed, for the negligence of any other railway 
 servant, but for the negligence of those classes of railway servants 
 who are specified in the sub-section — that is, those in charge or 
 control of any signal points, locomotive engine, or train upon a 
 railway. 
 
 On the meaning of the governiug words of this sub-section, 
 
 1 Section 8. '' 9 Q. B. D. io6 ; 30 W. B. 816. 
 
 2 10 Q. B. D. 358 ; 52 L. J. Q. B. 480 ; < 52 L. J. Q. B. 524. 
 
 48 L. T. 530, 6 But gee Po^ell v. Fall, 5 Q. B. D. 597. 
 
PART III.] THE EMPLOYERS' LIABILITY ACT, I860. 4S7 
 
 "charge or control/' Gibbs v. Great Western Eailway Company' Gibbs r. Great 
 
 is the authority. The facts shewed that a workman in the signal ^y compaDy. 
 
 department of the defendants' railway had to clean, oil, and 
 
 adjust the points and wires of the locking apparatus at various 
 
 places along a portion of the defendants' line, and that for this 
 
 purpose he was subject to an inspector, who was responsible for 
 
 the points and locking gear, which were moved and worked by 
 
 men in the signal boxes. This workman took the cover off some 
 
 points and locking geax in order to oil them, and negligently left 
 
 it projecting over the metals of the line, and caused injury to a 
 
 fellow-workman. It was sought to render the company liable as 
 
 for the neglect of a person in the service of the employer who has 
 
 the charge or control of points. Both in the Divisional Court and 
 
 in the Court of Appeal the^attempt failed. In the Divisional 
 
 Court, Field, J., discussing the meaning of " charge or control," 
 
 doubted '• whether the words ' charge or control ' are intended to 
 
 mean different things," and Mathew, J., thought that the 
 
 Legislature had in contemplation " the negligence of some person 
 
 having charge or control of the points for the purposes of traflBc 
 
 and of movement." In the Court of Appeal Brett, M.R.," seems 
 
 to draw a distinction between charge and control. His words are : 
 
 "I cannot think that there is any colour for saying he [the 
 
 plaintiff] had the control of the points, and the only question is 
 
 whether he is a person who had the charge of them within the 
 
 meaning of the statute. I think that to be such a person he 
 
 should be one who has the general charge of the points, and not 
 
 one merely who has charge of them at some particular moment." 
 
 And Lord Coleridge, C.J., discussing whether the workman whose 
 
 fault was alleged had charge or control, said : " He certainly had 
 
 to do something from time to time to the machinery connected 
 
 with the points, but he himself said he worked under the direction 
 
 of Saunders [the inspector], and Saunders was called, and he 
 
 proved, I think, that he was the person who had apparently both 
 
 the charge and the control of the points, and that Fisher [the 
 
 workman] was only a workman under him, and was not a person 
 
 who had either the charge or the control of any points connected 
 
 with the railway." 
 
 A good deal of ingenuity has been (extra-judicially) expended is a tamivny 
 to determine whether a tramway is a railway within the section. 
 Originally, doubtless, and in general usage the terms may have 
 been convertible. Now, however, a distinction is drawn,' and 
 the principle that was at the bottom of the decision in Murphy 
 
 ' II Q. B. D. 22, (C. A.) 12 Q 13. D. 20S ; 32 W. R. 329 ; in the Divisional Court 
 48 L. T. 640. 2 12 Q. B, D, 213. " 33 & 34 Vict. c. 78. 
 
438 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 V. Wilson' — that words expressing well-kno^ objects are to be 
 confined in their ordinary usage to the designation of them — 
 would most likely avail in this case also. 
 Compensation. Where the workman establishes his right to compensation under 
 the Act, the amount he may recover is limited to " such sum as may 
 be found to be equivalent to the estimated earnings during the 
 three years preceding the injury of a person in the same grade, 
 employed daring those years in the like employment, and in the 
 district in which the workman is employed at the time of the 
 injury."' 
 
 In Bortiok v. Head' it was decided by a Divisional Court, 
 overruling the county court judge, that the Act did not lay down 
 a measure of damages, but merely imposed a limit beyond which 
 damages should not be recovered ; so that, when a jury estimated 
 a sum for overtime work which the plaintiff had earned for' 
 another employer than the one in whose service the plaintiff was 
 injured, the plaintiff was allowed to recover the sum so assessed. 
 
 In Scotland,^ in the sheriff courts, damages that have been 
 awarded for the death of a man who left a widow and a child or 
 children have been apportioned, the widow being allowed half, 
 " the other half being reserved for the children when they came 
 to sue." But in England the matter appears to be regulated by 
 section 2 of Lord Campbell's Act,'' whereby the damages may be 
 apportioned amongst those entitled " in such shares as the jury by 
 their verdict shall find and direct." Where there is no jury, it 
 has been decided that the Chancery Division has power to ap- 
 portion in such manner as a jury should have done." 
 
 Under jbhe Employers' Liability Act, 1880,' notice that injury 
 has been sustained must be given within six weeks* from the 
 occun-ence of the accident causing the injury, and the action 
 
 Bortick v. 
 Head. 
 
 Overtime 
 earnings. 
 
 Damages 
 awarded. 
 In Scotland. 
 
 Time for 
 giving notice 
 iind bringing 
 action. 
 
 1 52 L. J. Q. B. 524. 
 
 = Section 3. The Bill of 1 888 added "or 
 two hundred pounds, whichever is larger." 
 
 ' 53 L. T. 909 ; 2 Times L. B. 100. 
 
 * Spens and Younger, Law of Em- 
 ployer and Employed, p. 317. Compare 
 Sanderson v. Sanderson, 36 L. T. N. S. 
 847. 
 
 ' 9 & 10 Vict. c. 93 ; amended by 27 & 
 28 Vict. c. 95. This Act does not apply 
 to Scotland. Under Lord Campbell's 
 Act, if the injured workman had no right 
 of action on his death, his representatives 
 had no right to sue. In Scotland the law 
 is different ; there a claim " is sustained 
 at the instance of a wiie for the death of 
 her husband, a husband for the death of 
 his wife, a parent for the death of his 
 child, and a child for the death of his 
 parent, when the death has been caused 
 by delict or culpa; and it is equally true 
 
 that this claim can be maintained altbongh 
 the party raising the action cannot 
 quality any direct pecuniary loss by the 
 death of the relative " : Eisten v. North 
 British Eailv/ay Company, 8 M. 980. , As 
 to the law on this subject see an important 
 Canadian case, St. Lawrence and Ottawa 
 Railway Company v. Lett, 11 Canada 
 Supreme Court Beports 422. 
 
 ' Buhner v. Bulmer, 25 Ch. D. 409. Tn 
 the Bill of 1888 there is a clause (11) very 
 similar to clause 2 in Lord Campbell's 
 Act : see chapter on Lord Campbell's Act, 
 ante, p. 162. 
 
 ' 43 & 44 Vict. c. 42, s. 4. 
 
 « In the Bill of 188S, "three months." 
 In M'Donagh t>. M'Clellan, 13 E. 1000, 
 the injury was suffered on the 7th of May, 
 and the notice was sent by post so that the 
 employers could not receive it before the 
 igth of June. Held, too late. 
 
PARTiii.] THE EMPLOYEES' LIABILITY ACT, 1880. 439 
 
 must be commenced within six months from the same date. In the 
 case of death resulting from the accident, the time to bring an 
 action is extended to twelve months ; and the want of notice is 
 no bar to the maintenance of the action " if the judge shall be 
 of opinion that there was reasonable excuse for such want of 
 notice." ' ' 
 
 In the Scotch case of Johnston v. Shaw"'' it was sought by the Johnston v. 
 plaintiff to dispense with the provision as to the bringing of action ^^^'"^• 
 within six months, on the ground that, between the time of 
 giving the notice and the expiration of the six months, the 
 plaintiff was confined in a lunatic asylum through his faculties 
 having become impaired by reason of the accident, so that he was 
 unable to comply with the terms of the section. It was, however, 
 held that the provision was for the protection of defendants, and 
 that beyond the time mentioned no action under the Act could 
 be maintained. Clark v. Adams' was another Scotch action under curk v. 
 this section, and was somewhat peculiar. An action was brought *"°' 
 at common law, but was decided against the pursuer, who appealed 
 to the Court of Session. At the hearing of the appeal it was 
 stated that the pursuer had become aware that he had given 
 notice under the Employers' Liability Act, 1880, and he sought' 
 to treat his common law action as if it had been brought under 
 the statute. The Court seems to have been of opinion that this 
 Blight have been done within the six months,^ but held that as the 
 time specified in the Act had elapsed it was not possible. 
 
 Any penalty which may have been paid to the injured workman. Penalty, 
 in pursuance of any Act of Parliament is to be deducted from the 
 compensation payable in respect of a cause of action under this 
 Act ; and where the action has been brought previously to the 
 payment of any penalty, the workman is not to be entitled to 
 receive any such penalty paid in respect of the same cause of 
 action.' 
 
 The class of Acts in which provision is made for a penalty 
 partly payable to the workman comprehends such Acts as the 
 Mines (Coal) Regulation Act," the Metalliferous Mines Regula- 
 
 ' In the Bill of 1888, " want or insuffi- ' Section 5. In the coiTesponding seo- 
 cionoy of notice " in any case is no bar tion of the Bill of 1888 there is a further 
 " if the Court, or, in case of appeal, the provision, introduced with reference to the 
 Court hearing the appeal, is of opinion pruvision of that Bill liniitin<; the ri^ht 
 that there was reasonable excuse for the to contract out of the Act, and providing 
 want or insufficiency, and that tbe defend- for the deduction of " so much of any 
 ant has not been thereby prej udiced in the money paid to tbe workman or his repre- 
 defence." sentativo in respect of the injury under 
 ' 21 Sc. L. K. 246. ' 12 E. 1092. an insurance to which the employer has 
 * Morrison v. Baird, 10 E. 271 ; Mur- contributed as is attributable to the em- 
 ray V. Steel, 12 E. 94S ; this Keems to pliwer's contribution. " 
 have been a siit of informal procedure '35 & 36 Vict. c. 76, part iii., ss. 60- 
 uuder secti 'n 6. 68. 
 
440 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Actions to be 
 brought in a 
 County Court. 
 
 Eule respect- 
 ing removal 
 of actions from 
 County Courts. 
 
 Munday v. 
 Thames Iron- 
 works and 
 Shipbuilding 
 Company. 
 
 Mon-ison v. 
 Baird. 
 
 tion Act,' the Metalliferous Mines Act, 1875,' and the Factory 
 and "Workshop Act, 1878.^ 
 
 Actions* under the Employers' Liability Act, 1880, are to be 
 brought in a county court,* but may be removed into a superior 
 court in. the same mode and for the same causes that other actions 
 may be removed.' Where the action is tried in a county court 
 before a judge without a jury, one or more assessors may be 
 appointed for the purpose of ascertaining the amount of com- 
 pensation.'' Eegulations may be made as to procedure and the 
 consolidation of actions in the same manner as they are made 
 with regard to other actions in county courts.' 
 
 The rule that should govern in England in deciding apph- 
 cations to remove actions under the Act from the county court 
 to the superior court is that they should only be allowed " if 
 some new question of law is raised, or some very difficult question 
 in the particular case — for instance, as to the way in which the 
 machinery caused the injury. The removal is in the discretion of 
 the judge, and I should think that in his discretion he would, 
 except in very peculiar circumstances, leave the case in the county 
 court."" This rule was the same as that laid down in the earlier 
 case of Munday v. Thames Ironworks and Shipbuilding Company,-'" 
 where Manisty, J., doubted whether an action at common laW 
 could be consolidated with one under the Act; since "the 
 ordinary principle is that if there is a statutory proceeding for a 
 particular cause of action, and compensation is recovered, though 
 limited in amount, an action at common law for large" damages 
 shall not be maintained." This may be explained by consideriug 
 Morrison v. Baird'^ in the Second Division of the Court of Session, 
 where a distiaction is pointed out between cumulative and mutually 
 exclusive remedies. " I cannot conceive," says the Lord Justice 
 Clerk, " that the Legislature ever intended that there should be 
 
 both a common law and a statutory action The ground 
 
 upon which the action is brought — the ground of liability — is a 
 common law liability, and the only effect of the statute is, in the 
 
 1 35 & 36 Vict. c. ^7, ss. 31-38. 
 
 2 38 & 39 Vict. c. 39. 
 
 - 41 Vict. c. 16, part iii., s. 82. 
 
 * Section 6, sub-section i. The Queen 
 V. Judge of City of London Court, 14 
 Q B. D. 90s; 54:L. J. Q. B. 330; 52 
 L- JT- 537 ; 33 W. E. 700. 
 
 5 In Scotland this means the sheriff 
 court, and in Ireland the civil bill 
 court. 
 
 " By certiorari ! Durant v. Tomlin, 11 
 L. T. 267 ; Hertford Cnion v. Kimpton, 
 II Ex. 29s ; 9 & 10 Vict. c. 95, s. 90; 
 19 & 20 Vict. c. 108, D. 38. Application 
 is to be made at cuambers : Staples v. 
 
 Accidental Death Insurance Company, 10 
 W. R. 55. 
 
 ' Section 6, sub-section 2. 
 
 8 Section 6, sub-section 3. See County 
 Court Eules, 1889, Order idiv. 
 
 » Per Brett, M.R., The Queen v. Judge 
 of City of London Court, 14 Q. B. D. goj. 
 As to the principles regulating the prac- 
 tice in Scotland, Daffy v. Young's Paraffin 
 Light and Mineral Oil Company, 9II. loo- 
 
 M 10 Q. B. D. 59 ; 52 L. J. Q. B. 119 ; 
 47 L. T. 351. 
 
 11 Probably this is a misprint for " lar- 
 ger." 
 
 12 10 E. 271. 
 
PART in.] THE EMPLOYEES' LIABILITY ACT, 1880. 441 
 
 case of fellow-workmen, to take away a plea whicli might exclude 
 
 such an action based upon the common law in the event of the 
 
 wrong complained of having been done by a fellow-workman." 
 
 And Lord Young, who gave the succeeding opinion, observed : " I 
 
 agree with your lordship that it is not incompetent to combine 
 
 the common law and the provisions of the Employers' Liability 
 
 Act in the same action." 
 
 This manifestly means no more than that a workman is not Difference 
 
 to recover damages twice over for the same injury, but may scoTohMd^ 
 
 claim in the alternative. This, under the Scotch system, in the English 
 
 . . .... systems. . 
 
 which the sheriff courts have unlimited jurisdiction, may readily 
 
 be done; but in England the county court would not have 
 
 jurisdiction beyond the ;^SO limit unless under the Act, so that 
 
 claims in the alternative weuld be to that extent hampered, 
 
 though that does not constitute a reason why they should 
 
 not be pursued as far as they may avail. Manisty, J., was 
 
 probably thinking of the case where a plaintiff has recovered 
 
 under the Act, and then, with a view to secure larger 
 
 damages, brings his action at common law in the superior 
 
 court, in which case he would plainly appear disentitled.' 
 
 If, however, he is to be understood as affirming that a 
 
 workman may not frame his action in the alternative either 
 
 under the Act or at common law, then the Act does not say so ; 
 
 and the general rule of law in the case of the existence of two 
 
 remedies is otherwise.^ Does, then, the fact that simultaneous 
 
 actions are brought in different courts make a difference ? If 
 
 it did, either or both of the actions would not be maintainable. 
 
 This, however, is not so ; a stay must be obtained, and that 
 
 only with regard to the part common to the two actions.' 
 
 Again : if an action under the Act is brought and fails, can Action at 
 
 ,..«■ -I i i>iT-.', common law 
 
 the plamtiff proceed anew at common law.' i< or instance, an after failure 
 action against an employer fails through want of notice of action, ^nderTe^Act. 
 and the plaintiff commences a common law action. Such action 
 could be maintained on the principle laid down by Willes, J., in 
 Langmead v. Maple" : " The conditions for the exclusion of juris- 
 diction on the plea of res Judicata are that the same identical 
 matter shall have been in question already in a court of com- 
 petent jurisdiction, that the matter shall have been controverted, 
 
 and that it shall have been finally decided It is not 
 
 sufficient to constitute res judicata that the matter has been 
 determined on ; it must appear that it was controverted as well 
 
 ' Seddon v. Tntop, 6 T. K. 607, per Bninsden v. Humphrey, 14 Q. B. D. 141. 
 
 Grose, J. The only inquiry is whether ' Bagot v. Easton, 7 Ch. D. 1. 
 
 the same cause of action has been litigated ' Morton v. Quick, 26 W. E. 441. 
 
 and considered in the former action i ■■ 18 C, B. N. S. 255, at p. 271, 
 
442 THE LAW OP NEGLIGENCE. [book i, 
 
 as determined on.'" If, however, an action had been brought 
 under the Act for the negligence of the master, and the plaintiff 
 failed by the negligence alleged being disproved, on the same 
 principle a common law action could not be brought. If not 
 proved, the ordinary rules relating to nonsuits would apply. 
 There remains the case of an action brought at common law and 
 failing, and subsequently an action commenced under the Act. 
 This, too, seems referable to the ordinary principles relating to 
 res judicata." 
 Notice of Notice of action' in respect of injury under the Act shall 
 
 actiou, 
 
 give 
 
 (a) The name and address of the person injured. 
 
 (6) Shall state in ordinary language — (i) the cause of the 
 
 injury ; (2) the date at which it was sustained, 
 (c) Shall be served — 
 
 (a) If the employer is a private person, on him ; or, 
 if there is more than one, on one of them ; 
 and either (i) by delivering' the same to 
 the person on whom it is to be served, 
 (2) by delivering it at his residence or 
 place of business, (3) by posting it in a 
 registered letter addressed to the person on 
 whom it is to be served at his last-known 
 place of residence or place of business ; 
 (/3) If the employer is a body of persons cor- 
 porate or unincorporate — (i) by delivering 
 the notice at the office or any one of the 
 offices of the body, (2) by sending it by 
 post in a registered letter to the office or 
 any one of the offices of the body. 
 A notice is not to be deemed invalid " by reason of any 
 defect or inaccuracy,"'' unless the defect or inaccuracy, in the 
 
 ' Although .a declaration contains sation as aforesaid, and also a claim for 
 
 counts under which the plaintiff's irhole any compensation recoverable under this 
 
 demand might bo recovered, yet, if no Act." The same Bill made detailed and 
 
 attempt has been made to ^ve evidence special provisions with regard to procedure 
 
 of some 'iif Ihe claims, they may be re- in Scotland : section 16. 
 
 covered in another action : Thorpe v. ' Section 7. 
 
 Cooper, 5 Bing. ii5, 129. * In Carter v. Drysdale, 12 Q. B. D. 
 
 '■^ There is a special provision in the 91 ; 53 L. J. Q. B. 557; 32 "W. E. 171, 
 
 Bill of 1888, as amended by the Standing the omission of the date was held a 
 
 Commiltee on Law, section 12, by which, "defect or inaccuracy" that did not 
 
 where there is a common Jaw right, " an render the notice invalid ; and in Stone v. 
 
 action for the compensation may be Hyde, g Q. B. D. 76 ; 51 L. J. Q. B. 452 ; 
 
 brought in the like court and in the like 46 L. T. 421 ; 30 W. R 816, a letter from 
 
 manner, but within the same time and plaintiff's solicitor giving the date of injury, 
 
 after the sama notice, as if it had been and stating thnt the plaintiff, for some 
 
 brought under this Act, and shall not be time past had been at a hospital under 
 
 brought otherwise, and the same action treatment " for injuiy to his leg," was 
 
 may include a claim for any such oompen- held ii mere " defect or inacciiracy," and 
 
PART in.] THE , EMPLOYERS' LIABILITY ACT, 1880. 443 
 
 opinion of the judge who tries the action, (i) prejudices the 
 defendant in his defence and (2) " was for the purpose of , 
 
 misleading." ' 
 
 In Moyle v. Jenkins^ it was contended that the requirements Moyie v. 
 of section 4 were satisfied if verbal notice of action was given ; but *° '"'" 
 the Court there decided that, supposing that to be so if section 4 
 stood alone, yet it was so far affected by the terms of section 7 
 as to make a written notice necessary ; and this view was sus- written 
 tained by the Court of Appeal in the case of Keen v. Millwall,' essmtiai. 
 where Lord Coleridge, C.J., expressed the further opinion that a 
 notice, to satisfy the Act, must be contained in one document. 
 " If," he said, " the letter relied on in this case had referred to 
 some written document in which the nature and particulars of 
 the injury were given, it wouy. not, I should have thought, have 
 been a compKance with the words of this enactment, which 
 describes the notice as one and single, containing in it the 
 incidents which the statute has required it to contain as a 
 condition precedent to maintaining any action." But the better 
 opinion seems to be that this is not essential. " I agree," said 
 Brett, L. J., " that, as a general rule, the notice must be given in 
 one notice, but I am not prepared to say it would be fatal if it 
 were contained in more than one notice." And in this opinion 
 Holker, L.J., concurred. 
 
 With regard to the method of serving notice, there is an Service of 
 important decision of the First Division of the Court of Session,^ ° 
 on the point whether a notice sent by letter is not good unless 
 the letter is registered. Evidence was given that a letter not 
 registered was posted and forwarded to the defenders, who, in 
 answer to a further letter sent after the expiration of the sis weeks, 
 admitted its receipt, and stated they had forwarded it to the 
 secretary of an insurance company. The Lord President said it Judgment of 
 was quite indispensable under the Act " that notice of an action i>resident. 
 should be served within six weeks, and, if is not so served, the 
 action is not maintainable. This is plain enough, but the point 
 now to be considered is regarding the manner of serving the 
 notice. The statute provides two modes in which it may be 
 done— first, by ' delivering the same to or at the residence or 
 
 not such an omission as to make the (loon- on the ground that he was not the em- 
 
 ment " no notice at all." ployer of the workman injured, he ehiill 
 
 ^ The Bill of 1888 contains a similar give notice of the defence " not less than 
 
 section (5), with the iurther provision that seven days before the hearing of the 
 
 want of notice shall not he a bar to the action." 
 
 maintenance of the action " if there was ^ 8 Q. B. D. 116 ; 51 L. J. Q. B. 112 ; 
 
 reasonable excuse for the want." By sec^ 30 W. E. 324. 
 
 tion 6 it is provided that if the employer * 8 Q. B. D. 482 ; 51 L. J. Q. B. 277 ; 
 
 intends to rely for a defence on the want 46 L. T. 472 ; 30 W. E. 503. 
 
 of notice or the insufBciency of notice, or * M'Govan v. Tanored, 13 B, 1033. 
 
Ui 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Bmployer 
 
 includes 
 
 corporation. 
 
 Worlanan, 
 liow defined. 
 
 place of business of the person on whom it is to be served.' 
 That is plainly a notice by a ' delivered ' letter, as distin- 
 guished from a posted letter. The second mode is ' by post by 
 a registered letter ' — that is to say, the pursuer may avail him- 
 self of the Post Office as a means of service, and that by means 
 of a registered letter. The reason why the letter is to be regis- 
 tered is that the pursuer is not to be entitled to avail himself of 
 the presumption of ordinary correspondence ; that a letter, when 
 posted, is presumed to have reached its destination unless it is 
 returned from the Dead Letter Office. But if, in addition to 
 posting the letter, the pursuer registers it, that, under the 
 statute, create^ a presumption that the letter will reach its 
 destination. That is expressed by the last clause of the third 
 paragraph of section 7 of the Act, which says : ' And in proving 
 the service of stich notice it shall be sufficient to prove that the 
 notice was properly addressed and registered. That clause will 
 not preclude the defender proving, as matter of fact, that the 
 letter did not reach him ; but as little will it preclude the 
 pursuer from proving that, though the letter was not registered, 
 it did, as matter of fact, reach the defender. Now, that has 
 been proved as matter of fact here." 
 
 An employer under the Act includes a body of persons cor- 
 porate or unincorporate.' 
 
 Workman' is defined to mean " a railway servant and any 
 person to whom the Employers and Workmen Act, 187S,' 
 applies." 
 
 It is pointed out^ that the term railway servant does not com- 
 prehend every servant of a railway ; and it is at least doubtful 
 whether in an Act whose object is " to extend and regulate the 
 
 1 _Section_ 8. In the Bill of i888 the 
 section continues : " the representatives of 
 a deceased employer, and, except in sec- 
 tion I of this Act, the person liable to pay 
 eompensntion under section 2 of this 
 Act." Under the existing Act no action 
 can be maintained against the represen- 
 tatives of a deceased employer: Gillett 
 ■D. Fairbank, 3 Times L. R. 618. Compare 
 a curious American case, King v. Uenkie, 
 60 Am. R. 1 19. 
 
 The effect of the second part of the sec- 
 tion is to give, by statutory enactment, the 
 remedy of the Employers' Liability Act to 
 those who, by such decisions as Woodhead 
 V. Gartness Mineral Company, 4 R. 469 ; 
 Wingate v. Monkland Iron Company, 12 
 p.. 91 ; Congleton v. Angns, 24 8c. L, R. 
 234, were held within the scope of the 
 common employmeiit as being members of 
 the common organization of labour and 
 subject to one general control ; and also to 
 
 those who are within the principle of 
 Heaven v. Pender, 11 Q. B. D. 503. 
 Section 2 provides that where the execu- 
 tion of any work is being carried out under 
 any contract, and the person for whom the 
 work is done supplies any ways, works, 
 machinery, plant, buildings, or premises 
 used for the work, and, by reason of defect 
 of any of them, personal injury is caused to 
 a workman employed by the contractor or 
 a sub-contractor, if the defect or failure to 
 discover or remedy it arose from the negU- 
 gence of the person for whom the work is 
 done or his representative, the workman 
 shall stand in the same relation to such 
 person as he does to his employer under 
 the Act 
 
 " Section 8. The Bill of 1888 says, 
 " every railway servant." 
 
 ' 38 & 39 Vict. c. 90. 
 
 * Roberts and Wallace, Employers' Lia- 
 bility, 231. 
 
PAKTin.] THE EMPLOYERS' LIABILITY ACT, 1880. 445 
 
 liability of employers to make compensation for personal injuries 
 suffered by workmen in their service," and in wMch railway 
 servant is used in collocation with workmen, those servants of a 
 railway would be included to whom its provisions are not other- 
 wise applicable. 
 
 By section lo of the Employers and Workmen Act, 1875,' 
 " the expression workman does not include a domestic or menial 
 servant,^ but .... means any person who, being a labourer, 
 servant in husbandry, journeyman artificer, handicraftsman, 
 miner, or otherwise engaged in manual labour, whether under the 
 age of twenty-one or above that age, has entered into or works 
 under a contract with an employer, whether the contract has been 
 made before or after the passing of this Act, be expressed or 
 implied, oral or in writing, and be a contract of service or a 
 contract personally to execute any work or labour." 
 
 By section 13 "this Act shall not apply to seamen or to 
 apprentices to the sea service."' 
 
 By 1 3 & 1 4 Vict. c. 2 1 , s. 4, words importing the masculine 
 gender shall be deemed and taken to include females. 
 
 Domestic and menial servants are not within the Act. 
 
 A "domestic servant" is one who in ordinary circumstances 
 resides in the master's house, though this test is not always con- 
 clusive,^ and it has even been held that the determination of 
 whether a servant is a menial servant or not is a question of the 
 facts in each particular case." 
 
 A menial servant is a somewhat more extensive term. Thus, 
 a head gardener, living outside the house, but upon the property, 
 has been held to be a menial servant," though not a domestic 
 servant." Domestic servants would seem to be those occupied in 
 the service of the master's house ; menial servants those engaged 
 
 ' 38 & 39 Vict. 0. 90. are also provisions for t'ne Board of Trade 
 ^ In the Bill of 1888, which inserts the inspecting, and making regulations. In 
 definition of workman in full, the definition Oakes v. Monkland Iron Company, 1 1 E. 
 goes on : " nor a clerk or agent, nor, except 579, a servant employed on board a vessel 
 as by this Act provided, a seaman." solely used on a canal was held not to be 
 ^ Section 13 of the Bill of 1888 provides a seaman. In Froy v. Balmain Steam 
 for the inclusion of "seamen," an expres- Ferry Company, 7 N. S. Wales K. L. 146, 
 Eion that is to include (section 15, sub- an engineer of a steam ferry boat was held 
 section 4) " every person employed in the not within the Act as not ordinarily en- 
 service of a ship," if the defect, &o., gaged in manual labour, 
 existed when the ship set out to sea * Graham v. Thomson, i Shaw 287. 
 from a port in the United Kingdom, and " Lawler v. Linden, Ir. R. 10 C. L. 
 was not remedied through negligence, in 188. 
 
 the case of seamen the various times are * Nowlan v. Ablett, 2 C. M. & E. 54. 
 
 to be reckoned from the termination of In Ireland "&tteward and gardener was 
 
 the voyage. Where the ship has satisfied held not to be a menial servant : Forgan 
 
 the regulations of the Board of Trade, and v. Bnike, 12 Ir. C. L. E. 495, 498. In 
 
 those regulations are annexed to the agree- Niooll w. Greaves, 33 L. J. C. P. 259, a 
 
 ment with the ship's crew, the ship's huntsman was held a menial servant, 
 
 equipment shall be deemed not to have ' Ogle v. Morgan, i D. M. & G. 359 ;■ 
 
 been defective within the section. There Vaughan v. Booth, 16 Jur. 808, 
 
446 
 
 THE LAW OF NEGLIGENCE. 
 
 [book I. 
 
 Tramway 
 
 and omnibus 
 
 conductors. 
 
 Wilson V. 
 
 Glasgow 
 
 Tramway 
 
 Company. 
 
 Morgan v. 
 London Gene- 
 ral Omnibus 
 Company. 
 
 Cook V. 
 Metropolitan 
 Tramways 
 Company. 
 
 Labourer. 
 
 Senraut in 
 husbandry. 
 
 on the establishment. Servants in either of these classes are, by 
 the exception in the definition, taken out of the operation of 
 the Act. though were this not so they would come within it as 
 labourers. 
 
 In a case of Wilson v. Glasgow Tramway Company/ under the 
 Employers and Workmen Act, 1875, previously to the passing of 
 the Employers' Liability Act, it was decided that a tramway 
 conductor " was not other than a labourer employed to attend on 
 the tramway cars as much as a miner employed to work a windlass 
 or the gearing of a pit, or a man engaged to drive the horses of 
 a track-boat on a canal." This ruling is inconsistent with the 
 later case of Morgan v. London General Omnibus Company,^ 
 decided in the English Court of Appeal, where an omnibus con- 
 ductor was held not to be a labourer within the definition, for 
 " his real and substantial business is to invite persons to enter 
 the omnibus and to take and keep for his employers the money 
 paid by the passengers as their fares ; in fact, he earns the 
 wages becoming due to him through the confidence reposed in his 
 honesty;" and in Cook v. Metropolitan Tramways Company' the 
 driver of a tramcar was held excluded from the benefit of the Act 
 because the expression used is " manual labour " and not " manual 
 work" — that is, work apart from the necessity of thought and 
 skill. The term labourer under 2 Geo. II. c. 19, has been 
 held to extend to labourers of all descriptions, as, for instance, to 
 a labourer who had contracted to dig and stem a well for cattle, 
 to be paid by the foot,'' and who employed another to assist him 
 in the work, but not to a caretaker^ of goods seized under a,fi. fa., 
 nor " a carpenter, a bailifE, nor the clerk of a parish."" 
 
 A dairyman who, besides cooking and making beds, assisted in 
 harvest work, has been held not necessarily excluded from the 
 definition of " servant in husbandry."' A waggoner is clearly a 
 servant in husbandry.' So is " a man employed to dig the 
 ground ;"" bat not a person engaged by the owner of a farm to 
 keep the general accounts of the farm, to weigh out the food for 
 the cattle, to set the men to work, to lend a hand in any- 
 thing if wanted, and in all things to carry out the orders given 
 to him, because " the principal thing which he had to do was to 
 keep the general accounts, and although he was also to make 
 
 1 S R- 981. 
 
 2 12 Q. B. D. 201, 13 Q. B. D. 832; 
 53 L. J. Q. B. 352; 51 L. T. 213; 32 
 W. E. 759- 
 
 = 18 Q. B. D. 683 ; 56 L. J. Q. B. 
 309 ; 56 L- T. 448 ; for some reason or 
 other this case is a second time reported 
 in 57 L. T. 476 ; 35 VV. R. 577. 
 
 ^ Lowtlier v. Eadnor, 8 East 113. 
 
 5 Branwell v. Penneck, 7 B. & C. 536- 
 
 ° Morgan v. London General Omnibus 
 Company, 13 Q. B. D. 832. 
 
 ' £x parte Hughes, 23 L.. J. M. C. 
 138 ; see, too, Clarke v. M'Naught, Arkl. 
 33. 
 
 8 Lilley v. Elwin, 11 Q. B. 742. 
 
 ° Morgan v. Londtm General Omnibus 
 Company, 13 Q. B. D. 8'?2. 
 
EAKTiii.] THE EMPLOYEES' LIABILITY ACT, 1880. 447 
 
 himself generally useful, that was only accessory to liis principal 
 work."> 
 
 As to journeyman. " Etymologically considered," says Day, J.," 
 " a journeyman is one who is employed by the day, but that is not 
 the sense in which the term is ordinarily used, for in most trades 
 where journeymen are employed — butchers, bakers, and tailors, 
 for instance — they are hired and paid by the week." And in 
 the same case, in the Court of Appeal, Brett, M.E., says: " a 
 ' journeyman ' is a man who is working for a master, such as a 
 carpenter." " 
 
 An " artificer,"'' says the same learned judge, in the same place, 
 is a skilled workman, and a " handicraftsman " is the same. The 
 term " miner " would include all persons employed in underground 
 workings in search of minejals. A quarry is distinguished 
 from a mine as being " a place upon or above and not under 
 ground."^ Quarj-ymen, if not held to be miners within the 
 contemplation of the Act," would yet be within it as " otherwise 
 engaged in manual labour;" which has been expounded by 
 Brett, M.B,.,^ to mean " any person engaged "in the same way as 
 all the others are engaged, although they do not go by the same 
 names."' 
 
 In a New South Wales case," plaintiff, being the owner of a 
 couple of carts, went, when it suited him, to the brick-kiln of the 
 defendants, and took bricks away to the places on the defendants' 
 works where they were required, for which he received a speciT 
 fied sum of money. But he was not bound to do the work, though, 
 if he thought fit to do it, he was paid. While loading, the roof of 
 the kiln fell in, and the plaintiff was injured, for which injuries 
 he sued under the Act, claiming under the words " a contract of 
 service or a contract personally to execute any work or labour ; " 
 but he was held disentitled to recover by the Supreme Court, 
 because a contract to be within the words must be a contract to 
 personally serve or to serve for some period or to do some par- 
 ticular work. " It seems to me that the contract must be for 
 the personal doing of the work by the plaintiff who brings an 
 action of this sort."'" 
 
 ' Per Crompton, J., 3 E. & E. 549. = Per Turner, L.J., Bell v. Wilson, 
 
 ^ Morgan v. London General Omnibus L. E. i Ch. App. 303. 
 
 Company, 12 Q. B. D. at p. 206. * Dcvonehire 0. Eawliason, 28 J. P. 
 
 ' 53 L. J, Q. B. 353 ; the passage is not 72. 
 
 in the Law Reports. ' Morgan v. London General Omnibus 
 
 * This includes a stoker or fireman : Company, 53 L. J. Q. B. at p. 353. 
 
 Wilson V. Zulueta, 14 Q. B. 405 ; a ^ As to " a contract personally to exo- 
 
 calico pattern designer : i!x parte Otmrod, cute any work or labour," see Sadler r. 
 
 I D. &L. 825 ; a superintendent of rooms : Henlock, 4 E. & B. 570. 
 
 Leech V. Gartside, i Times L. E. 391 ; » Lobb v. Amos, 7 N. S. W. E. L. 92. 
 
 and the overseer of a printing-office : ^^ Per Sir James Martin, 0..T. 
 Bishop V. Letts, i F, & F. 401. 
 
448 
 
 (lovernment 
 workmen not 
 iuoluded in 
 the Aot. 
 
 Worlanon 
 may contract 
 themselves 
 out of the Aot, 
 
 Expiration 
 of the Act. 
 
 THE LAW OP NEGLIGENCE. [book i. 
 
 The definition of workman does not include those who are 
 working in Government departments ; and for two reasons- 
 First, the rights of the Crown are not affected by any Act in 
 which the Grown is not specially named.' 
 
 Secondly, the Crown is not liable for torts committed by its 
 servants.' 
 
 Under the Employers' Liability Act, 1880, an express contract 
 by which the workman engages to forego the benefits of the Act 
 in the event of injury is valid,' since section i of the Act only 
 negatives the implication of an agreement by the workman to bear 
 the risks of the employment, but does not forbid the constitution 
 of an express agreement. 
 
 The Employers' Liability Act, 1 880, which would have expired 
 at the end of the session in 1888, is continued by 5 1 & 52 Vict, 
 0. 58 until the 31st of Dec. 1889. 
 
 1 Co. Litt. 43 b ; 4 Inst. 191 ; 3 Bac. - 
 Abr. Prerog. E S C. ' 
 
 ^ Johnstone v. Sntton, i T. B. 493; 
 Buron ». Denman, 2 Ex. 167. 
 
 » Griffiths ». Earl of Uudtey, 9 Q. B. D. 
 3S7. See per Wills, J., in Baddeley v. Earl 
 Granville, 19 Q. B. D. at p. 426, and 
 comment on that case, ante, p. 350, et aeq. 
 By the Bill of 1 888 it was pro vidcd that con- 
 tracts to exclude the operation of the Act 
 should be void, "unless made in pursuance 
 of a request in writing ft'om every such 
 workman with whom the contract is to be 
 made," and must be made in considera- 
 
 tion of an undertaking by the employer 
 io make contribution to an insurance fund. 
 which shall secure to the workman or his 
 representatives " a benefit equivalent to 
 the compensation recoverable under this 
 Aot." Evidence that a similar under- 
 taking has been made with other work- 
 men shall be admissible as evidence of 
 the sufficiency or insufficiency of the under- 
 taking under the Act. The Board of Trade 
 may decide whether a contract proposed to 
 be made is proper, and its decision is to 
 bind other similar contracts: sections 3 
 and 4. 
 
BOOK II. 
 
 SPECIAL RELATIONS ARISING 
 OUT OF CONTRACT. 
 
 F¥ 
 
PART I. 
 
 BAILMENTS. 
 CHAPTEE I. 
 
 YARIOUS RELATIONS.! 
 
 Genkeal. 
 
 We now enter upon a division of our subject — that of bailments, 
 — which gives rise to somewhat different considerations from 
 those we have hitherto mainly considered. The order of treat- 
 ment is marked out by the celebrated judgment of Holt, C.J., 
 in Coggs V. Bernard,^ to which all the systematized English law 
 on the subject has been conformed. 
 
 The term bailment is derived from the French bailler, and Signification 
 signifies to deliver.' It imports a contract resulting from de- ^^ii^g*"^" 
 livery." 
 
 Sir William Jones defines ° a bailment as a delivery of goods 
 on a condition, expressed or implied, that they shall be restored 
 by the bailee to the bailor, or according to his directions, as soon 
 as the purpose for which they were bailed shall be answered. 
 
 Story," however, objects to this definition, that it assumes story's objec- 
 thatthe goods are to be restored or re-delivered, which in the cases *'°"' 
 of consignment to a factor for sale is not the case, and substitutes 
 that it is a " delivery of a thing in trust for some special object 
 or purpose and upon a contract, express or implied, to conform 
 to the object or purpose of the trust.'' Chancellor Kent, again, Kent's objec- 
 objects to this use of the word bailment as " extending the definition"'''^ 
 definition of the term beyond the ordinary acceptation of it in the 
 
 ' There is a very learned article in the ^ Lord Eaym. 909 ; i Sm. L. C. gth 
 
 Law Quarterlfi Beview for April 1886, edit. 201. 
 
 entitled " Liabilities of Bailees accord- " 2 Black. Coram. 451. 
 
 ingto Gei-man Law " — " Eoman " might * Story, Bailments, § 2. 
 
 withont impropriety have heen substituted ^ Essay on the Law of Bailments, p. I. 
 
 for "German" — wherein the law of bail- " On Bailments, § 11, where in text 
 
 ments is most ably treated from the point and notes the whole discussion as to the 
 
 pf view of jiirisprudence. exact meaning of a bailment is gone into. 
 
452 
 
 THE LAW OF NEGLIGENCE. 
 
 [book ii. 
 
 Distinction 
 between a 
 bailment pro- 
 perly so called 
 and the pos- 
 seseion of 
 property by a 
 servant or 
 agent on 
 behalf of the 
 master. 
 
 Si^ty of bailee. 
 
 Confusion of 
 property of 
 bailor and 
 bailee. 
 
 English law," which draws a disfcincfcion between a consignment to 
 a factor and a bailment, which is narrowed " to cases in which no 
 return or delivery or re-delivery to the owner or his agent is con- 
 templated." ' 
 
 An important distinction must also here be noted between 
 bailment in the scientific use of the term and the possession of 
 property by a servant or agent on behalf of the master. The 
 latter is not, in a correct sense, a bailment, since the servant 
 holds in the name of his master. But a bailee properly so called 
 holds in his own name.'' 
 
 It seems that a mere contract to deliver will not constitute a 
 bailment. There must be a delivery of the thing bailed from 
 one person to another. The person who delivers the thing is 
 called the bailor ; the person to whom it is delivered the bailee. 
 The delivery may, however, be either actual or constructive. A 
 constructive delivery may be by the bailee acting on an authority 
 actually given at a time and place different from that in which 
 the possession of the goods is assumed ; or in circumstances 
 where, though no actual authority is ever given, the circumstances 
 raise a presumption of authority.* 
 
 The thing bailed must be a chattel,* and must be delivered for 
 a special object or purpose, in the absence of which the delivery 
 would constitute a gift or sale. 
 
 A bailee, by virtue of the bailment, is bound to take care of 
 the property committed to his hands. The questions arising out 
 of the requirement of degrees of care have already been generally 
 examined.^ 
 
 In the case of the bailee confusing his property with that of 
 the bailor, the rights arising may assitme several aspects. The 
 general rule of law, as stated by Blaekstone,^ is : "If the 
 intermixture be by consent, I apprehend that in both cases \i.e., 
 by the common law and the civil law] the proprietors have an 
 interest in common in proportion to their respective shares.' But 
 if one wilfully intermixes his money, corn, or hay with that of 
 
 1 2 Kent's Commentaries, I2th edit, was derived from tho Eoman law ;" and 
 
 Mr. Holmes, The Common Law, leot. v. 
 Bailments, contends with great force of 
 learning, that the law of bailments is not 
 of Roman origin. 
 
 3 Doctor and Student, dial. 2, 
 Noy's Maxims, c. 43. 
 
 * Williams v. Jones, 3 H. & 
 Ex. Ch., 602. 
 
 * Ante, pp. l6 et seq. 
 
 * 2 Com. 405. 
 ' Vinn. ad Inst. lib. 2, tit. i, 
 
 Jiist. Inst. lib. 2, tit. 2, § 2J;'AyMa 
 Civil Law, book iii. tit. 3, p. 291. 
 
 P- SS9. ™- 
 
 2 " Ko one \*ho has read the treatise of 
 Mr. Justice Story on Bailments, the essay 
 of Sir William Jones, and the judgment of 
 Lord Holt in Coggs v. Bernard," says 
 Brett, J., in Nugent v. Smith, i C. P. D. 
 19, at p. 28, " can doubt that the common 
 law of England as to bailments is founded 
 upon, though it has not exactly adopted, 
 the Roman law." Cockburn, C.J., how- 
 ever, in the same case in the Court of 
 Appeal, shews that " it is a misapprehen- 
 sion to suppose that (he law of England 
 relating to the liability of common carriers 
 
 c. 38; 
 C. 256, 
 
 p. 169: 
 
PAET I.] BAILMENTS. 453 
 
 aaother man without his approbation or knowledge, or casts gold 
 in like manner into another's melting-pot or crucible, the civil 
 law, though it gives the sole property of the whole to him who 
 has not interposed in the mixture, yet allows a satisfaction to the 
 other for what he has so improvidently lost.' But our law, to 
 guard against fraud, gives the entire property, without any account, 
 to him whose original dominion is invaded and endeavoured to be 
 rendered uncertain without his consent." 
 
 The case of an accidental mixing, where identity is destroyed, Accidental 
 is the subiect of actual decision. In Spence v. Union Marine In- "^""S- 
 
 Xt . . . Spence v. 
 
 surance Company, Limited," Bovill, C.J., said: "It has been Union Marine 
 long settled in our law that where goods are mixed so as to be- company! 
 come indistinguishable by the wrongful act or default of one 
 owner, he cannot recover, and, will not be entitled to his propor- 
 tion or any part of the property from the other owner ; but no 
 authority has been cited to shew that any such principle has ever 
 been applied, or, indeed, could be applied, to the case of the 
 accidental mixing of the goods of two owners ; and there is no 
 authority' nor sound reason for saying that the goods of several 
 persons which are accidentally mixed together thereby absolutely 
 cease to be the property of their several owners, and become 
 lona vacantia. The goods being, before they are mixed, the separate 
 property of the several owners, unless, which is absurd, they cease 
 to be property by reason of the accidental mixture when they 
 would not so cease if the mixture were designed, must continue 
 to be the property of the original owners ; and as there would be 
 no means of distinguishing the goods of each, the several owners 
 seem necessarily to become jointly interested as tenants in common 
 ia the bulk," The learned judge, after citing several authorities,' 
 continues : " We are thus, by authorities in our own law, by 
 the reason of the thing, and by the concurrence of foreign writers, 
 justified in adopting the conclusion that by our own law the pro- 
 perty in the cotton, of which the marks were obliterated, did not 
 cease to belong to the respective owners ; and that by the 
 mixture of the bales and their becoming undistinguishable by 
 reason of the action of the sea, and without the fault of the 
 l?espective owners, these parties became tenants in common of the 
 cotton in proportion to their respective interests. This result 
 would follow in those cases where, after the adoption of all reason- 
 able means and exertions to identify or separate the goods, it was 
 found impracticable to do so." To the same effect is the judgment 
 
 ' Vinn. ad Inst. lib. 2, tit. I, p. 170. ' Mackeldey'a Modern Civil Law, Eng. 
 
 JuBt. Inst. lib. 2, tit. i, § 28. edit., 1845, p. 285 ; Story, Bailments, § 
 
 L. E. 3 C. P. 427. 40 ; 9 Pothier, De la Confusion, 166. 
 
454 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 ITegligeiit or 
 
 unskilful 
 
 mixing. 
 
 Biglit of 
 action. 
 
 of Blackburn, J., in Buckley v. Gross,' in the case of tallow which 
 was melted and flowed into the sewers. 
 
 Where, however, the mixture has been due to negligence or 
 unskilfulness, the rule has been laid down by Lord Eldon^ : " If 
 one mixes his corn or flour with that of another [i.e., negligently 
 or unskilfully], and they are of equal value, the latter must have 
 the given quantity. But if articles of different value are mixed 
 producing an aggregate of both, and, through the fault of the 
 person mixing them, the other party cannot tell what was the 
 original value of his property, he must have the whole." And in 
 this view Chancellor Kent coincides.^ 
 
 Both the bailor and bailee may maintain an action against a 
 stranger for an injury to or conversion of the bailment^ — ^the 
 bailor by virtue of his general property, the bailee by virtue of 
 his special property" and actual possession." It has further been 
 decided in Massachusetts' that where plaintiff hired a horse and 
 waggon, which defendant negligently injured while in his posses- 
 sion, and the owner had repaired at plaintiff's request and charged 
 the expense to the plaintiff, the plaintiff could recover for the 
 damage without having previously paid the expenses. 
 
 The precise nature of this remedy has been the subject of much 
 discussion. As the relation created by the bailment constitutes a 
 contract, it has been contended that the remedy must be sought 
 in contract ; and it has also been urged that where the injury 
 complained of was for a nonfeasance, an additional impediment 
 existed to framing a claim in tort. Both these contentions have, 
 however, been negatived, and the law has been very clearly laid 
 law laid down down by Tindal, C.J., in the case of Boorman v. Brown,^ before 
 the Exchequer Chamber, reversing the judgment of the Queen's 
 Bench : " That there is a large class of cases in which the founda- 
 tion of the action springs out of privity of contract between the 
 parties, but in which, nevertheless, the remedy for the breach, or 
 non-performance, is indifferently either assumpsit or case upon 
 tort, is not disputed. Such are actions against attorneys, surgeons, 
 and other professional men for want of competent skill or proper 
 care in the service they undertake to render ; actions against 
 common carriers, against shipowners on bills of lading, against 
 bailees of different descriptions; and numerous other instances 
 
 Whether in 
 contract or 
 
 tort. 
 
 by Tindal, C.J. 
 
 1 3 B._& S. 574. See also per Lord 
 Abinger, in the Ciiso of tlie mixture of oil 
 by leakage on board ship : Jones v. 
 Moore, 4 Y. & C. 35i_. 
 
 ^ Lupton V. white, 15 Ves. 
 
 440. 
 
 432, 
 
 62. 
 
 " Hart V. Ten Evck, 2 Johns. Cb. 
 
 * 2 Black. Com. 453 ; Bacon, Abridg. 
 Bailment, A, B, C. 
 ' Eoberts v. Wyatt, 2 Taunt. 268, at p. 
 
 275- 
 
 " Bacon, Abridg. Trespass, C 2 ; Nicolls 
 V. Bastard, 2 Cr. M. & B. 659. 
 
 ' Brewster v. Warner, 136 Mass. 57. 
 
 8 3Q, B. sii, atp. 525. 
 
PART I.] BAILMENTS. 455 
 
 occur in which the action is brought in tort or contract at the 
 election of the plaintijff. And, as to the objection that this 
 election is only given where the plaintiff sues for a misfeasance 
 and not for a nonfeasance, it may be answered that in many cases 
 it is extremely difficult to distinguish a mere nonfeasance from a 
 misfeasance ; as in the particular case now before us, where the 
 contract stated in the declaration on the part of the broker is, in 
 substance, to deliver the goods of the plaintiff to the purchaser on 
 payment of the price in ready money, and where, if the broker 
 deHvers without receiving the price, the breach of his direct 
 undertaking is as much a wrongful act done by him — that is, a 
 misfeasance — as it is a nonfeasance, the distinction between the 
 two being, in that case, very fine and scarcely perceptible. But, 
 further, the action of case upoai tort very frequently occurs where 
 there is a simple non-performance of the contract, as in the 
 ordinary instance of case against shipowners, simply for not safely 
 and securely delivering goods according to their bill of lading ; 
 and, as in the case of Coggs v. Bernard,' where an undertaking is 
 stated in the declaration as the ground of action ; and, to give no 
 further instance, the case of Marzetti v. Williams,^ where the 
 decision that the plaintiff was entitled to nominal damages with- 
 out proof of any actual damage rests entirely on the consideration 
 that the action, an action on the case, was founded on a contract, 
 not on a general duty implied by law. The principle in all these Pi-indple. , 
 cases would seem to be that the contract creates a duty, and the 
 iieglect to perform that duty, or the nonfeasance, is a ground of 
 action upon a tort.'" The case was afterwards carried to the 
 House of Lords,'' where Lord Campbell very succinctly restates Lord Campbell 
 the law as laid down by Tindal, C.J. : " Whenever there is a of lisrfs?"^" 
 contract, and something to be done in the course of the employ- 
 ment which is the subject of that contract, if there is a breach of 
 duty in the course of that employment, the plaintiff may either 
 recover in tort or in contract." 
 
 On the division of bailments there has been much display of 
 critical power. The principle of division of Holt, C.J., in Coggs v. 
 Bernard has been excepted to by Sir William Jones ;° defended by 
 Mr. Smith in his notes to Coggs v. Bernard," and rejected by Story, ■ 
 whose classification, based on that of Sir William Jones,I shall adopt. 
 
 Bailments, says Story,' are properly divisible into three kinds : Division of 
 
 ' •' ■' r i. J bailnientB. 
 
 ' 2Ld. Bajm. 909; i Sm. L. C. 9th ' Jonea, Essay on the Law of Bailments, 
 
 edit. 201. 2 I B. & Ad. 415. p. 36. 
 
 - ' See Burnett v. Lynch, 5 B. & C. 589, ' I Sm. Ijead. Cas. 201, at pp. 225, 
 
 per Bayley, J., at p. 604 ; per Little- 226, The American writers, Kent, Story, 
 
 dale, J., at the bottom of p. 609. and Parsons, adopt the division of Sir 
 
 * II CI. & Fin. i; Morgan v. Eavey, 'WilHam Jones. 
 
 6 H. & N. 265. ' Bailments, § 3. 
 
456 THE LAW OP NEGLIGENCE. [book ii. 
 
 First, those in which the trust is exclusively for the benefit of 
 the bailor or of a third person. 
 
 Second, those in which the trust is exclusively for the benefit 
 of the bailee. 
 
 Third, those in which the trust is for the benefit of both parties, 
 or of both or one of them and a third person. 
 
 In the first class he includes deposits and mandates ; in the 
 second, gratuitous loan for use, called in the civil law commoda- 
 tum; in the third, pawn; hiring; and letting to hire. This 
 last is subject to two subdivisions : i. The hiring of a thing for 
 use (locatio rei) ; 2. The hiring of work and labour (locatio operis), 
 and this, in its turn, is again subdivided into (i) Locatio operis 
 faeiendi,' or the hire of work and labour to be done, or care and 
 attention to be bestowed, on the goods bailed by the bailee for a 
 compensation ; (2) Locatio operis mercium vehendarum, or the 
 hire of the carriage of goods from one place to another for a 
 compensation. ■ 
 
 These we now proceed to consider in their order. 
 
 I. Deposits. 
 
 Deanitiou. DeposiLuiii est quod custodiendwm alicui datum est. Dictum 
 
 ex eo quod ponitur ; prapositio enim de, auget depositum, ut 
 ostendat totum fidei ejus commissum qvx)d ad custodiam res 
 pertinet.^ 
 
 Deposit, says Sir William Jones,^ is the bailment of goods to 
 be kept for the bailor without a recompense. 
 
 It is classified in the civil law under the heading r«,° or, in 
 other words, is reckoned one of those contracts where the obliga- 
 tion arose from an inference from the facts and not from an ex- 
 pressed agi'eement. Deposits in the civil law are of two kinds 
 — necessary and voluntary. A necessary deposit is such as is 
 made by the party under some pressing necessity, and thence is 
 called miserabile depositum. A voluntary deposit is such as 
 arises from the mere consent and agreement of the parties. 
 This distinction was of importance, since in cases of default in 
 the care of voluntary deposits the action was only in simplum ; 
 in the case of the miserahih depositum it was in duplum whenever 
 
 1 Dig. 16, 3, b. I. Le depot est un con- Commodatum; 3. Pigrms; 4. Depontum. 
 
 trat par lequel Tun des contractants donne A loan for consumption was termed 
 
 une chose A qarder a I'avtre qui s'en miUuum because ex meo tuumjit. Com- 
 
 charge gratuitement et s'ohKge de la modatwn was a gratuitous loan ; if the 
 
 rendre hrsgu'il en sera requis : Potbier, lender stipulated for a compensation, the 
 
 Traits dii Contrat de Dgp6t, p. i. _ agreement changed its character and be- 
 
 - Law of Bailments, p. 117, Definitions. came one of letting and hiring. Pigrms: 
 
 ' Contracts rf._ were diyided by the pawn. What the nature oideposiiwm was 
 
 Roman jurists into — I. Mutuum; 2. appears in the text. 
 
PART I.] BAILMENTS. 457 
 
 the depositary was guilty of any default.' The common law, 
 however, does not recognize this distinction. - 
 
 A deposit can only be of personal or movable property, and is Nature of a 
 inapplicable to real or immovable property.' And it is not neces- *P°^''' 
 sary that the title of the depositor should be absolute ; a lawful 
 possession is sufficient to enable him to maintain his action.'' 
 
 A deposit may be made and received by all persons who are Who may 
 capable of making a valid contract. If an infant receives adem^sit. 
 deposit he is bound to restore it on demand if it is in his 
 possession or under his control, not under the law of bailments, 
 for, from want of capacity, no bailment is made, but because the 
 infant is doing a wrongful act by detaining the deposit.* On 
 the other hand, on general principles of law an infant may make 
 a deposit ; but, having done so, difficult questions might arise as 
 to whether he could recall the thing deposited, or whether in all 
 circumstances the depositary would be justified in surrendering 
 it. Similar considerations apply with regard to other classes of 
 people under disability .° 
 
 The dictum of Sir E. Coke, that the bare acceptance of goods to Southcote's 
 keep implies a promise to keep them safely, so that the depositary 
 will be liable for loss by stealth or accident, is fully and explicitly 
 overruled by the judges in Coggs v. Bernard,' who there adopted pot followed 
 the rule which has since been followed — that a mere depositary Bernard. " 
 without any special undertaking and without reward is not 
 answerable for the loss of the goods " if they are stolen without 
 any fault in him ; neither will a common neglect make him 
 chargeable, but he must be guilty of some gross neglect." And 
 Blackstone' states the law : " If a friend delivers anything to his Law as stated 
 friend to be kept for him, the receiver is bound to restore it on ^ "" ' °''°' 
 demand ; and it was formerly held that in the meantime he was 
 answerable for any damage or loss it might sustain, whether by 
 accident or otherwise, unless he expressly undertook to keep them 
 only with the same care as his own goods, and then he should not 
 be answerable for theft or other accidents. But now the law 
 seems to be settled that such a general bailment will not charge 
 
 ' Story, Bailments, § 43, citing Potliier, putat recte depositi acturos: Dig. 16, 3, i, 
 
 Traite du D^p6t ; Dig. 16, 3. §39. The law was much considered, and a 
 
 ^ Jonee, Bailments, p. 49. conclusion in accordance with the English 
 
 ' Story, Bailments, § 51. decisions arrived at, in the American cases 
 
 * Armory v. Delamirie, I Sm. Lead. Cas. of Durfee v. Jones, 23 Am. R. 528 (see 
 
 9th edit. p. 385, and notes citing (inter note) ; Tanoil v. Seaton, 26 Am. B. 380. 
 
 alia) Sutton v. Buck, 2 Taunt. 302 ; Bur- " Mills v. Graham, i N. K. 140, at p.i4S. 
 
 ton V. Hughes, 2 Bing. 173 ; Bridges v. ^ Southcote's case, 4 Kep. 83 b ; Kettle 
 
 Eawkesworth, 2i L. J.Q. B. 75. Inis is v. Bromsall, Willes 118. See Foster 0. 
 
 otherwise in Massachusetts : M'Avoy 0. Essex Bank, 17 Mass. 479. 
 
 Medina, i Allen 548. See also Webb ». ' LordEaym.go9; I Sm.L. C. gthedit. 
 
 Fox, 7'J\E. 391 ; Giles «. Grover, 6 Bligh 201. See JBCargrave and Bntler's note to 
 
 N. S. 277. Siprcedovdfurdeposuerint, Co. Lit. n. 78. 
 
 et hos Marcdlui libra sexto digestorum ^ 2 Com. 453. ; 
 
458 
 
 THE LAW OF NEGLIGENCE. 
 
 [book n. 
 
 Amount of 
 care. 
 
 Giblin V. 
 M'MuUen. 
 
 the bailee with any loss unless it happens by gross neglect 
 which is construed to be evidence of fraud.' But if he under- 
 take specially to keep the goods safely and securely, he is bound 
 to answer all perils and damages that may befall them for want 
 of the same care with which a prudent man would keep his own." 
 The question of the care which a prudent man would use in the 
 custody of his own goods we have seen^ is not to be determined 
 by any hard-and-fast rule, but must be the subject of an inference 
 drawn by the jury in each individual case, and is dependent on 
 the nature and quality of the goods bailed, and the character and 
 customs of the place where the bailment is effected. What 
 would be gross negligence in the custody of a diamond bracelet 
 might be exceptional care in the custody of a tin pot ; a ton of 
 coals would suggest a different standard from a heap of jewels, 
 and a delicate microscope from an ordinary barometer.' A 
 deposit of any of these articles would fix the depositary to exert 
 care proportioned to its kind ; and in any, if he were guilty of 
 gross negligence — that is, the want of that care which every man 
 of common-sense, how inattentive soever, would be expected to 
 take of his own property* — he would be liable for injury or loss. 
 The judge would determine the law apjplicable to the case, and 
 would inform the jury what test the law directed them to apply. 
 Though there should be evidence in certain circumstances, yet if 
 there were not enough' in the circumstances to draw the inference , 
 of negligence required — e.ff., if there were slight negligence 
 when ordinary alone would affix liability, or if there were 
 evidence of but ordinary negligence where the class of care 
 required gross negligence to raise a liability — the duty of the 
 judge is to nonsuit.' Where there is evidence to go to the jury 
 it is their province to draw the particular conclusion appropriate 
 to the facts submitted to them. 
 
 This is very clearly put by Sir William Stawell, Chief Justice 
 of Victoria, in -Giblin •y. M'Mullen": "Negligence is a negative, 
 not a positive term. It involves the non-performance of a duty, 
 and that duty, though affected by the special facts of the case, 
 must be defined by the Court. The nature of the duty varies with 
 the existence or absence of reward. That of gratuitous bailees 
 is very different from that of bailees for hire. The distinction 
 between the several kinds of duty is a legal one, determined or 
 determinable by recognized principles. If a jury, not the Court, 
 
 ' See ante, p. 45. " And if there be 
 such a gross neglect, it is looked upon as 
 nn evidence of fraud": per Holt, C.J., 
 Cogga t: Bernard, I Sm. Lead, Cas. gth 
 edit, at p. 211. 
 
 ' Ante, p. 15. 
 
 Batson a. Donovan, 4 Barn. & Ald.2l. 
 
 Jones, Bailments, p. 118. 
 
 Moffatt 1). Bateman, L. K. 3 P. C. 
 
 115; 22 L. T.N. S. 140. 
 «L. E. 2 P, 
 
 L. T. N. S. 214 ; 
 
 CJ. 317, at p. 324; 21 
 17 W. E. 445. 
 
PART I.] BAILMENTS. 459 
 
 are to decide on the distinction, it would depend on matters of 
 fact, not on known principles of law; and if the Court must 
 decide on some, we think, as put during the argument, they 
 must decide on all such questions. . The defining the duty, too, 
 necessarily involves the deciding on the sufficiency of the evidence 
 to go to a jury. For if the Court, having defined the duty, is of 
 opinion that there is no evidence of a breach of that duty, the 
 plaintiff should be nonsuited, unless actions for negligence are to 
 be tried in a mode difierent from all others. There may be 
 evidence of negligence, but that is not sufficient ; there must be 
 evidence of actionable negligence, of a breach of duty imposed 
 on the defendant. It is not disputed that if there is any evidence 
 for the jury they constitute the proper tribunal to decide thereon. 
 There are, doubtless, some observations in Doorman v. Jenkins' 
 on which the plaintiff relied as tending to shew that the question 
 of negligence is for the jury. But in that case there was, in the 
 opinion of the Court, evidence of gross negligence. It was 
 unnecessary, therefore, to pronounce decisively on the point for 
 which the case is now cited ; and some of the learned judges 
 abstain in marked terms from expressing any decided opinion on 
 aniextra-judicial question. Before and since that decision there 
 have been numerous cases in which plaintiffs have been nonsuited 
 on the grounds of the insufficiency of the evidence given," 
 
 In the same case before the Privy Council^ the signification of Gross 
 the term "gross negligence," which has often been called j^ °^s 16™=^. 
 question,' was discussed, and was shewn to have reference, not to 
 the varying amount of negligence in a given case where the 
 proof of any amount would import liability, but to the defining 
 of different degrees applicable to different subject-matter. For 
 example, in some instances, as in the case of a gratuitous bailee, 
 a manifest amount of negligence must be shewn before liability 
 can arise ; and in others, as in the case of hire, a much smaller 
 amount affixes liability. That is to say : the epithet gross, as 
 applied to the greater or lesser amount of negligence in the care 
 of a deposit, is redundant ; but it is a necessary term to dis- 
 criminate the different amount of legal duty between a case of 
 deposit and a case of hire." 
 
 A leading American case" has some valuable remarks on the KaUroad 
 
 Company v. 
 
 ^ 2 Ad. & E. 256. S'Si at p. 521. There is a valuable note Iiockwood. 
 
 ^ At pp. 336-7. on the subject, 2 Kent's Commentaries, 
 
 ■* Ante, p. 42. I2th edit. p. 561, which the author states 
 
 ^ "I would also refer to some ingenious was amplified into an article, 7 Am. Law 
 
 remarks as to the misapplication of the Ber. 652. 
 
 term 'gross negligence' which are to be ' Railroad Company v. Lookwood, 17 
 
 found in Campbell's Law of Negligence, Wall. 357, at p. 382. Mr. Holmes, The 
 
 p.li " : per Willes, J., in Oppenhcim v. Common Law, p. 120, says : " To instruct 
 
 White Lion Hotel Company, L. B. 6C,P. a jury that they must fiad the defendant 
 
460 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 What « gross 
 negligence " 
 means with 
 reference to a 
 deposit. 
 
 considerations applicable : — " Strictly speaking, these expressions 
 [gross and ordinary negligence] are indicative rather of the 
 degree of care and diligence which is due from a party, and which 
 he fails to perform, than of the amount of inattention, careless- 
 ness, or stupidity which he exhibits. If very little care is due 
 from him, and he fails to bestow that little, it is called gross 
 negligence. If very great care is due, and he fails to come up to 
 the mark required, it is called slight negligence ; and if ordinary 
 care is due, such as a prudent man would exercise in his own 
 affairs, failure to bestow that amount of care is called ordinary 
 negligence. In each case, the negligence, whatever epithet we 
 give it, is failure to bestow the care and skill which the situation 
 demands, and hence it is more strictly accurate, perhaps, to call 
 it simply ' negligence.' And this seems to be the tendency of 
 modern authorities. If they mean more than this, and seek to 
 abolish the distinction of degrees of care, skill, and diligence 
 required in the performance of various duties and the fulfilment 
 of various contracts, we think they go too far, since the require- 
 ment of different degrees of care in different situations is too 
 firmly settled and fixed in the law to be ignored or changed. 
 The compilers of the French Civil Code undertook to abolish these 
 distinctions by enacting' that ' every act whatever of man that 
 causes damage to another obliges him by whose fault it happened 
 to repair it.' Toullier, in his Commentary on the Code, regards 
 this as a happy thought and a return to the law of nature.'' But 
 such an iron rule is too regardless of the foundation principles of 
 human duty, and must often operate with great severity and 
 injustice." 
 
 The rule that a depositary is liable only as for gross negligence 
 has been interpreted to mean gross negligence as manifested by 
 a comparison with the way that he keeps his own. " For if," 
 says Holt, C.J., " he keeps the goods bailed to him as he keeps 
 his own, though he keeps his own but negligently, yet he is not 
 chargeable for them, for the keeping them as he keeps his own 
 is an argument of his honesty.'"" Sir William Jones,^ Pothier," 
 Lord Mansfield,' and Chancellor Kent" appear to adopt the same 
 view. But this seems inconsistent with the modern authorities. 
 
 guilty of gross negligence before he can be 
 charged is open to the reproach that for 
 such a body the word ' gross ' is only 
 a vituperative epithet. But it would not 
 be so with a judge sitting in Admiralty 
 without a jury. The Koman law and the 
 Supreme Court of the United States agree 
 that the word means something." 
 
 1 Art. 1382. 
 
 ' Vol. Ti. p. 243. 
 
 ' Coggs V. Bernard, i Sm. Lead. Cas. 
 9th edit. 201, at p. 210. This was tbo 
 view of the civil law, 'Dig. 16, 3, 32. 
 
 * Bailments, p. 46. 
 
 « Trait§ du D6p6t, 0. 2, B. I, art. i, 
 n. 27. 
 
 ^ Gibbon v. Paynton, 4 Burr. 2298, at 
 p. 2300. 
 
 ' 2 Com. I2th edit. p. 563 ; also Lord 
 Eenyon, Finucane v. Small, I Esp. 315- 
 
PARTI.] BAILMENTS. 461 
 
 The point was definitely raised in Booth v. Wilson,' where A. Bootu r. 
 
 sent his horse for the night to B., who turned it out after dark ^''^°''- 
 
 into his pasture-field adjoining to, and separated from, a field of 
 
 C. by a fence which C. was bound to repair. The horse, from the 
 
 bad state of the fence, fell from one field into the other, and was 
 
 killed. After verdict for the plaintiff, a rule for a new trial was 
 
 obtained on the ground that the defendant was a gratuitous 
 
 bailee,. and turned the horse into that pasture which his own cattle 
 
 were in the constant habit of using. The Court, however, dis- lord Eiion- 
 
 charged the rule, Lord Ellenborough saying: " The defendant cer- j'i°dgm«it. 
 
 tainly was a gratuitous bailee, but, as such, he owes it to the 
 
 owner of the horse not to put it into a dangerous pasture, and if 
 
 he did not exercise a proper degree of care he would be liable for 
 
 any damage which the horse Aight sustain. Perhaps the horse 
 
 might have been safe during the daylight ; but here he turns it 
 
 into a pasture to which it was unused after dark. That is a 
 
 degree of negligence sufficient to render him liable." This was 
 
 followed by Doorman v. Jenkins," where Lord Denman at the Doorman ». 
 
 trial, refusing to nonsuit, directed the jury that it did not follow 
 
 from the defendant's having lost his own money at the same time 
 
 with the plaintiff's that he had taken such care of the plaintifi"s 
 
 money as a reasonable man would ordinarily take of his own ; and 
 
 that the fact relied on was no answer to the action if they 
 
 believed that the loss occurred from gross negligence. On motion 
 
 for a new trial it was not contended that a gratuitous bailee who 
 
 keeps another person's goods as carefully as his own cannot be 
 
 Uable for the loss or be guilty of gross negligence. All that was 
 
 urged was that the plaintiff had not made out a primd facie case. 
 
 The rule was discharged, Taunton, J., saying: " The defendant Taunton, j.,'s 
 
 receives money to be kept for the plaintiff. What care does he 
 
 exercise ? He puts it, together with money of his own (which I 
 
 think perfectly irtvmaterial), into the till of a public-house." In 
 
 the case of a justifiable capture, Lord Stowell treated the same 
 
 subject. " On questions of this nature," said he,^ "there it one Lord stoweii's 
 
 position sometimes advanced which does not meet with my entire The William. 
 
 assent — ^viz., that captors are answerable only for such care as 
 
 they would take of their own property. This, I think, is not a 
 
 just criterion in such a case, for a man may, with respect to his 
 
 own property, encounter risks, from views of particular advantage 
 
 or from a natural disposition of rashness, which would be entirely 
 
 unjustifiable in respect to the custody of goods of another person 
 
 ' I B. & Aid. 59. Justice Biillcr in Wallace v. Telfair ; 
 
 ^ 2 A. & E. 256 ; Wilkinson v. Cover- Beaucliamp v. Powley, i M. & E. 
 
 dale, I Esp. 74, decided by Lord Ken.von 38. 
 
 on the authority of a MS. note of Mr. ' The William, 6 Bob, Adm. 316. 
 
463 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Tindal, 
 
 Test appli- 
 cable. 
 
 Tracy r. 
 Wood. 
 
 which have come to his hands by an act of force. Where pro- 
 perty is confided to the care of a particular person by one who 
 is, or may be, supposed to be acquainted with his character, the 
 care which he would take of his own property might indeed be 
 considered as a reasonable criterion." In a review of the autho- 
 .1, c.J.,'s rities on the point the terse statement of the law by Tindal, C.J.. 
 
 sumiuftrv of ■ •/ ? j 
 
 tho law in in Vaughan v. Menlove ' must not be omitted. He says : " The 
 MenfoTO."" "^""^ taken by a prudent man has always been the rule laid 
 down, and, as to the supposed difficulty of applying it, a jury has 
 always been able to say whether, taking that rule as their guide, 
 there had been negligence on the occasion in question." But a 
 bailee's conduct with his own goods might be reckless, and then, 
 unless the person committing the goods was aware of the fact or 
 negligently oblivious of it, he could require a greater degree of 
 care for his goods than the depositary bestowed on his own. The 
 test in general is not what any particular man does, but what 
 men as a class would do with similar property as a class. This is 
 unequivocally stated in the judgment in Tracy v. Wood": "The 
 true way of considering cases of this nature is to consider 
 whether the party has omitted that care which bailees without 
 hire or mandatories of ordinary prudence usually take of property 
 of this nature. If he has, then it constitutes a case of gross 
 negligence. The question is not whether he has omitted that 
 care which very prudent persons usually take of their own pro- 
 perty, for the omission of that would be but slight negligence, 
 nor whether he has omitted that care which prudent' persons 
 ordinarily take of their own property, for that would be ordinary 
 negligence ; but whether there be a want of that care which men 
 of common-sense, however inattentive, usually take, or ought to 
 be presumed to take, of their property, for that is gross negligence. 
 The contract of bailees without reward is not merely for good 
 faith, but for such care as persons of common prudence in their 
 situation usually bestow upon such property. If they omit such 
 care; it is gross negligence,"" We have here, then, a most 
 authoritative statement-^for it is Judge Story who speaks — that 
 reference is to be made, not to the conduct of any particular man 
 to fix a standard of care or negligence, but to the average to be ex- 
 pected from the generality of men. We have, too, a clear discrimi- 
 nation of the three classes of negligence, which should be noted. 
 
 1 3 Bing. N. C. 468, at p. 475. 
 
 ' 3 Mason 132. See Palin v. Eeiil, 10 
 Ontario App. It. 63, where a guest at an 
 inn, when leaving, and after paying his 
 bill, asked to be allowed to leave a box in 
 the room of the inn used for sloring lug- 
 gage, intending to fetch it the following 
 
 day, but being prevented, by illness, 
 fetching it then, on being able to go< for 
 it, found it was lost ; it was held there 
 must be proof of actual negligence, as the 
 inn-keeper was merely a gratuitous bailee. 
 " See Batson v. Donovan, 4 B. & Aid, 
 21 ; Duir J). Budd, 3 Br. & B. 177. 
 
PART I.] BAILMENTS. 463 
 
 First, slight negligence, which is the omission of "that care Three degrees 
 which very prudent persons usually take of their own property." °^ negiigonoe. 
 
 Second, ordiimry negligence, which is the omission of "that 
 cai-e which prudent persons ordinarily take of their own property." 
 
 And third, gro^ negligence, which is the omission of " that 
 care which men of common-sense, however inattentive, usually 
 take, or ought to be presumed to take, of their property."^ 
 
 Between gross and ordinary negligence, then, in one aspect, 
 the difference would appear to be similar to that between skilled 
 or professional and unskilled or unprofessional diligence ; in 
 another it would mark merely the different degrees of care appli- 
 cable in various circumstances.^ 
 
 "The authorities are numerous," says Orompton, J., delivering Crompton, j., 
 the judgment of the Exchequqp Chamber, in Beal v. South Devon g^uth Devon 
 Eailway,^ "and the language of the judgments varioiis, but for^^'^^^y* 
 all practical purposes the rule may be stated to be that Jhe 
 failure to exercise reasonable care, skill, and diligence is gross 
 negligence. What is reasonable varies in the case of a gratuitous 
 bailee and that of a bailee for hire. From the former is reason- 
 ably expected such care and diligence as persons ordinarily use in 
 their own affairs, and such skill as he has. From the latter is 
 reasonably expected care and diligence such as are exercised in 
 the ordinary and proper course of similar business, and such skill 
 as he ought to have — namely, the skill usual and requisite in the 
 business for which he receives payment." 
 
 To the principle that a depositary is answerable only for gross Four excep- 
 megligence Sir William Jones'* enumerates four exceptions, of '°°^' 
 which two only are strictly exceptions, the remaining two being 
 concerned with cases which are not properly deposits. These we 
 now have to consider. 
 
 First: A depositary is answerable for a different degree than Krst exoep- 
 
 groas negligence where by a special agreement he has engaged to there is a 
 
 answer for less. This is the real point of decision in Southcote's ^:^^^} "S''««- 
 
 case.° There it was held that, upon a bailment to keep safely, the 
 
 bailee was responsible for a loss occasioned by theft, whether the 
 
 theft was by his servants or by others. Sir Edward Coke states the 
 
 law," that in cases of deposit the engagement of the bailee is to 
 
 keep safely, " for if goods are delivered to one to be kept, and to 
 
 be safely kept, it is all one in law." His conclusion is that, if the 
 
 goods are to be safely kept, and afterwards are stolen, the bailee 
 
 ^ In Austin v. Manchester Railway, lo ° See ante, pp. i6 et sej. 
 
 C. B. 454, it was said the phraso "gross ^ 3 H. & C. 337, at p. 341. 
 
 negligence " is " more correctly used_ in ^ Bailments, pp. 47-50. 
 
 describing the sort of negligence for which ° (1601) Co. Lit. 83 b; Cro. Eliz. 
 
 a gratuitous bailee is responsible." Hin- 815. 
 on V. Dibbin, 2 Q. B. 646, at p. 661. " Co, Lit. 89 a. 
 
THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Two points 
 raised in 
 Southcote's 
 
 First, over- 
 ruled by 
 Coggs V. 
 Bei-uard. 
 
 Second, con- 
 firmed 
 
 to some 
 extent. 
 
 Ground of 
 this. 
 
 shall not be excused, since by accepting tlie goods he undertook 
 to keep them safely, to which obligation he must be held. If, 
 however, the goods are delivered to him to keep as he would keep 
 his own, then, if they are stolen without his default or negligence, 
 he shall be discharged. Blackstone states the law': "If he [the 
 bailee] undertakes specially to keep the goods safely and securely, 
 he is bound to the same care as a prudent man would take of his 
 own " — i.e., ordinary diligence. 
 
 As to the duty involved in an undertaking to keep safely there 
 is no dispute. Sir Edward Coke, however, asserted in addition : 
 
 First, that between the duty to keep and to keep safely there 
 was no difference. 
 
 Secondly, that if a man accepts goods to keep safely he is not 
 responsible for losses by theft. 
 
 The first of these positions is now distinctly not law. It 
 was overruled by Ooggs v. Bernard,^ and the effect of that decision 
 is stated by Tindal, C.J., in Eoss v. HilP to mean that the words 
 " safely and securely " inserted in a declaration necessarily import 
 no more than safely and securely with reference to the degree of 
 care which, under the circumstances, the law required of the 
 defendant — that is, that he shall use such a reasonable degree of 
 care that the plaintiff shall incur no damage or loss through the 
 defendant's negligence or default. 
 
 The second position is, however, in the main confirmed by later 
 authorities, though Sir William Jones ^ says: " Eobbery by force 
 is considered as irresistible, but a loss by private stealth is pre- 
 sumptive evidence of ordinary neglect." This is undoubtedly the 
 doctrine of the civil law, but the common law has not followed 
 the rule.* This may also be gathered from the reasoning of the 
 Court in Ooggs v. Bernard. The common law does not view theft 
 in any exceptional light, neither imputing it to the neglect of the 
 bailee, nor yet exempting him from responsibility on that ground 
 alone. Each case must be " clothed in circumstance," and on 
 that the law decides whether there has or has not been the 
 required degree of care.° 
 
 Sir Edward Coke's second proposition is true, then, if stated 
 that where a man accepts goods to keep as his own, he is not 
 thereby made responsible for losses by theft. The modern law, 
 however, bases this, not upon a doctrine applicable to the general 
 
 ^ 2 Comm. 452 ; Armfield v. Mercer, 2 
 Times L. E. 764. 
 
 2 (1703) 2 Ld. Baym. 909, 910, 911, 
 914, 915. The King v. Hertford, 2 Show. 
 172. Brooke, Abridg. tit. Bailments, 7. As 
 to the histoiical import of this, see Holmes, 
 The Common Law, pp. 181-19S. . 
 
 » 2 C. B. 877. 
 
 * Bailments, p. 119. 
 
 ° Finucane v. Small, I Esp. 315. 
 
 * Story, Bailments, §§ 27 et seq., 333- 
 338 ; Jones, Bailments, pp. 75 et seq. ; 
 Vere v. Smith, i Vent. 121 ; Fitzherliert 
 Abridg. Detinue, 59. See Clarke v. 
 Earnshaw, Gow 30; in a note the cases 
 are considered, 
 
PAKT I.] BAILMENTS.- 465 , 
 
 law of deposit, but on a special undertaking. The distinction, 
 says Story,^ may become of importance where the bailee is 
 notoriously very careless and indifferent about his own affairs, in 
 which case the depositor may fairly be presumed to know his 
 habits, and to 'trust to such care as the bailee takes of his own 
 goods. If the goods are to be kept in a particular place, the 
 depositor is not admitted to object that the place is not a safe one, 
 since his assent amounts to a special agreement with reference to 
 the place of their deposit. 
 
 Under this head, too, Story' treats the question, whether a How far a 
 depositaay is responsible for the loss of articles contained in a refponsiUe'^ 
 package the contents of which are unknown to him. This seems ^°l^}^ ^°^^ °^ 
 
 ir o _ articles con- 
 
 to have been a debated question amongst the Roman lawyers, tained iu a 
 In our law the author of the "j3ommentaries on the Law of Bail- contents are 
 ments " ^ says it admits of different determinations according to y^r°^° *" 
 circumstances. 
 
 First, if the bailee knew that the box or casket contained 
 jewels, although the bailor took away the key, he would be bound 
 to a degree of diligence proportioned to the contents.'' 
 
 Second, if he had no ground to suppose that the box or casket 
 contained any valuables whatsoever, he would be bound only to such 
 reasonable care as would be required of depositaries in cases of 
 articles of common value." 
 
 Third, if there were meditated concealment of the contents of 
 the box or casket from the bailee with a view to induce him to 
 receive the bailment, and he would not have received it or have 
 exposed it if he had been made acquainted with the facts, then 
 the transaction would be deemed either a fraud on him or the 
 loss would be set down to the bailor's own folly." 
 
 The special agreement that the depositary makes may either Second excep- 
 narrow or enlarge his general responsibility." But this is subject one solicits 
 to the exception that an agreement not to take exception to fraud ^f goodl"''''^ 
 is void as being contrary to good morals and decency.' 
 
 Second : The second exception stated by Sir William Jones is, 
 when a man spontaneously and officiously proposes to keep the 
 goods of another he may prevent the owner from entrusting them 
 with a person of more improved vigilance, for which reason he 
 takes upon himself the risk of the deposit, and becomes responsible 
 
 ' Bailments, §§ 65, 66, 73. ' Si quid nommaHm eonvenit, vel plus 
 
 2 §§ 74, 75. "«' minus, in singulis contraciibus ; nam 
 
 " § 77. hoc servabitvT, quod initio eonvenit ; legem 
 
 * Jones, Bailments, pp. 38, 39; Coggs enim contractus dedit : Dig. 50, 17, 23 ; 
 
 V. Bernard, 2 Ld. Rayni. 909, _ 914, Jones, Bailments, p. 48. 
 
 915 ; I Sm. Lead. Cas. 9tli edit. p. ' Jones, Bailments, p. 48, citing Doc- 
 
 201. tor and . Student, dial. 2, c. 38. Non 
 
 ' Batson v. Donovan, S B. & Aid. 21 ; valere, si convenerit, ne dolus prcesteiur : 
 
 Sleat V. Fagg, 5 B. & Aid. 342. Dig. 50, 17, 23. 
 
 GG 
 
466 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II, 
 
 Third excep- 
 tion : Where 
 there is 
 reward. 
 
 Fourth excep- 
 tion : Where 
 the benefit is 
 the bailee's 
 alone. 
 
 Where one 
 finds property. 
 
 Doctrine in 
 
 Bacon's 
 
 Abridgement. 
 
 at least for ordinary neglect, but not for mere casualties.' For 
 this, says Story,^ the writer does not cite any other authority 
 than the Roman law. " The rule is cevtainl-y st7-iciissimijvns, and 
 the incorporation into our law ought not readily to be admitted. 
 A voluntary offer of kindness to a friend, even when importunately 
 urged, ought hardly to carry with it such penal consequences, since 
 it is generally the result of strong affection, and a desire to oblige, 
 and often of a sense of duty, especially in oases of imminent peril 
 or sudden emergency." 
 
 Third: The third exception stated by Sir William Jones ^ is, 
 when the bailee either directly demands and receives a reward for 
 his care or takes the charge of goods in consequence of some 
 lucrative contract. But either of these circumstances changes 
 the nature of the bailment from being a gratuitous deposit, and 
 brings it under different considerations, where the depositary is 
 held to ordinary care and is answerable for ordinary neglect. 
 
 Fourth : The fourth exception stated by Sir William Jones^ is 
 where the bailee alone receives advantage from the deposit. But 
 as to this the same author says : " This bailment, indeed, is 
 rather a loan than a 'deposit,^' and " such a depositary must answer 
 even for slight negligence." , 
 
 There is some peculiarity where one comes lawfully to the 
 possession of another person's property by finding it. As to this, 
 in Bacon's Abridgement it is laid down : " If a man find goods 
 and abuse them, or if he find sheep and kill them, this is a 
 conversion. But if a man find butter, and by his negligent 
 keeping it putrefy, or if a man find garments, and by negli- 
 gent keeping they be moth-eaten, no action lies. So it is if a 
 man find goods and lose them again ; and the reason of the 
 difference is this : Where a man delivers goods to another, the 
 bailee by acceptance of the goods undertakes for the safe custody 
 of them, and it is to be presumed that the owner would not have 
 parted with them but under confidence of that security ; but where 
 a man only finds the goods of another the owner did not part with 
 thein under the caution of any trust or engagement, nor did the 
 finder receive them into his possession under any obligation ; and 
 therefore the law only prohibits a man in this case from making 
 an unjust profit of what is another's ; but the finder is not obliged 
 to preserve those goods safer than the owner himself did; for 
 there is no reason for the law to lay such a duty on the finder in 
 behalf of the careless owner, and it seems too rigorous to extend 
 
 1 This is undoubtedly the rule of the 
 civil law : Dig. i6, 3, i, § 35 ; i Domat. 
 B I, tit. 7, § 3, art. 8 ; Yinn. lib. 3, tit. 
 15. § '2- 
 
 2 Bailments, § 81. See, 
 NapoKon, arts. 1927, 1928. 
 " Bailments, p. 49, 
 ' P. 50, 
 
 too, Code 
 
PART I.] BAILMENTS. 4C7 
 
 the charity of the finder beyond the diligence of the proprietor : it 
 is, therefore, a good mean to punish an injurious act, viz. , the con- 
 version of the goods to his own use, but not to punish a negligence 
 in him when the owner is gailty of a much greater one."' 
 
 This doctrine Story ^ criticizes as " very unsatisfactory," and Criticised by 
 cites Coke, C.J., in Isaack v. Clark" : " If a man finds goods, an ^'°''^- 
 action on the case lies for his ill and negligent keeping of them, in isaacic v. 
 hut not trover or conversion, because this is but a nonfeasance," '^'**" 
 which doctrine he approves, and which is in consonance with 
 what is said in "Doctor and Student"^: "If a man finds " -Doctor and 
 goods of another, if they be after hurt or lost by wilful negli- 
 gence, he shall be charged to the owner. But if they be lost 
 by other casualty, as if they be laid in a house that by chance 
 is burned, or if he deliver fhem to another to keep that 
 runneth away with them, I think he be discharged." The con- story's 
 elusion Story arrive.s at is stated as follows": "There seems no°°°°'"^'™" 
 just foundation in our law for any distinction as to responsibility, 
 although there may be as to remedy, between cases of conversion 
 and misfeasance by the finder of goods and cases of negligence if 
 the loss has arisen from that degree of negligence for which 
 gratuitous bailees would ordinarily be liable."' The same very 
 learned writer is of opinion that the finder may charge the owner 
 for necessary expense and labour in the care of what is found.' 
 This, however, has never been expressly decided. The nearest 
 case in our reports is that of Nicholson v. Chapman,' where some Nicholson «?. 
 timber belonging to the plaintiff was placed in a dock on the bank 
 of a navigable river, and, being accidentally loosened, was carried 
 some considerable distance by the tide, and left on a tow-path at 
 low water. Here it was found by the defendant, who voluntarily 
 took it to a safe place out of reach of the tide. When the -plaintiff 
 afterwards demanded the timber the defendant refused to give it 
 up without payment for what had been done. In an action of- 
 trover it was held that the defendant had no lien. Eyre, C.J., 
 however, said that the defendant might recover for his trouble and 
 expense in some other form of action. A note to the case says : 
 " It seems probable that in such a case, if any action could be main- 
 tained, it would be an action of assumpsit for work and labour, in 
 which the Court would imply a special instance and request as 
 well as a promise. On a quantum meruit the reasonable extent 
 of the recompense would come properly before the jury."" 
 
 ' Bacon's Abridg. Bailment, D ; Leon. " Chancellor Kent (2 Kent's Com. I2tli 
 
 123,223; Owen 141 ; 2 Bnls. 21. edit. p. 569) is of the same opinion; 
 
 " Bailments, § 86. M'Leod v. Jones, 105 Mass. 403. 
 
 ' 2 Bnls. 306, 312. ' § 121 a. 8 2H. BI. 254. 
 
 ' Doctor and Student, dial. 2, c. 38. ^ See Baker v. Hoag, 3 Bavb. 203, 7 Barb. 
 
 '§87. 113. In the American case of Bartholomew 
 
468 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Howard o, 
 Harris, 
 
 Criticised as 
 reported. 
 
 This seems a convenient place to notice a case of Howard v. 
 Harris,' tried before Watkin Williams, J., and- which, as reported, 
 it is difficult to assign to any just principle. The defendant, the 
 manager of Drury Lane Theatre, received a letter from the 
 plaintiff, stating that he had written a play, and asking the 
 defendant to assist him in producing it. To this the defendant 
 replied that if the plaintiff would send him the scene, plot, and 
 sketch of the play he would look through it. Accordingly, the 
 plaintiff sent the scene, plot, and sketch, and also the play itself. 
 The plaintiff made numerous applications with reference to the 
 play from time to time, and at last demanded its return. But 
 the play was not returned, as it could not be found. The 
 plaintiff then brought his action for the return of the play. The 
 report then goes on as follows : — " Williams, J., held that there 
 was no case to go to the jury, for the plaintiff had chosen volun- 
 tarily to send to the defendant what the defendant had never 
 asked for, and no duty of any sort or kind was cast upon the 
 defendant with regard to what was so sent."^ This is obviously, 
 incorrect ; or, if correct, the whole law of deposits must be wrong. 
 As soon as the defendant received the deposit he became amen- 
 able to the rules of law regulating deposits : he was bound to 
 slight diligence ; he became liable for gross negligence. He 
 might have avoided liability by a refusal to accept, by absolutely 
 ignoring the thing sent, or by an immediate return. In the event 
 of his acquiescing in the receipt, he could not be regarded as being 
 in any better position than a finder of the play, who, as we have 
 
 V. Jackson, 20 Jalin. 28, the point was 
 raised. There an action was brought on 
 an assumpsit. J. owned a wheat stubhle 
 field in which B. had a stack of wheat, 
 which he promised to remove in time to 
 prepai'e tlie ground for the full crop. When 
 the time for removal came J. sent a mes- 
 sage to B. requesting the immediate 
 removal of the stack. The sons of B. said 
 it should be removed hy ten o'clock the 
 next morning. At that hour J. set fire to 
 the stubble. The fire threatening to barn 
 the stack, which B. and his sons neglected 
 to remove, J. set to work and removed it 
 himself so as to secure it for B. The 
 Court held J . not entitled to recover for 
 the work and labour in its removal. " If," 
 said the Court, "a man humanely bestows 
 his labour, and even risks his life, in volun- 
 tarily aiding to preserve his neighbour's 
 house from destruction by fire, the law 
 considers the semce rendered as gratui- 
 tous, and it thei-efore forms no ground of 
 action." In the argument in Falcke v. 
 Scottish Imperial Insurance Company, 34 
 Cb, D. 234, at p. 239, it was said: "If a 
 
 party adopts and enjoys the benefit of what 
 has been done by another person, his 
 request will be presumed " : upon which 
 Bowen, L.J., is reported to have made the 
 comment, " The law is so laid down in 
 Smith's Leading Cases in the notes to 
 Lampleigh v. Brathwait, but it seems to 
 be staled too widely. It that were the 
 law, salvage would prevail at common law 
 as well as in maritime law, which it cer- 
 tainly does not." 
 
 1 I C. & E. 253. . 
 
 2 See per Holroyd, J., in Batson v. 
 Donovan, 4 B. & Aid. 21, at p. 34, "In 
 my opinion, the carrier cannot be con- 
 sidered as having consented to receive and 
 carry these articles, hy reason of the 
 notice which he had given and his ignor- 
 ance of their quality. I think, therefore, 
 he is not answerable as a carrier, nor even 
 as a bailee, on account of the legal fraud 
 
 of which the plaintiffs were guilty 
 
 The second question is, whether there was 
 gross negligence on the part of the defend- 
 ants. I think that question was properly 
 left to the jury." 
 
PAKT I.] BAILMENTS. 469 
 
 seen, would have his choice to pass it by or to take it up ; in the 
 latter event he would be required to answer for gross negligence. 
 From the report, however, it appears that the evidence went no 
 farther than to prove a loss by the depositary. The ruling of Actual ruling 
 Watkin Williams, J., then, probably was, that loss without some- pro^bly'l^rt 
 thing to shew the circumstances was not evidence to leave to the *^ reported, 
 jury in a case where nothing less than gross negligence would 
 aflBx liability.' The action, however, was in trover for the re- 
 covery of the manuscript. In this form of action proof of 
 demand and refusal constitutes an apparent conversion, and 
 throws upon the defendant the burden of shewing that the pro- 
 perty was lost or stolen.^ It was probably admitted that the 
 property was lost. The onus would then be on the plaintifE to 
 shew the circumstances which point the negligence, since, in the 
 words of Story,' "mere proof of loss or injury to goods while in 
 the hands of a bailee does not, per se, prove negligence in him. 
 It may do so, or may not, according to the attending circum- 
 stances ; but it is the circumstances which shew the negligence, 
 not the mere loss or absence of the property. Evidence, there- 
 fore, that the goods are missing, that they are not to hand when 
 called for, does not, in and- of itself, establish negligence in the 
 bailee. The bailor must shew that fact affirmatively" that the 
 .bailee has. done something or omitted to do something which he 
 ought not to have done or omitted."^ 
 
 Where money is deposited with bankers, the bank is not bound Caae of mouey 
 to restore the same money, but an equivalent sum whenever it is taSkers, ^' 
 demanded." This transaction does not, therefore, come for our con- 
 sideration in the present connection, but will have to be dealt with 
 subsequently. But persons are sometimes in the habit of making 
 a special deposit at a bank of plate or jewels or title-deeds, or 
 even of coin or monetary securities, where the very thing deposited 
 is to be restored, and not an equivalent. 
 
 ' Tobin V. Muiiaon, 5 Moo. P. C. C. Mass. 452, at p. 456. The Queen's 
 
 no. Compare Tomkins «. Saltmarsh, 14 Bench Division decided llie same point 
 
 iSer.&Rawle275. As to involuntary Bailee, the same way in Powell v. Graves, 
 
 Heugh V. London and North- Western Rail- 2 Times Law Eep. 663, where plaintiff 
 
 way Company, L. E. 5 Ex. 51. deposited a picture, which was kept by 
 
 ' Cranoh v. White, i Bing. N. C. 414. delendants gratuitously, and after three 
 
 Story, Bailments, § 107. In assumpsit or yearn, on his asking for it, it could not be 
 
 case founded on negligence the plaintiff found. Lord Coleridge said : " There 
 
 must in the first instance make out Lis must be affirmative evidence of negligence 
 
 case as he charges it. to make thera [i.e., the defendants] as 
 
 •" Bailments, § 410 a. gratuitous bailees, liable for the loss." 
 
 ■* In Smith v. First National Bank of ^ Midland Railway Company v. Brom- 
 
 Westfield, 99 Mass. 605, it was held that, ley, 17 C. B. 372; Cotton v. Wood, 8 
 
 to charge defendants for negligence in a C. B. N. S. 568 ; Welfare v. Brighton 
 
 case of gratuitous bailment, something Railway Company, L.K. 4 Q.B. 693. See 
 
 must be shewn affirmatively beyond that contra, Mackenzie v. Cox, 9 C. & P. 
 
 the package could not be found ; and this 632. 
 was followed in Piflock v. Wells, 109 " Foley «. Hill, 2 H. L, C, 28, at p. 36. 
 
470 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Giblin «. 
 M 'Mullen. 
 
 Iiixa. Chelms- 
 ford. 
 
 The law on this subject was declared in the case of Giblin v. 
 M'MuUen,' before the Privy Council, on appeal from the Supreme 
 Court of Victoria. A customer placed in the care of a bank 
 certain railway debentures, which were kept in a box, of which 
 the customer kept the key, in the strong room of the bank with 
 the boxes of other customers. Access to this room was only by 
 passing through a compartment where a cashier sat by day and 
 a messenger slept at night, and other precautions were adopted. 
 The owner of the box had free access to the room where his box 
 was deposited during banking hours, in the presence of one of the 
 bank clerks, when he had occasion to take out coupons from his 
 debentures for collection. While in such custody the cashier of 
 the bank abstracted the debentures from the box and made away 
 with them. The plaintiff recovered a verdict at the trial, but a 
 rule to enter a nonsuit was made absolute by the full Court, and 
 this was upheld on appeal, on the ground that the bank, as 
 gratuitous bailees, were not bound to exercise more than ordinary 
 care of the deposits entrusted to them. This is thus expressed 
 by Lord Chelmsford in delivering judgment : " It is clear, accord- 
 ing to the authorities, that the bank in this case were not bound 
 to more than ordinary care of the deposit entrusted to them, and 
 that the negligence for which alone they could be made liable 
 would have been the want of that ordinary diligence which men 
 of common prudence generally exercise about their own afEairs." 
 In the judgment the American case of Foster v. Essex Bank' 
 was referred to with approbation. There the plaintiff deposited 
 with the bank for safe custody a cask containing a quantity of 
 gold doubloons, which were placed in a vault of the bank, where 
 the agent of the plaintiff was in the habit of coming to see that 
 they were safe. The cashier and chief clerk of the bank 
 fraudulently abstracted some of the contents of the cask, and 
 absconded. The plaintiff brought his action, but was held dis- 
 entitled to recover, on the ground that " such deposits are, indeed, 
 simply gratuitous on the part of the bank, and the practice of 
 receiving them must have originated in a willingness to accommo- 
 date members of the corporation with a place for their treasures 
 more secure from fire and thieves than their dwelling-houses or 
 
 1 L.R.2P.C. 3i7;2iL.T.N.S.2ii; 
 17 "W. E. 44S. 
 
 " 17 Mass. 478. A similar case is Scott 
 V. National Bank of Chester, 72 Penn. 
 472. "We think it well settled that a 
 bailee for safe keeping without reward is 
 not responsible for the article deposited 
 without proof that the loss was occasioned 
 bv bad faith or gross negligence " : per 
 Shaw, C.J., Whitney v. Lee, 49 Mass. gi. 
 
 The American oases are all reviewed with 
 reference to " the leading case upon the 
 subject, Foster v. Essex fiank, 17 Mass. 
 479," in the New York ease of Pattison 
 V. Syracuse National Bank, 36 Am. li. 
 582. The report is supplemented by a note 
 containing the judgment of the United 
 States Supreme Court in First National 
 Bank of Carlisle v. Graham, reported 100 
 U. S. (10 Otto) 699. 
 
PAKT I.] BAILMENTS. 471 
 
 stores." " The rule to be appKed to this species of bailment is, 
 as has been stated, that the depositary is answerable in case of 
 loss for gross negligence only, or fraud, which will make a bailee 
 of any character answerable. Gross negligence certainly cannot 
 be inferred from anything found by the verdict ; for tlie same care 
 was taken of this as of other deposits and of the property belonging 
 to the lanh itself." 
 
 On a cursory examination, there seems a discrepancy in the Cases com- 
 decision arrived at in these two very similar cases. In Giblin's ^"'^ ' 
 case the degree of care is specified as " not more than ordinary," 
 and the negligence for which alone the defendants could be 
 made liable as " the want of that ordinary intelligence which 
 men of common prudence generally exercise about their own 
 affairs." This is almost the very wording of Sir William Jones's 
 definition of ordinary negligence.' In the American case the 
 defendants are stated to be " answerable only for gross negligence 
 or for fraud." But the test applied seems to be whether " the same 
 care was taken of this as of other deposits and of the property 
 Belonging to the bank itself."" In considering the character of 
 the deposit a far greater amount of care is required to be exercised 
 in the guarding of precious articles than if the deposit were of 
 iron or tin.' And no man careful, attentive, and intelligent in 
 the management of his own affairs but would exercise very con- 
 siderable caution in the care of bank-notes or bullion. Gross 
 megUgence," then, in matters of this kind would be any inter- 
 mission of that ordinary prudence generally exercised upon their 
 own affairs ; and the apparent discrepancy resolves itself into an 
 identical expression. 
 
 Giblin v. M'MuUen was considered and distinguished in Giblin v. 
 In re United Service Company, Johnston's claim. ^ The owner distinguished 
 of railway shares in two companies deposited the certificates geJ^ioe'com- 
 for safe custody with a banking company, who undertook toP™y-^^p<"'« 
 receive the dividends for a small commission. On receiving cer- 
 tificates from the railway companies, J. gave his address in one 
 
 ' Bailments, p. Ii8. * Lata cudpm firmest non intelUgere id 
 
 ' The rule of negligence erasse, adopted quod omnes i-nteUigimt, cited by Whnrton, 
 
 by Pothier, Trait€ du Oontrat de D6pot, Law of Kegligence, § 468, as the definition 
 
 p. 27, from the civil law, is Nee enim salvd of gross negligence in the civil law. 
 
 jide minorem iis quam euis rebus dili- " Gross neglect," nays Chancellor Kent (2 
 
 gentiamprcestahit. Kent's Commentaries, 12th edit. p. 560), 
 
 ' 2 Kent's Commentaries, I2tli edit. p. " is the want of that care whicn every man 
 
 565. "Iftlie depositary he a sharp, careful of common-sense under the circumstances 
 
 man in respect of his own affairs, and the takes of his own afiairs." 
 thing entrusted to him is lost by a slight ^ L. B. 6 Ch. App. 212 ; 40 L. J. Ch. 
 
 neglect on his part, the better opinion 286; 24 L. T. JT. S. 115; 19 W. B. 457. 
 
 would seem to be that he then is respon- Compare with this Lancaster Bank v, 
 
 sible." Pothier, Traitd du Contrat de Smith. 62 Penn. St. 47, and United Society 
 
 D6p6t, p. 27. Mjtton V. Cook, 2 Str. 1099. of Shakers v. Underwood, 9 Bush 609. 
 
472 THE LAW OF NEGLIGENCE. [book ii. 
 
 instance at the office of the bank, and in the other at a club. 
 The manager of the bank, who had the key of the safe where 
 the certificates were kept, fraudulently sold the shares, and forged 
 the name of J. to the transfer. The companies wrote to J., in- 
 forming him of the transfers, and in one instance received no 
 answer, and in another an answer in J.'s name, forged by the 
 manager. They thereupon registered the transfer. The case 
 came before the Court on a point relating to the disallowing of 
 costs on account of remoteness of damage. But James, L.J., in 
 the course of giving judgment, held the case clearly distinguish- 
 able, in the principle applicable to it, from Giblin v. M 'Mullen.' 
 There a box containing documents was placed at a bank simply 
 for the purpose of convenient deposit, and the customer alone 
 had access to it for the purpose of placing or removing anything 
 he pleased. But in the present case the Lords Justices considered 
 that the securities came into the custody of the bank in tie 
 ordinary course of their business as bankers, and in such circum- 
 stances as to entitle the bank to a lien upon them for their 
 general banking account, even though the possession of these 
 particular documents was not essential to the collection of the 
 money the bank was authorized to collect. They also considered 
 that leaving the securities in the uncontrolled and unwatched 
 power of the manager was a gross neglect, and that it was not 
 excused or justified by reason of the fact that they were equally 
 negligent with regard to their own securities. This decision 
 goes far to help in clearing up any remaining ambiguity in the 
 Gross negli- application of the term " gross negligence." " Gross negligence," 
 %^^<^- yjre have seen, first, marks a comparison between two classes of 
 
 transactions — e.g., the different amount of negligence which imports 
 liability in the case of goods deposited and goods hired respect- 
 ively. But, secondly, as applied to a class, it has also a relative 
 and not an absolute signification. Confining our attention to 
 goods deposited exclusively, in which class " gross negligence" is 
 required to be shewn before liability arises, there is yet a further 
 distiaction to be noted. 
 
 In logical language, gross negligence is to be understood 
 not simpliciter — not as an inelastic expression; but secundum 
 quid — with certain limitations. The depositary, under the general 
 rule, is not liable vmless he has been guilty of gross negligence. 
 But gross negligence is not a formula establishing a standard, 
 such as an imperial pint or a statute mile or a thermometrical 
 degree, but the indication of a proportion never varying between 
 the subject-matter on which it is to be concerned and the degree 
 
 ' L. R. 2 P. C. 317. 
 
PART I.] BAILMENTS. 473 
 
 of caxe to be taken with reference to it, but varying between 
 case and case just as the matter with which they are concerned 
 varies and the circumstances in which they are placed.' The 
 rule of law is fixed that a depositary is liable only for gross 
 negligence. The cases we have been considering indicate that 
 gross negligence is the absence of that care which is ordinarily to 
 be expected from the average man ; not, however, the average 
 man absolutely* taken, irrespectively of capacity and experience 
 and forethought. But the average man with reference to the 
 particular duties, and what the average man would do with 
 reference to the particulai- circumstances, is a fluctuating quantity, 
 which has iu each case to be determined ; and it is the determi- 
 nation of this within a wide range of possibilities that gives to ' 
 the term " gross negligence" i^ apparent ambiguity — now bringing 
 certain acts within its range, now excluding them ; apparently 
 arbitrary, but really determiaed by two factors — first, the nature 
 of the confidence bestowed: secondly, the subject-matter with 
 regard to which the confidence is bestowed. 
 
 The case of Nelson v. Macintosh^ well illustrates how, the cir- Nelson i<. 
 cumstances varying, difierent degrees of care may be exacted with Ma"''"''"'''- 
 regard to the very same articles. The action was for negligently 
 ■ carrying the plaintiff's box containing doubloons and other valu- 
 ables, whereby they were lost. The plaintiff was to have worked 
 his passage home on board a ship of which the defendant was 
 captain, but the ship sailed without him, having on board the 
 plaintiff's box stowed on the quarter-deck. Towards the end of 
 the voyage the captaiu opened the trunk, and the doubloons and 
 valuables were put in a canvas bag, and deposited in the captain's 
 chest in the cabin in which his own valuables were usually kept. 
 When the vessel reached Gravesend, the captain and a mate left 
 the vessel, and a river pilot and an excise officer came on board. 
 Two young men of the vessel were allowed to sleep in the cabin. 
 On the next morning the captain's trunk containing the valuables 
 was missing, and was not recovered. Lord Ellenborough charged 
 the jury that every person who delivers goods to another to be 
 carried for hire has a right to the utmost care, and that when a 
 person does not carry for hire he is bound to take proper and 
 prudent care of that which is committed to him ; and this would 
 have been the case had no alteration been made, but that when 
 the captain from motives of prudence opened the box, he was 
 bound to replace it in its proper state of security, and to restore 
 all the guards with which it had before been protected. In this 
 
 ^ See the point admirably illustrated in Story, Bailments, § 11 ; Vaughan v. Menlove, 
 3 Bing. N. d 468, at p. 475 ; Whitney v. Lee, 49 Mas?. 91. 
 2 I Stark. 227 ; Tracy v. "Wood, 3 Mason 132. 
 
474 THE LAW OF NEGLIGENCE. [book ii. 
 
 case the defendant by his conduct exposed the property to peril 
 and risk ; and the ^ralue of the property imposed on him an 
 enhanced duty of vigilance that his acts might not operate to the 
 prejudice of the party. When he had ascertained the valuable 
 nature of the property, it was a duty imperative upon him 
 to restore it to at least its former degree of security. That, 
 having taken it wholly out of the box, he was bound to make his 
 own trunk, in which he chose to deposit it, as secure as possible, 
 since it was no longer the box of a seaman working his passage 
 home that was being guarded, but an article of great value, which 
 the defendant was therefore bound to watch with great care and 
 diligence. Here, then, the captain had a deposit which, if re- 
 garded as a gratuitous deposit, obliged him so to guard it that he 
 was not guilty of gross negligence. In directing the jury, then, 
 the judge laid down the rule that the captain was bound to take 
 proper and prudent care of what was committed to him. But 
 proper and prudent care was a very different quantity as applied 
 to a seaman's chest and to a bag of doubloons ; and it is in 
 this regard that gross negligence becomes so indeterminate and 
 debatable a quantity. 
 The Eends- The same point is also illustrated by Sir William Scott in his 
 
 ^^^' judgment in The Eendsberg.' The case came before the Court 
 
 on objection to the report of the registrar on charges exhibited 
 by the marshal of the court against the ship and cargo for 
 services. In the course of his judgment. Sir William Scott 
 said : " The commissioner employed is ^m'o hoc vice the servant of 
 those who employ him. What is the obligation of a servant? 
 If I send a servant with money to a banker, and he carries it 
 with proper care, he would not be answerable for the loss if his 
 pocket was picked on the way ; but if, instead of carrying it in a 
 proper manner and with ordinary caution, he should caiTy it 
 openly in his hand, thereby exposing valuable property so as to 
 invite the snatch of any person he might meet in the ci-owded 
 population of this town, he would be liable, because he would be 
 guilty of the negligentia maliciosa in doing that from which the 
 law must infer that he intended the event which has actually 
 taken place." 
 
 The case put by Sir William Scott comes under that division 
 of bailments called locatio operis, and not specially under that of 
 depositum, which is the direct subject of our present considera- 
 tion. But the principle involved runs through the whole law of 
 bailments, and is true alike of depositum and locatio operis 
 mercium veliendarmn, of the least as well as of the most onerous 
 
 1 6 Rob. AJm. 142, at p, 155. 
 
PAET I.] BAILMENTS. 475 
 
 of these relations. In discussing the matter in this place it 
 must therefore be clearly understood that the conclusions arrived 
 at are not limited to the case of deposits alone, but ai-e applicable 
 in considering all the relations that arise out of the law of bail- 
 ments, and must be borne in mind throughout the examination 
 of all the succeeding branches of the subject. 
 
 As a general proposition it is correct to say that the depositary Depositary 
 has no right to use the thing deposited.^ But this is subject "s/jfAhing^'^ 
 to two exceptions — first, where the deposit requires use, " as deposited. 
 sporting dogs and horses;"^ secondly, where the keeping the ^,]]^° ^'""^^' 
 deposit is a charge to the depositary, as if it is a cow or a horse : 
 there the pawnee may milk the cow and use the milk, and ride 
 the horse, by way of recompense for the keeping." 
 
 The best general rule, says Story,'' is to consider whether Assent of 
 there may, or may not, be an" implied consent on the part of the smned where 
 owner to the use. If the use would be for the benefit of the "^^ benefits 
 
 n •!• • tlie deposit. 
 
 deposit, the assent of the owner may well be presumed ; if to his 
 injury, or perilous, it ought not to be presumed ; and if the use 
 would be indifferent, the use may be deemed not allowable. 
 
 It follows that the depositary has no authority to sell or pledge Depositary 
 the deposit; and if he does, the owner may reclaim it from any "„ *^io°"^ 
 person who is found in possession of it. This was held to be v^«^s<'- 
 the law in Hartop v. Hoare,* in which case the facts shewed that 
 certain jewels, sealed up, had been placed for safe custody in 
 the hands of a jeweller, who broke the seal and pledged them. 
 The owner brought an action of trover against the defendant, 
 and the Court determined that the deliveiy of the jewels to the 
 jeweller was a mere naked bailment for the use of the bailor, 
 and that the jeweller was a mere depositary, with neither general 
 nor special property in the jewels, but the custody only. The Kuie as stated 
 rule laid down in Bacon's Abridgement" is: Every bailee has a Abn'dgomeiit. 
 general right of action against mere wrongdoers to the property 
 while in his possession, whether he has a special property therein 
 or not, because he is answerable over to the bailor ; for a man 
 ought not to be charged with an injury to another without being 
 able to resort to the original cause of that injury, and in amends 
 there to do himself right. 
 
 The depositary is bound to restore the deposit upon demand Depositary 
 
 bouud to 
 
 ^ Dig. 16, 3, 2g, /Si lacculum, velargen- ' Bacon's Abiidg. Distress, D.; Comyna's restore deposit, 
 
 turn eignatum deposuero, et is, penes guem Dig. Distress, D 6. ^ Bailnienta, § go. 
 
 dq)oaitum fait, me invito eontrectaverit, ° 3 Atk. 44 ; Waterman v. EobinsoD, 5 
 
 et depositi etfurti actio mihi in eum com- Mass. 303. 
 
 petit. Pothier, Traits lie Contrat du ' Bailment, D. ; Addison v. Bound, 4 
 
 D^pSt, n. 34 ; I3aoon's Abridg. Bailment, Ad. & E. 799, 804 ; Nicoll v. Bastard, 
 
 D. ; Jones, Bailments, pp. 81, 82. 2 Cr. M. & E. 659, 660; 2 Kent's Comm. 
 
 = Moses V. Conliam, Owen 123 ; Anon., 12th edit. pp. 567, 568, 585, citing 2 Bl. 
 
 2 Salk. 522. Comm. 395 ; Story, Bailments, § 93. 
 
476 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 unless the 
 rightful owner 
 claims it. 
 
 Joint deposit. 
 
 Where 
 
 improperly 
 refuses to 
 deliver it. 
 
 Articles sent 
 to an exhibi- 
 tion. 
 
 to the bailor from whom he received it^ unless another person 
 appears to be the right owner.' 
 
 The bailee has a good defence against the bailor if the bailor 
 has no valid title and the bailee on demand delivers the property- 
 bailed to the rightful owner.^ But when he delivers it up it 
 must be in the state in which he received it, and with the profit 
 or increase which it has produced, for which he becomes liable 
 if in default.'' 
 
 In the case of a joint deposit, the depositary is not in general 
 bound to deliver the deposit without the consent of all the 
 parties ; ■* and, on the other hand, Story says,* that where there 
 are two or more joint depositaries, they are each liable for the 
 restitution of the whole deposit. 
 
 When the depositary improperly refuses to deliver the deposit, 
 the character of his holding becomes altered ; and if it is after- 
 wards lost, he is answerable for all defaults and risks." Indeed, 
 such a refusal would amount to a conversion.' 
 
 The case of articles sent for exhibition, as to an agricultural 
 society, is not a gratuitous bailment, for the reason that the 
 
 ^ 2 Kent's Coram. I2th edit. p. 567. 
 
 ^ King V. Eicbaida, 6 Wharton 418 ; 
 in this case the older English authorities 
 are carefully collected and analysed in a, 
 most able judgment. Wilson v. Anderton, 
 I Barn. & Ad. 450 ; Ogle v. Atkinson, 
 
 5 Taunt. 759. The bailee can only set 
 up the title of another " if he depends upon 
 the right and title, and by the authority 
 of that person," Thome v. Tilbury, 3 H. 
 
 6 N. 534, S37 ; Biddle v. Best, 6 B. & S. 
 225. 
 
 ' Game v. Harvie, Yelv. 50 ; Coggs v. 
 Bernard, 2 Ld. Eaym. 909. 
 
 * Harper v. Godsell, L. E. 5 Q. B. 422 ; 
 39 L. J. Q. B. 185; 18 W. E. 954; 
 Brandon v. Scott, 7 EI. & Bl. 234 ; May 
 V. Harvey, 13 East 197 ; 2 Kent's Comni. 
 12th edit. p. 566. The point ma^ be also 
 illustrated by a passage from the life of 
 Nov, prefixed to the edition of his 
 maxims, by Bythewood, of conveyancing 
 fame, at p. 8 : " The first evidence of his 
 (Noy's) splendid abilities, quickness of 
 perception, and extensive research was 
 given in a cause, in which three graziers 
 at a fair had left their money with their 
 hostess, while they went to the market ; 
 one of them returned, received the money, 
 and absconded; the other two sued the 
 woman for delivering what she received 
 from the three, before they all came to 
 demand it together. The cause was 
 clearly against the woman, and judgment 
 was rea^ to be pronounced, when Mr. 
 Noy, not being employed in the cause, 
 desired the woman to give him a fee, as 
 he could not plead in her behalf unless he 
 
 was employed, and having received it, he 
 moved in arrest of judgment, that he was 
 retained by the defendant, and that the 
 case was this : the defendant had received 
 the money from the. three together, and 
 was not to deliver it until the same three 
 demanded it ; that the money was ready 
 to be paid whenever the three men should 
 demand it together. This motion altered 
 the whole proceedings. It may be pre- 
 sumed from this case, that our author was 
 not unacquainted with the civil law, a 
 fruitfiil source of juridical knowledge, from 
 which the English lawyer may derive 
 both instruction and pleasure. Ulpian 
 states the same point in the Digest (D. 16, 
 3, 14, D. 16, 3, I, §§ 36, 44, Inst. 3, 15, 
 2 & 3, Inst. 4, I, 6 ; I Domat 141 (edit. 
 1722) Book I, tit. 7, §§ II, 13; Wood's 
 Civil Law (2nd edit.) pp. 209-12).; but 
 there is, indeed, a similar determination 
 in Brooke's Abridgment (Bailment, pi. 4), 
 probably derived from the same abundant 
 fountain." Noy was Attorney-General 
 to Charles I., and is best known for his 
 "invention" of ship money. Hallam, 
 Const. Hist. (8th edit.) vol. ii. chap. viii. 
 p. 12, has a bombastic and somewhat 
 ridiculous sentence about him, " Shaking off 
 the dust of ages i'rom parchment^ in the 
 Tower, this man of venal diligence and 
 prostituted learning, discovered," &o. 
 The above-cited life probably errs as far 
 on the other side of the truth ; especially 
 one passage immediately following that- 
 extracted. ^ § 116. 
 
 '^ Jones, Bailments, p. 70. 
 
 ' Morner v. Banker, 16 W. E. 62. 
 
PART I.] BAILMENTS. 477 
 
 exhibition of the article sent constitutes a consideration, since the 
 exhibitor in most cases hopes to derive advantage from the exhi- 
 bition of his goods, and is induced by that expectation to send 
 them. 
 , Even in the case of an exhibition of a rare picture from a 
 private gallery, which the owner has no wish to sell, the greater 
 notoriety it obtains by exhibition, and the prospect of its value 
 being thus enhanced, may be deemed a consideration, of which 
 the Courts wiU not look to the adequacy.' But in most cases of 
 exhibitions the terms on which articles are lent for exhibition are 
 specially provided for beforehand, and must be construed as in the 
 case of any other special contract. 
 
 There remains the question of on whom the burthen of proof Burthen of 
 lies in an action^ by the bailer against the depositary. As the ^™° ' 
 facts in each case are different, and the subject of different consi- 
 c: derations, all that can be done here is to set once for all 
 certain rules not confined to the case of deposits, but generally 
 - applicable. 
 
 The cardinal rule is that the burthen of proof lies on the party EiUea. 
 who substantially asserts the affirmative of the issue. Ei in- 
 cunibet prdbatio, qui dicit non qui negat.^ The tests of this are — 
 (a) to consider which party would succeed if no evidence were 
 given on either side ;" (&) to consider the effect of striking out of 
 the record the allegation to be proved.'' 
 
 To the general rule just enunciated there are two main heads 
 of exceptions — 
 
 First : Where there is a presumption of law in favour of an 
 affirmative allegation, the party who supports the negative must 
 call witnesses to rebut the presumption.* 
 
 Second : Where the subject-matter of the allegation lies 
 peculiarly within the knowledge of one of the parties, that party 
 must prove it." 
 
 Most questions relative to the burthen of proof will be solved 
 by the application of these tests. 
 
 II. Mandates. 
 
 " A mandate," says OJiancellor Kent — and his definition meets Definition, 
 the strong approval of Story' — "is when one undertakes with- 
 
 ^ Vigo Agricultural Society v. Brum- ^ Williams v. East India Company, 3 
 
 ficl, 52 Am. E. 657. East 192 ; Toleman v. Portbury, 39 
 
 2 Dig. 22, 3, 2. L. J. Q. B. 136. 
 
 " Amos V. Huglies, I M. & Kob, 464, ° Dickson v. Evans, 6 T. E. 60, per 
 
 per Alderson, B. Ashhurst, J ; The King v. Turner, 5 M. 
 
 ■* Mills V. Barber, i M. & W. 427, per & Sel. 206, per Bayley, J. 
 
 Alderson, B. ' .Bailments, § 137. A writer in 16 
 
478 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Dr. Wharton's 
 theoiy. 
 
 GaiuB. 
 
 Justinian's 
 Institutes. 
 
 out recompense to do some act for another in respect of the thing 
 bailed." 
 
 Dr. Wharton' makes a vigorous attempt to shew that the 
 accepted notion that a mandate must be gratuitous is erroneous, 
 and that a long line of illustrious commentators/ whom he enu- 
 merates, have gone wrong in so regarding it. His proposition is 
 that by the Corpus Juris mandates are not necessarily gratuitous, 
 and the law declared in reference to mandates is applicable to 
 every business commission which one person undertakes to transact 
 for another at the latter 's request. This he does not seem to me 
 to give any adequate reason for accepting as the law ; and, 
 further, I have not been able to find that he anywhere deals 
 with authorities that seem to me to be absolutely fatal to his 
 contention. 
 
 For instance. Gains says' : In auinma sciendum est, quotiena 
 faciendum aliquid gratis dederim, quo noviine si mercedem statuissem 
 locatio et conductio contraheretur mandati esse actionem, vehiti si 
 fulloni polienda curandave restimenia ant sarcinatori sarcienda 
 dederim. 
 
 Justinian's Institutes* closely follows this passage : In 
 gumma sciendum est mandatum nisi gratuitum sit, in aliam 
 formam negotii coder e ; nam mercede constituta ineipit locatio 
 et conductio esse. Et ut generaliter dixerimus, quihus casibus, 
 sine mercede suscepto officio, mandati aut depositi eontraJiitw 
 negotium, his easihus interveniente mercede, locatio et eondudio 
 
 American Jurist, p. 255, devotes a dozen 
 pages to shew that the definition of Stoiy 
 is incorrect, and that mandate is not a 
 contract, because there is no considera- 
 tion, and therefore nudum pactum. In 
 Coggs V. Bernard, Holt, 0, J., touches 
 upon this point: "But, secondly, it is 
 objected that there is no consideration 
 to ground this promise upon, and there- 
 fore the undertaking is but nudum pactum. 
 But to this I answer, that the owner's trust- 
 ing him with the goods is a sufficient 
 consideration to oblige him to a careful 
 management" that is aa distinguished 
 from a consideration sufficient to oblige 
 him to carry them, which the expressions 
 used seems lo discriminate (compare Hart 
 )•. Mills, 4 C. B. N. S. 37). The writer 
 in the American Jurist (p. 274) decides 
 that this is " a position which even the 
 great name of Lord Holt cannot sustain, 
 for a moment. ' ' The consideration is suffi- 
 cient to oblige to care, though possibly 
 not to convey ; but if they are conveyed, 
 then the obligation to take care is not 
 lessened thereby. See Lane v. Cotton, 
 I Ld. E^m. 646, at p. 65s ; also an article 
 in the Law Quarterly Review, January 
 1886, on " A Difficulty in the Doctrine' of 
 
 Consideration ; " and per Grier, J., Phila- 
 delphia and Beading Railroad ». Derby, 
 14 How. (U. S.) 483; The difficulty may 
 be explained by considering the difference 
 between the Koman conception of a con- 
 tiact and that of the common law. In the 
 civil law a gratuitous promise to act for 
 another or to carry his goods was regarded 
 as a consensual contract : by our system 
 it is not obligatory, but if recovery is to 
 be had under it it must be on the ground 
 of misfeasance. If it is executed it can 
 be sued on in English law, which regards 
 it then as a contract, not perhaps expressly 
 constituted, but raised by law ; and treats 
 it as a contract rather than as a breach of 
 duty, in deference to the example of the 
 Boman law, in which system such relations 
 were always looked on as contracts rather 
 than mere duties : see Hare, Contracts, p. 
 ISO. 
 
 1 Law of Negligence, §§ 482, 491. 
 
 '^ (i) The scholastic jurists who wrote 
 in the twelfth and thirteenth centuries, 
 (2) "Vinnius, (3) Pothier, (4) Sir John Holt, 
 (S).Sir William Jones, (6) Chancellor 
 Kent, (7) Judge Story. 
 
 ' iii. 162. 
 
 * Lib, iii. tit, 26, § 13. 
 
PAKT I.] BAILMENTS. 479 
 
 contrahi intelligifur. And Manclantis tantum gratid intervenit 
 mandatum} 
 
 And in the Digest/ there occurs the following : — Mandatum Digest. 
 nisi gratuitum nidlum est ; nam originem eso officio atgue amicitia 
 trahit ; contrarium ergo est offiMo merces; interveniente enim jaecunia 
 res ad locationem et conductionem jpotitts respisit.^ 
 
 But, whatever may be the correct acceptation of mandate in Meaning in 
 comparative jurisprudence, there is no doubt what its meaning ^"Siish law, 
 and invariable use is in the English system of law, and this 
 is expressed by Holt, C. J., in Ooggs v. Bernard^ : " The sixth sort 
 [i.e., of bailment] is when there is a delivery of goods or chattels 
 to somebody who is to carry them, or to do something about them, 
 gratis, without any reward for such his work or carriage." * 
 
 Between deposit and mandate, says Sir William Jones,* the DiBtiuoUou 
 distinction is that the former lies in feasance and the latter in deMs™and 
 custody. But it has been well pointed out by Story " that in cases mandate. 
 of deposit there is always something to be done, while in man- 
 date there is commonly something to be guarded ; so that in 
 each contract there is custody and labour and service to be 
 performed. He therefore amends the suggested distinction, 
 and says : " The true distinction between them [i.e , deposit and 
 mandate] is, that in the case of a deposit the principal object 
 of the parties is the custody of the thing, and the service 
 and labour are merely accessorial ; in the case of a mandate the 
 labour and services are the principal objects of the parties, and 
 the thing is merely accessorial." 
 
 When the person to whom goods are entrusted — the mandatary — Delivery by. 
 delivers goods to another person, and they receive an injury for ** mandatary, 
 which the mandatary would be liable over to the owner, there ' 
 
 does not seem to be any objection in principle to his right to 
 recover for his own indemnity though he, no more than a 
 depositary, has any property in the gcjods. The general principle 
 of the common law is that possession with an assertion of right, 
 and in many cases possession alone, is a sufficient title to enable the 
 possessor to maintain a suit against a mere wrongdoer for any 
 injury or wrong done to the thing injured.^ 
 
 1 Lib. iii. tit. 26, § I. iions, partie i, c. i, § I. Sse also Pothier, 
 
 ^ Dig. 17, 1,4. The only notice Wliarton De Mandat, art. iii., De la Gratuitc cUi 
 
 takes of this authority is, summarizing the Mandat ; i Bell's Coram. 7th edit. p. 
 
 opinion of a German author, Dr. J. Baron, 506. 
 
 "The opinion once was that the two [hiring ' 2 Ld. Kaym. 909; I Sm. Lead. Caa. 
 
 and mandate] were distinguished by the gtl) edit. 201. 
 
 fact that in the first case the labour was for * Jones, Bailments, pp. 52, 1 1 7 ; Pothier, 
 
 reward, in the other case without reward. Traitfi de Mandat, art. prelim., n. I. 
 
 No doubt some passages in the Digest siig- ^ Bailments, p. 53. 
 
 gest such a distinction. " Then in a foot- " Bailments, § 140. 
 
 note is a reference to the seventeenth book. ' Story, Bailments, § 152, and ante, 
 
 Compare also Pothier, Traitfi des Obliga- p. 457. 
 
480 
 
 THE LAW 01" NEGLIGENCE. 
 
 [book II. 
 
 Eequisites of 
 a contract of 
 mandate. 
 
 Obligations of 
 the mandatary. 
 
 I. To do that 
 ■which is the 
 object of the 
 mandate. 
 
 Nonfeasance. 
 
 The act to be done should be lawful and not against sound 
 
 Story enumerates tji-e requisites of a contract of man- 
 date : — 
 
 1. It must respect an act to be done infuturo, and not one 
 already completed.^ 
 
 2. It must be gratuitous.'^ 
 
 3. There must be a voluntary intention on the part of both 
 parties to enter into the contract." 
 
 4 
 morals.'' 
 
 5. It may be in any form. OUigatio mandati consensu con- 
 trahentium consistit. Ideo per nuntium quoque, vel epistolam man- 
 datum suscvpi potest. Item sive rogo sive volo, sive mando sive alio 
 quoounque verba scripserit, mandati actio est} 
 
 The contract of mandate may take effect between all parties 
 who are capable and willing to enter into contracts. The 
 principles applicable are those that govern in the case of con- 
 tracts generally. 
 
 Pothier" states the obligations of the mandatary as three-, 
 fold :— 
 
 1. To do the act which is the object of the mandate, and 
 with which he is charged {de faire I'affaire qui en est I'dbjet, et 
 dont il s'est charge). 
 
 2. To bring to it all the diligence which it requires (d'y 
 apporter tout le soin qu'elle acige). 
 
 3. To give an account of his dealings with it (d'en rendre 
 eompte). 
 
 These obligations correspond with those set out in articles 
 1991, 1992, and 1993 of the Code NapolSon. 
 
 As to the first of these obligations, Sir William Jones' 
 attempts to assimilate the doctrines of the civil and the common 
 law on this point, and reasons in favour of the proposition that an 
 action will lie for damage occasioned by the non-performance of 
 a promise to become a mandatary, if special damage is shewn. 
 The doctrine of the Roman law is thus stated in the Institutes* : 
 
 ^ Ut sit gerendnm, non jam gestum. 
 Pothier, Pand. 17, i, i, art. i, De 
 negotio quod ad mandati suhstantiam 
 requiretur. 
 
 § IS3' Pothier, Pand. 17, i, i,Manr 
 dutum est contractus quo c^is negotivm 
 gerendum committit dLicui gratis illud 
 auscipienii, animo invicem contmliendcB 
 dbligationis. Maynz (2nd edit.) vol. ii. 
 p. 211, says: Mandare signifie donner 
 pouvoir, manum dare. Dans le sens 
 special qui ncms oceu/pe id, on entend par 
 mandat, le contrat par lequel une per- 
 sonne s'dblige envers une autre & faire 
 gratuitementune chose dont cette derniire 
 
 la charge. Maynz specifles three con- 
 ditions as necessary to constitute^ this re- 
 lation — (i) A person who commits some- 
 thing to another to do ; (2) An acceptance 
 of the charge by that person ; (3) A 
 gratuitous engagement. 
 
 " § 155. Pand. 17, I, I, a. i,Utanimo 
 contrahendi invicem dbligationis commt- 
 tatur et susdpiatw. 
 
 ■» § 158. Pand. 17, I, I, §§ 2, 3, Bd 
 twpix nullum mandatum est. 
 
 6^ Dig. 17, I, I. 
 
 ^ Traits du Contrat de Mandat, c. u, 
 
 ' Bailments, pp. 54, 56. 
 
 8 Inst. iii. tit. s6, § u. 
 
PARTI.] . BAILMENTS. 481 
 
 Mandatum non smcipere liherum est ; msceptum autem cdnsuvi^ 
 mandum, aut quam primurn renunciavdv/in, est ut per seme- 
 tipsum aut per alium eandem rem mandator exseguatur. But 
 the law is now clearly laid down in an opposite sense. A 
 mandatary, or one who undertakes to do an act for another with- 
 out reward, is not answerable for omitting to do the act, and is 
 only responsible when he attempts to do it and does it amiss.' 
 In other words, he is responsible for a misfeasance but not for a Only liable for 
 nonfeasance, even though special damages are averred. The 
 diflSculty of the early cases was how an action of trespass on the 
 case could be brought for a nonfeasance, and this was the original 
 diflSculty in the way of the action of assumpsit as a branch of the 
 action on the case.^ 
 
 Secondly, to bring to it the requisite amount of diKgenoe. s- To bring 
 
 Ulpian's famous rule states : Dolum et culpam mandatum} Sir requisite 
 William Jones,* however, makes a great point of the want of ^Sg"„* ".^ 
 agreement of the civilians on the subject. By the common law, 
 since the contract is wholly gratuitous and for the benefit of the 
 owner, the mandatary would appear only liable for gross negli- 
 gence.* But Sir William Jones" takes a distinction between " a 
 bailment without reward to carry from place to place " and " a 
 mandate to perform a work.'' With reference to the former, he 
 cannot " conceive that the bailee is responsible for less than gross 
 neglect." With reference to the latter, *' he is bound to use a 
 degree of diligence adequate to the performance of it."' Story' 
 does not accept this distinction, which he says is supported by 
 reasoning " exclusively derived " from the civil law, which 
 " applies the rule to all cases of mandates whatsoever, and by 
 no means limits it to cases where work is to be performed." 
 
 In Shiells v. Blackbume" the very point came up for decision. SMelu*. 
 A merchant undertook voluntarily and without reward to enter a ** ""^ ' 
 parcel of goods belonging to the plaintiff together with a parcel 
 of his own of the same sort at the custom-house for exportation, 
 but made an entry under a wrong denomination, whereby both 
 parcels were seized and lost. The plaintiff brought an action to 
 
 1 ElBee V. Gatward, S T. E. 143 ; Balfe » i H, Bl. 158. In Moore v. Mourgue, 
 
 V. West, 13 C. B. 466 ; Thome v. Deas, Cowp.' 480, an agent having written 
 
 4 Johns. 84. orders procured a policy of insurance to be 
 
 ^ Remarks upon the Law of Bailment, made, but in the policy there was an excep- 
 
 16 Amer. Jur. 253 ; 2 Kent's Comm. tion of a risk, common in the policies of 
 
 gth edit. p. 571. other offices, but not in those used by the 
 
 ' Big. 50, 17, 23. office where the insurance was made, and 
 
 " Bailments, pp. 14, 15, 16. the loss arose from such risk. TheCourt 
 
 * Doorman v. Jenkins, 2 A. & E. 256. held that the agent was not liable, as he 
 
 ° Bailments, p. 62. bad acted hand fde and without gross 
 
 ' Ibid., p. 53 ; see also pp. 22, 61, 98, negligence. _ The probability is that this 
 
 120, was a gratuitous undertaking, but that it 
 
 8 § 177. was BO is nowhere stated in the report. 
 
 HH 
 
482 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Judgment of 
 Wilson, J. 
 
 JTudgment of 
 lord Lough- 
 borough. 
 
 Dartnall v. 
 Howard. 
 
 Judgment of 
 Abbott, O.J. 
 
 recover for this. But the Gourt held that, failing gross negli- 
 gence, the defendant was not liable. A distinction was suggested 
 between what would be required of an expert and an ordinary person. 
 Wilson, J., said : "A wrong entry at the custom-house cannot 
 be considered as gross negligence when, from the variety of laws 
 relating to the customs, reliance must be placed on the clerks in 
 the offices. It happened, indeed, not long since that a man, 
 designing to export wool under the late Act,^ applied to a clerk 
 in the custom-house to make a proper entry of it, who, not under- 
 standing the Act of Parliament, entered it wrong, and the goods 
 were seized ; when, therefore, such cases happen, it is too much 
 to infer gross negligence from the mistake which the defendant 
 committed." This was amplified by Lord Loughborough, C.J. : 
 "I agree with Sir William Jones that where a bailee undertakes 
 to perform a gratuitous act from which the bailor is alone to 
 receive benefit, there the bailee is only liable for gross negligence. 
 But if a man gratuitously undertakes to do a thing to the best of 
 his skill, where his situation or profession is such as to imply 
 skill, an omission of that skill is imputable to him as gross 
 negligence. If in this case a ship broker or clerk in the custom- 
 house had undertaken to enter the goods, a wrong entry would in 
 them be gross negligence, because their situation and employment 
 necessarily imply a competent degree of knowledge in making 
 such entries. But when an application under the circumstances 
 of this case is made to a general merchant to make an entry at 
 the custom-house, such a mistake as this is not to be imputed to 
 him as gross negligence."^ 
 
 Again, in Dartnall v. Howard^ the declaration alleged that in 
 consideration that plaintiff should retain defendants to lay out a 
 sum of money, they undertook to do their duty in the premisses. 
 On motion in arrest of judgment, the count was held bad, as it 
 did not state that any reward was to be paid' to the defendants, 
 or that they were employed in any particular character so as 
 to be responsible for taking a bad security without negligence or 
 fraud. Abbott, C.J., in delivering the judgment of the Court, 
 said : " I am of opinion that the count is bad. The only duty 
 that is imposed under such a retainer and employment as is here 
 mentioned is a duty to act faithfully and honestly, and not to be 
 guilty of any gross or corrupt neglect in the discharge of that 
 which he undertakes to do. But a man may, when acting most 
 faithfully and most honestly, happen to take an insufficient security 
 
 1 28 Geo. 3, c. 38. 
 
 " Bourne v. Diggles, 2 CliJtty 3:1 ; O'Hanlon v. Murray, 12 Ir. C. L. 161 ; and 
 Fish V. Kelly, 17 C. B. N. S. 194, are solicitors' cases, where Shiells v. Blacklnnie is 
 cited and followed. ^ 4 B. & C. 345. 
 
PART I.] BAILMENTS. 483 
 
 without gross oi- culpable negligence on his part. He may have 
 been misled ; he may have been deceived ; he may have taken 
 such care as an ordinary man would t^ke with regard to the 
 subject-matter entrusted to him, and yet, doing all that, his 
 endeavours may have failed ; and it may so happen the 
 security may, without his knowledge and against his will, have 
 turned out to be insufficient. For these reasons it appears 
 to the Court that this count is not sustainable."' Coggs ■;;. 
 Bernard' is an authority in the same direction, the un- 
 dertaking to carry " safely " being a holding out by the 
 defendant that he was skilled in the particular business. These 
 cases have been invariably followed and approved ; and the law * 
 
 may thus be considered settled in a sense adverse to the dis- 
 tinction suggested by Sir Willig,m Jones. • 
 
 Story^ sums up the rule of the common law as follows: — " AEaieofthe 
 mandatary, who acts gratuitously in a case where his situation as summed up 
 or employment does not naturally or necessarily imply any^'' '"''■ 
 particular knowledge or professional skill, is responsible only for 
 bad faith or gross negligence. If he has the qualifications neces- 
 sory for the discharge of the ordinary duties of the trust which he 
 undertakes, and he fairly exercises them, he will not be responsible 
 for any errors of conduct or action into which a man of ordinary 
 prudence might have fallen. If his situation or employment 
 does imply ordinary skill or knowledge adequate to the under- 
 taking, he will be responsible for any losses or injuries resulting 
 from the want of the exercise of such skill or knowledge. 
 If he is known to possess no particular skill or knowledge, 
 and yet undertakes to do the best which he can under the 
 ciiFcumstances, all that is required of him is the fair exer- 
 cise of his knowledge and judgment and capacity. This general 
 responsibility may be varied by a special contract of the 
 parties either enlarging or qualifying or narrowing it, and in 
 such cases the particular contract will furnish the rule for the 
 case.'" 
 
 ' 2 lid. Ba;m. 909 ; i Sm. Lead. fas. gcious pasture," which seems scarcely 
 
 9th edit. 201. correlative with a duty to " apply the care 
 
 - Bailments, § 182 a. of a pood hostler," Wilson v. Brett, 11 
 
 ' Jenkins v. Betham, 15 C. B. 168. See M. & W. 113. 
 2 Kent's Coram. 12th edit. pp. S7I-574 ; The quasi contract of negotimwm. 
 
 Shiells II. Blackburno, i Black. 158; gestor in the civil law must not pass 
 
 Rootli V. Wilson, i Barn. & Aid. 59. without notice. Knegotiorumgestor -^as 
 
 Wharton cites this last case, § 508, as an a person who, of his own accord, andwith- 
 
 anthority for the proposition that the de- out the knowledge of the owner, inter- 
 
 fendant was bound to " apply the care of meddled with property. As the inter- 
 
 a good hostler." Neither the judgment meddling was without any mandate, a 
 
 nor the argument, as reported, goesnearly higher degree of skill was required from 
 
 this length. The utmost the case decides the negotiorum. gestor than was the rule 
 
 is that the defendant "owes it, to the in other cases. Si negotia absentis et 
 
 owner of the .horse not to put it in a dan- ignorantis geras et culpam et dolum prce- 
 
484 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 Boman con- 
 tracts re. 
 
 Distinction 
 betweem. 
 commodatum 
 and mutuum. 
 
 III, Gratuitous Loan. 
 
 The Eoman jurists divided contracts re — ^that is, where one 
 received property from another in circumstances which rendered 
 it his duty to return it or a thing of a like kind — into mutuuvi, 
 commodatum, pigmos, and • de^positum} We have already con- 
 sidered the case of d&positv/m. We are now come to commodatum, 
 which Sir William Jones, translating Pothier, " PrSt k Usage,"" 
 has called loan for use. This distinguishes it from mutuum, which 
 is a loan for consumption. The commodatum differed from the 
 mutuum in two principal particulars — 
 
 First, it was necessarily gratuitous ; for, if the lender received 
 compensation; the agreement became one of locatio conductio. 
 
 Secondly, the goods remained the property of the lender. 
 
 If, then, they were destroyed or perished through causes which 
 were outside the due care and diligence required of the commo- 
 datarius, all liability on his part ceased, and the commodans was 
 not entitled to damages. The destruction of a mutuum, on the 
 
 stare deles.* Quo casu ad exactisBimam 
 
 quugue duigentiam 
 rationem: nee suffidt talem dUigentiam 
 adJiibere, qualem suis rebus adJdbere solet, 
 si modo alius diligentior eo commodius 
 administraturus esset negot{a.f How- 
 ever, to this there was an exception : 
 ■where the business undertaken was that 
 of a friend in a case of apparent necessity, 
 the liability attaching was only for bad 
 faith and fraud.J Pothier gives the 
 reason: Parcequ'il vaut mieux pour 
 Vabsent que ses biens soient administres 
 par un homme negligent, que s'ils etaient 
 vendue. Story considers tlie case of Nel- 
 son V. Macintosh,! already set out in the 
 text, to approach very near to that of a 
 negotiorum gestor. Drake v. Shorter || 
 seems undistinguishable. Defendant, who 
 was employed in an invention for making 
 a vessel sail against wind and tide, em- 
 ployed the plaintiff to work on her. 
 While working, the vessel took fire, and 
 the defendant used a boat belonging to the 
 plaintiff to endeavour to extinguish tho 
 fire, with the result of sinking and losing 
 it. The defence was, that the interference 
 was to prevent the fire spreading. Lord 
 EUenborough held that this amounted to 
 a good defence. " What," he said, '• might 
 be a tort under one circumstance might, if 
 doi^e under others, assume a different ap- 
 pearance. As, for example, if the thing 
 
 for which the action was brought, and 
 which had been lost, was taken to do a 
 work of charity, or to do a kindness to the 
 person who owned it, and without any in- 
 tention of injury to it, or of converting it 
 to his own use — if, under any of these 
 circumstances, any misfortune happened 
 to the thing, it could not be termed an 
 illegal conversion ; but as it would be a 
 justification in an action of trespass, it 
 would be a good answer to an action of 
 trover." Espinasse is not reckoned an 
 accurate reporter, and it is difficult to 
 accept fully the wording of this principle. 
 Something more would he required than 
 the taking " to do a work of charity, or to 
 do a kindness to the party who owned it, 
 and without any intention of injury to it, 
 or of converting it to his own use."^ 
 Probably Lord EUenborough laid down tbe 
 law in accordance with Labeo : Nam si 
 affectimie coactus ne bona mea distrahan- 
 iwr, negotiis te meis obtuleris (equissimus 
 esse dolum, duntaxat te prcestare. A less 
 necessity than this would not seem pro- 
 perly to excuse. The subject of negotio- 
 rum gestio is very fully treated in Maynz, 
 Elements de Droit Bomain, andedit. 
 vol. ii. p. 410. De la gestion d'affaires. 
 
 ^ Sanders's Justinian, p. 405. 
 
 2 Qiluvres de Pothier, par M. Bpgnet, 
 vol. V. ; Maynz, ISlfements de Droit Bo- 
 main, 2nd edit. vol. ii, p. 264. 
 
 * Dig. lib, 3, tit. s,l. II. 
 
 + Inst. 3, 28, § I. 
 
 I Pothier, Pand, 3, 5, 52. 
 
 § I Stark. 237. 
 
 II 4 Es^. 165. 
 
 f Pothier, Pand. lib. 3, tit 5, 52. 
 
 J J 
 
PART I.] BAILMENTS. 483 
 
 other hand, did not discharge the borrower, though free from 
 fault. This was an effect of the principle expressed in the 
 maxiin, Bes perit domino.^ 
 
 " A lending for use," says Sir William Jones,'' " is a bailment Definition of 
 of a thing for a certain time to be used by the borrower without ^^^^ °"* 
 paying for it." Pothier's definition is : Ze prii cc mage est un 
 contrat par leguel un des confractants donne gratuitement A I'autre 
 wne chose, pour s'en servir it un certain usage ; et celui qui la 
 reQmt, s'oblige de la lui rendre aprts qu'il s'en sera servi? To Constituents : 
 constitute this contract there are required — 
 
 First, a thing which is lent, which the definition of Holt, 0. J."* — ■ 0) A thing 
 "The borrower is bound to the strictest cai'e and diligence to 
 keep ^e g-)ods as to restore them back again to the lender" — 
 shews must be of personal property. 
 
 Secondly, a gratuitous lending ; othermse, as Pothier" points (U) Sra- 
 out, it becomes that of letting if the consideration is money, or 
 an innominate contract when it is anything else given or 
 work done. 
 
 Thirdly, a lending for the use of the borrower." ("0 1"°^ ^^^ 
 
 Fourthly, a lending where the thing lent must be itself re- borrower, 
 turned at the determination of the bailment.' i*^) ,^"' *° 
 
 be returned. 
 
 The obligations of the borrower are — first, to take proper care obligations 
 of the thing borrowed ; secondly, to use it according to the °o^^. °^' 
 intention of the lender ; thirdly, to restore it in a proper con- 
 dition. Of these in their order. 
 
 First, as to the proper care of the thing borrowed. In I. To use 
 Vaughan v. Menlove, Tindal, O.J.,' quoting and adopting Holt, ^™^^'^ " 
 C.J., in Ooggs V. Bernard, lays down the rule as follows : — " It 
 has been urged that the care which a prudent man would take is 
 not an intelligible proposition as a rule of law, yet such has 
 always been the rule adopted in cases of bailment, as laid down in 
 Ooggs V. Bernard." Though in some cases a greater degree of 
 care is exacted than in others, yet in ' the second sort of bailment, 
 viz., commodatum, or lending gratis, the bon'ower is bound to the 
 strictest care and diligence to keep the goods so as to restore them 
 hack again to the lender, because the bailee has a benefit by the 
 use of them, so as if the bailee be guilty of the least neglect he 
 will be answerable ; as, if a man should lend another a horse 
 
 ^ Poste, Gains, p. 3CX); Inst., iii. 14, 2. contumititr, niti forte ad pompam vel 
 
 '^ Bailments, p. 118. ostentationem quis accipiat: Dig. 13, 6, 
 
 ' Compare Code NapoKon, art. 1875. 3, § 6. 
 
 * 2 Ld! Baym. 913 ; I Sm. Lead. Cas, ^ 3 Biug. N. C. 468, at p. 475. 
 
 gth edit. 211. '2 Ld. Eaym. 909. Compare the i-ule 
 
 " Trait4 du Pr^t S. Usage, arts, i, 3. of the civil law in the case Oustodiam 
 
 ° Story, Bailments, §§ 225, 227. plan4 commodatcB rei etiam diligmtem 
 
 ' Non potett commodari id quod usu debet prcestare, D. 13,' 6, 5, § 5. 
 
486 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 Brinf;loe o. 
 Uorrice, 
 
 Scurr. 
 
 Wilson V. 
 Brett. 
 
 to go westward, or for a month, if the bailee put his horse in hia 
 stable, and he was stolen from thence, the bailee shall not be 
 answerable for him ; but if he or his servant leave the house or 
 stable door open, and the thieves take the opportunity of that, 
 and steal the horse, he wUl be chargeable, because the neglect 
 gave the thieves the occasion to steal the horse.' The care taken 
 by a prudent man has always been the rule laid down ; and as to 
 the supposed difficulty of applying it, a jury has always been able 
 to say whether, taking that rule as their guide, there has been 
 negligence on the occasion in question."' 3?his has been so to 
 the extent of holding the loan to be strictly personal, unless a 
 more extensive use could be implied from the circumstances as 
 in Bringloe v. Morrice,^ a case of overriding a horse. There 
 North, C.J., took a distinction between where the loan is for a 
 stated time and where it is not. In the former case, the borrower 
 has an interest in the horse, and the borrower's servant may ride 
 it; ,in the other case, not. A difference was also pointed out 
 between hiring a horse to ^o to York, and borrowing a horse. 
 In the first place, the servant may ride it to its destination ; in the 
 latter case, not. But in Camoys v. Scurr,' where a mare was for 
 sale, and A. asked the agent of the vendor to let him have the 
 horse to try it, Coleridge, J., held that he was entitled to depute 
 the trial to a competent person. Wilson v. Brett* was a somewhat 
 similar case. PlaintifE had entrusted a horse to ride to the 
 defendant, a competent person ; while defendant was ridiug it, 
 the horse fell down, and was injured. The judge at the trial 
 directed the jury that "the defendant, being shewn to be a 
 person skilled in the management of horses, was bound to take 
 as much care of the horse as if he had borrowed it." Parke^ B., 
 thus explains the ruling : — " The whole effect of what was said by 
 the learned judge as to the distinction 'between this case and that 
 of a borrower was this : that this particular defendant, being, in 
 fact, a person of competent skill, was in effect in the same 
 situation as that of a borrower who, in point of law, represents 
 to the lender that he is a person of competent skill. In the case 
 of a gratuitous bailee, where his profession or situation is such as 
 to imply the possession of competent skill, he is equally liable for 
 the neglect to use it." That is, a gratuitous bailee, with com- 
 petent skill, is required to use it ; but a borrower is required to 
 have it; for, as Alderson, B., puts it in the same case, "the 
 party bargains for the use of competent skill, which here becomes 
 immaterial, since it appears that the defendant has it." 
 
 ' I Stair. Inst. B i, tit. xi, § 9; 
 Ersk. Inst. B 3, tit. i, §§ 20, 21. 
 
 " 1 Mod. 210; 3 Salk. 271, 
 
 59C, &P. 383. MiM, &W. 113. 
 
PART I.] BAILMENTS. 487 
 
 But, though the diligence required is exact, the borrower of a Borrower not 
 gratuitous loan is not an insurer. The thing is subject to the '''' ™^'^^''- 
 kind and mode of use for which it is designed, and the risk of 
 such losses as are fairly incident thereto is with the owner, unless 
 the bailee has failed in any particular of his duty with regard to 
 it. This is well shewn by the case of Seller v. Schultz,' whei'e Seller «. 
 the owner of a flag lent it to be hoisted on the bailee's building, ° " ''■ 
 and, having assisted to hoist it, left it flying when he went away. 
 It was afterwards injured by a hailstorm. The Court held the 
 owner could not recover for the damage, on the ground that the 
 thing loaned was made- on purpose to be used as a flag, and the 
 propriety of exposiag it in the situation in which it was injured 
 could not bo questioned by the plaintiff, as it was in substance 
 his own act, and the baihn^ent was not shewn to have been 
 abused. 
 
 To the rule of diligence just stated two exceptions may be Two exoep- 
 
 -, tions : 
 
 made: — 
 
 First, where there is a special contract, expressed or implied, W Where 
 when the terms of the bailment are, of course, determined by the special con- 
 terms prescribed. To this head may perhaps more accurately be '™''*' 
 referred a case that Story ^ suggests : "If the lender is aware of 
 the incapacity of the borrower, he has no right to insist upon such 
 rigorous diligence. He has a right to insist on that degree of 
 diligence only which belongs to the age, the character, and the 
 known habits of the borrower." A loan in these circumstances 
 would seem in the nature of a special contract, since it would be 
 affected by the peculiarities of age, character, and habit of the 
 borrower, with reference to which the loan must be taken to be 
 made, provided that the lender had a sufficient knowledge of 
 them. Thus, the loan of a valuable horse to a notoriously reck- 
 less rider would appear to be on special terms applicable to such 
 rider. 
 
 Secondly, where the loan is not for the benefit of the borrower (n) Whei'e 
 alone; for, if it is for the mutual benefit of the borrower and lender^ the mutimi °' 
 only ordinary diligence is required.* borrower and 
 
 The borrower is exempted from liability for losses by inevit- lender, 
 able accident or the act of God. But there must be no default 
 on the part of the borrower, else his responsibility remains.* So it 
 does if he is guilty of fraud vel suppressione veri vel allegatione falsi? 
 
 In the case of a conflict of duty, as where the borrower's goods Conflict of 
 
 and the goods borrowed are both jeopardized by fire in circum- " ^' 
 
 stances where one set of goods may be saved, but not both, Story," 
 
 ^ 38 Am. E. 280. * Jones, Bailments, pp. 67, 68, 69. 
 
 ^ Bailments, § 337. " lUd., p. 70. 
 
 ' Ibid. ■" Story, Bailments, § 249 b. 
 
488 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II, 
 
 On what 
 principle com- 
 pensation is 
 fixed in case 
 uf loss. 
 
 II. The bor- 
 rower to use 
 the loan ac- 
 cording to the 
 intention of 
 the lender. 
 
 III. The bor- 
 rower muat 
 restore the 
 thing lent in 
 a, proper con- 
 dition. . 
 
 Offering from Pothier' and Sir William Jones," considers the true 
 test of liability to be to ascertain whether there is any negligence 
 in not saving the borrowed goods, and whether there is any 
 superior duty of the borrower to save them and sacrifice his own. 
 By superior duty the learned commentator, of course, means a 
 duty arising out of the facts and circumstances, which would be 
 the proper material for the inferences of a jury, and not a duty 
 by law, the existence of authority to support which he denies. 
 
 Another- controversy, that has arisen under this head of law is 
 whether, in the case of a valued loan, or where the goods are 
 estimated at a certain price, the borrower must be considered as 
 bound in all events to restore either the things lent or the value.' 
 Story decides* that at common law it would turn wholly on the 
 construction of the words of the particular contract. But that 
 the mere estimation of a priqe would not of itself settle the point 
 whether the borrower took upon himself every peril, or any addi- 
 tional perils, beyond the common rules of law ; for it would be 
 considered as a mere precaution to avoid dispute in case of a 
 loss, unless some circumstances raised a presumption that the 
 parties intended something more.* 
 
 Second: The obligation of the borrower is to use the loan 
 according to the intention of the lender. 
 
 This use is strictly confined to what is expressed or implied in 
 the particular transaction. The illustration of this given by Sir 
 William Jones ° is : " If William, instead of coming to London, 
 for which purpose the horse was lent, go towards Bath, or, having 
 borrowed him for a week, keep him for a month, he becomes 
 responsible for any accident that may befall the horse in his 
 journey to Bath, or after the expiration of the week."' 
 
 If the borrower is put to any expense in using the thing, he 
 must pay this himself ; but if there is expense not arising out of 
 his using, the borrower is entitled to be recouped by the lender.' 
 
 Third : The obligation of the borrower is to restore the thing 
 lent in a proper condition.' 
 
 This must be when demanded at the common law, for, " as the 
 bailment is merely gratuitous, the lender may terminate it when- 
 
 ' Pret 3, UssigB, p. 256. 
 
 - Bailments, p. 69. 
 
 2 The controversy has grown from two 
 texts of the Boman law — one, Dig. 13, 6, 
 5, § 3, M si forte res cestimata data sit, 
 omiie. perieiuum prcestandum ah eo qui 
 (Bstimationem se prcBstaturum recepvt; 
 the other, Dig. 19, 3, 1, § i, Metimatio 
 autem pericuLuln fdcit ejus, mii suseepit; 
 aut igitv/r ipsam rem deoebtt tncorruptam 
 reddere, aut astimatiomem de gua con- 
 venit. _ * Bailments, § 253 a. 
 
 ° The Code NapolSon, art. 1833, has 
 settled that in such a case the loss shall 
 be the borrower's if he can shew no agree- 
 ment to the contrary. 
 
 "^ Bailments, p. 68. 
 
 ^ 2 Ld. Eajm. 915. The rule of the 
 Roman law was, Qai jv/meittd sibi, 
 cominodata hmgius duxent, cdiencbe re, 
 invito domino, usus sit fartioa fasii; 
 Die 
 
 )ig. 47, 2, 41. 
 "^ Story, Bailments; § 256. 
 » Ibil, § 258. 
 
PART I.] BAILMENTS. 489 
 
 ever lie pleases. But if lie does so unreasonably, and it occasions 
 any injury or loss to the borrower, the latter may, perhaps, have 
 a suit for damages where the object of the bailment has been 
 paiUy accomplished ; or, if he retains the thing, and a suit is 
 brought by the lender, he may insist upon the unreasonableness 
 of the demand or the injury to himself, and thus, perhaps, he 
 may recoup in the damages whatever he has lost, and repel any 
 claim for a large compensation on account of his delay and refusal 
 to return the thing bailed when it was demanded of him." 
 
 If the borrower do not on demand return the thing lent, he is 
 responsible for all losses and injuries, and even for all accidents, 
 that may subsequently result.' 
 
 But the borrower's liability is limited to his own negligence. But is not 
 or that of persons for whom he is responsible.^ So that, if loss negligence of 
 shall have arisen from the wrongful act of a third person which no" ^B^Ients 
 the borrower could neither foresee nor prevent, he will not be 
 responsible ; and the immunity is not lost if the deterioration is 
 the result of the use made of the loan by the borrower, provided 
 the use is reasonable and within the contemplation of the parties 
 at the time of the loan.' 
 
 The obligation of the lender is, to a certain extent, correlative obligation of 
 with that of the borrower. What his obligations are has, how- ^ ™ ^"^^ 
 ever, been the subject of direct decision. In Blakemore v. Bristol 
 and Exeter Eailway — an accident case, arising from defect in 
 a crane gratuitously lent — Coleridge, J., discussing this subject, Coleridge, J. 
 says^: "It is surprising how little in the way of decision in our 
 courts is to be found in our books upon the obligations which the 
 mere lender of a chattel for use contracts towards the borrower. 
 Pothier, in his ' Traits du Pr§t h Usage,' to be found in the fourth 
 volume of his works by Dupin, part 3, pp. 37 to 42, enters into the 
 subject at some length ; and Story also treats of it, ' Bailments,' 
 § 275. The principles which these two writers draw mainly 
 from the Eoman law may be the more safely relied on as en- 
 grafted into the common law, considering that the whole of this 
 branch of our law is so mainly built on the Roman, as the judg- 
 ment vn Coggs V. Bernard' demonstrates. It may, however, we 
 think, be safely laid down that the duties of the borrower and 
 -lender are, in some degree, correlative. The lender must be taken 
 
 1 Jones, Bailments, p. 70; Noy's teneheris commodati; nam ego in culpa 
 
 Marims, c. 43. ero, qui in tarn longum iter eommodavi, 
 
 ' Jones, Bailments, p. 68 ; 2 Kent's qui evm laborem tustinere non potuit. 
 
 Oomm. i2th edit. p. 576. ^ 8 B. & B. 1035, ^' P' '°^° ' *^ *° *''® 
 
 ' Pothier, PrSt 3, Dsage, n. 38 ; Dig. ground of the decision in this case, see 
 
 13, 6, 23. Si commodavero tibi equvm, per Cotton, L. J., in Heaven v. Pender, 
 
 quo wteireris ueque ad eertum loctmi, si 11 Q. B. D. 503, at p. 516. 
 
 nuUa euha tua interveniente in ipso ^ 2 Ld. Eaym. 909 ; i Sm. Lead. Cas. 
 
 itinere &erior equus f actus sit, non 9th edit. 201. 
 
490 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II, 
 
 to lend for the purposes of a beneficial use by the borrower ; the 
 borrower, therefore, is not responsible for reasonable wear and 
 tear, but he is for negligence, for misuse, for gross want of skill 
 in the use — above all, for anything which may be qualified as legal 
 fraud. So, on the other hand, as the lender lends for beneficial 
 use, he must be responsible for defects in the chattel, with 
 reference to the use for which he knows the loan is accepted, of 
 which he is aware, and owing to which directly the borrower is 
 injured. , Adjuvari quippe nos, non decipi beneficio opmiet, is the 
 maxim which Story borrows from the Digest; and Pothier is 
 express to the same effect, citing, as Story does also, the instance, 
 Qui sciens vasa vitiosa commodavit, si ibi infusum mnum, vel oleum 
 corrupium effusum/ve est, condemnandus eo nomine est., This is so 
 consonant with reason and justice that it cannot but be part of 
 our law. Would it not be monstrous to hold that, if the owner 
 of a horse, knowing it to be vicious and unmanageable, should 
 lend it to one who is ignorant of its bad qualities, and conceal 
 them from him, and the rider, using ordinary care and skill, is 
 thrown from it and injured, he should not be responsible ? The 
 principle laid down in Coggs v. Bernard,' and followed out by 
 Lord Kenyon and BuUer, J., and by Lord Tenterden in the Nisi 
 Prills cases cited in the note,^ that a gratuitous agent or bailee 
 may be responsible for gross negligence or great want of skill, 
 gets rid of the objection that might be urged from want of con- 
 sideration to the lender. . By the necessarily implied pui-pose of 
 the loan a duty is contracted towards the borrower not to conceal 
 from him those defects known to the lender which may make the 
 loan perilous or unprofitable to him." 
 
 Third class — 
 Where the 
 trust is for 
 the benefit of 
 both parties. 
 Pawn — 
 definition. 
 
 IV. Pawn or Pledge. 
 
 Of the cases of bailments that we have so far considered 
 deposits and mandates come under Story's first class — those. in 
 which the trust is exclusively for the benefit of the bailor or of 
 a third person ; while gratuitous loans for use are to be referred 
 to the second class, in which the bailment is exclusively for the 
 benefit of the bailee. The bailment of pawn or pledge is referred 
 to his thitd class — where the trust is for the benefit of both 
 parties, or of both or one of them and a third party. 
 
 A pawn, says Sir William Jones, is "a bailment of goods 
 
 by a debtor to his creditor to be kept by him till his debt is 
 
 discharged." 
 
 1 2 Ld. Eaym. 909. 
 . ^ I.e., in Smith's Leading Cases : 'WilkinBOti 11, Coveidftle, i Bsp. 74 5 Beaucbamp v. 
 Powley, I M. & Bob. 38. , 
 
PARTI.] ^ BAILMENTS. 491 
 
 The contract of pledging, says Chancellor Kent/ is "a 
 bailment or delivery of goods by a debtor to his creditor to. be 
 kept till the debt be discharged ; or, to use the more comprehen- 
 sive definition of Mr. Justice Story, it is a bailment of personal 
 property as security for some debt or engagement."" 
 
 The term " pledge " is used indifEerently to denote the contract 
 and the property which constitutes the security. 
 
 Pledge is the pignus of the Roman law' (Pignus appellatum a 
 pugno : quia res quce pignori dantv/r manu tradiMitior*), and it is 
 from this source that moat of the principles governing the 
 subject are derived. 
 
 By the common. law there is a distinction between a mortgage DiatincUon 
 and a pledge. By a mortgage the whole legal title passes to the mortgage,' 
 mortgagee, subject to be divested on a contingency. By af^ltieMo,,, 
 pledge' but a special property passes, while the general property and lien, 
 .remains in the pledgor.* Hypothecation is where a pledge is held 
 without possession by the pledgee. The power of a master to 
 bind a ship, says Lord Hardwicke, is called hypotheca, yet there 
 is no delivery of possession.' In the common law, says Story,' 
 the nearest approach to an hypothecation is found in the cases of 
 holders of bottomry bonds,' of material men, and of seamen for 
 wages in the merchant service, who have a claim against the ship 
 in rem. Lastly, a pawn differs from a lien in that a lien conveys 
 no right to sell, but only to retain till the debt in respect of 
 which the lien was created has been satisfied.'" 
 
 ' 2 Coram. I2th edit. p. 578. Turner, though in writing, need not bear a mortgage 
 
 The Contract of Pawn, 2nd edit., has a stamp : Harris v. Buck, 9 M. & W. 592; 
 chapter — pp. 25-30 — on the definition of ^ Eyall ». Bowies, 2 White & Tudor, 
 
 paira. Lead. Gas. in Equity, 5th edit. p. 726 ; 4 
 
 2 § 28 b ; Isaack v. Clark, 2 Bnls. 306. Kent's Comm. I2tli edit. p. 138 ; Story, 
 
 ' The doctrines of the Roman law are Bailments, § 287. In the Roman law 
 
 to be found in the titles, Depigrwrilrus et however, inter jnjrjijts autemethypothecam 
 
 hypothecis et qualiter ea anUrahcmtur, et tantum nominis sonus differttPothiei'a 
 
 depadis eorum, Dig. 20, i, and the five Pandects, 21, i. 
 
 following titles ; in the title De pigne- ' Ryali v. Rowles, 2 White & Tudor, 
 
 ratitidactionevel contra, Dig. 13, 7 ; and Lead. Cas. in Equity, Sth edit pp. 726, 
 
 see Pothier's Pandects, lib. 20, tit. 1-6. 740. Per Lord Blackburn, Sewell v. Bni'- 
 
 * Dig. 50, 16, 238 ; Maynz, Elements dick, 10 App. Cas. 74, at p. 95. 
 de Droit du Remain, vol. ii. p. 279 ; ' § 288. Dig. 13, 7, 9, 2 ; Inst. 4, 6, 7. 
 
 Du contrat de gage, Pothier, De Nan- ' The Gratitudine, 3 Rob. Adm. 240; 
 
 tissement, n. 5. The Roman law is, how- Tudor, Lead. Cas.. Merc. Law, 34. 
 ever, not wholly consistent with the defini- " " A lien is a personal right, and 
 
 tioD, it says : Pignus contrahitur non sola cannot be transferred to another " : per 
 
 traditione sed etiam nuda conventione, Buller, J., Daubigny v. Duval, 5 T. R. 
 
 etsi non traditum est. Si igitwr contrac- at p. 606. See, too, ^erLordEUenborough, 
 
 turn sit pignvs nuda conventione, vide- M'Combie v. Davies, 7 East at p. 6. 
 
 anwi an si guis dwrum oatenderit, quasi MuUiner v. Florence, 3 Q. B. D. 484. 
 
 pignori datmrus, et ces dederit, dbligaverit Jones v. Pearle, i Stra. 557, where it was 
 
 au/rum pignori? Et conseguens est, ut held that, except by the custom of London, 
 
 aurum cmigetur, non ajitem ms; quid in an innkeeper had no right to seU horses 
 
 hocnonconsenserint. This does not appear on which he had a lien for their keeping, 
 
 to be the law of England, Donald V. Suck- Lickbarrow v. Mason, 6 East 21, per 
 
 ling, L. R, I Q. B. 585. Buller, J. ; having distinguished the owner 
 
 ° A mere pledge of chattels personal, of goods from one having a lien on them, 
 
492 THE LAW OF NEGLIGENCE. [book n. 
 
 What may be All kinds of personal property that are vested and tangible, 
 ofpawnf^' and also negotiable paper, may be the subject of pledge; and 
 choses in action, resting on written contract, may be assigned 
 in pledge.' And it is not necessary that the pledge should belong 
 to the pledgor ; it is sufficient if it is pledged with the consent of 
 the owner,^ or that the pledgor should have an interest in it.' 
 By the Koman By the Eoman law certain things were prohibited from being 
 '*'''■ pawned, such as the necessary apparel and furniture, beds, uten- 
 
 sils, and tools of the debtor, his ploughs and other utensils for 
 tillage, the pension or bounty of the monarch, and the pay and 
 emoluments of officers and soldiers.* 
 By tiie common By the common law the pay— whether full or half pay — of 
 *^^' soldiers and sailors was exempted.* But by statute there are a 
 
 variety of exceptions for different purposeSj^ the detailed con- 
 sideration of which is remote from the subject of negligence. By 
 the common law, too, there must be a delivery of possession to con- 
 stitute a pawn ; "for the right of hypothec is not recognized by 
 the common law," though, as we have just seen, rights very ana- 
 logous exist under the maritime law.' Till possession is given the 
 intended pledgee has only a right of action on the contract and no 
 interest in the thing itself,^ but constructive or symbolical delivery 
 of possession is sufficient when actual possession cannot be given.' 
 But by the civil law such a contract did operate on the properly, 
 and property of which a man had neither a present possession nor 
 a. present title, and which might be acquired by him infviii/ro, 
 Incidents of might be the subject of a valid pledge." A pawn may, we have 
 ^'•^^- seen, be sold to defray the debt for which it is a security." This 
 
 right of sale is, however, at common law subject to certain regu- 
 lations. If the pledge is for an indefinite time, the creditor 
 may at any time call upon the debtor to redeem. In such a case 
 
 he says: "but he who baa a lien only on plus habere creditor potest quam habet 
 
 .goods has no right so to do [i.e., sell or qui jaignus dedet; D. 20, i, 3. § I. 
 
 dispose of the goods as he pleases] ; he Pothier, De Nantissement, n. 27. 
 
 can only retain them till the original price * i Domat, B 3, tit. i, § i, arts. 24 to 
 
 be paid." This distinction did not exist 27. 
 
 in the Eoman law, where the pledgee ^ M'Carthy v. Goold, i Ball & Boat, 
 had not any property in the thing, hut a 389 ; Barwiok v. Eeade, i Bl. 627 ; Lid- 
 mere right of detainer. Pignus manente derdale v. Montrose, 4 T. E. 248. 
 prcprietale debitoris, solam possessionem ^ See them cited, Tnrner, Contract of 
 tramfert ad creditorem : Dig. 13, 7, 35, Pawn, 2nd edit. pp. 41-44. 
 § n ; Pothier, De Nantissement, n. 60, 61. ' Donald v. Suckling, L. E. i Q. B. 
 
 1 2 Kent's Comm. izth edit. p. 578, 585, per Blackburn, J., at p. 613. 
 citing (inter aiia) Eoberts v. Wyatt, 2 " Howes v. Ball, 7 B. & C. 481. 
 Taunt. 268. . ' Per Bowen, L.J., Bui-dick v. Sewell, 
 
 2 Story, Bailments, § 291. 13 Q. B. D. 159, at p. 174. 
 ' Donald o. Suckling, L. E. i Q. B. 585 ; " Dig. 20, i, 15. 
 
 35 L. J. Q. B. 232 ; 14 L. T. N. S. 772 ; " Ante, p. 491. Pothonier v. Dawson, 
 
 15 W.E. 1.3. The general rule applicable HoltN. P. C. 383, per Gibbs.C.J.; Jones 
 
 to such cases is that of the Eoman law : v. Pearle, i Stra. 557 ; Lickbarrow v. 
 
 Nemo plus juris ad oMumtransferre potest Mason, 6 East 21 ; i Sm. Lead. Cas; gth 
 
 quam.ipse haberet, D. 50, 17, 54- J^on edit., p. 737, Story, Agency, § 371. 
 
PART I.] BAILMENTS. 493 
 
 the pawnor has his own lifetime in which to redeem, unless the 
 creditor in the meantime exercises his right of calling on him to 
 redeem, and, if upon proper demand and notice' he fails to do so, 
 his right is subject to be divested. If, however, he dies without 
 such call, the right to recover descends to his personal represen- 
 tatives.^ If the pawn is for a stipulated time, and the debt is 
 not paid at the time, the absolute property does not pass to the 
 pledgee. At the expiration of the time stipulated for, he has 
 his right to sell ; if he does not exercise this right of sale, 
 he still retains the property as a pledge, and upon a tender 
 of the debt he may at any time be compelled to restore it 
 (for the Statute of Limitations does not apply to the case of a 
 pawn'), because the creditor holds not in his own, but in another's 
 right." 
 
 The pawn, moreover, is only a collateral security, and, after Pawn a 
 the debt is due, the pawnee may at any time proceed perso- security, 
 nally against the pawnor for his debt, without selling the pawn. 
 And, on the other hand, if there be a conversion of the pawn 
 by the pawnee, and the pawnor has recovered judgment for 
 the value of the pawn, the debt remains, and is recoverable — if, 
 that is, the amount has been deducted from the damages in the 
 action about the pawn.^ If he prefer to operate on the pawn, he 
 may do so in one of two ways. He may either commence pro- 
 ceedings in Chancery and obtain a decree of foreclosure — and this 
 has frequently been done in the case of stocks, bonds, plate, and 
 other chattels pledged for the payment of the debt ; or he may 
 sell without judicial process, upon giving reasonable notice to the 
 debtor to redeem. But the pledgee is not allowed to become a 
 purchaser at the sale. On the other hand, he cannot be compelled 
 to sell, except by process in equity;" nor, according to an 
 American case, if the subject of the pledge is divisible, may he 
 sell more than is necessary to satisfy his debt.' But the pawnor 
 can, at any time while the pawn remains with the pawnee, sell 
 his interest in the pawn, subject, of course, to the rights of the 
 pawnee,' for he continues to have such a property in the article 
 
 1 Pigot V. Cubley, 15 C. B. N. S, 
 701. 
 
 ^ See the whole of the authorities ro 
 viewed by Kent, J., in Cortelyou v. Lans 
 ing, 2 Gaines's CaseB in Error, 199, at p. 
 203, 
 
 ^ Kemp«.Westbrook, i Ves. Sen. 278 
 Gage V. Bulkeley, Ridg. Gas. temp. Hard 
 
 pawnor may be debarred by acquiescence 
 
 acceptam usu non capimm; quia pro 
 alieno posnidemus. 
 
 * Bacon's Abr. Bailment, B ; Ratcliff«. 
 Davis, Yelv. 179 ; Johnson v. Stear, 15 
 C. B. N. S. 336 ; Brierley v. Kendall, 17 
 Q. B. 937. " Story, Bailments, § 320. 
 
 ' Fitzgerald v. Blocker, 29 Am. E. 3. 
 
 ' Tucker v. Wilson, i P. Wms. 261 ; J 
 
 278. It would, however, seem that the Bro. P. C. 193 ; Lockwood v. Ewer, 2 
 
 Atk. 303 ; 2 Kent's Comm. 12th edit. p. 
 
 Jones V. Eiggins, L. E. 2 Eq. 538. See 581 ; Story, Bailments, §§ 30S, 310, 314, 
 Spears v. Hartly, 3 Esp. 81. 315, 316, 318, 319 ; Turner, Pawns, 2nd 
 
 "Dig. lib. 41, 3, 13. Fignori rem edit. pp. 169, 1701 
 
494 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Nature pF the 
 obligation. 
 
 Sale by 
 pawnee. 
 
 Goods .pawned 
 exempt from 
 distress. 
 
 pledged as he can convey to a third person, but he has no right 
 to the goods without paying off the debt, and until the. debt is, 
 paid off the pledgor has no present interest. And even before the 
 Judicature Act an assignment by the pawnor gave to the assignee, 
 the full rights of the pawnor both in law and equity.^ 
 
 Since the contract of pledge is collateral to the contract to pay 
 the. debt, the promise is to return the property pledged when the 
 debt is paid ; and since, as we have seen,° the pledgee can maintain 
 an action to recover the debt without any offer to restore the pro- 
 perty pledged,' he can maintain an action for money lent after he 
 has converted the property pledged by an unlawful sale, and can 
 recover the amount of the debt, less the amount realized by the 
 sale, if the defendant plead this in set-off.'' Therefore to enable 
 the pledgor to maintain trover for a conversion of property, 
 pledged, if the lien created by the pledge has not otherwise been 
 discharged, a tender of payment of the debt is requisite. And 
 though the point has never definitely been decided, the inclination 
 of opinion seems to be to require a tender that would be good at 
 common law.'' If the pledgee deals with the pledge in a manner 
 other than is allowed by law for the payment of his debt, then, in 
 so far as, by dealing with the reversionary interbst of the pledgor, 
 he puts a difficulty in the way of the pledgor obtaining possession - 
 of the pledge on payment of the money due, he commits an 
 actionable wrong, though not to the extent, as has sometimes been 
 contended — on the supposed analogy of a factor pledging goods 
 entrusted to- him at common law — of wholly invalidating his title, 
 and thereby rendering his possession of the goods wrongful.' 
 
 The distinction between that case, and the case of a pledgee, 
 dealing with a pawn has been pointed out by Blackburn, J., in 
 Donald -v. Suckling," to be between " those cases where the act 
 complained of was wholly repugnant to the holding " and those 
 eases " where the act, though unauthorized, is not so repugnant, 
 to the contract as to shew a disclaimer." 
 
 If the pawnee sell, and there is a surplus, it belongs to the 
 pawnor ; but if there is a deficiency, it follows, from the security 
 being, as we have seen, only collateral, that the deficiency remains 
 chargeable to the pawnor.' 
 
 " Goods," says Williams, J., in Swire v. Leach," entrusted to 
 
 1 Kemp 1). Westbrook, i Vee. Sen. 278 ; 
 Franklin v. Neate, 13 M. & W. 481. 
 
 2 Ante, p. 493- 
 
 ' Taylor v. Cheeverj 6 Gray 136. 
 
 " Fay V. Gray, 124 Mass. 500. 
 
 ^ Cumnock v. Newbury Port Savinga 
 Institution, 142 Mass. 342, where the 
 authorities are reviewed. 
 
 « Hallidayo. Holgate, L. B. 3 Ex. (Ex- 
 chequer Chamber) 299. 
 
 ' L. E. I Q. B. sSs, at p. 605 ; 35 
 L. J. Q. B. 232 ; 14 L. T. N. S. 772 ; 15 
 W. E. 13. 
 
 ^ South Sea Company v. Buncombe, 2 
 Str. 919. 
 
 » 18 C.B.N. S. 479. at p. 493, 
 
PAET I,] BAILMENTS. 495 
 
 a " pawnbroker to be taken care of and dealt with, by him, 
 in the way of his trade, like goods deposited, with a wharfinger 
 to be kept/ or with an auctioneer for sale/ or beasts sent to 
 a carcase-butcher to be , slaughtered and dressed," are privileged 
 from distress for rent. The ground of this exemption is that 
 they are delivered to him in the way of his trade, and his duty 
 is "to keep safely all goods pledged with him, and to restore 
 them on demand to the owner, on being paid the money he has 
 advanced upon them, and interest."' 
 
 Goods pawned are not liable, says Story, to be taken in Not ijaViie 
 execution in an action against the pawnor ; at least until the execution." 
 sum for which they are pawned is paid.* The converse case is 
 of some interest — whether, in the case of a pawn, the property 
 can be levied on under an execution by a creditor of the pledgee. 
 " The general rule of law," says Parke, B., in Legg v. Evans,' " is 
 that the sheriff can seize only such things as he can sell." f he 
 particular case of which he was speaking was that of a lien. " It 
 is clear, therefore," he continues, " that the sheriff cannot sell an 
 interest of this description, which is a mere personal interest in 
 the goods. The case is quite different from those referred to in 
 which goods were let on hire for a certain period, because there 
 the person hiring has the absolute use of the goods for a particular 
 term, and that interest maybe disposed of." The question, then, 
 seems to resolve itself into an inquiry to which class, whether of liens 
 or things let to hire for a certain time, the cases of pledge nearest 
 approximate. Tried by this test, it would seem that there is a 
 property in the goods in the pawnee to the extent of the amount of 
 the pawn, and subject to the repayment of the amount, which is 
 
 ^ Thompson v. Mashiter, i B!ng. 283. that there was no other distreaa besides-. 
 
 ' Adams v. Grrane, i C. & M. 380 ; 3 See Co. Lit. 47 a b, and the Agricultural 
 
 Tyrwh. 326. Holdings Act, 1883 (46 & 47 Vict. c. 61), 
 
 ' Simpson v. Hartopp, Willes 512 ; i s. 45 ; London and Yorkshire Bank v. 
 
 Sm. Lead. Gas. 9th edit. pp. 463, 465. Belton, 15 Q. B. D. 457 ; also 34 & 35 
 
 There are five sorts of things which at Vict. c. 79 (the Lodgers' Giods Protection 
 
 common law were not distrainable — i. Act), sa. i, 2. 
 
 Things annexed to the freehold : Hella- ■* Story, Bailments, § 353. Vin.. Abridg. 
 
 well». Eastwood, 6 Ex. 311. 2. Things Pawn, A 3. Bro. Abridg. Pledges, 28. 
 
 delivered to a person exercising a public The article on pledges in Brooke is not 
 
 trade to be carried, wrought, worked up, in alphabetical order, and comes immedi- 
 
 or managed in the way of his trade or em- ately after "Plaints," and immediately 
 
 ploy: Gisbourn v. Hurst, Salk. 249; Gib- before " Pleadinges." Eogersw. Kennay, 
 
 sonw. Iveson, 3 Q. B. 39. 3. Cooks or 15 L. J. Q. B. 381. Stief v. Hart, i 
 
 sheaves of com : Wilson v. Ducket, 2 N. Y. 30, which is cited in ■ an editor's 
 
 Mod. 61 ; Morley ??. Pincombe, 2 Ex. note to Story as conti-ary, is really a strong 
 
 loi ; but now see 2 W. & M. c. 5. 4. authority in favour of the proposition in 
 
 Beasts of the plough and instruments of the text : see judgment of Jewett, C.J., at 
 
 hiisbandry : Davies v. Aston, i C. B. 746. p. 28. The actual decision in that case 
 
 J. The instruments of a man's trade or turned on the modifications of the common 
 
 profession : Fenton v. Logan, 9 Bing. 676 ; law effected by the Eevised Statutes of 
 
 Nargett ». Nias, i E. & E. 439. The first New York, 
 three sorts were absolutely free fromdis- '^ 6 M. & W. 36, at p, 41. 
 
 tress, the last two onl/ on the supposition 
 
i96 
 
 THE LAW OF NEGLIGENCE. 
 
 [book n. 
 
 Capacity to 
 enter into the 
 contract of 
 piiwn. 
 
 Statutory 
 enactments. 
 
 Degree of 
 diligence. 
 
 Holt., C.J., in 
 
 Ooggs V. 
 Bernard. 
 
 analogous to the interest to the extent of a tione certain, in the 
 case of goods hired. The conclusion would therefore be that the 
 sheriff could take them in execution, subject, of course, to the 
 pawnor's interest and right of redemption. This conclusion is in 
 accord with the -decision of the point by North, J., in In re Eollason, 
 Halse's claim.' 
 
 The rules applicable to contracts generally determine the 
 capacity of persons to enter into the contract of pawn,^ 
 
 So far we have considered the subject of pawns apart from 
 statute. Various regulations, however, are made by the Pawn- 
 brokers Act, 1872,' which applies to every loan by a pawnbroker 
 of forty shillings or under, and to every loan by a pawnbroker of 
 above forty shillings and not above ten pounds, except as in the 
 Act is otherwise provided," which are very important with regard 
 to the general question of the law of pawns, but of no special 
 reference to the law of negligence, and may therefore safely here 
 be thus slightly referred to. The questions, whether the pawnee 
 may make use of the pawn in any and what circumstances, and 
 what degree of care is to be exercised by him if he does in any 
 case use the pawn, have been already considered with regard to 
 deposits, and the conclusions there arrived at hold good here, as 
 Holt, C. J., says,* " because the pawn is in the nature of a deposit, 
 and as such is not liable to be used. And to this effect is 
 Owen 123." 
 
 We now come to the consideration of what degree of diligence 
 is imposed upon the pawnee in respect to the preservation of the 
 pawn. 
 
 As to this point, says Holt, O.J.,^ " Bracton, 99 b, gives yon 
 the answer : Creditor, qui pignus accepit, re obUgatv/r, et ad illam 
 restititsndam tenetur : et cum hujusmodi res in pignus data sit 
 utriusque gratid, scilicet dcbitoris, quo magis ei pecunia crederefur, 
 et creditoris quo magis ei in tuto sit creditum, sujieit ad ejus rei 
 eustodiam diligentiam exactam adhibere quam si prcestiterit et rem 
 casu amiserit securus esse possit nee impedietur creditum peterc'' 
 In effect, if a creditor takes a pawn he is bound to restore it upon 
 the payment of the debt ; but yet it is sufficient if the pawnee use 
 true diligence, and he will be indemnified in so doing and not- 
 withstanding the loss, yet he shall resort to the pawnor for his 
 debt. Agreeable to this is 29 Ass. 28, and Southcote's case is. 
 But, indeed, the reason given in Southcote's case is, because the 
 
 1 34 Ch. D. 49S ; 56 L. J. Ch. 768 ; ^ 2 Ld. Eaym. 909 ; i Sm. Lead. Caa. 
 
 1 L. T. 303 ; 35 W. il. 607. gth edit. 201, at p. 214. See ante, p. 475. 
 
 56 „ 
 
 2 Pollock, Law of Contracts, 4th edit 
 p. 186. 
 
 s 35 & 36 Vict. c. 93. 
 
 ^ Section 10. 
 
 " 2 Ld. Kaym. 909 ; i Sm. Lead. Cas. 
 9th edit. 201, at p. 214. 
 
 ' This is almost in the \rords of the 
 Institutes, lib. 3, tit. 14, § 4. 
 
PART I,] BAILMENTS. 497 
 
 pawnee has a special property in the pawn. But that is not the 
 reason of the case ; and there is another reason given for it in 
 the Book of Assize, which is, indeed, the true reason of all these 
 cases, that the law recjuires nothing extraordinary of the pawnee, 
 but only that he shall use an ordinary care for restoring the 
 goods. But, indeed, if the money for which the goods were 
 pawned be tendered to the pawnee before they are lost, then the 
 pawnee shall be answerable for them, because the pawnee by 
 detaining them after the tender of the money is a wrongdoer, and 
 it is a wrongful detainer of the goods, and the special property 
 of the pawnee is determined. And a man that keeps goods by 
 wrong must be answerable for them at all events, for the detaining 
 them by him is the reason of the loss. Upon the same diiference 
 as the law is in relation to pawns it will be found to stand in 
 relation to goods found." It is under this head that Sir William EosponBibiiity 
 Jones discusses the question how far theft, as contradistinguished ^°^ *®"' 
 from robbery, is a valid excuse for bailees. This point we have 
 already considered under the head of Deposits ; ' and the conclu- 
 sion there arrived at, that theft per se establishes neither respon- 
 sibility nor irresponsibility in the bailee, except in so far as the 
 evidence may shew negligence, holds good also in this connection.^ 
 The pawnee is liable not only for negligence of commission, but 
 also of omission. For he is bound actively to do everything that 
 may be expected of a prudent man and necessary for the preserva- 
 tion of the pledge.' " He is not, therefore, less liable i£ by his 
 neglect he suffers a mirror which is pawned to him to be ruined 
 or lost than he would if he had broken it by an improper use 
 or even by a mere wilful act. A person holding property or securi- 
 ties in pledge occupies the relation of trustee for the owner, and as 
 such, in the absence of special power to do otherwise, is bound 
 to proceed as a prudent owner would with his own. Therefore, 
 when a promissory note is pledged, the pledgee must collect it at 
 maturity, and is not entitled to sell it,"" This language of an 
 American case is perhaps not strictly accurate, though substantially 
 so, with regard to English law, where, whatever the theory, the 
 degree of care required of trustees is, as worked out in a court 
 of law, greater than what an ordinary prudent owner would be 
 expected to use with his own property. But the pawnee is not 
 liable, in the absence of negligence, for a theft of a pledge by 
 his servant.* 
 
 ' Ante, p. 464. 
 
 " 2 Kent's CoiDm. 12th edit. p. 580 ; Brooke's Abridg. Bailment, 7 ; Very v. Smith, 
 I Vent. 121 ; Clarke v. Barnshaw, Gow 30. 
 
 ' Story, Bailments, § 342, citing Pothier, De Nantissement, n. 33. 
 
 * Joliet Iron Company v. Scioto Firebrick Company ; 25 Am. E. 341 ; Story, Bail- 
 ments, § 321. ' ° Armfield 11. Mercer, 2 Times Law Eep. 764. 
 
 II 
 
493 THE LAW OF NEGLIGENCE. [bookii. 
 
 Duties owing So muoh, then, as to the general principles of liability for 
 to the^pitroe™ negligence of the pawnee. But there are, besides, duties owing 
 by the pawnor to the pawnee, which we are now shortly to 
 consider, 
 
 A pawnor, by the act of pawning, impliedly engages that he 
 is the owner of the property pawned, and, unless he gives notice 
 of a different interest, that he is the general owner and that he 
 has a good right to pass the pawn.' He is bound to good faith, 
 and is responsible for all fraud, not only in the title, but in the 
 conception of the contract.^ But he does not warrant the 
 property, Si sciens creditor accipiat ml cdienum vel dbligatum vel 
 morbosum contrariv/m ei non competet.^ 
 
 'By the Roman law the pawnor is also to reimburse the pawnee 
 all expenses and charges which have been necessarily incurred by 
 the latter in the preservation of the pawn, even if the benefit 
 results through the happening of some subsequent accident. 
 Story^ finds no decision in the common law on the point. He is 
 of opinion that, in the case of an express contract to pay ordinary 
 charges and expenses, its terms ought to govern ; and where there 
 is no express declaration, an implication, if it arise, should have 
 the same effect. But quite independently of the justice of this 
 conclusion, it seems, he says, '' but reasonable that extraordinary 
 expenses and charges which could not have been foreseen should 
 be reimbursed by the pawnor." 
 Decision The Pawnbrokers Act, 1872,* has already been noticed. By 
 
 Pawnbroker's it the earlier Acts are repealed and consolidated. A decision 
 Act, 1872. under the principal of these' calls for notice. In Syred v. 
 Carruthers' it was held by the Queen's Bench that there is no 
 primd facie presumption that a fire on the premises of a pawn^ 
 broker, by which a pledge in his possession was destroyed, was 
 caused through the default, neglect, or wilful misbehaviour of the 
 pawnbroker so as to authorize the pawnor to obtain compensation 
 under the Act. By section 27 of the Pawnbrokers Act, 1872, 
 however, an absolute liability is imposed upon the pawnbroker 
 to make good, subject to certain deductions, the value, to be 
 ascertained as therein directed, of pledges damaged or destroyed 
 by fire, and he is by the same section empowered to insure to 
 the extent of such value.' 
 
 • Story, BailraentB, § 354. ^ 39 & 40 Geo. III. c. 99, s. 24. 
 
 - Ibid., § 356. ' El. Bl. & El. 469. 
 
 ' Dig. 13, 7, 16, § I. 8 As to theft by servant of a pawn- 
 
 " Bailments, § 357. broker, Armfield v. Mercer, 2 Times Law 
 
 ° 35 & 36 Vict, c. 93. Kep. 764. 
 
PART I.] BAILMENTS. 499 
 
 V. The Contract of Hire. 
 
 To Story's third class of bailments — that in which the trust is Third class— 
 for the benefit of both parties, or of both or one of them and a wTs*forthe 
 third person — is to be referred the contract of hire, equally with ''eieflt of both 
 that of pawn, which we have just been considering. Ii_ contract 
 
 The designation of this contract in the civil law is locatio °' '''™* 
 cmduciio. The definition of it is, " Locatio eond^ictio est contractus 
 quo de re fruenda vel faderida pro certo pretio convenit} Igitur 
 tria duntaxat hunc contractum cmistituunt : res quce fmenda aut 
 facienda conceditur, pretium" quo pro ea fruenda aut facienda dari 
 convenit, ef consensiis circa supra dicta} 
 
 It was ordinarily essential that the rent should be paid in Ordinaiiiy 
 money; but in the case of productive property, as a farm or j"™money.^°''^ 
 farm stock, the rent might by agreement be paid in the fruits or 
 increase. It is said, however, by Mommsen, that " the payment 
 must necessarily consist in the money ; in consequence of which 
 the produce lease among the Romans comes under the contingencies 
 occurring in practical life, though not falling within the theory of 
 jurisprudence."^ But other commentators do not assent to this 
 view." 
 
 The employer who gives the reward is called locator operis, the Definitions. 
 
 letter of the work, but condicctor operarum, the hirer of the 
 
 labour and services. On the other hand, the party who 
 
 receives the J)ay is called locator operarimi, the letter of the 
 
 labour and services, but conductor operis, the hirer of the work." 
 
 Chancellor Kent's definition of this contract is " a contract Kent's 
 
 deiinition. 
 
 ^ Pothier, Fand. lib. 19, tit. 2 : Prima consister en une somme d'argent deter- 
 
 pars De natura contractus locationis con- mintie; (3) D4s qu'il y a consentement swr 
 
 ductionis et de pactis quee Jiuic vulgo le prix et la cJiose, le contrat est parfait ; 
 
 adjiciuntur. aueime formalite n'est requise. 
 
 ^ Pretium autem constitui oportet nam * 2 Mommsen, p. 432. Wliere the hire 
 
 nuUa emptio sine pretio esse potest : Inst. of a farm was a proportion of the produce 
 
 3, tit. 24, § I. As to hire, Pothier, Contrat the tenant was called colomis partiarius. 
 
 deLouagp, n. 37. See Plioy_ Epist. ix. 37. D. 19, 2, 25, 
 
 ' Alluding to a sentence from Paulns, § 6, partiarius colonus, quasi societatis 
 
 Locatio et conduetio quum, naturaUs sit jure, et damnum et lucrum cirni domino 
 
 et omniwm gentium non verbis sed con- fundi partitur. 
 
 sensucontraliitur sicut emptio et venditio. ^ Hare, Law of Contracts, p. 91. Com- 
 
 JJ. 19, 2, I. The definition in Majnz, pare Jones, Bailments, p. 118, where, hy 
 
 Eldments de Droit Eomain, 2nd edit. vol. his definition, he confines letting to hire to 
 
 ii. p. 197, is : 11 y a contrat de louage cases where pecuniary compensation was 
 
 quand une partie s'dblige a, procurer & given ; p. 86, where he speaks of the' 
 
 t'autre Vusage d'une chose, ou a faire contract being for a stipend or price ; and 
 
 quelque cliosepow elle, mxyyennant unprix p. 93, where he classes all other cases as 
 
 & payer par cette derniire. Maynz spe- innominate contracts, 
 
 cifies three essentials to the contract — " Story, Bailments, § 369. Jones, Bail- 
 
 (i) L'usage dlune chose ou de services di- ments, p. 90, u. r, the conclusion of which 
 
 termines & mettre A la disposition du eon- runs : " So, in Horace, Tu seeanda mar- 
 
 ductor, moyennant un ^ix determine; mora locas, which the stone-hewer or 
 
 (2) Le prix doit Hre s4rieux et certam et mason conduai*.'' 
 
500 
 
 THE LAW OF NEGLIGENCE. 
 
 [book n. 
 
 Storjr's 
 definitiou. 
 
 Sivision of 
 the subject. 
 
 Requisites of 
 the contiact 
 locatio con- 
 duetto. 
 
 by which the use of a thing or labour or services about it are 
 stipulated to be given for a reasonable compensation, express or 
 implied."' Story^ defines it, "a bailment of a personal chattel 
 where a compensation is to be given for the use of the thing or 
 for labour or services about it ; or, in other words, it is a loan for 
 hire or a hiring or letting of goods or of labour and services for a 
 reward." 
 
 We have already seen^ that this contract is susceptible of a 
 double division — first, into locatio or locatio condiictio rei, the bail- 
 ment or letting of a thing to be used by the bailee for a compen- 
 sation to be paid to him ; and, secondly, locatio operis, or the hire of 
 the labour and services of the bailee for a compensation to be paid 
 to the bailor.'' And this latter in its turn is susceptible of a sub- 
 division into, first, locatio operis faciendi, or the hire of labour and 
 work to be done, or care and attention to be bestowed on the 
 goods bailed by the bailee for a compensation; and, secondly, 
 locatio operis mercium vehendarum, or the hire of the carriage of 
 goods from one place to another for a compensation. 
 
 An important distinction must be attended to, namely, that while 
 one who hires the services of another is bound to see to the way 
 in which they are performed, and will be answerable for injuries 
 resulting from his negligence, this responsibility is not incurred 
 where there is a contract for the performance of work, because 
 the contractor is not under the control or supervision of the person 
 for whom the work is done. Story* lays down the requisites to 
 this contract of locatio condiictio, letting and hiring — (i) that the 
 bailment should not be prohibited by law ; (2) that it should 
 be between persons competent to contract; and (3) that there 
 should be a free and voluntary consent between the parties. The 
 more detailed consideration of these points does not belong to our 
 subject, but must be referred to the general law of contracts. 
 
 !First sub- 
 division of 
 hire. 
 
 I, Sire of Things. 
 
 ■ The first subdivision of locatio conductio is locatio rei, or the 
 hiring of a thing, and this we have now to consider. The 
 obligation on the letter in this case, according to the Eoman law, 
 was to allow the hirer the full use and enjoyment of the thing 
 hired, and to fulfil all his own engagements and trusts in respect 
 to it, according to the original intention of the parties : Prcestare, 
 frui licere, uti licere."^ 
 
 1 2 Commentaries, 12th edit. p. 
 = Bailments, § 368. 
 s Ante, p. 456. 
 
 585. * Code NapoUon, arts. 1709, 1710. 
 
 ° Bailments, § 378. 
 * Jhid., § 383. 
 
PART I.] BAILMENTS. 501 
 
 Story, following Pothier,' reduces the main obligations arising Obiigati 
 
 lions 
 
 from this contract to six heads :— ?i^T^ °"J °* 
 
 1 . The letter must procure delivery of the thing bailed to be *''"S- 
 made to the hirer, unless otherwise agreed. 
 
 2. The letter must refrain from every obstruction in the use 
 of the thing bailed. 
 
 3. The letter must not do anything which tends to deprive 
 the hirer of the thing bailed. 
 
 4. The letter enters into an implied warranty of the title and 
 right of possession to the hirer. The rule, as a,bove stated, is, 
 Ui prcBstet conductori frui licere, uti licere. 
 
 5 . The letter is to keep the thing in suitable order and repair 
 for the purposes of the bailment. 
 
 6. The letter warrants the article against faults and defects 
 which prevent the due enjoyment or use of the thing. 
 
 As to this last obligation, Pothier'' lays it down, that where a Pothier's 
 person who lets a thing knows of a defect in it that makes it JSe^obilgatiou 
 unfit for the purpose for which it is let, he is responsible in on lotting 
 damages for it ; and even if he does not actually know it, if the things, 
 circumstances are such that he ought to have had a suspicion of 
 it and been put on inquiry, and either does not inquire himself 
 or give the hirer the option of inquiry, he is liable. If the letter 
 follows a trade which makes it his duty to know whether the 
 thing has faults or not, he is liable without proof that he did 
 know. As, for example, a cooper who supplies wine casks made 
 of bad wood, so that they leak, will not be permitted to set 
 up as a defence that he did not know the bad quality of the 
 wood, for his profession bound him to know the quality of the 
 wood he used, and to supply none but of good quality. The 
 English law is the same, and was thus declared in the case of 
 Hyman v. Nye.' The defendant was a jobmaster, from whom Hyman ». 
 the plaintiif hired a landau and horses for a drive. After driving 
 some way a bolt in the under part of the carriage broke, and the 
 plaintiff was thrown out and injured. He brought an action 
 against the defendant. Is was proved that the, defect, if any, 
 could not have been discovered by ordinary inspection, and whether 
 there was any was not proved. At the trial the judge directed the 
 jury that the plaintiff was bound to prove that the injury he had 
 sustained was caused by the negligence of the defendant, and 
 that if, in their opinion, the defendant took all reasonable care to 
 
 ^ Story, Bailments, §§ 383-390. Pothier, Contrat de Louage, n. 53 et seq. See 
 also Maynz, J!l6ments de Droit Komain, 2nd edit. vol. ii. p. 200. 
 
 ^ Du Contrat de Louage, jartie 2, c. 1, No«. 118, iig, 120; Maynz, Elements de 
 Droit Komain, 2nd edit. vol. ii. p. 201. 
 
 ' 6 Q. B. D. 685 ; 44 L. T. 919. See Jones v. Page, 15 L. T, N. S. 619 ; Marner v. 
 Banks, 17 L. T. N. S. 147. 
 
-502 THE LAW OF NEGLIGENCE. [book ii. 
 
 provide a fit and proper carriage, their verdict ought to be for 
 him. A verdict was given for the defendant, the jury finding 
 that " the carriage was reasonably fit for the purpose for which it 
 was hired, and that the defect in the bolt could not have been 
 discovered by the defendant by ordinary care and attention." 
 A rule having been obtained by the plaintiff on the ground of 
 misdirection, after argument it was discharged, Lindley, J.,- de- 
 livering a considered judgment, in the course of which, after 
 citing the authorities, he said : " A careful study of these autho- 
 rities leads me to the conclusion that the learned judge at the 
 trial put the duty of the^ defendant too low. A person who lets 
 put carriages is not, in my opinion, responsible for all defects, 
 discoverable or not — he is not an insurer against all defects ; nor 
 is he bound to take more care than coach proprietors or railway 
 companies, who provide carriages for the public to travel in; but, 
 in my opinion, he is bound to take as much care as they, and, 
 although not an insurer against all defects, he is an insurer 
 against all defects which care and skill can guard against. His 
 duty appears to me to be to supply a carriage as fit for the 
 purpose for which it is hired as care and skill can render it and 
 if, whilst the carriage is being properly used for such jDurpose, it 
 breaks down, it becomes incumbent on the person who has let it 
 out to shew that the break-down was in the proper sense of the 
 word an accident, not prdventible by any care or skill. If he 
 can prove this, as the defendant did in Christie v. Greggs,' and 
 as the railway company did in Eeadhead v. Midland Railway 
 Company," he will not be liable ; but no proof short of this will 
 exonerate him." ' 
 
 Story's opijiion Speaking of the foregoing sis headings, Story says' : " In some 
 between the lespects the common law certainly differs, and in others it pro- 
 the cJr^on^ bably agrees." " The Roman law and the foreign law," he 
 law with continues, " treats leases of real estate as bailments on hire, and 
 subject. indeed emphatically as such bailments,^ and the owner or lessor, 
 
 and not the tenant, is, in the absence of all other stipulations 
 or customs to the contrary, bound to keep the estate in repair. 
 The common law is different in such cases, for the landlord, with- 
 out an express agreement, is not bound to repair, and the tenant 
 may, and ought to, make the necessary repairs at his own expense.' 
 Lord Mansfield on one occasion* said that by the common law 
 he who has the use of a thing ought to repair it. It is true 
 
 1 2 Campb. 79. 5 Pomfret v. Eicroft, I Wms. Saond. 
 
 ' L. E. 2 Q. B. 412 ; L. E. 4 Q. B. 321 ; Countess of Shrewsbury's case, 5 
 
 379; 38 L. J. Q. B. 169; 17 W. E. Eep, 14; i'erguson «. , 2 Esp. 590; 
 
 737. Horsefall «. Mather, Holt N. P. 7. 
 
 " Bdilmeats, § 392. 6 Taylor w. Whitehead, 2 Doug. 74S, at 
 
 ' Jones, Bailments, p. 90. p. 748. 
 
PART I.] BAILMENTS. 503 
 
 that the remark was applied to the case of the grant of a way 
 which was out of repair ; but the remark was general. Lord 
 Hale is also reported to have said that if plate is let, and it is 
 worn out in the service, the hirer is not liable to any action 
 unless he has been guilty of some default.' It has also been 
 decided that tenants are bound to repair fences during their 
 occupancy." In the absence of any direct authority upon the 
 other points above stated from the foreign law, they must be 
 propounded as still open to controversy in oiir law." They must 
 therefore be considered with reference to general principles.' 
 
 Holt, C.J.J in Coggs v. Bernard,'' after citing the civil law asHoit, C.J., 
 embodied in Bracton* as his authority, concludes : " Prom whence semMd! "' 
 it appears that, if goods are let out for a reward, the hirer is 
 bound to the utmost diligenpe,^ such as the most diligent father 
 of a family uses, and if he uses that, he shall be discharged " 
 — Talis ah eo desideratur ciLstodia, qualem diligentissimus pater- 
 familias suit relms adhibet guavi si prcestiterit et rem aliquid casu 
 amiserif, ad rem restifuendam non tenebitur. 
 
 Sir William Jones ' engages to shew, " by tracing the doctrine sir William 
 up to its real source, that the dictum of the Chief Justice was meaning of 
 entirely grounded on a grammatical mistake in the translation of ^Hmentissimm. 
 a single Latin word," and that " an epithet which ought to have 
 been translated ' ordinarily diligent,' has been supposed to mean 
 extremely careful." Sir WiUiam Jones is considered to have 
 made good his point.' 
 
 In Dean v. Keate '•• — which was an action for the improper Dean v. 
 treatment of a horse let to hire, where the defendant, in place 
 of sending it to a veterinary surgeon, treated it himself, with 
 tfie result that it died — Lord Ellenborough said: "Had the 
 defendant called in a farrier he would not have been answerable 
 for the medicines the latter might have administered; but 
 when he prescribes himself he assumes a new degree of 
 ifeeponsibility ; and prescribing so improperly, I think he did not 
 
 ' Pomfret v. Eicroft, i Wms. Satincl. to provide that the thing be in good con- 
 
 321, 323, n. 7. dition to last during the time for which it 
 
 ^ Chectham v. Hampson, 4 T. E. is hired, if that can he done by reasonable 
 
 318. care, and afterwards is liable only for such 
 
 ' Parsons, Law of Contracts, vol. ii. p. repairs as are made necessary by unex- 
 
 127, says, referring to the cases cited: pected causes. " 
 
 "Perhaps the conflicting opinions may be * 2IA. Eaym. gog ; i Sm. Lead. Cas, 
 
 reconciled by regarding it as the true 9th edit. 201, at p. 213. 
 
 principle that the owner is not bound ° Bracton, fol. 62 b; Inst. 3, 26, $. 
 
 (unless by special agreement, express or * Comm. Vinn. in Just. Inst. lib. 3, tit. 
 
 implied by the particular circumstances) 25, text 5, n. 2, 3. 
 
 to make snob repairs as are made necessary ' Bailments, p. 85. 
 
 by the natural wear and tear of the thing * See note to Story, Bailments, § 398, 
 
 or by such accidents as are to be expected, u. 8, collecting the authorities, 
 
 as the casting of a horseshoe after it has ' 3 Campb. 4 ; Eastman v. Sanborn, 83 
 
 been worn a usual time ; but he is bound Mass. 594. 
 
504 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 Eules of 
 diligence 
 illustrated. 
 
 exercise that degree of care which might be expected from- a 
 prudent man towards his own horse ; and was in consequence 
 guilty of a breach of the implied undertaking he entered into 
 Note to the whsn he hired the horse from the plaintifE." The reporter, in a 
 beU's Eeports. note, cites a circuit case that adopted the same yiew as that taken 
 by Lord EUenborough, and, after setting out the passage from the 
 judgment of Holt, C.J., concludes with the following expres- 
 sion of his own opinion : — " According to this doctrine, he [the 
 defendant] would be answerable for slight negligence. But on 
 a review of all the authorities upon the subject, it will be found 
 that this extraordinary care is required only of a borrower ; and 
 that, from the true construction of the contract of locatio condtictio 
 rei, the hirer is required to use no more than that degree of 
 diligence which prudent 7iien, that is, the generality of men, use 
 in keeping their own goods.'" To the same effect is Pothier. 
 He holds that the hirer is only bound for ordinary diligence, and 
 is liable only for ordinary negligence (^faute Ugk,re)? 
 
 The rule as to diligence being, then, settled in the sense con- 
 tended for by Sir William Jones, the hirer ought to use the 
 thing and to take the same care in the preservation of it which 
 a good and prudent father of a family would take of his own ; in 
 other words, he is liable for ordinary negligence. If, then, he 
 hire a horse, he is bound to ride it as moderately and to treat it 
 as carefully as any man of common discretion would his own ; 
 and the law implies that proper treatment includes feeding a 
 horse.' If, in spite of this care and treatment, the horse gets 
 injured, the hirer is not responsible in damages. To the same 
 purport is a Nisi Prius ruling, that if a hired horse refuses its 
 food from fatigue, the hirer is bound to abstain from using it, 
 and if he pursues his journey with the horse, he becomes liable 
 for all injuries occasioned thereby.'' But, as we have seen,' the 
 particular acts of duty vary with the nature of the things on 
 which they are to be bestowed. One who hires a costly and 
 delicate instrument is bound to act differently from what he would 
 were his hiring to be of something cheap and coarse and difficult 
 to injure or to destroy. The same consideration applies if any cir- 
 cumstances fix a peculiar value, to the article, and thus call for 
 greater care. Still, it is in no case more than ordinary care that 
 the letter is entitled to exact from the hirer, that is, the care 
 that a man of ordinary capacity and caution exercising his facul- 
 
 ^ See, too, note to Coggs v. Bernard, 
 I Sm. Lead. Cas. gth edit. 201, 228. 
 
 ^ Pothier, Contrat de Louage, n. igo, 
 192, 429. So, too, the law of Scot- 
 land. Prmstat cwlpam Uvem, Bell's 
 
 Comm., cited hy Stoiy, Bailments, 
 § 398, n. 
 
 ^ Handford v. Palmer, 2 B. & B. 359. . 
 
 ^ Bray t>. Mayne, Grow I. 
 
 ' Ante, p. 458. 
 
PART I.] BAILMENTS. 505 
 
 ties would take of the same thing if it were his own and iu the 
 same circumstances.' 
 
 The obligation to take reasonable care of the thing entrusted Rule of 
 to a bailee of this class involves in it an obligation to take ™f„ Jg^to t^a 
 reasonable care that any building in which it is deposited is in condition of 
 
 , . ii ^ ii ii • ■ 1 • T . -, , the building 
 
 a proper state, so that the thmg therem deposited may be in which the 
 reasonably safe in it, so that where a shed was blown down ig d^ositod. 
 by a high wind, and property that was bailed to the defendant 
 by the plaintifE was injured, on proof that the defendant had 
 employed a careful and experienced person to build the shed, 
 and had no knowledge of any negligence on his part, it was 
 held that the plaintiff could not recover.^ The case of Grote v. Grote v. 
 Chester and Holyhead Eailway Company,^ though, on examination, Hoiyhead"** 
 different, is apparently so closely akin to the case that it should Railway Com- 
 be noticed here, being an action against a railway company for 
 compensation for personal injury received by the plaintiff by 
 the breaking down of a bridge over which he was being conveyed 
 in a passenger train. The defendants objected that they were 
 not liable, unless they were guilty of negligence either in con- 
 structing or maintaining the bridge. The judge, at the trial, 
 directed the jury that the question was whether the bridge was 
 constructed and maintained with sufficient care and skill, and of 
 reasonably proper strength with regard to the purposes for which 
 it was made, and that, if they should think not, and that the 
 accident was attributable to any such deficiency, the plaintiff would 
 be entitled to recover. The jury found a verdict for the plaintiff, 
 and the defendants moved on the ground of misdirection. A rule 
 was refused. Pollock, C.B., however, stated the proposition of law 
 to be, " If a party in the same situation as that in which the 
 defendants are employ a person who is fully competent to the 
 work, and the best method is adopted, and the best materials are 
 used, such party is not liable for the accident," The rule so laid Discussed. 
 down is very considerably stricter than that in Searle v. Laverick. 
 It should be observed, however, at the outset, that the words "best 
 materials " are to be understood with a similar limitation to that 
 imposed by Lindley, J., in Hyman v. Nye,^ on the words " reason- Lindley, J., 
 ably fit and proper " when used with reference to the duty of a Nye,^'"*" "' 
 carriage proprietor in the supplying a carriage for hire. "The 
 expression ' reasonably fit and proper ' is a little ambiguous, and 
 requires explanation. In a case like the present a carriage to be 
 reasonably fit and proper must be as fit and proper as care and 
 
 ^ 2 Parsons, Law of ContractB, p. 122, and note to 6th edit. 
 
 2 Searle v. Laverick, L. E. 9 Q. B. 122 ; 43 L. J. Q. B. 43 ; 30 L. T. N. S. 89 ; 
 22 W. K. 367. 
 = 2 Ex. 251. < 6 Q. B. D. 68s, at P- 688 ; 44 L. T. 919. 
 
506 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 General rule. 
 
 Limitation. 
 
 skill can make it for use in a reasonable and proper manner — i.e.. 
 as fit and proper as care and skill can make it to carry a reason- 
 able number of people, conducting themselves in a reasonable 
 manner, and going at a reasonable pace on the journey for which 
 the carriage was hired, or (if no journey was specified) along roads 
 or over ground reasonably fit for carnages. A carriage not fit 
 and proper in this sense would not be reasonably fit and proper, 
 and vice versd. The expression 'reasonably fit' denotes some- 
 thing short of absolutely fit, but in a case of this description the 
 difference between the two expressions is not great." So, too, the 
 expression " best materials" does not signify those absolutely the 
 best, but materials that would be comprehended in the class of 
 best materials when applied to work of the class with reference 
 to which they are to be used. Again, secondly, it must be borne 
 in mind that in the case of Searle v. Laverick the bailee was 
 bound only to use the ordinary care in the keeping of the article 
 bailed that is required from an ordinary bailee for hire, while 
 in Grote v. Holyhead Railway Company' thfe care is that of a 
 carrier of passengers, which is the most exact diligence. There 
 is, therefore, no conflict between the cases, since they are applied 
 to circumstances in which different degrees of care are requisite. 
 
 As a general rule, it may be said that in the contract locatio 
 m the hirer is bound but to ordinary care and diligence, and is 
 answerable for ordinary neglect ; for the bailment of hiring of a 
 thing is one for the mutual benefit of letter and hirer. He is 
 bound to use the article with due care and moderation, and not to 
 apply it to any other use, or to detain it for a longer period than 
 that for which it was hired.^ If he uses the thing borrowed in a 
 different way or for a longer time, he will be liable for all acci- 
 dents happening to the thing while under his control, even though 
 they may arise from inevitable accident. 
 
 Following the passage we have already considered from the 
 judgment of Holt, G. J., in Coggs v. Bernard is the following : — 
 " But every man, however diligent soever he be, being liable to 
 the accident of robbers, though a diligent man is not so liable as 
 a careless man, the bailee shall not be answerable in this case if 
 the goods are stolen." Sir William Jones^ adds a limitation to 
 the universality of this proposition : " unless by his imprudence 
 he gave occasion to the robbery, as by travelling at unusual hours, 
 or by taking an unusual road." In a previous portion of his essay* 
 he sets out the case more at length. "Had the borrower," he 
 says, referring there to the case of a gratuitous loan, " indeed, 
 
 1 2 Ex. aji. 
 
 3. Bailmente, p. 88. 
 
 = Story, BailmeniB, §§ 397, 398, 413-415. 
 * At p. 68. 
 
PART I.] BAILMENTS. 50? 
 
 been imprudent enough to leave the high road and pass through 
 some thicket where robbers might be supposed to lurk, or had he 
 travelled in the dark at a very unseasonable hour, and had the 
 horse in either case been taken from him or killed, he must have 
 indemnified the owner, for irresistible force is no excuse if a man 
 put himself in the way of it by his own rashness.'" 
 
 The next point to be considered is, what is the position of the wiiere tWng 
 bailor if the bailee returns the article hired in a damaged con- in damage™^ 
 dition ? The bailor commits his property to the bailee on the <=o°<i'4™' 
 undertaking, most generally an implied undertaking, that he will 
 take due care of it. In these circumstances good faith requires 
 that, if the property is returned in a damaged condition, some 
 account should be given of the time, place, and manner of the 
 occuri'ence of the injury. If he returns the property in a damaged 
 condition, and fails to give any account of the matter, the law will 
 authorize a presumption of negligence on- his part ;^ because, there 
 being no apparent cause for the accident, and the possession 
 being with the bailee, it is for him to give some account of how 
 the matter happened, and not for the bailor to give positive 
 evidence beyond the deteriorated condition of the article,^ unless 
 the deterioration was such as, in the ordinary course of things, 
 happens to those who use proper care ; in which case it would not 
 in itself afford reasonable evidence of negligence in the absence 
 of explanation.'' 
 
 Under this head mention must be made of that class of cases Hire of. horse 
 where a carriage and horses are hired, and the owner sends with ^ith'servS. 
 them his coachman or servant;" and also the whole class of cases 
 where the responsibility of a master for the use by his servants of 
 the thing hired comes in question." The obligations hence arising 
 
 ^ Doctor- and Student, dial. 2, c. 38. 6 M. & W. 499, and tie other cases pre- 
 
 ^ By the Code Napolfion this presump- viously considered, 
 tion seems absolute : arts. 1732, 1733, " M'Manus v. Cricket, i East 106 ; 
 
 1734. Croft t;. Alison, 4B. &Ald. 590; Limpus 
 
 " Logan V. Mathews, 6 Penn. St. 417 ; v. London General Omnibus Company, i 
 
 StoiT, Bailments, §§ 411, 414; Skinner H. & C. 526, and the rest. Wharton 
 
 «. . London, Brighton, and South Coast cites a case (§ 716) from Momrasen of a 
 
 E&ilway Company, S Ex. 787; Byrne student hiring a horse from a livery stable 
 
 V. Boadle, 2 H. & C. 722. Scott v. Lou- keeper which, when he arrived at his des- 
 
 don Docks Company, 3 H. & C. 722. tination, he gave to the ostler, who fas- 
 
 ■* Kearney J). London and Brighton Eail- tened the horse so negligently in its stall 
 
 way Company, L. E. 5 Q. B. 411 ; L. E. as fo suffocate it. Mommsen is of opinion 
 
 6 Q. B. 759 ; 40 L. J. Q. B. 285 ; 24 that the student could not be reasonably 
 
 L. T. N. S. 913 ; 20 W. E. 24 ; Higgs v. expected to know about the fastening of a 
 
 Maynard, i H. & E. 581 ; Welfare v. horse, and that he is liable for ignorance 
 
 London and Brighton Railway Company, only of what he could be reasonably ex- 
 
 L. E.4Q. B.693(Ex. Ch.); 38L. J.Q.B. pected to know. Wharton, howev'ei-, isof 
 
 241 ; 20 L. T. N. S. 743 ; 17 W. E. 1065 ; the opposito opinion : " First, if I hire a 
 
 Moffatt V. Bateman, L. 15. 3 C. P. 115 ; horse I must see that he is safely kept as 
 
 22 L. T. N. S. 140. well as safely driven, and if I take the 
 
 ° Ante, p. 391 : Laugher v. Pointer, horso under my care, the owner of the 
 
 5 B. & C. S4S; Quai-man v. Burnett, horse has as much. right to presume that 
 
508 THE LAW OF NEGLIGENCE. [book ii- 
 
 tave, however, already been fully discussed, and may here be dis- 
 missed by reference to the conclusions before arrived at. The 
 greater leniency of the Roman law than of our own should be noted. 
 Sir William Jones' gives the opinion, of Pomponius,^ which was 
 generally adopted, and which made the master liable only when he 
 was culpably negligent in admitting careless guests, or servants 
 whose bad qualities he ought to have known. 
 Hiio of ready To iUustrate the rule of the English law. Sir William Jones' 
 lodgings. gives the example of the hire of ready-furnished lodgings, where; 
 if the hirer's servants, children, guests, or boarders negligently 
 injure or deface the furniture, the hirer is responsible, 
 how" fo'be*'^ The thing hired must not be appliied to any other use than that 
 
 used. with reference to which it was hired ^ : A horse hired as a saddle 
 
 horse must not be used for burden; or, if hired for a stated 
 journey, must not be taken another journey; and, if hired for one 
 time, must not be kept a longer time. Any departure from' the 
 conditions of the bailment will render the hirer responsible for all 
 damages that occur subsequently, even though they occur through 
 inevitable casualty.* 
 
 Story' is of opinion that such misuser is at common law a con- 
 version of the property. But, as we have seen in considering the 
 subject of pawns, in English law this is not necessarily so ; but 
 a distinction must be drawn between those acts which are alto- 
 gether repugnant to the bailment and those acts which, though 
 unauthorized, are not so repugnant as, by their mere existence, 
 to operate as a disclaimer and a determination of the holding.' 
 loss following The case has been put of a user that is wrongful, and a loss 
 but'not'ueoes- following, but not necessarily through the wrongful user, and 
 quentonT" answered by Tindal, C.J.," as follows: — "No wrongdoer can be 
 allowed to apportion or qualify his own wrong ; and, as a loss has 
 actually happened whilst his wrongful act was in operation and 
 force, and which is attributable to his wrongful act, he cannot set 
 up as an answer to the action the bare possibility of a loss if his 
 wrongful act had never been done. It might admit of a different 
 construction if he could shew, not only that the loss might have 
 
 I know how to tie bim as that I know how ' Bailments, p. 89. 
 
 to drive him." " Secondly, even supposing ^ D. 19,2, 11. 
 
 thefirstpointtofail, themaxim^esjione^eat ^ Bailments, p. 89. 
 
 superior here comes in." I am unable to * Story, Bailments, § 413. 
 
 agree with either of these reasonings. In * Jones, Bailments, pp. 68, 69, 121. 
 
 the first place, the duty is not to tie the ^ Bailments, § 413. 
 
 horse up personally, but to take proper care ' Donald v. Suckling, L. E. i Q. B. 
 
 to band him to a proper person ; secondly, 585, at p. 615. Bac. Ahridg. Bailment, 
 
 the deliyery of a horse to an ostler at an C ; Trover, C, D, E. ; Isaack k. Clarke, 2 
 
 inn does~ not seem to me to constitute any Buls. 306, 309. 
 
 relationahip of master and servant. On 8 Davis v. Garrett, 6 Bing. 716, at p. 
 
 the other hand, in America, Hall v. War- 724. 
 
 ner, 60 Barb. 198, wonld be an authority. 
 
PAST I.] BAILMENTS. 509 
 
 happened, but that it must have happened if the act complained 
 of had not been done." Sir William Jones's view' is, "If the 
 bailee, to use the Roman expression, be in mord — ^that is, if a legal 
 demand have been made by the bailor — he must answer for any 
 casualty that happens aftei' the demand ; unless in cases where it 
 may be strongly presumed that the same accident would have 
 befallen the thing bailed even if it had been restored at the proper 
 time ; or unless the bailee have legally tendered the thing, and the 
 bailor have put himself in mord by refusing to accept it ; this 
 rule extends, of course, to every species of bailment." This is not 
 exactly in point, since stress is laid upon a legal demand, and by 
 the necessity of the case under discussion no legal demand could 
 be made. The reasonable rule would, however, seem to be that 
 the responsibility would arisa if the act were such as to warrant 
 the plaintiff making a legal demand. If this be so, the case would 
 be referred back to the distinction between acts which determine 
 the bailment and acts that only sound in damages. But the 
 practical effect would be very similar, since, if the legal demand 
 be presumed, then the hirer would be responsible for any casualty 
 that happens after the demand, unless in the excepted cases. If 
 the deviation from the lawful use would not warrant a legal 
 demand, on proof of the loss and of the unlawful dealing with 
 the bailed article d presumption, would arise importing similar 
 liability to that in the last case — viz., that the hirer was liable 
 for the whole value of the thing lost or injured — and only to be 
 rebutted by shewing the same accident would have happened 
 irrespective of the negligent and wrongful user. 
 
 In Davey ■y. Chamberlain and another'' a somewhat peculiar Da vey «. 
 question arose. The action was for negligently driving a chaise, ^'"'"'''®'' *"■• 
 whereby the plaintiff's horse was killed. The two defendants 
 were proved to have been together in the chaise when the acci- 
 dent happened, but Chamberlain was sitting in the chaise smoking 
 while the other was driving. Erskine submitted that he was 
 entitled to have a verdict for Chamberlain, on the ground that the 
 injury proceeded from the ignorance or unskilfulness of the 
 other defendant, who was driving, and in charge of the horse 
 and chaise. Lord Ellenborough, however, would not allow this, 
 and said : " If a person driving his own carriage took another 
 person into it as a passenger, such person could not be subjected 
 to an action in case of any misconduct in the driving by the pro- 
 prietor of the carriage, as he had no care nor concern with the 
 carriage ; but if two persons were jointly concerned in the car- 
 riage, as if both had hired it together, he thought the care of the 
 
 1 Bailments, pp. 70, 71. "2 4 Esp. 229. 
 
510 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Cab cases. 
 
 Metropolitan 
 Hackney 
 Carriage Acts, 
 
 Morley v. 
 Sunsrombe. 
 
 Powles V. 
 Hider. 
 
 Pcjwler V. 
 Lock. 
 
 King's subjects required that both should be answerable for any 
 accident arising from the misconduct of either in the driving of 
 the carriage while it was so in their joint care." 
 
 Cai Cases. — ^This place seems convenient for the discussion 
 of the cab cases. The relation of cabman and ,cab proprietor is 
 somewhat anomalous, the relation partaking of some of the inci- 
 dents of bailment of a thing, and also of those more properly to 
 be referred to the relation of master and servant. 
 
 The relations between the cab proprietor and the cabman are, 
 at least, in London to be deduced from the language of the 
 Metropolitan Hackney Carriage Acts (i & 2 Will. IV. c. 22 and 
 6 & 7 Vict. c. 86). There have, however, been several decided 
 cases which have thrown light upon the general scope of these 
 Acts, The first of these to be noted is Morley v. Dunscombe,' 
 where the Court of Queen's Bench held that the arrangement 
 between proprietor and man, being that the proprietor should 
 receive a certain sum and that the man should keep the excess 
 of his receipts over it, constituted " clearly an arrangement 
 between the defendant and the man as to the mode in which tlie 
 wages of the latter should be paid." The same question was 
 raised in Powles v. Hider,^ where plaintiff, who, while travelling 
 in a cab of which the defendant was the proprietor, lost his 
 luggage by the fault of the driver, and sued the defendant on a 
 contract to carry the luggage. The defendant contended that he 
 was not liable, because the relation between himself and the cab- 
 man was that of bailor and bailee. Lord Campbell, delivering 
 the considered judgment of the Court of Queen's Bench, held that, 
 under the Acts of Parliament, the driver was to be considered the 
 servant or agent of the proprietor, and decided in accordance with 
 Morley v. Dunscombe. 
 
 Fowler v. Lock' differed in that the action was by the cabman 
 against the cab proprietor. Plaintiff was a driver upon the same 
 terms as those proved in Powles v. Hider, and was hurt in conse 
 quence of the horse running away. A verdict was given for the 
 plaintiflP, with leave to move reserved to enter a verdict for the 
 defendant or a nonsuit. The Court was divided, Grove and 
 Byles, JJ., holding the relation between the cabman and the cab- 
 master was that of bailor and bailee, and so the master was liable ; 
 while Willes, J., considered that the case came within Powles v. 
 Hider, and that the relation was that of master and servant. 
 
 Powles -y. Hider, however, was distinguished, on the ground 
 that the Metropolitan Hackney Carriage Acts referred only to the 
 
 1 II L. T. S. 199. 2 6 E. & B. 207 ; 25 L. J. Q. B. 331. 
 
 3 (1872) L. E. 7 C. P. 272 ; L. E. 10 C. P. 90; 43 L. J. C. P. 394 n.; 31 L. T, 844 ; 
 23 W. E. 415. 
 
WW 
 
 PART I.] . BAILMENTS, 
 
 511 
 
 relations between carriage proprietors and the people genei-ally, and 
 were not to be construed to alter the relations between the cab- 
 master and the cabman. The effect of this would be very largely to 
 increase the liabilities of the cab-master, and very considerably to 
 improve the position of the cabman : for the cab-master would, as 
 regards the outside world, be liable as for the acts of a servant ; 
 as regards the cabman, he would have the ordinary liabilities 
 arising in the case of bailor and bailee. 
 
 The subsequent history of this case is curious. An appeal was 
 heard against the decision, and the Court of Exchequer Chamber 
 was divided as to what the precise relation between the cabman 
 and the cab-master was ; but as those judges who were of opinion 
 that the cabman was bailee were not satisfied that it followed 
 necessarily that there was eu. warranty that the horse bailed was 
 fit for the purpose for which it was bailed, and that it might be 
 that the plaintiff took upon himself the risk of its fitness, a new 
 trial was ordered. 
 
 On the new trial the jury found that there was personal negli- 
 gence on the part of the plaintiff in the selection of the horse, and 
 on this ground the Court of Common Pleas refused a new trial. By 
 this decision the reconsideration of the case was avoided ; since 
 if the cab-master and cabman were related as master and servant, 
 then ' the master was liable for personal negligence ; while if the 
 relation was that of bailor and bailee, then he was liable on the 
 terms of the bailment. 
 
 In Venables v. Smith ^ the action was by an outside person Venabiesu. 
 against the cab proprietor. Plaintiff was rim over by a cabman "" " 
 after the day's work was over, and when executing some private 
 business of his own. Plaintiff sued the cab proprietor. The 
 Comi; followed the decision in Powles v. Hider. Oockburn, C. J., 
 said : " Independently of the Acts of Pai-liament relating to this 
 subject, the relation between them — i.e., the driver and the pro- 
 prietor — would be that of bailor and bailee, not that of master 
 and servant ; but I think that the provisions of the Acts of 
 Parliament alter what would otherwise be the relation of the pro- 
 prietor and the driver, and. for the purpose of the public produce 
 the result that, as regards mischief done by the driver, who is 
 selected by the proprietor, the relation of master and servant so 
 far exists as to render the proprietor responsible for the acts of 
 the driver."' 
 
 ' Priestley v. Fowler, 9 M. & W. i. the case of a ship navjgated under a verbal 
 
 Ormond v. Holland, El. Bl. & El. 105. agreement, where, it was held that the 
 
 ^ (1877) 2 Q. B. D. 279 ; 46 L. J. Q.B. agreement did not amount to a demise of 
 
 470; 36 L. T. 509 ; 25 W. B. 584; the vessel, and, whatever was thei precise 
 
 Playe v. Kew, 2 Times L. R. 849. relationship, between the master and the 
 
 ' yteel V. Lester, 3 C. P. D. 121, was owners, both were liajjle.for negligence. of 
 
512 
 
 THE LAW OF NEGLIGENCE, 
 
 [book II. 
 
 King V. Sputr, A limitation on Powles v. Hider and Venables v. Smith was 
 suggested in King v. Spurr.' It was there sought to make liable 
 a cab proprietor who lent out a cab for a certain stipulated sum, 
 the driver supplying the horse and harness. Grove and Bowen, 
 JJ., distinguished that case from those cases where both carriage 
 and horse were lent. In many cases, it was said, the effect of the 
 statutes is to create the relation of master and servant — indeed, 
 sufiicient to raise the presumption that that is the relation in all, 
 but not to create the relation in all ; and a case where the horse 
 and harness are not supplied by the cab proprietor does not come 
 within the Act. 
 
 Snmmarj-. The law, then, admitting a somewhat too great width of ex- 
 
 pression in Venables v. Smith and Powles v. Hider,'' is perfectly 
 consistent, and will probably be maintained. It may be reduced 
 to the following propositions : — 
 
 1. A cab-master stands in respect to his cab-driver in the 
 relation of master to servant wherever any act is done in the 
 course of the cab-driver's business which causes any injury or 
 liability to the outside world.' 
 
 2. As between cab-master and cabman the relation is that of 
 bailor and bailee.'' 
 
 3. Though the presumption is that the relation existing be- 
 tween cab-master and cabman is that of master and servant, yet 
 evidence may be given to shew that the case is outside the Acts, 
 and the common law relation of bailor and bailee continues." 
 
 2. Hire of Labour aind Services. 
 
 Locatio opeHs. (i) Hire of Labour and Services strictly so called. — We next 
 consider the second class of bailments for hire — locatio operis, 
 or the hiring of labour and services. This, we have already 
 seen, is divided into (i.) locatio operis faciendi, (ii.) locatio operis 
 mercium mhendarum. First, then, as to locatio operis faciendi. 
 This again is divided into two kinds — (A) the hire of labour, or 
 locatio operis faciendi strictly so called, (B) locatio custodim, or 
 the receiving of goods on deposit for a reward for the custody 
 thereof. 
 
 the master in the management. The cab 
 cases were much considered in the case. 
 
 1 (1881) 8 Q. B. D. 104 ; SI L. J. Q. B. 
 los ; 4S L- T. 709 ; 30 W. E. 152. 
 
 * See per Bowen, J., King v. Spurr, 8 
 Q. B. D. 104, at p. 108. 
 
 3 Powles V. Hider, 6 E. & B. 207 ; 
 25 L. J. Q. B. 331 ; Venables v. Smith, 
 2 Q. B. D. 279 ; 46 L. J. Q. B. 470 ; 36 
 L.T.so9;2S W.B. 584.- 
 
 ^ Fowler v. Lock, L. E. 7 C. P. 272 ; 
 L. R. loC. P. 90 ; 43 L. J. C. P. 394 n. ; 
 31 L. T. 844 ; 23 W. B. 415. 
 
 s King V. Spnrr,_ 8 Q. B. D. 104, 
 supra. Where a driver had accidentally 
 injured a street lamp in London, his em- 
 ployer is not liable for the damage done 
 nnder sec. 107 of 18 & 19 Vict. c. 120 : 
 Harding v. Barker and Sons, 5 Times 
 L. B. 42. 
 
PART I.] BAILMENTS. 513 
 
 (A) Bailees for tlie hire o£ labotir or services. i. Hire of 
 
 labour or 
 ■ services. 
 
 A distinction must here be taken between the present case and J*^""'" " 
 
 those we have before had to consider. In the case of the hire of 
 labour and services the bailor is to pay the hire ; whereas in the 
 case of the hire of things the bailee is to pay it.^ In the former 
 case the phrase is Bes faeienda datur; in the latter, lies utenda 
 datur.' 
 
 In the Roman law another distinction was taken with regard 
 to the hire of labour or services, between operce illiberales where 
 a man works in consideration of pay ; and operce liberales which 
 are not the subject of hire, but for which the person requiring the 
 services paid an honorarium.^ 
 
 First, as to the position of the bailor in this relation. Story ,■* Dnties of the 
 following Pothier, set out tha> duties on the part of the employer '^' °^' 
 in the Roman law under the following four heads : — 
 
 1. To pay the price or compensation. 
 
 2. To pay for all proper new and accessorial materials. 
 
 3. To do everything on his part to enable the workman to 
 execute his engagement. 
 
 4. To accept the thing when it is finished. 
 To these he subjoins on his own authority : 
 
 5. To be honest and observe good faith in his conduct. 
 
 6. To disclose defects to the other party. 
 
 7. To conform to the special stipulations contained in the 
 contract. 
 
 And he winds up by saying : " These duties are formally 
 treated of by Pothier,^ and they seem so clear upon principles of 
 general justice that the common law could hardly be deemed a 
 rational science if it did not recognize them." 
 
 There has been much discussion as to the effect of a destruction Destruction 
 of the article bailed pending completion or delivery. The sum baikdpendiBg 
 of the results arrived at, after much conflicting and philosophical completion, 
 reasoning, may be stated as follows : — 
 
 If, while the work is in progress, or at any time before the 
 time when it should be delivered to the employer, the thing 
 perishes by internal defect, by inevitable accident, or by irre- 
 sistible force, without any default of the workman, Pothier, says 
 Story," holds that the workman is entitled to compensation to the 
 extent of the value of the labour actually performed on it, unless 
 his contract import a different obligation ; for the maxim is Bes 
 
 1 I Sm. Lead. Cas. gtli edit. 201, at p. * Bailments, § 425, citing Pothier, Con- 
 225, n. trat de Lonage, n. 405-410, 436, 437 ; 
 
 2 Pothier, Contrat de Louage, n. 393. i Domat, B I, tit. 4, § 9. 
 
 = Mavnz, iElSments de Droit Eomain, ^ Contrat de Louage, 405-417- 
 
 2nd edit, vol. ii, p. 206. " Bailments, § 426. 
 
 KK 
 
514 THE LAW OP NEGLIGENCE. [book ii. 
 
 perit domifio} If tlie workman has employed his own materials, 
 says the same authority, as accessorial to those of the employer, 
 he is entitled to be paid for them if the thing perishes before it 
 is completed. 
 Bell's rules. Bell, in his Commentaries,^ has reduced the law on this subject 
 
 to three rules, which are accepted by the authorities as a satis- 
 factory compendium of the law : — 
 
 1 . If the work is independent of any materials or property of 
 the employer, the manufacturer has the risk, and the unfinished 
 work perishes to him. 
 
 2. If he is employed in working up the materials or adding 
 his labour to the property of the employer, the risk is with the 
 owner of the thing with which the labour is incorporated.' 
 
 3. If the work has been performed in such a way as to ailord 
 a defence to the employer against a demand for the price if the 
 accident had not happened (as if it were defectively or improperly 
 done), the same defence will be available to him after the loss. 
 
 " These principles," says Story ,^ " seem also well founded in the 
 common law, and will probably receive the like adjudication in 
 each of these cases whenever it shall arise directly in judgment." 
 
 Duties of the Next, of the duties of the bailee. 
 
 bailee,- j^^ ^^^ species of bailment every man is presumed, to possess 
 
 the ordinary skill requisite to the due exercise of the art or trade 
 which he assumes. Spondet peritiam, artis. Imperitia culpce annu- 
 meraturJ Thus, where a tailor receives cloth to be made into a 
 coat, or a jeweller a precious stone, each of them is bound to do 
 the work required from him in the course of his business in a 
 workmanlike manner. He is required to bestow ordinary dili- 
 gence, and that care and prudence which the average prudent 
 man takes in his own concerns." For the contract is for mutual 
 benefit ; therefore the bailee is not answerable for slight neglect, 
 nor for a loss by inevitable accident or irresistible force, or from 
 the inherent defect of the thing itself, unless he took the risk 
 on himself,^ but only for ordinary neglect.^ 
 
 There is one exception to this, which must be noted. Though 
 the bailee is bound to care and skill adequate to the business he 
 undertakes only, and if the thing entrusted to him perish without 
 fault of his the. loss would be the bailor's, yet where the delivery 
 is sufficient to transfer the property the result is different. On 
 this point all the commentators cite " the famous law of Alfenus' 
 
 1 2 Parsons, Law of Contracts, p. 131. ^ Pothier, TraitS du Contrat de Loiiage, 
 
 = I Bell's Comm. 7th edit. p. 456. 425, 426 ; I Bell's Comm. p. 459. 
 ' Menetone v. Athawes, 3 Burr. 1592 ; * Dig. 19, 2, 9, 5. 
 
 Gillett V. Mawraan, i Taunt. 137. ' Dig. 19, 2, 13, S- 
 
 * Bailments, § 426 a. s gjory, Bailments, §§ 433, 437. 
 
PART I.] BAILMENTS. 515, 
 
 in the Digest '" : If an ingot of silver is delivered to a silversmith 
 to make an urn, the whole property is transferred, and the 
 employer is only a creditor of metal equally valuable which the 
 workman engages to pay in a certain shape, unless it is agreed 
 that the specific silver, and none other, shall be wrought up into 
 the urn. 
 
 This rule was sought to be applied in the American case of Seymour ». 
 Seymour v. Brown.^ A quantity of wheat was sent to a miller to 
 be exchanged for flour at the rate of a barrel of flour for every five 
 bushels of wheat. The miller mixed the wheat with the mass of 
 the wheat of the same quality belonging to himself, and, before 
 the flour was delivered, the mill, with all its contents, was destroyed 
 by fire. But it was held that, as there was no fault or negligence 
 imputable to the miller, he \tas not responsible for the loss, and 
 that the property was not transferred. Story,' J., however, in 
 Bufibn V. Merry ,^ considers this case cannot be supported other- Buffon ». 
 wise than on the ground that there was a bailment of the wheat '^"^' 
 to be ground into flour, or a locatio operis faciendi, and that the 
 Court must have been of opinion that the facts did not prove a 
 sale of the wheat or an exchange of it for flour at so many 
 bushels per barrel. And Bronson, J., in Smith v. Olark," says Smith v. 
 " the decision was virtually overruled in Hurd v. West, 7 Oow. 
 752, and see p. 756, note." The case of Seymour v. Brown 
 being, then, out of the way, the distinction is a very plain 
 one, and is clearly put by Oowen, J., in Pierce v. Schenck,^ Pierce w. 
 where logs were delivered at a saw-mill on the terms that ° """^ 
 they should be sawn into boards within a specified time, 
 and that each party should have half the boards. After 
 delivery, a portion were sawn and the saw-mill proprietor (the 
 
 ^ Dig. 19,2, 31. Story, Bailments, §439, the obligation was to keep sheep " the full 
 
 where the references are given. Jones, term of three years, and return the same 
 
 Bailments, p. 102. Alfenus, Tvho was a or others in their place as good as they 
 
 sboemaker, and afterwards turned to be a are." It was held that the property did 
 
 jurisconsult, is mentioned by Horace — not vest till the return of "other sheep of 
 
 Alfenus vafer, omni equal quality." 
 
 Albedo instrumento artis, clausaque ^ 3 Hill 28. Gregory v. Stryker, 2 
 
 taberna, Denio 628, is an interesting case. There 
 
 Sviar erat ; sapiens operis sic optimus awaggon, almost worthless, was sent to be 
 
 omnis repaired ; when finished, it became worth 
 
 Est npifex solus, sic rex. $90, and the bill for repairing it was $78^. 
 
 Satires, bk. i. sat. 3, 130. When it was taken in execution for the 
 
 There is an article on him in Bayle's Die- workman's debt, the Court held that, 
 
 tionary, «m6 nom, " " as a general proposition, where the 
 
 ^ 19 Johns. 44. owner of a damaged or worn-out article 
 
 ' 3 Mason 476, at p. 480. delivers it to another person to bo repaired 
 
 ^21 Wend. 83. The Courts of the and renovated by the labour and materials 
 
 State of Vermont appear to be of a differ- of the latter, the property in the article as 
 
 ent opinion, and to uphold Seymour v. thus repaired and improved is all along 
 
 Brown within their jurisdiction : Smith v. in the original owner, and not in the per- 
 
 Niles, 20 Vt. 315; Downer v. Eowell, son makingit." The judgment of Beards- 
 
 22 Vt. 347. This latter was a case where I»y, J., is well worthy of pei-uaal. 
 
516 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 South 
 Australian 
 lusurauce 
 Company v. 
 Eandell. 
 
 miller, as lie is called in the report) converted both boards 
 and logs to his use. The question in the case was whether 
 trover was properly brought. " Had," says the learned judge, 
 " the contract by the parties been one of sale, as if the defendant 
 had taken the logs under a promise to return boards generally of 
 equal value to one-half of the boards to be made out of them, the 
 deeision of the judge would have been erroneous. But this was 
 not the case. The plaintiff delivered his logs to the defendant, 
 who was a miller, to be manufactured into boards — a specific 
 purpose, from which he had no right to depart. On completing 
 the manufacture, he was to return the specific boards, deducting 
 one-half as a compensation for his labour. It is like the case of 
 sending grain to a mill for the purpose of being ground, allowing 
 the miller to take such a share of it for toll. This is not a 
 contract of sale, but of bailment — locatio operis faeiendi. The 
 bailor retains his general property in the whole till the manu- 
 facture is completed, and in the whole afterwards minus the toll. 
 The share to be allowed is but a compensation for the labour of 
 the manufacturer, whether it be one-tenth or one-half. Thus in 
 Collins V. Forbes' it appeared that Forbes furnished certain 
 timber to one Kent, which the latter was to work up into a stage 
 for the Commissioners of the Victualling Office, he to receive one- 
 fourth of the clear profit and a guinea per week on the work 
 being done. This was holden to be a bailment by Forbes." 
 After citing a case. Barker v. Roberts,^ the learned judge con- 
 tinues : " Nearly all the books concede the distinction laid down 
 in Jones on Bailments, p. 102, between an obligation to restore 
 the specific thing and a power or necessity of returning others 
 equal in value. In the first case it is a regular bailment, in the 
 second it becomes a debt."' 
 
 The same view was adopted by the Privy Council in South 
 Australian Insurance Company v. E.andell.'' There com was 
 deposited by farmers with a miller to be stored and used as 
 part of the current consumable stock or capital of the miller's . 
 
 1 3 T. E. 316. 
 
 2 8 Greenl. loi. 
 
 5 Another passage of the judgment may 
 be reproduced here. " I am of opinion," 
 says Cowen, J., at p. 31, "that when a 
 manufacturer receives goods for the pur- 
 pose of being wrought in the course of his 
 trade, the contract is entire ; and, without 
 a stipulation to the contrary, he has no 
 right to demand payment until the work 
 is complete. ' A fortiori ho has no right 
 I0 carve out payment for himself without 
 consulting the bailor. A miller is entitled 
 to take toA from your grist on grinding it ; 
 but he chooses to grind only a part, and 
 
 then sell the whole. He is not entitled to 
 his toll for what he actually ground. It is 
 like the common case of a man under- 
 taking to labour during a certain time, or 
 in finishing a certain amount of work for 
 so much, till the labour be performed, he 
 can claim nothing." Cutter «. Powell, 2 
 Sm. Lead. Cas. 9tli edit. p. i. 
 
 < L. K 3 P. C. loi; 22 L. T. N. S. 
 843, distinguished in In re Williams, 31 
 Upper Canada Q. B. liep. 143, where the 
 engagement was to deliver a barrel of flour 
 of a specified quantity for so many bushels 
 of wheat, on the ground that nothing re- 
 mained uncertain except the price. 
 
PART I.] BAILMEKTS. 517 
 
 trade, and was by him mixed with other corn deposited for the 
 like purpose, subject to the right of the farmers to claim an 
 equal quantity of corn of like quality, but without reference to 
 any particular corn. The Judicial Committee of the Privy 
 Council was of opinion that such a dealing was a sale. Their 
 opinion was thus summed up': — "It comes to this, that where judgment, 
 goods are delivered upon a contract for a valuable consideration, 
 whether in money or money's worth, then the property passes. It 
 is a sale, and not a bailment. In the case of mixture by consent, 
 the identity of the specific property of each who consents is no 
 longer ascertainable, and the mixed property belongs to all in 
 common. It may perhaps be regarded, under special circum- 
 stances, as the case of persons having a common property, and, if 
 they all concur in a bailment of this property, all may require a 
 re-delivery of what they have so put in bailment. It may be that 
 in such a case each might claim separately to have an aliquot part 
 of the whole restored to him. But here the current stock was 
 from its very nature liable to be changed from day to day both in 
 quantity and quality ; the delivery was not for the peculiar or 
 primary purpose of storage simpliciter, as in the case of a bailment 
 of property to be returned to one bailor, or of any part to one or 
 more of several joint bailors, but the wheat was delivered by each 
 farmer independently to be stored and used as part of the current 
 stock or capital of the miller's trade. There seems to be no 
 ground upon which a banker is held not to be a trustee, or a 
 banker's current capital not to be trust property, that is not 
 applicable in principle to the case of the miller and his current 
 stock of wheat, which is his trading capital."^ 
 
 Besides the duties already set out, there are others implied Duty to ob- 
 on behalf of the bailee of work on a thing — such as the duty of ISTald'to 
 observing good faith and practising no imposition on his employer f?*"™ *^®. , 
 as to his services. When his work is done, he is bound to return on, 
 the thing upon which he has worked to his employer. This last 
 obligation is, however, subject to his right to a lien where, by his 
 labour and skill, he has conferred value on the thing bailed to 
 him.' But this lien only exists when he who claims it is a bailee But has a lien, 
 under the contract locatio operis faciendi, and therefore has no 
 application in the case of a journeyman or day-labourer or in any 
 
 1 At p. 113. Gillett V. Hill, 2 C. & M. 530 ; Campbell 
 
 2 See Foley v. Hill, 2 H. L. C. 28. The v. Mersey Docks Company, 14 C. B. N. S. 
 case may occur of the purchase of a oer- 412. The American law does not seem to 
 tain definite quantity from a larger body ; agree : Bussell v. Carrington, 42 N. Y. 
 by the English law, in general, the right 118; Waldron v. Chase, 37 Me. 414. 
 does not pass till the vendor has made This ^Chapman v. Allen, Cro. Car. 271; 
 selection. " There is no individuality," Jackson v. Cummings, 5 M. & W. 349. 
 says Bayley, J., " till it is divided " ? 
 
518 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 Where thing 
 not worth the 
 price agreed 
 to be paid. 
 
 Famsworth v. 
 Gari'ard, 
 
 Portion of the 
 contract of 
 hire of labour 
 and services 
 does not 
 involve 
 bailment. 
 
 II. Hire of 
 custody. 
 
 like case where the possession is that of the employer, and where 
 the only security for the payment of wages is the employer's per- 
 sonal responsibility on the contract of hiring.' 
 
 Where the work contracted for was done, but so imperfectly 
 that it was not worth the price agreed to be paid, there was for 
 some time uncertainty as to the rule of law. In Famsworth v. 
 Garrard^ the settled rule was thus stated by Lord EUenborough : — 
 " The late Mr. Justice BuUer thought (and I, in deference to so 
 great an authority, have at times ruled the same way) that in cases 
 of this kind a cross-action for negligence was necessary, but that, 
 if the work be done, the plaintifE must recover for it. I have since 
 had a conference with the judges on the subject, and I now con- 
 sider this as the correct rule — that if there has been no beneficial 
 service, there shall be no pay ; but if some benefit has been 
 derived, though not to the extent expected, this shall go to the 
 amount of the plaintiff's demand, leaving the defendant to his 
 action for negligence. The claim shall be co-extensive with the 
 benefit."' But if the work is left unfinished by the wilfulness of 
 the workman, in the case of his having undertaken to do the 
 whole, he is disentitled from recovering anything." 
 
 It must be obvious that so far we have considered only a por- 
 tion, and that the least important portion, of the relations raised 
 by the contract of hire of labour and services — viz., that which 
 has reference to the bailment of goods for work to be done upon 
 them. There is another aspect of the same subject — and this the 
 most important portion — where contracts of hire and 'services are 
 made for the work of architects, auctioneers, bankers, brokers, 
 solicitors, surgeons, and the rest, which demands careful and 
 detailed consideration, but where no actual bailment is involved. 
 Since, then, we are at present concerned with bailments, the dis- 
 cussion of the duties raised by these relations to it must be post- 
 poned, and subsequently discussed in other connections. 
 
 {B) Hire of custody or the receiving of goods on deposit for a 
 reward for the custody thereof. 
 
 This is the second subdivision we have proposed of the locatio 
 operis, or the hiring of labour and services. Sir William Jones,' 
 speaking of the bailee in this case, says : " He is clearly respon- 
 
 456 ; Eobinson «. Knights, L. E. 8 C. P. 
 465 ; Merchant Shipping Company v. 
 ArmitaKe, L. R. 9 Q. B. 99 , Mondel v. 
 Steel, 8 M. & W. 858 ; Eigge v. Bur- 
 bridge, 15 M. & W. 59p. Now the law is 
 governed by the Judicature Act, 1873, 
 Order xix. r. 3, Order xxi. r. 17, Rules of 
 Supreme Court, 1883. 
 
 * Sinclair ». Bowles, 9 B. & C. 92. 
 
 " Bailments, p. 97. 
 
 ^ M'Intyi'e v. Carver, 2 Watts & Serg. 
 
 392- 
 
 2 I Campb. 38. 
 
 ' This rule had been anticipated in Bas- 
 ten V. Butter, 7 East 479 ; and followed. 
 De New v. Daverell, 3 Campb. 451 ; 
 Braoey v. Carter, 12 A. & E. 373 ; Nicholls 
 ?j. Wilson, II M. &W. 107 ; Hill w. Feather- 
 stonhaugh, 7 Binfr. 569 ; Shaw v. Ai-den, 
 9 Bing. 286 ; JPoulton v. Lattimore, 9 B. 
 & C. 259 ; Street v. Blay, 2 B. & Ad. 
 
PART i.J BAlLMEKTg. 519 
 
 sible, like other interested bailees, for ordiiiary negligence ; and 
 although St. Germain seems to make no difference in this respect 
 between a keeper of goods for hire and a simple depositary, yet he 
 used the word default, like the culpa of the Romans, as a generical 
 term, and leaves the degree of it to be ascertained by the rules of 
 law."' 
 
 To this subdivision are to be referred the duties of agisters of 
 cattle, factors, forwarding merchants, warehousemen, and wharf- 
 ingers, whose cases we now proceed to consider in their order. 
 
 a. As to agisters of cattle. Agisted of 
 
 . cdittle 
 
 In the king's forests there were frequently demesne woods and uigjory. 
 lands, which were kept inclosed, in addition to the waste lands, 
 that lay open for common to the inhabitants of the forest. 
 Certain officers were appointed to the charge of these, who were 
 called " the king's agisters of his forest." Their duty was to take 
 in the beasts and cattle of every person, being an inhabitant within 
 the forest, who was entitled to have common of herbage there 
 for money for such beasts as were commonable within a forest. 
 The taking in of cattle to pasture or feed by the week or other- 
 wise was called agisting of beasts or cattle, and the common of 
 herbage that was afforded was called agistment.^ 
 
 This strictness of meaning, which so limited the words to the 
 case of the king's forest, very early gave place to a more general 
 meaning, and agistment came to mean the common of .herbage 
 of any kind of ground or land, or the money that is received for 
 the same ; and an agister was he who received and took in the 
 beasts and cattle of every person in his land for hire to have 
 pasture there.' The transition from the limited to the broad 
 meaning in which the term is now understood may be traced 
 through an article in the Charta de Foresta' in these words : charta de 
 — Unus qtiisqtie liber homo Agistet bosctim suum in Foresta pro 
 voluntate sua et habeat pannagium suum: since, from the char- 
 tered right of every freeman to agist his own lands and woods 
 within the forest, the application of the same name to the 
 exercise of the right that every man had to let his own land 
 outside the boundaries of the forest for a purpose not unlawful 
 would be easy and natural. 
 
 Agistment, says Tomlin,^ is where other men's cattle ai'e taken Definition. 
 
 1 Doctor and Student, dial. 2, c. 38. i Kent's Comm. I2tli edit. 504. 
 
 There is a rather quaint, possibly equi- ^ Man wood, On the Forest Laws, 0. 11, 
 
 vocalnote, to the preface of the 1 8th edition Of Agistment, and what Agistment is. 
 
 of this work dated 1815 : "The original Compare Comyns's Dig. Chase, Q 6, i. 
 
 author was Christopher St. Germain of " In Libro Assisar. 22, pi. 84 ; 44 
 
 the Inner Temple, a barrister of such ex- Edw. III. fol. 25, pi. 38; Dyer, fol.; 80, 
 
 tensive knowledge in the laws of his pi. S^i Manwood, On the Forest Laws, p. 
 
 conntry, that he was supposed to be 182, 
 
 equal to most men of his time." For * a Hen. III. 0. 9, art. o. 
 
 a juster estimate of St. Germain, see ' Law Dictionary, arti Agistmenti For 
 
520 THE LA-W OF NEGLIGENCE. [book n. 
 
 into any ground at a certain rate per week. It is so called 
 because the cattle are suffered agiser — ^that is, to be levant and 
 couchant there ; and many great farms are employed to this 
 purpose. Blackstone says' : " If a man takes in a horse or 
 other cattle to graze and depasture in his grounds, which the law 
 calls agistment, he takes them upon an implied contract to return 
 them on demand to the owner." ^ At common law the duty of a 
 bailee with whom cattle were left to be fed for reward is to take 
 reasonable care of them, not " to take care of and re-deliver them 
 to the bailor."^ Or, as the law was stated by Blackburn, J., iu 
 
 Smitli «. Oook. Smith V. Oook^: "An agister does not insure the safety of the 
 horses entrusted to him ; he is bound to take reasonable care of 
 them, and if they are killed through his negligence he is liable." 
 The words used by Quain, J., in his judgment, are " proper 
 care." These expressions were used in a case where there was a 
 ditch merely separating the agisted horse from a bull, by which he 
 
 Broadwater ». ^as gored. In the earlier case of Broadwater v. Blot* an agisted 
 horse was proved to have strayed out of the defendant's field, and 
 was lost, and on this evidence plaintiff claimed to be entitled to 
 a verdict. The counsel for the defendant contended that this 
 was not sufficient ; that " direct and positive negligence " must be 
 shewn — " either an insufficiency of fences, by reason of which 
 the horse strayed, or that the defendant permitted the gates to 
 be open for an unreasonable length of time." Gibbs, O.J., how- 
 ever, negatived this, observing: "AH the defendant is obliged to 
 observe is reasonable care. He does not insure, and is not 
 answerable for the wantonness or mischief of others. If the horse 
 
 this he cites 2 Inst. 643. Jacob's Law ■• 2 Coram. 452. 
 Dictionary has the same passage, and the ^ Cro. Car. 271. 
 same authority for it ; 1 am unable to ' Covbelt v. Packington, 6 B. & 0. 268. 
 verify it. In 4 Inst. c. 73, TTie Courts of * i Q. B. D. 79,atp. 81. In01iph8nt,_ 
 the Forests, p. 293, there is the, following : Law of Horses, 4th edit. p. 241, a Nisi 
 — "Agistator, so called because he taketh Priiis case of G-aunt v. Smith is noticed, 
 beasts to agistment — that is, to depasture which was tried before Pollock, C.B,, andin 
 within the forest, or to feed upon the pawn- which that learned judge directed a non- 
 age, and cometh of the French word gyser, suit. The action was bronght by the owner 
 to lye, because the beasts that feed there of a pony injured while agisted to the de- 
 are there kvant and couchant, lying and fendant by being kicked by a horse whose 
 rising; and his office consisteth in a^itoTZfJo, shoes had not been taken ofiL The case 
 recipiendo, imbreviando et certijkando." is cited as being overruled by Smith v. 
 " Agistamentum," Si^s Tomlin, "from Cook. This, however, nowhere appears iu 
 French geyser, gister (j'acere), because the the report, and the distinction between , 
 beasts are levant and c<mchant during the putting a horse shod in a field with a pony, 
 time they are on the land." Manwood, and a horse and heifer in a field to which 
 On the Forest Laws, at p. 194, derives there is access by a bull, seems sufficiently 
 agist and agistamentum from the Latin wide to w'an-ant very different considera- 
 agito, to drive, " for of this verb agito, to tious being applied. The test was " rea- 
 drive or to feed, the lawyers have framed sonable care ' in both cases, 
 this verb aglsto, ' to feed or to agist (by ^ Holt TS. P. 547. In the American 
 adding thereunto this letter «), and then case of Sargent v. Slack, 47 Vt. 674 ; 19 
 of agisto, agistamentum, the feeding or Am. E. 136, some sheep escaped through 
 agistment of beasts or cattel, with herbage a defective fence, and the agister was held 
 or mast." liable. 
 
JPART I.] BAILMENTS. 521 
 
 had been tEiken from his premises, or had been lost by accidents 
 which he could not guard against, he would not be responsible. 
 I admit that particular negligence must be proved, by occasion of 
 which the horse was lost, or gross general negligence, to which the 
 loss may be ascribed in ignorance of tlie special circumstance 
 which occasioned it. If there were a want of due care and dili- 
 gence generally, the defendant will be liable. The question is, 
 were the defendant's fences in an improper state at the time the 
 horse was taken in to agist ? Did he apply such a degree of care 
 and diligence to the custody of the horse as the plaintiff, who 
 entrusted the horse to him, had a right to expect ? " The Roman 
 law made the agister responsible, not only for reasonable diligence, 
 but for reasonable skill in his business : Si qtds viiulos pascendos 
 conditxit culpam cam prcestatre debere ; et quod imperitid peccavit, 
 culpam esse ; quippe ut artifex conduxit} Story " says that the 
 rule is the same in the common law. But an agister has no Agister no 
 lien, for he merely provides food and takes care of the animals 
 entrusted to him ;' neither has a livery stable keeper. Between 
 the business of an agister and that of a livery stable keeper there Liveiy stable 
 is but a slight difference, and they both are comprehended under 
 the same principle, and the duty of both differs from that of an 
 innkeeper, which is much more extensive.^ The duties of a 
 livery stable keeper with regard to negligence were much dis- 
 cussed by Blackburn, J., in the case of Searle v. Laverick.' He Searie «. 
 says : " We take it to be established law that by the custom of 
 England this extreme liability, making the bailee an insurer, is 
 confined to carriers and innkeepers, and that livery stable keepers 
 and warehousemen come within what Lord Holt calls the second 
 sort, as to which he says : ' The second sort are bailiffs, factors, 
 and such like.' As to this sort, he says : ' The bailee is only 
 bound to take reasonable care ; and the true reason of the case 
 is, it would be unreasonable to charge him with a trust further 
 than the nature of the thing puts it in his power to perform 
 it. But it is allowed in the other cases ' (i.e., the carrier and 
 innkepeer) ' by reason of the necessity of the thing.' The 
 obligation to take reasonable care of the thing entrusted to a 
 bailee of this class involves in it an obligation to take reasonable 
 care that any building in which it is deposited is in a proper 
 
 ^ Dig. 19, 2, 9, § 5. limitation that the lien only existed where 
 
 ^ Bailments, § 443. the owner had not the right of removing 
 
 ^ Jackson v. Cammins, 5 M. & W. 342 ; him to run at any race he' pleased. 
 
 Grinnell v. Cook, 3 Hill 485. The trainer ^ Calye's case, 8 Eep. 32 ; i Sm. Lead. 
 
 of a race horse was said to have a lien on Gas. 9th edit, p^ 132. 
 
 the horse he trained in Bevan v. Waters, » L. E. 9 Q. B. 122 ; 43 L. J. Q. B. 
 
 3 C. & P. 520; but this was qualifled in 43 ; 30 L. T. N. S. 89 ; 22 W. R. 367. 
 
 Forth V. Simpson, 13 Q. B. 680, by the 
 
522 THE LAW OF NEGLIGENCE. [book ii. 
 
 state, so that the thing therein deposited may be reasonably safe 
 in it." The case in which this statement of the law was made 
 was one where plaintiff had sent his horse and two carriages to a 
 livery stable keeper, who had placed the carriages in a building, 
 by the fall of which they were destroyed. The building was not 
 finished at the time, but was in the hands of contractors, who 
 were competent men, though the evidence was they had done 
 this particular work unskilfully. The judge, at the trial, had 
 ruled " that defendant's liability is that of an ordinary bailee for 
 hire, and that all he was bound to do was to use ordinary care in 
 the keeping of the plaintiff's carriages, and that if, in causing 
 the shed to be built, he did all that he did, by employing a 
 builder and otherwise, with such care as an ordinary careful man 
 would use therein, he would be protected, and would be exempt 
 from liability for an event which was caused by the careless or 
 improper conduct of the builder, of which the defendant had 
 no notice ; " and this direction was sustained by the Queen's 
 Bench. t 
 
 The horses and carriages standing at a livery stable are dis- 
 trainable for rent' if they are sent to stand there ; but if they are 
 merely sent there to be dealt with in the way of the livery stable 
 keeper's trade — i.e., to be cleaned and fed — there is a difference.'' 
 The livery stable keeper may, however, have a lien by special 
 agreement," though not at common law, even for money expended 
 on a horse standing at liveiy at the request of the owner. '' 
 
 ractors. j3. As to foctOTS. 
 
 Definitions. A factor is described by Abbott, O.J., "as a person to whom 
 
 goods are consigned for sale by a merchant residing abroad, or at 
 a distance from the place of sale, and he usually sells in his own 
 name without disclosing that of his principal ; the latter, there- 
 fore, with full knowledge of these circumstances, trusts him with 
 the actual possession of the goods, and gives him authority to sell 
 in his own name."' A factor differs from a merchant in that a 
 merchant buys and sells for his own profit; the factor so far, 
 that is, as concerns his principal, only on commission." A factor 
 differs from a broker in that he is not trusted with the possession 
 of goods, and he ought not to sell in his own name.' Lastly, he 
 differs from an agent in that his authority is extended to the 
 management of all the iDnncipal's affairs in the place where he 
 resides, or in a particular department ; while an agent is one 
 
 ' Parsons v. Q-iugell, 4 C. B. 545. " LordStoweU'sjudgmentinTlieMatcli- 
 
 ^ Per Wilde, C.J., ihid. at p. 558. less, Hagg. Adtn. Eep. loi. 
 ' Donatty v. Crowder, 11 Moo. 479. ' Per Abbott, C.J., Baring v. Corrie, 2 
 
 ^ Orchard t. Raokstraw, 9 C. B. 698. B. & Aid. 137, at p. 143. See Comyns's 
 
 'Baring «. Corrie, 2 B. & Aid. 137, at Digest, Mercliant, B, Factor ; also Ruasell, 
 
 p. 143. Mercantile Agency, 2nd edit, et eeq. 
 
PARTI.] BAILMENTS. 523 
 
 entrusted with the accomplishment of a particular act or course 
 of dealing. The agent's powers within the range of the thing 
 committed to him are similar to those of a factor, unless where 
 they are expressly limited.' 
 
 It is a general principle of the common law, that all persons 
 are capable of acting as agents who are of sound mind, and who 
 have no interest or employment adverse to their principals," and 
 this because the office of an agent is merely ministerial. But in 
 the case of a factor, the reason is not applicable, since the factor 
 has rights and liabilities which cannot be enforced against a 
 person labouring under disability f therefore, it seems that those 
 only may be factors who are si'i jurist 
 
 The extent of a factor's authority is to be gathered from the Extent of 
 commission under which he acts. If the commission be general, "■" °" ^' 
 it is to be construed according to its object, and implies all powers 
 within the scope of the employment, " and the general words 
 ought to receive the most liberal construction, which construction 
 should, as far as possible, place the attorneys whei'e the executrix 
 intended to place them, in her room, and stand invested with all 
 her authority and with all her discretion."' Even if it be special, 
 it is held to include all the necessary and usual means of giving 
 it effect,^ though where the factor has had express instructions he 
 must pursue them strictly.' But a factor cannot, without express 
 power or power necessarily implied, delegate his authority to 
 another.' The factor's authority is moreover to be construed accord- 
 ing to the usage of trade. Thus, where there is a custom to sell 
 goods upon credit, a factor may do so ; but if the custom is to sell 
 only for ready money, the factor's power is to that degree circum- 
 scribed." In an emergency, however, deviation from instructions 
 is condoned." At common law a factor had no power to pledge, 
 
 ^ I Bell's Comm. 7tli edit. p. 507. though not particularly authorized by the 
 
 ^ Co. Litt. 52 a ; Story, Agency, § 9. terms of his commission so to do : Hough- 
 
 ■■ JJussell, Mercantile Agency, 2nd edit. ton v. Mathews, 3 B. & P. 489 ; Scott p. 
 
 p. 6. Surman, Willes 407. But this doctrine is 
 
 * Story, Bailments, § 162 ; Code founded on ' the constant and daily ex- 
 
 Napolfon, art. 1990. perience that factors do sell upon credit 
 
 ^ Per Eyre, C.J., Howard v. Baillie, 2 without any special authority,' and 
 
 Bl. 618, at p. 621. therefore confirms the general maxim that 
 
 ^ Fenn v. Harrison, 4 T. E. 177. when an agent is employed to do any act, 
 
 ' Smart v. Sandars, 3 C. B. 380 ; Bos- he shall be supposed to have an authority 
 
 took V. Jardine, 3 H. & C. 700 ; 34 L. J. to do it in the manner in which it is 
 
 Ex. 142 ; Cathin v. Bell, 4 Campb. usually done. Goods are almost always, 
 
 183. stock is scarcely ever, sold upon credit; 
 
 ' Dekr/atapotesias noiipotest dehgari. and hence the distinction between the 
 
 Broom's Legal Maxims, 6tti edit. p. 795 ; powers of the factor and the stockbroker. 
 
 and list of cases there cited. Trayner's An agent can in no case bind his principal 
 
 Legal Maxims, 2nd edit. p. 152 ; Cockran by any act beyond the scope of his autho- 
 
 V. Irlam, 2 M. & !-!. 301. rity : Eenn v. Harrison, 3 T. R. 757" : 
 
 ' Wihshire v. Sims, I Campb. 258. note at i Campb. 259. 
 Chambre, J., says : " There is no doubt of i_» Hunter v. Parker, 7 M, & W. 322 ; I 
 
 the authority of a factor to sell upon credit, Chitty on Comm. and Manuf, p. 218. 
 
factor. 
 
 524 THE LAW OF NEGLIGENCE. [book ii. 
 
 and a pledge by a factor did not even transfer the lien tke pledgor 
 himself Lad.' But now by statute that power has been made to 
 attach to his possession. The consideration of his statutory power 
 in detail is, however, far from our present subject, therefore it will 
 suffice to enumerate the chief Acts conferring the power, and 
 together making a code commonly known as The Factors' Acts 
 — 4 Geo. IV. c. 83, 6 Geo. IV. c. 94, 5 & 6 Vict. c. 39, and 
 40 & 41 Vict^ c. 39 ; and to refer to Benjamin on Sales, 4th edit, 
 pp. 17-23, 818-824, and I Bell's Commentaries, 7th edit, 
 pp. 5 17-524, where the cases are fully considered.'' 
 Degree of The next question is, what is the degree of diligence required 
 
 vquifedbVa" of factors in the proper discharge of their duties? The rule 
 suggested by all the analogies is that, as the contract is for the 
 benefit of both parties, the factor is understood to contract for 
 reasonable skill and ordinary diligence.' By reasonable skill we 
 are to understand such skill as is ordinarily exercised by persons of 
 average capacity engaged in similar pursuits.'' The Eoman law, 
 in which culpa or levis culpa corresponds to ordinary neglect or 
 the want of ordinary diligence,* lays down a similar rule. Impe- 
 ritia culpm adnumeratur ; spondet peritiam ariis, spondet diligen- 
 tiam gerendo negotio parem.^ But In negotio gerendo cypus sit dili- 
 gentia atque industria; et is, qui mandat, diligentiam rei gerendce 
 convenientem exigere; et qui suscipit mandatum hoc ipso industriam, 
 et diligentiam ad rem exequcndam necessariam in se futuram reci- 
 pere videturJ 
 
 A factor, then, is bound not only to good faith, but to reason- 
 able diligence. He must act with reasonable care and prudence, 
 and exercise his judgment^ after proper inquiries and precautions,' 
 and if he does this in good faith, he is not liable because the 
 
 1 M'Combie v. Davies, 7 East 5. ^ Jones, Bailments, pp. 21-23. 
 
 2 Perhaps an even more authoritative ' Ibid.,, p. 23, n. (m). Dig. 50, 17, 
 as well as full examination of the law may 132. 
 
 be obtained from a perusal of the elaborate ' Viiin. Ad. Inst. 3, 27, 11, n. 2. 
 
 judgment of Blackburn, J., in the Ex- " Moore v. Mourgue, Cowp. 479 ; Pappa 
 
 chequer Chamber, in Oole v. North-West- v. Eose, L. E. 7 C. P. 32. 
 
 em Bank, L. E. 10 C. P. 354, at pp. 357- ' Per Abbott, C.J., Moneypenny v. 
 
 374 ; 44 L. J. C. P. 233 ; 32 L. T. N. S. Hartland, i C. & P. 352, at p. 354 ; Smith 
 
 733. Bramwell, B., shortly states the «. Cologan, 2T. E. 188, n. (a). If in one 
 
 effect of the Factors' Act in the same case, part of the transaction the factor exceed 
 
 at p. 376, as follows: — "The statute was his instructions, but makes a correspond- 
 
 meant I0 apply to those cases where one ing saving in another part, it seems 
 
 person has given an apparent authority to that in equity at least he will be held 
 
 another, and a third persoB has dealt with excused : Cornwall v. Wilson, i Ves. 
 
 that other in the belief that the authority 509. Pothier, Obligations, ed. Evans, 
 
 really existed." § 78. Lord Kenyon, Miles v. Bernard, 
 
 3 Jones, Bailments, pp. 9, 10, 23, 86, Peake Add. Cas. 61, appears to be 
 119; I Bell, Comm. 7th edit. p. 5x6; of opinion that if an agent acts on the 
 Story, Bailments, §§ 23, 455. best available advice he is not hahle for 
 
 ^ Seeanfe, p.458. Chapman v. Walton, damage arising from the action thence 
 10 Bing. 57, at p. 63, per Tindal, C.J. taken. 
 Story, Bailments, §§ 43I1 434- 
 
PART I.] BAILMENTS. 525 
 
 course adopted does nob in the event prove tlie most judioions.^ 
 If he omit inquiry, and sell to an insolvent person when ordinary- 
 diligence would have enabled him to find out his lack of credit, 
 he will have to answer to his principal. So he will not be allowed 
 to sell his own goods to a purchaser and take security for the 
 price, and at the same time to sell the goods of his principal to 
 the same person without security, for he is bound, as we have 
 seen, to use at least as much care and diligence in his prin- 
 cipal's as in his own concerns.^ The factor is bound to sell his 
 principal's goods for their fair market value,' and he is further 
 bound to follow the known course of business, if any such 
 exists.'' But though doing this in ordinary cases will protect him 
 from liability, if it be shewn that what he has done has been done 
 negligently or maid fide, the-case will be otherwise.' So, too, if 
 he have been guilty of any negligence or breach of duty, the effect 
 of which has been to expose the goods to a peril by which they 
 are damaged or destroyed, he will be liable; for whatever the 
 immediate cause of the loss, the goods would not have been exposed 
 to it but for the antecedent neglect of duty." A short extract from 
 the judgment of Lord Langdale, M.R., in Clarke v. Tipping,' Clarke ». 
 the case of a fraudulent factor, expresses the broad principle on judgment of 
 which a factor is to be judged : — " Among the most important JT'^m*^^' 
 duties of a factor are those which require him to give to his 
 principal the free and unbiassed use of his own discretion and 
 judgment, to keep and render just and true accounts, and to 
 keep the property of his principal unmixed with his own or the 
 property of other persons." But a factor sometimes engages 
 to guarantee his dealings, or to stand del credere, as the phrase J'*' credere 
 is, on receiving a certain commission, which is called a del 
 credere commission. To " stand del credere " in any trans- 
 action is to be answerable as if the person so binding himself 
 were the proper debtor. Where, then, a factor employed to sell 
 goods receives a del credere commission, he is liable to the prin- 
 cipal for the price to be recovered, whether he ever receive it or 
 not ; and no payment that would not be effectual as between 
 debtor and creditor will discharge his liability.* It has been Factor's 
 contended that a factor who has actually received the money of remittance, 
 his principal is in the same position as if he had agreed to stand 
 
 ' Comber v. Anderson, l Oampb. 523 ; Caffrey v. Darby, 6 Ves. 488, 496 ; Ire- 
 
 Laraert v. Heath, 15 M. & W. 486. land v. Livingston, L. E. 5 H. of L. 395 ; 
 
 2 Story, Agency, § 186. 41 L. J. Q. B. 201 ; 27 L. T. N. S. 79 ; 
 
 ' Biselow V. Walker, 24 Vt. 149. Boden v. French, 10 C. B. 886. 
 
 ■• Wiltshire v. Sims, i Campb. 258. ' 9 Beav. 284, at p. 291. 
 
 5 Sadook V. Burton, Yelv. 202; Anon., ^ Scott v. M'Kenzie, 6 Brown Pari. 
 
 12 Mod. 514. • Cai. 280. 
 
 « Tobin V. Murison, 5 Moo. P. C. C. no ; 
 
526 
 
 THE LAW OF NEGLIGENCE. 
 
 [book n. 
 
 Miissey i 
 Banner. 
 
 Duty to 
 insure. 
 
 Smith r. 
 Lascelles. 
 
 2. 
 
 3- 
 
 del credere. Tliis is not so. The factor's obligation is not in- 
 creased, by reason of his receipt of tlie remittance, beyond what it 
 was in the earlier stages of the business. He is obliged to use 
 average judgment and discretion, but he does not guarantee the 
 payment whatever may betide. In making the remittance, then — 
 I . If he follows the ordinary course of business ; or 
 
 If he remit the money by a banking house of recog- 
 nized position and in good credit ; ' or 
 
 If he remit in the way settled by either mercantile or 
 local usage ;" 
 he will be free from liability. A factor or broker is an agent 
 with regard to funds coming to his hands which are to be a^Dplied 
 in a particular way, and the money paid to him may therefore be 
 followed by his principal as far as it can be traced.^ A distinc- 
 tion is taken between a payment to the account of the agent in 
 the agent's bank and a payment into the agent's bank in the 
 principal's own name. In the former case the factor would be 
 liable^ in the latter not, and on the ground stated by Lord 
 Eldon in Massey v. Banner,** "because if he had become bank- 
 rupt it would have gone to the credit of his estate ; for it is clear 
 in that case that if the bankers had any account with him by way 
 of set-ofF, that set-ofF would affect equally his money and the 
 money of the estate paid in to his account. They have a notion 
 it belongs to the estate ; the account is between him and them. 
 The same has been the case with executors and trustees, and I 
 apprehend that for the safety of mankind the principle must be 
 that, if you desire to deal for me as you would for yourself, it must 
 be so that the dealing for me, if unfortunate, shall not be more 
 so to me than it would have been to you if it had been for 
 yourself."' 
 
 Besides the ordinary duties of a factor, in some circumstances 
 he is bound to insure, and default in doing so would render him 
 liable for negligence. These circumstances are defined by Buller, 
 J., in Smith v. Lascelles," as follows : — " It is now settled as clear 
 law that there are three instances in which an order to insure 
 must be obeyed. First, where a merchant abroad has effects in 
 '' Knight V. Lord Plymouth, 3 Atk. 
 
 480. 
 
 ^ Russell V. Hankey, 6 T. 1!. 12. 
 
 ^ Taylor «. Plumer, 2 Maule & Sel. 
 562 ; Ex parte Cooke, In re Strachan, 4 
 Ch. D. 123 ; 46 L. J. Bank. 52 ; 35 
 L. T. N. S. 649 ; 25 W. E. 171, a stock- 
 broker's case, -where the hroker misapplied 
 funds, and his estate was held liable, on 
 the footing that he was an agent. 
 
 *• I Jac. & Walk. 241, at p. 248. 
 
 ^ Compare Currie v. Misa (Exchequer 
 
 Chamber), L. E. 10 Ex. 153 ; 44 L. J. 
 Ex. 94 ; 23 AV. It. 450, affirmed in House 
 of Lords, I App. Cas. 544; 45 L. J. Q. B. 
 852 ; 35 L. T. N. S. 414 ; 24W.B. 1049. 
 The title of a creditor to a negotiable 
 flecurity given on account of a pre-existing 
 debt, and received by him ho7td fide and 
 without notice of any infirmity of title on 
 the part of the debtor, is indefeasible 
 whether that security be payable at a 
 future time or on demand. 
 « 2 T. E. 187, 189. 
 
PABT I.] BAILMENTS. 527 
 
 the hands of his correspondent here, he has a right to expect 
 that he will obey an order to insure, because he is entitled to call 
 his money out of the other's hands when and in what manner 
 he pleases. The second class of cases is where the merchant 
 abroad has no effects in the hands of his correspondent, yet, if. 
 the course of dealing between them is such that the one has been 
 used to send orders for insurance and the other to comply with 
 them, the former has a right to expect that his orders, for 
 insurance will still be obeyed unless the latter give him notice to 
 discontinue that course of dealing. Thirdly, if the merchant 
 abroad send bills of lading to his correspondent here, he may ingraft 
 on them an order to insure as the implied condition on which the 
 bills of lading shall be accepted, which the other must obey^if he 
 accept them, for it is one eniire transaction." ' 
 
 To these cases Stoiy^ adds the case where there is a general UasB added 
 usage of trade to insure goods ; there the factor is bound to do ^ °^'^' 
 what is usual, and thus to insure. 
 
 But if it is the factor's duty from any cause to insure, he Duty in 
 thereby becomes bound to make himself acquainted with the ™^""°S' 
 nature of the intended voyage, and with all the conditions which 
 are usually inserted in policies for such a voyage,^ and to procure 
 the execution of it within a reasonable time/ and in terms 
 covering the peculiar risks* by solvent underwriters." Then he 
 will not be chargeable with any loss which may ensue merely 
 because an insmrance might elsewhere have been obtained on more 
 favourable terms.' But in the event of a loss happening he 
 becomes bound to the exercise of reasonable diligence in recovering i 
 the subscriptions.* 
 
 Where goods are consigned to a factor the law raises a con- 
 tract to account for such as are sold, to pay over the proceeds, and 
 to re-deliver the unsold residue on demand.' If then the accounts 
 are not rendered within a reasonable time, the factor must bear 
 the costs of a suit instituted to have them taken ; and he will 
 not be excused though he shews that he has oifered to pay a lump 
 sum which turns out to be sufficient.^" Moreover, he should be 
 constantly ready with his accounts, and neglect of this duty is a 
 good ground for charging him with interest." So, too, sometimes 
 it is the factor's duty to take legal proceedings,'^ though probably 
 
 ^ Coriett V. GorcloD, 3 Campb. 472. ' 2 Phillips, Insurance, p. 566. 
 
 ^ Agency, § 190. ° Tophara v. Braddict, i Taunt. 572. 
 
 * Ulough V. Barber, 4 Campb. 150. " Collier «. Dudley, i Turn. & Buss, 
 
 * Turpin v. Bilton, 5 M. & G. 455. 421. 
 
 5 Park V. Hammond, 6 Taunt. 495. '^ Pearse v. Green, i Jao. &Walk. 135. 
 
 ° Story, Agency, § 187. '^ Curtis v. Barclay, 5 B. & C. 141, 
 
 ' Wake V. Atty, 4 Taunt. 493 ; May- 148. 
 dew V. Forrester, 5 Taunt. 615. 
 
528 THE LAW OF NEGLIGENCE. [book ii. 
 
 only in those cases where he has a right on his own account to 
 do so. 
 Propositions Ab to damages, the following propositions are the result of two 
 amages. g^j.^j(,jgg^ ^^ ^-j^^ liability of agents for negligence, in the Zaw 
 Tiines^ : — 
 
 1. Nominal damages may be recovered against an agent upon 
 proof of breach of conti'act. 
 
 2. Substantial damages will be recovered against the agent 
 upon proof that his principal has suffered actual loss by reason of 
 the agent's breach of duty, and the measure of these damages 
 will be the actual loss of which the agent's conduct has been the 
 proximate cause. 
 
 3. The agent will not be liable in substantial damages if he 
 proves that implicit obedience to the instructions of the principal, 
 could have been attended with no advantageous result. 
 
 4. It is submitted, however, that the agent under these circum- 
 stances would still be liable in nominal damages. 
 
 Though we have mainly confined our consideration to the case 
 of factors — the most ample and responsible class of agents — the 
 principles applicable in this case are appropriate to all cases of 
 mercantile agency; and we shall, therefore, be dispensed from 
 considering the other cases of agency independently and in 
 detail. 
 
 y. As to warehousemen. 
 Warehouse and The word Warehouse is ambiguous. It may signify any one of 
 — deflnitionB. three things — (i) A store for goods for safe keeping ; (2) a build- 
 ing for storing imported goods on which customs dues have not 
 been paid; (3) a store for the sale of goods wholesale.^ So, too,, 
 warehouseman is an ambiguous term, and may mean either the 
 keeper of a warehouse or the man that works therein. For the 
 present purpose the third meaning of warehouse may be altogether 
 eliminated, and so may any special aspects of the second,' so 
 that our consideration can be confined to the most general view 
 of a warehouse as a store for goods for safe keeping. The second 
 meaning of warehouseman has reference to the law of master and 
 servant, and may also here be disregarded. A warehouseman, 
 restricting the use of the term to its first meaning, is a bailee for 
 reward, and therefore would come under the rule that he is not 
 to be responsible for less than ordinary negligence, and is bound 
 to ordinary diligence.'' This is in accordance with the ruling in' 
 
 ■" By Mr. Evans, author of " Principal ^ As to the Warehousing Acts and the 
 
 and Agent," 62 Law Times newspaper, queBtions raised as to bonded goods and 
 
 pp. 58 and 77, where the authorities the property therein, with the method of 
 
 estaUishing the positions are set out and and limitations in transferring it, see I 
 
 oommentea on. Bell's Comm. 7th edit. pp. 199, 211. 
 
 " OgiWie's Dictionaiy, art. Warehouse. * Jones, Bailments, p. 96. 
 
PART I.J BAILMENTS. 520 
 
 Oailiff V. Dauvers/ where plaintiff claimed against the def endant,, Caiiiff f. 
 a warehouseman, for negligently keeping a quantity ot gimeng'^'^'^'^^^'^' 
 which had been deposited by the plaintiff in his warehouse. 
 From the evidence it appeared that it had been destroyed by 
 rats ; that several persons had looked at it on different days and 
 every night ; the lid of the box was shut down, but not nailed ; 
 and also that many cats were kept in the warehouse, and all 
 possible care was taken to destroy vermin. On this Lord Kenyon 
 said "that a warehouseman was only obliged to exert reasonable 
 diligence in taking care of the things deposited in his warehouse; 
 that he was not, like a carrier, to be considered as an insurer, 
 and liable for all losses happening otherwise than by the act of 
 God or the Bang's enemies ; and that the defendant in the present 
 case, having exerted all due and common diligence for the 
 preservation of the commodity, was not liable to any action for 
 this damage, which he could not prevent." 
 
 A warehouseman is not answerable for a theft committed by Duty of ware- 
 his servants if he can prove that his goods were lodged in a '°"^^"'*°- 
 place of safety, and that he has not been guilty of positive 
 negligence, " nor exercised less care towards them than towards 
 his own property."^ This last statement is not quite in accord 
 with the principle we have seen governing in these cases, since 
 it does not guard against the contingency of the bailee being very 
 careless with his own goods. The more accurate rule is that he 
 should take the same care in the preservation of the things bailed 
 to him which a good and prudent business man would take of 
 his own, since this is a contract of mutual benefit to the bailor 
 and bailee.' He is bound to warehouse the goods entrusted to 
 him in a place reasonably safe, suitable, and usual.'' And it is not 
 of itself sufficient to constitute negligence of the bailee that he 
 has departed from his bailor's instructions as to the custody of 
 his goods ; for he is not bound to greater care than ordinary 
 care unless he has accepted the goods on a special condition that 
 he should take unusual precautions ; but the fact of a deviation, 
 if not in itself sufficient to make a bailee amenable, is yet a cir- 
 cnmstance, and even a material one, in the constitution of negli- 
 gence, though not sufficient to dispose of the case.* Further, he 
 is bound to use due care in storing the goods, and is liable for 
 the acts of his servants only while acting within the scope of 
 
 1 Feake 114. * A carrier also a warehouseman who 
 
 2 3 Chitty, Commerce anJ Manufac- accepts goods for transportation or keeps 
 tures, p. 368. them after their arrival is not a gratuitous 
 
 ^ Code, lib. 4, tit. 65, I. 28; Code bailee: White v. Humphrey, n Q. B. 
 Napoleon, art. 1528 ; but see Finucane v. 43. 
 
 Small, I Esp. 315, and the comment on ° Tobin v. Murison, S Moo. P. C. C. 
 
 it in Schmidt v. Blood, 19 Wend. 368. no, per Lord Brougham, at p. 128. 
 
 L L 
 
530 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Aldrich ». 
 Boston and 
 Worcester 
 Bail way 
 Company. 
 
 their employment.' A good instance of this is given in Aldrich 
 V. Boston and Worcester Railway Company,^ where servants of 
 a warehouseman were present during a fire in the night-time 
 at the warehouse, but neglected to remove the plaintiff's goods, 
 who sued for their loss, and grounded his claim on the alleged 
 negligence of the servants. But the claim was held not sustain- 
 able, since it was no part of the servants' duty to rise in the night 
 to look after the plaintiff's goods, and because they were present 
 at the fire in their character as citizens. If a total loss has 
 occurred without want of ordinary care and diligence on the part 
 of the warehouseman, but previously to the loss there was action- 
 able negligence of the warehouseman by which the goods were 
 deteriorated, it has been decided in an American case' that the 
 subsequent destruction of the goods does not release the ware- 
 houseman from his previously accrued liability for his negligent 
 act. This decision seems sound in principle. If the goods had 
 been destroyed by the negligent act, it is clear that the ware- 
 houseman would be liable ; and the fact of something happening 
 subsequently to the loss which had it happened previously to the 
 loss would in all probability have destroyed the goods, would not 
 avail to save the warehouseman from liability, because they were 
 not so destroyed ; and further it is consistent with probability 
 that; they might have been removed or otherwise dealt with. 
 Where, then, there is a partial destruction , by negligence, is 
 there any difference in the event of a subsequent accident, without 
 negligence, in which had the goods existed at the time they would 
 have been involved ? The answer seems to be that, in fact, they 
 were not so involved ; and that the bailee's obligation for care is 
 absolute, and not with a saving clause that if the goods which 
 his negligence has not affected are destroyed from some other 
 cause, those the , loss of which his negligence has caused shall 
 not be debited against him. It seems, too, more to the advantage 
 of the public interest that the bailor, in the case of negligence 
 by the bailee being established, should have one point more of 
 safety, than that the negligent bailee should have an extra 
 chance of evading responsibility for his broken engagement. The 
 accident, without negligence, may excuse that which happened 
 through its agency ; there is no reason why it should be extended 
 to cover that which did not. It follows from this that where 
 the defendant has contracted to warehouse goods in a certain 
 place, but warehouses them elsewhere, where they are destroyed 
 by fire, but without negligence, he is liable, since he has broken 
 
 1 Coleman v. Riclies, i6 C. B. 104. ' joq Moss. 31. 
 
 ^ Powers V. Mitchell, 3 Hill 545. 
 
PART I.] BAILMENTS. 631 
 
 his contract and thus exposed them to injury ; and this has been 
 decided in Lilley v. Doubleday.' The only exception, said Grove, liiieyw. 
 J., citing Davis v. Garrett^ as his authority, is where the goods ^°"^l^^*y- 
 must as inevitably have been destroyed at one place as at the 
 other, and he laid down the rule : " If a bailee elect to deal with 
 goods entrusted to him in a different way from that authorized 
 by the bailor, he takes upon himself the risks of so doing, unless 
 the risk is independent of his acts and inherent in the property 
 itself;" to which Lindley, J., agreed. 
 
 The case already cited' is an authority that for destruction by Caiiiff v. 
 rats a warehouseman is not answerable without negligence. Neither ^^''■^®'^^- 
 is he liable for robbery, accident, or fire unless in any case there 
 is gross default or negligence. But if the warehouseman have 
 insured, he is liable to the owner for money paid and received to 
 his use.'' His responsibility begins directly the goods are delivered 
 to his custody. Till that moment they are in the custody of the 
 carman, who is the agent of the person sending them ; but the 
 moment the warehouseman applies his tackle to them, from that 
 moment the carman's liability ceases. This is illustrated by a 
 rather hard case, Thomas v. Day,^ where an accident happened Thomas u. Day. 
 from the cords of certain packs breaking, after defendant's servant 
 had offered to give slings to the carman to make them more 
 secure while being slung in the crane to the warehouse, which 
 offer was refused. On being raised in the crane the cords of the 
 pack gave way, and the goods fell in the street and were injured. 
 Lord Ellenborough laid down the law to be that the defendant 
 was bound to see to the strength of the cords. " If," said he, 
 " slings were necessary, the refusal of the carman, on his de- 
 clining to use them, will not exempt the warehouseman ; he ought 
 to have iusisted on the carman's using them, and, if he refused, he 
 should have repudiated those goods and refused to accept them." 
 In cases of negligence the omm of shewing negligence is on the 
 plaintiff, unless there is a total default in delivering or accounting 
 for the goods." 
 
 8. Closely allied to the business of a warehouseman is that of 
 
 a wharfiriger. 
 
 ' SI L. J. Q. B. 310. in Marsh v. Home, 5 B. & C. 322. See 
 
 - 6 Bing. 716. also Clay v. Willan, i H. Bl. 298. If, how- 
 
 ^ Caiiiff ». Danvers, Peake 114. ever, there is a default to account at all, 
 
 * Sidaways v. Todd, 2 Stark. 400 ; then trover will lie : 2 Salk. 655. In tlie 
 
 Waters v. Monarch Life and Fire Insur- case of a common carrier, as we shall sub- 
 
 ance Company, J E. & B. 870 ; 25 L. J. sequently see, the case is different : Fov- 
 
 Q. B. 102. See JSx pcvrte Bateman, 8 ward v. Pittard, [ T. R. 27, per Lord 
 
 De 6. M. & G. 263, 25 L. J. Bank. Mansfield, at p. 33. Some of the American 
 
 ig. cases require " some affirmatire and sub- 
 
 5 4 Esp. 263. stantive evidence of carelessness on the 
 
 " Harris ». Paokwood, 3 Taunt. 264, part of the defendants"— e.£r., Lamb v. 
 
 withtheinterpretationofitbyAbbottjC.J,, Western Eailroad Corporation, 89 Mass. 
 
532 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Wharfinger. 
 Wharf- 
 definition. 
 
 Bale of dili- 
 gence appli- 
 cable to 
 wharfingers. 
 
 Boss V. 
 Johnson. 
 Lord Mans- 
 field's dictwm 
 considered. 
 
 A wharf is a sorb of quay constructed of wood or stone, on the 
 margin of a roadstead, harbour, or river, alongside of which ships 
 or lighters are brought for the sake of being conveniently loaded 
 or unloaded.' 
 
 In England wharfs are of two kinds : (a) Legal wharfs — cer± 
 tain wharfs in all seaports appointed by commission from the Court 
 of Ekchequer or legalized by Act of Parliament ; (6) Sufferance 
 wharfs — ^places where certain goods may be landed and shipped 
 by special sufEerance granted by the Crown for that purpose.'' 
 
 In the earliest times the right to constitute ports, even to the 
 detriment of those already existing, was in the king ; but from 
 the reigns of Elizabeth to Charles II., at various times. Acts of 
 Parhament were passed for issuing commissions to appoint and 
 settle the limits of the ports and lawful places for shippiag and 
 discharging goods, and to regulate the charges and rights belong- 
 ing to them;' and these are the foundation of the rights and 
 privileges which are exercised now. The occupation of a warehouse- 
 man is so often carried on in conjunction with thatof a wharfinger 
 that to a great extent their businesses are identical. But in strict- 
 ness the wharfinger does not warehouse at all ; he merely receives 
 goods at and despatches them from the quay. As far as he carries 
 on the business of a warehouseman he is amenable to the con- 
 siderations which apply with regard to them ; and what they are 
 we have already seen. But in so far as he carries on an inde- 
 pendent business in places regulated by Act of Parliament, his 
 case must be the subject of independent treatment. t 
 
 A wharfinger does not undertake to transport goods himself, 
 and receives no profit on account of transportation, therefore it 
 would seem that the rule should be that applicable to ordi- 
 nary bailees for hire — -that he must use the diligence of a 
 prudent owner with a full knowledge of the facts; or, as it 
 has been happily expressed in distinguishing the liability of 
 the wharfinger from that of a common carrier, "he is bound 
 to guard against all probable danger ; the common carrier 
 against all possible danger." But this view has not always 
 been acquiesced in. In Eoss v. Johnson* Lord Mansfield is re- 
 ported- as saying : " It is impossible to make a distinction between 
 a wharfinger and a common carrier. They both receive the goods 
 upon a contract. Every case against a carrier is like the same 
 case against a wharfinger." But, as Story' points out, the sole 
 
 98. Mackenzie v. Cox, 9 C. & P. 632, is 
 the case of a loss. 
 
 ^ Ogilvie's Dictionary, art. Wharf. 
 
 " Baker!;. Lisooe, 7 T. E. 171. 
 
 ' Hale de Port Mar. c. 5 ; inserted in 
 
 I Hargr. Tracts, 60. Bacon, Abridg. tit. 
 Prerosr. B. 5 ; i Eliz. c. 11 ; 13 & 14 
 Car. il. e. 11 ; 22 Car. II. c. 11. 
 
 * 5 Burr. 2827. 
 
 ^ Bailments, § 451. 
 
PART I.] BAILMENTS. 533 
 
 question was whether trover would lie against a carrier when the 
 goods had been lost by his negligence, and not converted by him. 
 And at the argument a case was cited of a wharfinger, in which 
 it was held that an action on the case and not trover was the 
 proper action. Lord Mansfield's language becomes quite consistent 
 and intelligible in this view. In the subsequent Nid Prius case 
 of Maving v. Todd,^ " Lord EUenborough was of opinion that the Maving v. 
 liability of a wharfinger whilst he has possession of the goods ° ' 
 was similar to that of a carrier, and he inquired whether the 
 defendants had any case to the contrary." But in that case the 
 defendants united the character of lightermen and wharfingers, 
 and the case would be reconcilable with the run of the authorities 
 were it looked at as deciding that the defendant, having accepted 
 them to carry for reward, had practically accepted them as carrier, 
 and his liabihty as such was not affected because that he was also 
 wharfinger.^ 
 
 Story' is of opinion that "the case of a wharfinger does Opinion of 
 not, indeed, seem in any respect distinguishable from that of a ^'°^' 
 warehouseman ; and it has not, in fact, been distinguished from 
 it in any solemn adjudication. On the other hand, the case of a 
 carrier has always been treated as an excepted case turning upon 
 peculiar principles of public policy. In fact, the case before Lord 
 EUenborough was decided in favour of the defendants on another 
 point — that of a special contract excluding losses by fire — and 
 therefore it never called for any revision. If it is to be under- 
 stood as containing any general proposition not qualified by the 
 particular circumstances of the case, it is opposed by other and 
 better considered opinions." 
 
 Another judgment of Lord EUenborough's on the duty of a 
 wharfinger may be more unreservedly accepted. In Cobban v. Cobban ». 
 Downe* — a case where goods were laid on a wharf, and the mate 
 of the ship by which they were conveyed was called, and they 
 were dehvered to him, but afterwards were lost — Lord Ellen- 
 borough is reported to have said : " What the duty of a wharf- 
 inger is, is to be measured by the usage and practice of others 
 in similar situations, or his known and professed liability. 
 Every man contracts with the public according to the known 
 and ascertained extent of the trade or business in which he is 
 engaged. The defendant has proved that, by established usage, 
 the goods were delivered by the whai-finger to the mate and 
 crew of the vessel which is to carry them, froin which time 
 
 ^ I Stark. 72. ' * Bailments, § 452, citing Sidav/aya ?>. 
 
 2 Forward v. Pittard, 1 T. R. '27; Todd, 2 Stark. 400; I Bell's Comm. S'li 
 
 Hyde V. Navigation Company, 5 T. E. edit. p. 467, and note (6). 
 389. ■* 5 Bsp- 42- 
 
534 
 
 THE LAW OF NEGLiaENCE. 
 
 [book II. 
 
 iWhere the 
 queution is 
 between 
 buyer and 
 seller. 
 
 Liability of 
 wharfinger 
 indistinguish- 
 able from that 
 of the ware- 
 houseman. 
 
 Carriers who 
 are ware- 
 housemen. 
 
 Mitchell V. 
 Lancashire 
 . and Yorkshire 
 Hallway 
 Company. 
 
 it Las been considered that their responsibility is then at an 
 end. Undoubtedly where the responsibility of the ship begins, 
 that of the wharfinger ends ; and a delivery to the ship creates 
 a liability there. But the delivery must be to an officer or 
 person accredited on board the ship ; it cannot be delivered to 
 the crew at random. But the mate is such a recognized officer on 
 board the ship that delivery to him is a good delivery, and the 
 responsibility of the ship attaches if the jury believe that the 
 mate received the goods as stated by the defendant's witnesses.'" 
 
 In Leigh v. Smith,^ a very similar case, Best, O.J., followed 
 this ruling with a question whether " the case which has been 
 cited is not a little too narrow." 
 
 Where, however, the question is between buyer and seller, the 
 delivery to the wharfinger must be sufficient to give the buyer 
 his remedy over against the wharfinger before the seller is dis- 
 charged.'' 
 
 As the liability of the wharfinger is not distinguishable from 
 that of a warehmcseman, since both are bound to take common 
 and reasonable care of the commodity entrusted to them, the 
 wharfinger is not liable for slight neglect, and the reason and 
 policy of the law that affects the carrier does not apply to him. 
 He therefore also comes under the same rule with regard to the 
 onus of proof as we have seen to apply in the case of a ware- 
 houseman — indeed, in all cases where the bailee is bound only to 
 ordinary care, and is liable only for -ordinary neglect — and the 
 plaintiff cannot recover on mere proof of loss of articles entrusted 
 to the bailee, but must give some positive evidence of a want of 
 care in the bailee or his servants.'' 
 
 Many difficult questions occur, in the case of earners who also 
 warehouse goods, as to when their liability as carriers ends and 
 that as warehousemen begins — such, for instance, as Bourne v. 
 Gatliffe* and Cairns v. Eobins.° In Mitchell v. Lancashire and 
 Yorkshire Eailway Company, Blackburn, J.,' states the rule as 
 being : " Where a carrier receives goods to carry to their destina- 
 tion with a liability as carrier (except so far as that duty is 
 
 1 Compare Dig. 4, 9, 3. JEt sunt qui- ' 
 dam in navihus gui custodicE gratia navi- 
 hus prosponuntv/r, ut vav<l>i\aKes, id est, 
 naiiium custodes, et dicetarii. Si quis 
 igitv/r ex hie receperit, ^mto in eaxratorem 
 dandam actionem ; quia is qui eos Imjus- 
 modi officio prmponit, committi eis per- 
 mittit, quanquam ipse navicidarius vel 
 magister id facial, quod xeip^jit/SoXoi', id est 
 manus immissionem appellant. Sed etsi 
 hoc non extet, tamen ae recepto navicu- 
 larius tenebitur, 
 
 2 I C. & P. 638. As to negligence in 
 
 mooring and stationing vessels at a wharf, 
 see Wood ». Curling, 15 M. & W. 626, 
 16 M. & W. 628. 
 
 ^ Buckman ti. Levi, 3 Campb. 414, at p. 
 416 ; Gibson v. Inglis, 4 Campb. 72. 
 
 * Foote V. Storre, 2 Barb. 326. 
 
 " 4 Bing. N. C. 314, 3 Mann. & G. 
 643; II 01. &F. 45. 
 
 «8M. &W. 258. ' 
 
 ' L. B. to Q. B. 256, at p. 260 ; 44 
 L. J. Q. B. 107'; 33 L. T. N. S. 61 ; 25 
 W. E. 853. 
 
PART I.] BAILMENTS. 535 
 
 qualified by exceptions), he may be said to be an insurer. The 
 goods are then to be carried at the risk of the carrier to the end 
 of the journey, and, when they arrive at the station to which they 
 were forwarded, the carrier has then complied with his duty when 
 he has given notice to the consignee of their arrival. And after 
 this notice, and the consignee does not fetch the goods away and 
 becomes in mord, then I think the carrier ceases to incur any 
 liability as carrier, but is subject to the ordinary liability as 
 bailee." 
 
 In Chapman v. Great Western Railway Company' the question Chapman i>, 
 was more fully discussed by Cockbum, C. J., delivering the con- Eaiiway 
 sidered judgment of the Queen's Bench Division, The Chief ^"^^p^^Jj^j 
 Justice there points out that there must be an interval between Oookburn, c.J. 
 the receipt of the goods aad their departure, and that this may 
 be of even considerable duration. Again, there is not unfre- 
 quently delay between their arrival at their destination and the 
 delivery of them to the consignee, " as, for instance, when goods 
 arrive at night or late on a Saturday, or where the train consists 
 of a number of trucks which take some time to unload." In these 
 cases " the goods remain in his [the bailee's] hands as carrier, and 
 subject him to all the liabilities which attach to the contract of 
 carrier." "The case," says the Chief Justice, " becomes changed 
 when the carrier is ready to deliver, and the delay in the delivery is 
 attributable, not to the carrier, but to the consignee of the goods. 
 Here, again, just as the carrier is entitled to a reasonable time 
 within which to deliver, so the recipient of the goods is entitled 
 to a reasonable time to demand and receive delivery. He cannot 
 be expected to be present to receive deUvery of goods which 
 arrive in the night-time, or of which the arrival is uncertain, as 
 of goods coming by sea, or by a goods train, the time of arrival 
 of which is liable to delay. On the other hand, he cannot for his 
 own convenience or by his own laches prolong the heavier liability 
 of the carrier beyond a reasonable time. He should know when 
 the goods may be expected to arrive. If he is not otherwise 
 aware of it, it is the business of the consignor to inform him. 
 His ignorance, at all events where the carrier has no means of 
 communicating with him — which was the case in the present 
 instance — cannot avail him in prolonging the liability of the 
 carrier as such beyond a reasonable time. When once the con- 
 signee is in mord by delaying to take away the goods beyond a 
 reasonable time, the obligation of the carrier becomes that of an 
 ordinary bailee, being confined to taking proper care of the goods 
 as a warehouseman — he ceases to be liable in case of accident. ^ 
 
 1 S Q. B. r>. 278 ; 49 L. J, Q. B. 420 ; 42 L. T. 252 ; 28 W. E. 566. 
 
536 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 11. 
 
 Eefusal of 
 the consignee 
 to accept. 
 
 Dock-owners. 
 
 Definitions. 
 
 Their duties 
 and liabilities. 
 
 What will amount to reasonable time is sometimes a question of 
 difficulty, but as a question of fact, not of law. As such, it must 
 depend on the circumstances of the particular case." This, 
 though indefinite, is probably as definite and exhaustive a descrip- 
 tion as the subject will admit of, and as well the latest as the 
 most careful and authoritative.' 
 
 If, the consignee refuses to accept goods, it appears that the 
 carrier becomes an " involuntary bailee," and it is to be left to 
 the jury whether, considering all the circumstances, he has " acted 
 with reasonable care."^ 
 
 The consideration of the liabilities of wharfingers suggests that 
 of dock-ovmers. 
 
 A dock is a place artificially formed, at the side of a harbour or 
 the bank of a river, for the reception of ships, the entrance of 
 which is generally closed by gates. 
 
 There are two kinds of docks — dry or graving docks and wet 
 docks. The former are used for receiving ships in order to their 
 being inspected and repaired. A ship in a graving dock differs 
 nothing at common law from any other chattel delivered for 
 work and labour to be done upon it, when, as we have seen, 
 ordinary care must be used and ordinary negligence will import 
 liability. 
 
 Wet docks are formed for the purpose of keeping vessels always 
 afloat. One of the chief uses of a wet dock is to keep a uniform 
 level of water, so that the business of loading and unloading ships 
 can be carried on without interruption.' 
 
 Dock-owners are usually companies incorporated by royal 
 charter or by Act of Parliament, whose liability must most often 
 be referred to the construction of the powers under which they 
 individually are, or to the general Act, which is of the same de- 
 scription as those applying to gas and water companies.'' 
 
 Apart, however, from their statutory liability, with which here 
 we have no concern, there are certain duties and liabilities they 
 come under with respect to the common law that must now be 
 enumerated. 
 
 A dock company by inviting a ship to enter its dock puts itself 
 in the same position as a shopkeeper who invites a customer to 
 his shop. He is bound to provide reasonable facilities, and to 
 guard against anything in the nature of a concealed danger,' 
 but he does not insure the safety of his customer. The duty of 
 
 1 All the cases are carefully collected in ' Ogilvie's Dictionary, Docks ; M'Cul- 
 Angell, Law of CaiTiers, sth edit. pp. 285, loch, Diet, of Commerce, art. Docks. 
 293> §§3017 304- ■* 10 Vict. c. 27 (the Harbours, Docks, 
 
 2 Heugh V. Loudon and North- Westero and Piers Clanses Act, 1847). 
 
 Railway Company, L. E. 5 Ex, 51, per " Indermaur v. Dames, L. B. i C. P. 
 
 Kelly, e.B., at p. 57. 274, L. li. 2 C. P. 311. 
 
PABT I.] BAILMENTS. 537 
 
 a dock company is treated in all its aspects in the cases of Mersey- 
 Dock Board v. Penhallow ' and Mersey Dock Board v. Gibbs.^ In 
 the Exchequer Chamber, giving judgment in the former, Williams, 
 J., laid down the rule in the words of Tindal, O.J., in Pamaby v. Eulo laid down 
 Lancaster Canal Company^: "The common law in such a case ^^Pa^iiby'l;,^ 
 imposes a duty, not perhaps to repair the canal, or absolutely to Lancaster 
 free it from obstruction, but to take reasonable care, so long as pany. 
 they kept it open for the public use of all who may choose to 
 navigate it, that they may navigate it without danger to their 
 lives or property." And whether the duty that was laid upon the 
 company remained undischarged through negligent ignorance 
 when the means of knowledge were at hand, or the requisite steps 
 were neglected when the company had actual knowledge, was im- 
 material, as in both instanees the company would be fixed with 
 actionable negligence. In the case in question a mud bank was 
 suffered to exist in a dock that was open for the ingress and 
 egress of ships. The duty of the company was not absolutely to 
 prevent the accumulation of mud, but to use reasonable endeavours, 
 and, if these failed, to take such steps as it could to warn those 
 using the dock to prevent the mud bank becoming, a trap for its 
 customers. If, then, the dock is in a suitable condition for the 
 reception of vessels of a small burthen only, the dock company 
 would be liable if it permitted the navigation of the docks by 
 vessels of larger burden without notice to the public, as in Thomp- Thompson n 
 son V. North-Eastem Eailway Company." A dock, which, when uaiiway 
 finished, would have been adequate for large vessels, was opened '^o'^P^y- 
 before it was finished, and the large vessel of the plaintifis, when 
 attempting to get out fully loaded, was seriously injured through 
 the channel not being in a fit state. Hill, J., in the Queen's 
 Bench, expressed the liabiKty of the defendants to be " to take 
 reasonable care that their dock and basin were kept so free from 
 obstruction that those who used them might do so without danger 
 to their property."^ In the Exchequer Chamber, Brie, C.J., 
 approved this, and added" : "In our judgment, it does not matter 
 whether the obstruction in the channel had grown up after the 
 dock and basin were opened, or whether the dock and basin were 
 opened before the channel was well cleared. Strangers cannot be 
 supposed to know the state of the dock, and the company who 
 open their dock are bound to take reasonable care to make it safe 
 for navigation by those who use reasonable care in navigating it." 
 The dock-owner's duty, like that of other bailees, is proportioned 
 
 1 7 H. & N. 329. < 2 B. & S. 106 ; 31 L. J. Q. B. 194 ; 
 
 2 3 H. & N. 164 ; L. E. I H. of L; 93. 6 L. T. N. S. 127 ; 10 W. E. 404. 
 ' II A. & E, 223 (Exchequer Cham- • ^ At p. 116. 
 
 ber).. ® At p. 121. 
 
538 THE LAW OF NEGLIGENCE. [book n. 
 
 to the danger, so that, if an uncommon or unexpected danger arise 
 
 he must use proportionate efforts to ward off its effects.' 
 
 Williams v. In Williams v. Swansea Harbour Trustees,^ the trustees of docks, 
 
 bOTff°TiiiiBtees. being about to open a new one, issued a notice " to shipowners, 
 
 merchants, and others," which contained a statement that "the 
 
 depth of water on the dock sill was twenty-six and twenty-three 
 
 feet at the highest spring tides, and fifteen feet at the lowest 
 
 neaps." On the opening of the dock the plaintiffs' ship entered 
 
 and loaded, but was delayed in passing out because the depth in 
 
 the entrance channel was only nineteen feet. It was held that 
 
 the notice was a representation to all the world that there was 
 
 available access to the dock gates of the depth mentioned, or at 
 
 all events approximating thereto, and that the plaintiffs were 
 
 entitled to recover.' 
 
 Dock com- Dock companies are also warehousemen and wharfingers, but in 
 
 as wlr^onS- ^° ^^^ ^^ ^^^J ^^ ^ either of those capacities they are subject to 
 
 men and the law appropriate to that capacity which at the time they 
 
 exercise. 
 
 Here, too, must be noticed the class oi forwarding agents. 
 Forwarding agents are a class of business men who store and 
 forward goods by other agencies than their own, and receive a 
 commission for their trouble in storing and in selecting such 
 carrying agencies.* In so far as they store goods, they are mere 
 warehousemen ; in so far as they forward them, they are common 
 agents.' As such they are liable for ordinary negligence, and 
 bound to ordinary diligence, and to that only." Many attempts, 
 says Brett, J.,' have been made to introduce within the excep- 
 tional liability of common carriers other trades, as those of 
 wharfingers, forwarding agents, carters, &c., "but all such attempts 
 have failed, because those trades, although,, in respect of their being 
 public or common trades, they are similar to the trade of common 
 carrier, are not similar to it in those respects in which it was 
 similar to the trades of ship-masters and innkeepers." One of 
 their first duties as consignees for transmission undoubtedly is to 
 obey the instructions of the consignor, either express or fairly 
 implied. If they vary, and a loss is thereby occasioned, they are 
 clearly liable to the owners of the goods.^ 
 
 Shortly, however, it may be said that a forwarder's duty and 
 
 1 Leek «. Maestaer, i Campb. 138. C. B. N. S. 582, see conclusion of judgment 
 
 2 14 C. B. N. S. 845. of Williams, J., 599. 
 
 ' As to the duties of dock-masters, seo ° Roberts v. Turner, 12 Johns, 232. 
 
 Lloyd ». Iron, 4 P. & F. ion ; The Ex- ' 2 Kent's Comm. 12th edit. p. 591 ; 
 
 celsior, L. E. 2 Adm. 268 ; 37 L. J. Adm. Story, Law of Bailments, § 444 ; Wharton, 
 
 54 ; 19 L. T. N. S. 87. Law of Negligence, § 703. 
 
 * Wharton, Law of Negligence, § 703. ' Nugent w. Smith, iC.P.D.i9,at p. 31. 
 
 Aldridge v. Great Western Bailway, 15 ' Angell, Law of Carriers, 5th edit. §7S- 
 
PART I.] BAILMENTS. 539 
 
 responsibility is of the same character as that of a private carrier 
 — ^that is, a bailee for compensation.' 
 
 VI. Carriers for Hire. 
 
 We have already, when discussing the subject of mandates, Carriers for 
 considered the obligation imposed on a carrier without hire — which arrnot rom- 
 we have seen to consist in the bringing to bear slight diligence, ^°^ carriers. 
 and the liability for gross negligence merely.^ We have now to 
 consider the liability of carriers for reward who are not common 
 carriers. This is that branch of the bailment of hiring — locatio 
 — which is called locatio ojperis mercium vehendarum. 
 
 The distinction between a carrier and a common carrier is the Distinction 
 distinction between carrying under a special contract and carrying carrier and 
 as a business.^ A private person may contract with another for ^^"1^"°" 
 the carriage of his goods, and incur no responsibility thereby 
 beyond that of an ordinary bailee for hire — ^that is, the respon- 
 sibility of ordinary diligence. But where persons hold themselves 
 out as esercisiug the public employment of carrying goods for 
 people generally, and as ready to engage in the carriage of goods 
 for hire, and not as a mere casual occupation, then they are 
 common carriers.'' Angell's definition of a private carrier for hire Definition, 
 is a negative one : " Any person carrying for hire who does not 
 come within the definition and explanation to be given of a 
 common carrier is a private carrier."* His definition and explana- 
 tion of a common carrier are taken from Gisboum v. Hurst.^ A 
 person to whom goods had been entrusted carried cheese to 
 London, and usually loaded on his return journey with goods for 
 a reasonable price for all persons indifierently. The Court held 
 that " such an undertaking to carry for hire as this privilege was 
 to be considered as that of a common carrier, and the goods so 
 deUvered for that time under legal protection, and privileged from 
 distress, and so wherever they are delivered to a person exercising 
 any public trade or employment." Prom this we may extract a 
 definition that any person undertaking for hire to carry goods of 
 aU persons indifferently is to be considered a common carrier. 
 DiflBculties, however, occur in estimating the effect of facts in 
 determining whether a man is a private carrier for hire or a 
 common carrier. Thus, in Brind v. Dale' the defendant was Briud «. Dale, 
 the owner of thirty or forty carts which were in the habit of 
 
 ' Bedfield, Law of Carriers, § 3. ' Angell, Law of CarrierB, § 46. 
 
 2 Ante, p.481. Angell, Law of Carriers, « i Salk. 249. In Fish v. Cliapman, 2 
 
 S§ 17, 44. Kelly 353, there is a discussion of the defi- 
 
 ' Satterlee v. Groat, i Wend. 272. nition by Nisbet, J. ; Eobinson v. Dun- 
 
 * Beckman v. Johnson, 5 Eawle 179, at more, 2 B. & P. 417. 
 
 p. 182. ' 80. & P. 207. 
 
540 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 story's 
 comment. 
 
 Ill gate V. 
 Chiistie. 
 
 standing near the wharfs on the Thames ready to be hired by any 
 person who chose to engage them, either by the hour, day, or job. 
 The defendant's business was that of "a town carman" who let 
 out carts for hire, while it was contended that a common carrier is 
 one who, for hire and reward, takes goods from town to town, and 
 who is by law bound to take any goods offered to him to carry if 
 his cart is not full. Lord Abinger was of opinion that he was not 
 a common carrier. As to this Story says': " It is very difficult to 
 distinguish between the case of a carman and that of a hoyman, 
 or lighterman, or bargeman plying between diiierent parts of the 
 same town, or taking jobs by the hour or the day. And yet it 
 does not seem to have been doubted that such hoymen, lighter- 
 men, and bargemen are common carriers. See Lyon v. Mells, 5 
 East 439. "What substantial distinction is there, in the case of 
 parties who ply for hire in the carriage of goods for all persons 
 indifferently, whether goods are carried from one town to another 
 or from one place to another within the same town ? Is there 
 any substantial difference whether the parties have fixed termini 
 of their business or not if they hold themselves out as ready and 
 willing to carry goods for any persons whatsoever to or from any 
 places in the same town or in different towns ? Is a ship engaged 
 in general freighting business or let out generally for hire for any 
 voyage which the freighter may require less a common carrier than 
 a regular packet ship which plies between different ports ?"^ 
 In Ingate v. Christie' this passage was cited to Alderson, B., 
 where the facts shewed that the defendant had a counting-hous^ 
 with his name and the word " lighterman " on the door-posts of 
 it, and that he carried goods in his lighters from the wharfs to 
 the ships for anybody who employed him, and that the defendant 
 was a lighterman, and not a wharfinger. The learned judge, in 
 taking the view of Story, J., said : " Mr, Justice Story is a great 
 authority, and if we would adhere to principle the law would be 
 what it ought to be — a science. There may be cases on all 
 sides, but I adhere to principle if I can." His statement of 
 principle was as follows : — " The criterion is, whether he carries 
 for particular persons only, or whether he carries for every one. 
 If a man holds himself out to do it for every one who asks him, 
 he is a common carrier ; but if he does not do it for every one, 
 but carries for you and me only, th^t is matter of special contract. 
 Here we have a person with a counting-house, 'lighterman' 
 painted at his door, and he offers to carry for every one." The 
 
 1 Law of Bailments, § 496, _n. 7. 
 
 5 For this yiew he cites : Rich v. Knee- 
 land, Cro. Jao. 330 ; i EoU. Abr. Action 
 sur le Case (C), pi. 1-4 ; Wardell v. Mouril- 
 
 lyan, 2 Esp. 693 ; i Bell's Comm. 5tli edit. 
 
 Sp. 467, 468 ; Whalley v. Wray, 3 Esp. 74 ; 
 luddlet). Stride, g C. &P. 380; and some 
 American cases. ' 3 C. &.E. 6j. 
 
PART I.] BAILMENTS. 541 
 
 facts in Brind v. Dale,' however, justify the distinction taken by Brmd». Dale, 
 Lord Abinger, whose ruling is not inconsistent with the principle 
 laid down by Alderson, B., in the later case. For it was proved 
 that the driver said to the plaintiff at the time of the hiring, 
 " Don't you leave me ; I cannot leave the horses to look after the 
 goods." And the plaintiff said, " I shall go along with you to 
 look after the goods," which would constitute a special contract ; 
 and then, if the plaintiff did not accompany the goods, he was 
 guilty of negligence himself, of which he would not be permitted 
 to take advantage. Further, the reporter does not put the general 
 proposition, that a town carman, whose carts ply for hire near 
 the wharfs, and who lets them by the hour, day, or job, is not a 
 common carrier, any higher than a sernble. The case of Liver liver Alkali 
 Alkali Company v. Johnsofl,^ is in the same direction ; for there johi^on^ "' 
 Blackburn, J., speaking of Ingate v. Christie, says it is " in 
 express conformity with what appears to have been Lord Ellen- 
 borough's view in Lyon v. Mills,' and no English authority has 
 been cited in conflict with the doctrine ;" while of Brind v. Dale* 
 he says, Lord Abinger "reserved the point; and, as the jury 
 found in favour of the defendant on the question whether the 
 goods were received by him as a common carrier, it was never 
 reviewed in barbc." The Liver Alkali Company v. Johnson does 
 not definitely lay down that one who has carriages for hire is a 
 common carrier, from the necessity of his position, nor yet that 
 without being a common carrier he has the liabilities of one, for 
 the case may be explained by the particular findings ; yet it 
 undoubtedly raises a strong presumption that in the opinion of 
 the Court of Exchequer Chamber as then constituted, such had 
 it been necessary to decide the point, would have been their 
 view of the law. 
 
 The distinction of Alderson, B., between goods carried for Distinction of 
 every one and goods carried occasionally and specially is, then, adopte™' ' 
 adopted as the dividing line between private carriers for hire and 
 common carriers. As to the liability of private carriers for hire, 
 Holt, C.J., in his judgment in Coggs v. Bernard,* says : " He is 
 only to do the best he can. And if he be robbed, &c., it is a good 
 account," And he gives the reason for dealing differently with 
 this class of bailees than with common carriers by saying: "It 
 would be unreasonable to charge him with a trust further than 
 the nature of the thing puts it in his power to perform it. But 
 
 ' 8 C. & P. 207. as a special contract. ^ 5 East 428. 
 
 2 L. B. 9 Ex. 338 (Exchequer Cham- ^ 2 Moo. & Eob. 80 : 8 C. & P. 207. 
 
 her). 43L. J.Ex.2l6; 31L.T.N. S. 9S, See per Brett, J., in Nugent «. Smith, i 
 
 in/j-Oip. 564. Compare Scaife«. Farrant, C. P. D, ig, at p. 26. 
 
 L, E. 10 Ex. 358 ; 44 L. J. Ex. 234 ; 33 '2 Ld. Kaym. 909 ; 2 Sm. Lead. Cas. 
 
 ■L. T. 278 ; 33 W. E. 840, distinguished gth edit. 201, at p. 216. 
 
542 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Lord AbiDger, 
 C.B., iu Blind 
 V. Dale. 
 
 Bnle of dili- 
 gence for a 
 private carrier 
 for hire. 
 
 Theft and 
 Bobbery. 
 
 Return of 
 property in 
 a damaged 
 condition. 
 
 Test 
 applicable. 
 
 it is allowed in the other cases by reason of the necessity of the 
 thing." In accordance with this the law was laid down by 
 Lord Abinger, O.B., in the case already referred to' : "I take it 
 that if a man agrees to carry goods for hire, although not a 
 common carrier, he thereby agrees to make good losses arising 
 from the negligence of his own servants, although he would 
 not be liable for losses by thieves or by any taking by force." 
 The ordinary diligence to which a private carrier for hire is 
 bound is such diligence as a prudent man commonly takes of 
 his own goods, and ordinary negligence is the lack of such care. 
 
 We have in another connection^ considered the distinction in 
 the civil law between a robbery by force and a secret theft : 
 Adversus lafrones parum prodest custodia ; adversus furem prod- 
 esse potest si gwis advigilet.^ The conclusion there reached puts 
 the bailee to proof to shew that it did not arise from negligence.^ 
 But a distinction may be suggested when the bailee returns the 
 property in a damaged condition. If the damage done is most 
 often the effect of the use, it would seem that the bailor should 
 shew that it arose from want of ordinary care before liability is 
 aflSxed ; but if the damage is not apparently a natural result of 
 the bailment, then the law will authorize a presumption of negli- 
 gence. Again, if damage is done — not the self-evident and 
 natural consequence of usage — and the bailee refuses to give 
 any account of how it happened, much more should a presump- 
 tion of negligence be raised. Story,* however, inclines to deny 
 this. He is of opinion that even total loss raises no presumption 
 of negligence in itself. But in England the test that would pro- 
 bably be applied would be, who, in each case, would be entitled to 
 succeed in the event of no evidence being given. In the case of 
 an absolute loss, the bailor, because the obligation is to return 
 the bailment at some time somehow fixed ; and when that time 
 has arrived, and default is made, it is for the bailee to excuse 
 the default. The possibility of applying this test is in practice 
 dependent on the way in which the pleadings are framed. If 
 the pleader frames his case on negligence, as is most usually 
 done, instead of on the mere breach of the contract to return, 
 then he would be bound to give evidence sufficient to sustain the 
 
 1 Brmd v. Dale, 8 C. & P. 207, at p. 21 1. 
 
 2 Ante, p. 464. 
 
 ^ Cited Jones, Bailments, p. 44. See 
 the whole subject disoussed, Story, Bail- 
 ments, §§ 333-338- 
 
 * See Verner v. Sweitzer, 32 Penn. St. 
 208. Clarke v. Spence, 10 Watts 335, per 
 Eogers, J. : " All the bailor has to do in 
 the first instance is to provethe contractaud 
 the delivery of the goods, and thi$ throws 
 
 the burden of proof that they were lost, and 
 the manner they were lost, on the bailee, 
 of which we have a right to require very 
 plain proofs." Pitlock v. Wells, 109 Mass. 
 452, was decided on the ground that there 
 was only " an involuntary or gratuitous 
 bailment." The decision on this ground 
 is easier to acconnt for than the way in 
 which tho facts were looked at to hear it 
 out. ' Bailments, §§ 410, 454, 525. 
 
PART I.] BAILMENTS. 543 
 
 view that he has put forward, and could not put the defendant 
 to explain as he would if the mere non-return were alleged. 
 In the case ' of mere deterioration accounted for by the circum- 
 stances of the bailment, the state of things speaks for itself, and, 
 to make out a case, something of neglect must be shewn. But 
 where the condition of the thing bailed on its return is de- 
 preciated to a degree out of proportion to the terms of the bail- 
 ment, apparently the bailee is in default. It is for him to shew 
 that he is not ; and, therefore, the ornis lies upon him to discharge 
 the presumption of negligence raised by appearances.' 
 
 The private carrier for hire does not undertake any responsi- Deterioration 
 bility for loss arising from the ordinary deterioration of goods °* ^"""^^^ 
 from their inherent infirmity and tendency to decay. But he is 
 bound, notwithstanding, *o take all reasonable care when he 
 knows that he has perishable goods in his care ; and it has even 
 been held that he is bound to have them aired and ventilated, if 
 these are usual and reasonable things to do in the circumstances.^ 
 
 Of course we have been hitherto speaking merely of the normal 
 obligation of the private carrier. But this liability may be varied Obligations 
 indefinitely by the terms of the contract into which he enters. A by contrsw™ 
 mere carrying by a person who does not hold himself out to carry 
 for people in general will of itself, without special terms, import 
 the obligations that have been enumerated, but, though not a 
 common carrier, a man may put himself in the position of a 
 common carrier by the obligation he specially binds himself to, 
 as in Robinson v. Dumore,* where, on the plaintiff observing to the 
 defendant, who was to carry goods for him, that the tarpaulin of 
 the cart in which he purposed to put them was too small, defend- 
 ant replied, " I will warrant the goods shall go safe." The goods Warranty 
 were injured by rain. Lord Bldon, 0. J., at the trial, directed the fo^fhire^ith 
 verdict to be found for the plaintiff, on the ground that by his liability of a 
 
 ,T . . ..„ common 
 
 warranty the defendant had put himself in the position of a carrier, 
 common carrier ; and on motion this direction was sustained. 
 
 In the view of Brett, J.,'' by a special custom of the realm all 
 shipowners are equally liable for loss by inevitable accident, 
 whether common carriers or private carriers for hire ; but this 
 is by no means established law ; indeed, the weight of authority 
 seems considerably to preponderate against it, 
 
 ^ The subject is discussed in a note to the Court of Appeal, Nugent v. Smith, i 
 
 2 Famone, Law of Contracts, p. 125. C. P. D. at p. 433. Mellish, L. J., declined 
 
 2 The Brig CoUenberg, i Black. 170; to express any opinion on the subject ; and 
 
 Davidson v. Gwynne, 12 East 381. it is pointed out by Cockburn, C.J., that 
 
 ' 2 Bos. & P. 417. the majority of the Exchequer Chamberiri 
 
 * Liver Alkali Company v. Johnson, Liver Alkali Company v. Johnson did not 
 
 L. R. 9 Ex. 338, at p. 343; repeated adopt Brett, J. 's, views. See, too. Story, 
 
 Nugent V. Smith, i C. P. D. 19, at p. 33, Bailments, §§ joi, 504. 
 but dissented from by Cockburn, C.J,, in 
 
5U 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Postmaster- 
 General. 
 
 Innkeepers. 
 Definitions. 
 
 VII. ExCEPTKD Cases. 
 
 Story' under this heading treats the cases of postmasters, inn- 
 keepers, and common carriers. 
 
 1. Postmasters. 
 
 We have already considered the position of the Postmaster- 
 General in England.^ He is a public officer and responsible 
 for his own negligence, and, since his subordinates are the 
 servants of the State and not the servants of the Postmaster- 
 General, the rules of law summed up in the maxim, Respondeat 
 superior, do not apply in his case ; but, further, each officer 
 and servant in the employ of the Post Office, whether post- 
 master or postman, though responsible for his own negligence, 
 is responsible for his own negligence only, and not for that 
 of any of the others in any department he may have in 
 charge, even though they may be selected by him and subject to 
 his orders.' 
 
 If negligence is brought home to a postmaster, it must be such 
 a want of care as is presumed to be found in a man of common 
 prudence dealing with his own afEairs, so that he is not liable for 
 any losses occasioned by the negligence or delinquencies or 
 embezzlements of his official assistants if he exercises a due and 
 reasonable superintendence over their official conduct, and he has 
 no reason to suspect them of being guilty of any negligence or mal- 
 conduct. In short, such assistants are not treated as his private 
 servants, but rather as public officers, though appointed by the 
 postmaster." 
 
 2. Innkeepers. 
 
 In Thompson r. Lacey" each of the three judges who gave 
 judgment essayed a definition of an inn. Abbott, 0. J.'s, was : a 
 house where the keeper " furnishes beds and provisions to persons 
 in certain stations of life who may think fit to apply for them," 
 or "who furnishes every accommodation to all persons for a 
 night or longer ;" Bayley, J.'s : "a house where the traveller is 
 famished with everything which he has occasion for whilst upon 
 his way ;" and Best, J.'s : " an inn is a house the owner of which 
 holds out that he will receive all travellers and sojourners who are 
 
 ' Bailments, § 460. 
 
 " Ante, p. 261. 
 
 ' Lane v. Cotton, I Ld. Eaym. 646 ; 12 
 Mod. 472 ; Whitfield v. Le Despencer, 
 Cowp. 754 ; Dunlop v. Munroe, 7 Cranch 
 242 ; Scnroyer v. Ljncli, 8 AVatta 453 ; 
 
 Bishop V. Williamson, 2 Fairf. 495 ; 
 Hutchins v. Brackett, 2 Fost. 252 ; All 
 cited Keenan v. Southworth, no Mass. 
 
 474- 
 ■• Story, Bailments, § 463. 
 » 3 B. & Aid. 283. 
 
PABT I.] BAILMENTS. 545 
 
 willing to pay a price adequate to the sort of accommodation 
 provided, and who come in a situation in which they are fit to be 
 received." It would not be difiicnlt to shew that these definitions, 
 as definitions, are very unsatisfactory both from excess and defect. 
 The first, for example, would include a workhouse ; nothing less 
 than a mammoth store would come up to the second ; and the 
 lessee of a theatre might very well make the profession required 
 in the third. 
 
 Bacon's definition of an innkeeper may, perhaps, better serve Bacon's 
 as a means of arriving at a reasonably accurate definition of an ^ ' ' 
 inn. He says' : "A person who makes it his busiaess to entertain 
 travellers and passengers, and provide lodging and necessaries for 
 them and their horses and attendants, is a common innkeeper," 
 from which it would follow that the place which the innkeeper 
 occupies for his business of providing lodging and necessaries 
 for travellers and passengers, and their reasonable or necessary 
 accompaniments, is an inn. But a cofiee-house is not an inn,^ 
 nor is a boarding-house,' nor a mere refreshment bar,* nor a 
 lodging-house, nor a place where select persons are entertained for 
 a short season of the year;" but, on the other hand, " a man," 
 says Parke, B.,° " may keep an inn for those persons only who 
 come in their own carriages." 
 
 Travellers and passengers received into an inn are " guests." 
 But what exactly constitutes reception into an inn to the extent 
 needful to make the person so received a guest has given rise to 
 
 1 Bacon's Atridg. Inns and Innkeeper, and no misfeasance. 
 
 B. In Cromwell v. Stephens, 2 Daly "15, ■* The Queen v. Eymer, 2 Q. B. D. 136 ; 
 
 the meaning of the terms "inn " and 46 L. J. M. C. 108 ; 35 L. T. N. S. 774 ; 
 
 "hotel "are carefully examined and defined Carpenterw. Taylor, i Holt 193. 
 
 by Daly, C.J. ^ Parkhurst v. Foster, i Ld. Raym. 479 ; 
 
 2 4 Campb. 77 ; per Lord EUenborongh, Holder ■;;. Soulby, 8 C. B. N. S. 254 ; 29 
 Doe d. Pitt V. Laming. L. J. C. P. 246 ; 8 W. B. 438. The 
 
 2 Dansey v. Richardson, 3 E. & B. 144 ; Roman law, says "Wharton, Law of Negli- 
 23 L. J. Q. B. Z17. In this case the gence, § 681, was otherwise. By 26 & 27 
 Queen's Bench was divided as to a direc- Vict. c. 41, s. 4, Inn shall mean any hotel, 
 tinn of Erie, .J.'s, at the trial, where he inn, tavern, public-house, or other place of 
 asked the jury whether they were of refreshment the keeper of which is now 
 opinion that the loss for which the action by law responsible for the goods and pro- 
 was brought was through the negligence perty of his guests, and the word inn- 
 of a servant, and, if they were, then was keeper shall mean the keeper of any such 
 the employer guilty of negligence in en- place. But in Dixon v. Birch, L. R. 8 
 gaging the servant ? Wightman, J., was Ex. 135; 42 L. J. Ex. 135; 28 L. T. 
 of opinion that the direction was right, N. S. 360 ; zi W. E. 443, it was held 
 and Erie, J., adhered to his view taken at that the manager of an hotel belonging to 
 the trial; but Coleridge, J., and Lord a company is not an innkeeper, and that 
 Campbell, C.J., thought no distinction the comjjany itself must be sued. Si un 
 should be drawn between the act of the lioste invite un al supper, et le nuit esteant 
 servant and the act of the defendant, and farr spent il luy invite a stayer la tout le 
 that the direction was wrong. In Holder nuit, sil suit apres robbe uncore le hoste ne 
 r. Soulby, 8 C. B. N. S. 254, however, the serra charge pur ceo, car cest guest ne 
 Court of Common Pleas held that there is fait ctscun traveller: 1 Rolle's Abr. 3. 
 no liability on the T)art of a lodging-house ' Johnson v. Midland Railway, 4 Ex. 
 keeper to answer for the loss of a lodger's 367, at p. 371. 
 goods where there is mere absence of care 
 
 M M 
 
046 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 York V. 
 Grindstone. 
 
 Bennett v. 
 Mellor. 
 
 Strauss v. 
 County Hotel 
 Company. 
 
 Bome controversy. In York v. Grindstone ^ it was decided, against 
 the opinion of Holt, C.J. that if a traveller leave his horse at 
 an inn, and lodge elsewhere, he is to be deemed a guest, 
 " because it [the horse] must be fed, by which the innkeeper 
 hath gain; otherwise, if he left a trunk or dead thing." - 
 More than a hundred years afterwards occurred the next re- 
 ported case, Bennett v. Mellor,' where plaintiff's servant took 
 some goods, which he had been unable to sell at the weekly 
 market, to the defendant's inn, and asked the defendant's wife if 
 he could leave the goods there till the week following. She 
 answered she could not tell, for they were full of parcels. The 
 plaintiff's servant then sat down in the inn, had some liquor, and 
 put the goods on the floor behind him, whence they were stolen. 
 A verdict was given for the plaintiff, which, on motion for a new 
 trial, was sustained, on the ground that, if the proposal of the 
 plaintiff's servant had been accepted, the defendant would have 
 been special bailee, and so not answerable where there was no 
 "actual negligence"; but since the proposal had not been 
 accepted, and the plaintiff's servant had sat down and was 
 partaking of refreshment, he had thereby become a guest, 
 with the consequential duty on the innkeeper to protect his 
 goods or be answerable for their loss. This case was held 
 "clearly distinguishable" in Strauss v. County Hotel Company,^ 
 because " there it was expressly found that the plaintiff had 
 come within the house and had placed his goods near his 
 chair."* In Strauss's case the facts proved were "that the 
 plaintiff arrived at the railway station at Carlisle, and was 
 there met by one of the porters of the defendants' hotel, to 
 whom he gave three packages, and asked him to take them to the 
 
 1 I Salk. 388 ; 2 Ld. Eaym. 860, in 
 the name of York v. Grenaugh ; Mason v. 
 Thompson, 26 Mass. 280. 
 
 ^ In Lynav v. Mosaop, 36 Canada Q. B. 
 230, a person asked for a room to change 
 his dress in at an inn, which was assigned 
 to him and a key handed him, which he 
 did not use ; after occupying; the room for 
 an hour, phiintiff went to his friend, witli 
 whom he remained. Next morning on 
 returning for his portmanteau it could not 
 he found. It was held, on the authority 
 of Gelley v. Clerk, Cro. Jac. 189, and 
 Wintermute v. Clark, 5 Sandford 242, 
 thiit the plaintiff ceased to he a guest after 
 he left the inu, and that the defendant 
 was not liahle as innkeeper. In the New 
 York case of Ingallsbee v. Wood, 33 N. Y. 
 577, where a horse was left at an hotel, 
 the owner never intending to he a guest, 
 the innkeeper was hold to he u mere 
 ordinary bailee for hire, with no greater or 
 
 different rights than if the defendant had 
 been a livery stable keeper merely. Healey 
 i>. Gray, 28 Am. E. 80. In Hancock v. 
 Baud, 46 Am. £. 112, a general on ser- 
 vice, who engaged rooms at an hotel at a 
 fi.Ked monthly price, with an understand- 
 ing that, if he were satisfied and were not 
 ordered away, he should stay till the 
 spring, was held to be a guest; see the 
 cases collected in the note at p. 118. 
 
 » 5 T. R. 273 ; flouser v. TuUy, 62 
 Penn. St. 92. 
 
 •* 12 Q. Q. D. 27 ; S3 L. J. Q. B. 25 ; 
 49 L. T. 601 ; 32 W. E. 170. Compare 
 Palin V. Keid, 10 Ontario App. E. 63 ;, 
 and Adams v. Young, 58 Am. E. 789. 
 
 ^ On the authority of Eichmondw. Smith 
 (8 B. & C. 9) this latter ground of distinction 
 seems very immaterial, and, if anything, 
 a point for the plaintiff in Strauss's case. 
 Armistead v. White, 17 Q. B. 261. 
 
PART I.] BAILMENTS. 547 
 
 hotel, •whidi adjoined the railway station. He then intended to 
 
 pass the night at the hotel, but after reading a telegram which 
 
 he found waiting for him at the office, he decided to go on to 
 
 Manchester the same day. He went into the coffee-house to dine, 
 
 but was told that there was no joint ready, and proceeded, iy the 
 
 waiter's advice, to the station refreshment-room, which was under 
 
 the same management as the hotel, and connected loith it ly^ a 
 
 covered passage? On his way to the refreshment-room he met 
 
 the porter with his luggage, and told him to lock it up till he was 
 
 ready to start for Manchester. The luggage was locked up in a 
 
 room adjoining the refreshment-room, but, on the plaintiff's arrival 
 
 at the platform, part of it was found to be missing. Upon the 
 
 objection that there was no evidence that the plaintiff ever became 
 
 a guest of the defendants at their inn, the learned judge ordered 
 
 a nonsuit." This was maintained by the Queen's Bench Division, 
 
 on the ground that, the " relation of landlord and guest not having 
 
 been made out, the action cannot be sustained." The report of Consiaered, 
 
 this case in the Law JouriwP is much fuller than that in the Law 
 
 Eeports. From that report it appears that the view of the Court 
 
 on the facts was that the refreshment-room was not part of tJie 
 
 inn — ^the judges' at the trial must have been that it muld 
 
 not be so considered — and that the iremoval of the plaintiff 
 
 from the coffee-room to the refreshment-room was an act not 
 
 different in its nature from going from one shop to another, 
 
 and not merely the removal from one portion of a building to 
 
 another for more commodious serving. In this view the decision 
 
 is one on the particular facts, and. there is no actual conflict with 
 
 Bennett v. Mellor,^ as there the man was served his glass of 
 
 refreshment in the house, while in this case the judges' view of 
 
 the facts was that what occurred in the coffee-room and the 
 
 subsequent order in the refreshment-room were distinct transac- ^ 
 
 tions. Chancellor Kent's view of Bennett v. Mellor was that 
 
 there " the responsibility of innkeepers was laid down with great 
 
 strictness and even with severity;"'' but it has always been 
 
 followed, and is quoted in the text-books as a binding authority.' 
 
 But it is clear that the mere entrusting of goods does not con- Mere entmst- 
 
 stitute the bailor a guest. This was decided so early as the do6s°not°con- 
 
 time of James I., when it was held that a person who came to an ^'^^"1?^ g°„eBt 
 
 inn with a hamper of hats, and went away and left them there 
 
 ' Compare Cromwell v. Stephens, 2 ° Story, Bailments, §§ 470, 471, 472, 
 
 Daly 15 i Krolm v. Sweeny, 2 Daly 200. 479, 480, 482 ; i Sm. Lead. Cas. gtli 
 
 ^ 53 L. J. Q. B. 25. edit. p. 141; Wharton's Law of Inn- 
 
 ' 5 T. E. 273 ; approved Clute v. Wig- keepers, pp. 15, 75, 76, 79, 98, 99, 106, 
 
 gens, 14 Johns. 17s ; M'Donald ». Eger- 119, 130 ; Oliphlint, Innkeepers, 4tli 
 
 ton, 5 Barb. 560. edit. p. 220. 
 
 *• 2 Kent's Comm. 12th edit. p. 594. 
 
548 THE LAW OF NEGLIGENCE. [book ii. 
 
 for two days, and in his absence they were stolen, had no claim 
 against the innkeeper but as bailee.' 
 American case: In an American case'' it is said to be a question of fact, to be 
 "■ ' ^' decided upon all the evidence, whether the relation of guest and 
 innkeeper is established ; and the elements to be taken into con- 
 sideration are thus summed up : — "The duration of the plaintiff's 
 stay, the price paid, the amount of accommodation afforded, the 
 transient or permanent character of the plaintiff's residence and 
 occupation, his knowledge or want of knowledge of any difference 
 of accommodation afforded to, or price paid by, boarders and 
 guests, are all to be regarded in settling the question. It is ex- 
 pressly decided,' however, that an agreement with an innkeeper 
 for the price of board by the week is not decisive that the relation 
 is that of boarder instead of guest." 
 Heiation Passing next to the relation subsisting between the innkeeper 
 
 i'ttSper^'and ^^^ ^^^ guest — whom, says Ashurst, J.,'' " the law has fixed an 
 his guest indelible obligation " on the innkeeper to receive — we have to see 
 what liability for negligence is raised thereby. The law of an 
 innkeeper's liability has been said to be peculiar to the English 
 law. There is, however, a marked similarity to the rule of the 
 civil law.' By the Praetor's Edict a peculiar responsibility was 
 laid upon ship-masters, innkeepers, and stable-keepers, who were 
 made liable for all losses not arising from inevitable casualty or 
 overwhelming force. Ait Prcetor : Nautw cavpones, stahvlarii^ quod 
 cujus que salvum fore receperint, nisi restituent in eos judicium, 
 dabo.' To which is subjoined the remarks of Ulpian : Maxima 
 utilitas est hujus edicti, quia necesse est plerumque eorum fidem 
 sequi, et res custodim eorum committere. Nee quisquam putef 
 graviter hoc adversus eos constitutum ; nam, est in ipsorum arhitrio, 
 ne quern recipiant. And the explanation is given, Nisi hoc esset 
 statutum, materia daretur cum furibu,s adversos eos quos recipiunt 
 coeundi.^ The extent of the liability is indicated as follows : At 
 
 ^ Galley v. Clerk, Cro. Jac. i88 ; cede homines eorumqne Jumenta Jiospilio 
 
 Bacon's Abridg. Inus, C 5. As to leaving excipit. Nam stahmum turn ad jumenta 
 
 a horse for a fortnight with an intention to pertinet, turn ad homines. See note by 
 
 return, Day v. Bather, 2 H. & C. 14; Denman, J., to judgment of Brett, J., in 
 
 and as to leaving a valise for forty-eight Nugent v. Smith, i C. P. D. 19, at p. 29. 
 
 hours without the intention to return, The conclusion of the passage cited by 
 
 Murray «. Marshall, 59 Am. E. 152. Denman, J., is as follows: — Videtw a 
 
 ' Hall V. Pike, icm Mass. 455. caupone differre in eo, quod cawpo via- 
 
 * Berkshire Woollen Company v. Proo- toribus necessaria ad victuia prcehet, 
 tor, 61 Mass. 417, at p. 424, stabulaamiB etiam tectum et lectum. D. 
 
 * Kirkman v. Shawcross, 6 T, E. 14, at 47, S, i. SeePotbier, Pand. lib. 4, tit. ix. 
 p. iS. § I, 2. Compare Hor. Sat. i. S, 4 — 
 
 ^ Per Holt, C.J., Lane v. Cotton, 12 " Tnde forum Appii 
 
 Mod. 481. Dtffertwm navtis cauponibus atque ma- 
 
 ^ As to this word, it is used in the second 
 sense given for it in Facoiolati and For- ' D. 4, 9, i, i. 
 
 Cellini's Lexicon {sub verlo) : Qui mer- ' D, 4, 9, i, i. 
 
PAiiT I.] BAILMENTS. 549 
 
 lioc cdicto omnimodo, qui rccepit tenetur, etiamsi sine culpd ejus 
 res periit vel (kvmnum datum est, nisi si quid dcimno fatali con- 
 tinfjit. Indc Ldbeo serihit, si quid naufragii aut per vim piraturum 
 pericnt non esse iniquum cxceptioncm ei dart. Idem erit dieevdum 
 si in stabulo aut in cauponA vis major contigerit} 
 
 But the responsibility of innkeepers by the Roman law was liimitations 
 further limited in several respects. It was not enough to charge Jaw. ^ °™*° 
 the innkeeper that the guest had brought his goods or baggage to 
 the view or the knowledge of the innkeeper ; he must have delivered 
 them into his charge. Neither was the innkeeper responsible for 
 the acts of other guests or persons at the inn, though he was 
 responsible for the acts of his servants and boarders done in the 
 house ; neither was he compelled to receive the guest when he had 
 room, as he is by the common law." These limitations are found 
 in the jurisprudence of those nations of Europe who have taken 
 the Eoman law for their model,' and are the variations that have 
 been urged, amongst others, as grounds for inferring a native origin 
 to our law in this respect. The liabilities of an English innkeeper Liabilities of 
 are treated at length in Calye's case,'' which is the leading English inniteepers. 
 authority upon the subject. There the exact point resolved was 
 that if a man come to an inn and deliver his horse to the inn- 
 keeper to be put to pasture, and the horse be stolen, the inn- 
 keeper was not responsible, because the case was outside the 
 terms of the original writ" by which the duties of innkeepers are 
 specified. It is from Coke, C.J.'s, commentary on the words of 
 this writ, clause by clause, as it is set out in the report, that the 
 principles of the law governing with regard to innkeepers is to 
 be collected. 
 
 The following leading principles may be collected : — Prmoipies laid 
 
 First : The action must be against the keeper of a common Caiye's case. 
 inn.* 
 
 Second : The thing in respect of which the action is brought 
 must be infreo hospitium, " within the inn."' 
 
 ' D. 4, 9, 3, § I. habit of placing the carnages of his guests 
 
 ' Eex V. Ivens, 7 C. & P. 213 ; Haw- on fair days, and was not put there at the 
 
 thorn V. Hammond, i Car. & Kir. 404. instance of the plaintiff, the plaintiff re- 
 
 ' Story, Bailments, §§ 466, 467, citing covered : Jones v. Tyler, i A. & E. 522. 
 
 Dig. 4, 9, and Pothier, Traite du Dep6t, ' 8 Kep. 32 b. In Stannian v. Davis, 
 
 n. 79, 80. I Salk. 404, the innkeeper was held liable 
 
 * 8 Eep. 32 a ; i Sm. Lead. Cas. 9th where a horse was taken out of the inn, 
 
 edit. p. 132. and immoderately ridden and whipped, 
 
 ' Fitzherbert's Nat. Brevium, 94 B. though it did not appear by whom. Bags 
 
 Eegistnim Brevium, p. 105 a. of wheat stolen during the night from an 
 
 ° 8 Kep. 32 a; Parker u. Flint, 12 Mod. outhouse appurtenant to the inn, where 
 
 255; I LA. Eaym. 479, «om. Parkhiirst u. loads of that description were ordinarily 
 
 Poster ; Sanders v. Spencer, 3 Dyer 266 b. received, were held to be infra liospitium : 
 
 Where a gig was stolen that was put by Clute v. VViggens, 14 Johns. 175 ; but see 
 
 the ostler outside the inn yard, in a part Albin v. Presby, 8 N. H, 508, to the con- 
 
 of the street where defendant was in the trary. 
 
550 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 ' Extent of 
 innkeeper's 
 obligations. 
 Bvu-gess V. 
 Clements. 
 
 Third : The innkeepej is bound in law to keep the goods of 
 his guest within the inn, " without any stealing or purloining,'" 
 unless by the guest's own servant or by fault of the guest. 
 
 Fourth : But if the guest is beaten in the inn, the innkeeper is 
 not answerable, "for the innkeeper ought to keep the goods and 
 chattels of his guest, and not his person.'"' 
 
 The extent of the innkeeper's obligation was the subject of 
 decision by the King's Bench in Burgess v. Clements.^ The 
 plaintiff went to the defendant's inn as a guest, and was shewn 
 into the travellers' room. Subsequently he asked for a room in 
 which he might shew his goods. The innkeeper's wife assented 
 to the request, " accompanied with that which is equivalent to 
 telling him that he must take charge of it, for she says, ' Tou may 
 have the room ; there is a key to the door, and you may lock it.' " 
 The plaintiff took the room, and displayed his goods there to a 
 customer. Whilst he was doing so, the door twice opened and a 
 stranger looked in. The customer suggested the necessity of care 
 in view of the suspicious conduct of the stranger ; but, after he 
 had gone, the plaintiff left the room without taking any precaution, 
 and did not return till nine o'clock, when it was found that two of 
 the plaintiff's boxes containing valuables were missing.' The door 
 of the room opened into a gateway which led to the street, and 
 there was a key in the lock on the outside ; but the plaintiff did 
 not lock the door when he went away, and " did not know that 
 he even shut it." The judge at the trial stated the law to the 
 jury that an innkeeper was primd facie answerable for the goods 
 of his guest in his inn, but that a guest by his own conduct 
 might discharge the innkeeper from his responsibility. The jury 
 found for the innkeeper. The case was then taken to the King's 
 Bench on motion for a new trial, where the ruling of the judge at 
 the trial was sustained. It was there pointed out in the judgments 
 that, admitting an innkeeper to be primd facie liable, there 
 may be circumstances by which that privid facie liability may be 
 discharged — as, for example, if the guest by his own neglect induces 
 the loss,'' or himself introduces the person who purloins the goods. 
 Neither is it a part of the business of an innkeeper to provide 
 shew-rooms for his guests, but only convenient lodging-rooms and 
 lodging. Moreover, in the case under discussion, the requirement 
 
 1 8 Kep. 33 a. There is no dietinction separate from the inu Minor v. Staples, 
 between money and goods: Kent v. 
 Shuck-ard, 2 B. & Ad. 803. 
 
 - 8 Eep. 33 b ; Candy v. Spencer, 2 F. 
 & F. 306, where goods were left in the 
 lobby of an inn ; Hallenbake v. Fish, 8 
 AVend. 547 ; Norcross v. Norcross, 53 Me. 
 163, where goods were stolen from a sea- 
 bathing house provided for guests, but not 
 
 separate from the inu 
 36 Am. K. 318. 
 
 2 4 M. & S. 306. The law is now sub- 
 ject to the limitations imposed by 26 & 27 
 Vict. c. 41. 
 
 * As where the guest refused to put his 
 valuables in the place suggested by the 
 landlord : Jones v. Jackson, 29 L. T. N. S. 
 399- 
 
PART I.J BAILMENTS. 651 
 
 of the plaintiff was for a room to display his wares, a necessary 
 attendant on which was the introduciilg a number of persons over 
 whom the innkeeper conld have no check or control, and so for a 
 purpose wholly alien from the ordinary purposes of an inn, which 
 is ad Iwspitandos homines. Again, there was a duty on the j^laintiff 
 to use " at least ordinary diligence" in circumstances of suspicion ; 
 " for though in general a traveller who resorts to an inn may rest 
 on the protection which the law casts around him, yet, if circum- 
 stances of suspicion arise, he must exercise ordinary care ; " and the 
 intrusion of a stranger twice while he was displaying his o-oods 
 should have excited sufficient suspicion to have induced the pre- 
 caution of locking the door after him. In the following year a 
 very similar case, Farnworth v. Packwood,' was tried before Tarnworth d. 
 Le Blanc, J., one of the judges who gave judgment in Burgess v. 
 Clements, who puts the law very succinctly: " A landlord is not 
 bound to furnish a shop to every guest that comes into his house ; 
 and if a guest takes exclusive possession of a room, which he uses 
 as a warehouse or shop, he discharges the landlord from the 
 common law liability." 
 
 In Richmond v. Smith ^ a guest chose to have his goods carried Eichmoud?). 
 into the travellers' room in preference to having them placed in 
 his bedroom, as was the usual practice of the inn of placing 
 goods. The plaintiff was held entitled to recover on a loss, for, 
 "if it had been intended by the defendant not to be responsible 
 unless his guests chose to have their goods placed in their bed- 
 rooms or some other place selected by him, he should have said 
 so." In Dawson v. Chamney' another element came in. TheDawsour. 
 plaintiff gave his horse in charge to defendant's ostler, who put *™°^J- 
 him in a stall with another horse, by whom he was grievously 
 kicked. Plaintiff brought his action, and Cresswell, J., directed 
 the jury that, if they were of opinion that the defendant, by him- 
 self or his servants, had been guilty of direct injury or of negligence, 
 they should find for the plaintiff; otherwise, for the defendant. 
 This was objected to as a misdirection, but was sustained by the 
 Queen's Bench, which held that the damage raised a presumption 
 of negligence, and thus called on the defendant for an answer ; 
 but that when he gave evidence, and satisfied the juiy that he 
 had not been guilty of negligence, the verdict was rightly entered 
 for him. On general grounds of law the fact that a horse has 
 kicked another horse is not in itself any evidence of negligence,'' and 
 it appears from this case, following Calye's case,* that the innkeeper 
 
 ' I Stark. 249 ; in a note to this case ^ 5 Q. B. 164; 13 L. J. Q. B. 33. 
 
 tlieve is a report of Burgess v, Clements. ^ Cox v. Burbidge, 13 C. B. N. S. 430. 
 
 = 8 B. & C. 9. ° 8 Hep. 32 a. 
 
552 
 
 THE LAW OP NEaLIGENCE. 
 
 [teooK n. 
 
 Morgan v. 
 Kavey. 
 
 Judgment by 
 Pollock, C.B. 
 
 loss of goods 
 by accidental 
 fire. 
 
 is not an insurer against injury, and " siiall not be charged unless 
 there be a def anlt in him or his servants in the well and safe keeping 
 and custody of their guest's goods and chattels within their common 
 inn, for the innkeeper is bound in law to keep them safe with- 
 out stealing or purloining;'" whence it would appear that the 
 innkeeper insures merely against stealing and purloining, and 
 things of that nature. 
 
 Dawson v. Chamney^ was, however, unfavourably commented 
 on in Morgan v. Ravey.^ The rule as to the innkeeper's liability 
 there laid down was that he is a general insurer, for that is 
 what it amounts to, and that " there is a defect in the innkeeper 
 wherever there is a loss not arising from the plaintiff's negligence, 
 the act of God or the Queen's enemies." It was then said, " The 
 only case that points the other way is Dawson v. Chamney;" and 
 Pollock, C.B., referred to a report of that case in 7 Jurist 1037, 
 where it was said " there was no evidence of the manner in which 
 the horse received the injury for which the action was brought." 
 The learned Chief Baron then continued : " This may be the 
 explanation of that case, for though damage happening to the 
 horse from what occurred in the stable might be evidence of 
 defectus or neglect, still, if it was not shewn how the damage 
 arose, it was not even shewn that it arose from what occurred in 
 the stable." The reporter in a note has, however, disproved this 
 suggestion by pointing out that the judgment was written, and 
 that in the written judgment the injury was stated to have been 
 i-eceived " by the kick of another horse." The case would thus 
 be a negation of liability on an innkeeper ; where he had exercised 
 all caution in stabling a guest's horse, and where by the unknown 
 viciousness of another guest's horse an injury was inflicted, 
 the innkeeper was not to be held an insurer to that extent. 
 Assuming the innkeeper to be free from blame, the accident 
 would have occurred from inevitable accident, and thus, though 
 not within the terms of Pollock, O.B.'s, proposition in Morgan v. 
 Ravey, at least within the principle of it. But this view can 
 only be sustained by regarding the innkeeper as an insurer in 
 certain respects only, and not wholly as a common carrier. If 
 this be the right view, Dawson v. Chamney' was the case of 
 inevitable accident arising from the kick of a horse without the 
 negligence of the defendant, and the plaintiff was disentitled to 
 recover, because not shewing a cause of action. 
 
 The question as to whether at common law the loss of goods 
 of the guest by an accidental fire affects the innkeeper with 
 
 ^ Doubts have sometimes arisen as to tothis inPinkevton w.AVoodvrarcl, 33 Calif, 
 what goods the innkeeper should answer 557. ^ 5 Q. B. 164. 
 
 for. There is an exhaustive judgment as ^ 6 H. & N. 265. * 5 Q. B. 164. 
 
PART I.] BAILMENTS. 553 
 
 liability is of interest in this connection. If the innkeeper is 
 in the same position as a common carrier, which is held to be 
 the law by many authorities,' then he is not exonerated from 
 responsibility by reason that the guest's goods are destroyed by 
 an accidental fire." But this is itself a disputed point. Chancellor Opinion of 
 Kent' has, indeed, said that innkeepers " are held responsible to ^t'*^'=^iio'^ 
 as strict and severe an extent as common carriers ; " but he 
 goes on to say that "the principle was taken from the Roman 
 law, and adopted into modern jurisprudence." Now, we have 
 already seen that the Roman law, though strict and severe, did 
 not affect the innkeeper with a liability so severe as that of a 
 common carrier ; and in the case of accidental fire the inn- 
 keeper was not liable at all by Roman law, since this was 
 included under the head of inevitable accident.'' Chancellor Kent 
 further on° says: " The responsibility of the innkeeper does not 
 extend to trespasses committed upon the person of the guest, 
 nor does it extend to loss occasioned by inevitable casualty, or by 
 superior force, as robbery." Whence it may be concluded that, in 
 the earlier passage, he did not intend any more extensive meaning. 
 Story,' too, says : " But innkeepers are not responsible to the same 
 extent as common carriers. The loss of the goods while at an inn 
 will be presumptive evidence of negligence on the part of an inn- 
 keeper or of his domestics. But he may if he can repel the 
 presumption and shew that there has been no negligence what- 
 soever ; or that the loss is attributable to the proper negligence 
 of the guest ; or that it has been occasioned by inevitable casualty 
 or by superior force. ' Further on the learned author refers to the 
 dictum of Bayley, J., in Richmond v. Smith,' and says the doctrine Bichmond v. 
 he had just been advancing " should be now stated with some ^^'■*'^- 
 hesitation " on account of it, but he did not cancel the passage, and 
 adds : " The case, however, did not call for the dictum." Not- 
 withstanding, some of his later editors have shewn more respect 
 to the dictum than to their author's text, which they have altered 
 to conform to it.* 
 
 Chitty, " Law of Contracts,"' says : " There must be a defmtlt on various 
 the part of the innkeeper, and such default is to be imputed to chfttT^' 
 
 ' Morgan v. Eavej, 6 H. & N. 265 ; Stair's Institutes, Appendix by More, p. 
 
 30 L. J. Ex. 131; 3 L. T. N. B. 57. 
 
 784 ; 9W. R. 376 ; there is also a report ^ 2 Comm. 12th edit. p. 593. 
 
 of the case at Nisi Prius. 2 F. & F. ^ Bailments, § 472, original editions up 
 
 283. See note to Cutler u. Bonney, 18 to 5th edition in 1851. See also Story, 
 
 Am. E. 130. Contracts, 2nd edit. (1847), § 749. 
 
 ' Per Dallas, C.J., in Tborogood v. '' 8 B. & C. 9. 
 
 Marsh, Gow 105. " Sea Story, Bailments, 8th edit, by 
 
 •^ 2 Comm. I2th edit. p. 592. Bennett, § 472. 
 
 * Store, Bailments, § 465 ; Ersk. Inst. " nth edit. p. 441, by J. A. Russell, 
 
 B. 3, tit.' I, § 28 ; I Voet, ad Pand. 301 ; Q.C. 
 
554 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 lilm wherever there is a loss not arising from the plaintiffs negli- 
 gence, the act of God, or the Queen's enemies." 
 
 Eedfield. Eedfield in his "Law of Carriers'" thus sums up what he 
 
 regards to be the law : — -" The innkeeper is presumptively re- 
 sponsible for all injuries happening to the goods of his guests, and 
 by them entrusted to his care ; and that he cannot exonerate him- 
 self except by shewing that he did all to insure their safety which 
 it was in his power to do, and that no default is attributable to 
 his servants or guests. This brings the rule of law on this sub- 
 ject so near to that which obtains in the case of common carriers 
 that the distinction is not of much moment, unless in cases of loss 
 by accidental or incendiary fires, and possibly in some few other 
 cases. Hence it is now becoming to some extent common for 
 the Courts to state the degree of responsibility of these two classes 
 of persons in the same or similar terms, and thus to declare that 
 innkeepers are responsible for the safety of the property of their 
 guests except for damage resulting from inevitable accident or 
 irresistible force, being that of the public enemy."^ 
 
 Bennett, J. On the other hand, the conclusion of Bennett, J., at the end of 
 
 a long judgment, reviewing and commenting on all the cases, in 
 the case of Mateer v. Brown, ^ is "that some Courts as well as 
 commentators are at length returning to the sound and healthy 
 principle of the common law, which places the liability of inn- 
 keepers and carriers on the same ground." This judgment narrows 
 the controversy to a single point. The common law is contained in 
 the writ in the " Registrum Brevium " and Coke's " Commentary.'' 
 The writ says the innkeeper shall be responsible jjro defectic ; 
 which Sir Edward Coke translates by default. Bennett, J., in 
 Mateer v. Brown, says the whole " uncertainty and confusion 
 which has been thrown over this branch of the law have arisen 
 from confounding the word dcfectu in the writ, and the word 
 default used by Lord Coke as its translation, with the term 
 negligence, an error into which Judge Story himself seems to 
 have fallen." But if error arises from confounding default and 
 negligence, error would seem no less to arise from confounding 
 "default" with "without default." In any event the law in 
 America seems unsettled, though the latest case'' accepts the 
 distinction between the liability of an innkeeper and a common 
 
 1 Part v., chap, iv., The Extent of the N. Y. 571 ; Sibley v. Aldrich, 33 N. H. 
 Innkeeper's Eesponsibility, p. 459, where 
 the whole subject is reviewed by the author, 
 the judge who decided M'Daniels v. 
 Eobinson, 26 Vt. 316, 335. 
 
 2 See Holder v. Soulby, 8 C. B. N. S. 
 
 254. 
 
 2 I Calif. 221 ; Shaw v. Berry, 31 Me. 
 478 ; Hulett V. Swift, 42 Barb. 230, 33 
 
 553- 
 
 ^ Cutler V. Bonney, 18 Am. E. 127. 
 There is a very ample note to the report 
 of this decision, embracing a review of the 
 principal authorities on both sides, with, 
 however, a bias to the view opposed to the 
 decision. 
 
fABTi.] BAILMENTS. 555 
 
 carrier ; while in England the rule of the common law is prac- 
 tically unimportant by reason of 14 Geo. III. c. 78, s. 86, which 
 provides that no action, suit, or process whatsoever shall be 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, nor shall any recompense be made 
 by such person for any damage suffered thereby ; any law, usage, 
 or custom to the contrary notwithstanding." 
 
 In Armistead v. Wilde' the plaintiff was again held disen- Araiistead r. 
 titled to recover, but this by reason of his own negligence, one ^""^• 
 of the causes set out in Morgan v. Eavey," and in accordance 
 with prmciples laid down in Calye's case^ and in Burgess v. 
 Clements.'' Plaintiff's servant, after ostentatiously displaying a 
 large sum of money in the public room of defendant's inn, put it 
 in an Hi-secured box, and left the bos in the public room for the 
 night. In the morning the money was gone ; there was strong 
 ground to suspect that one of those to whom the notes had been 
 displayed was the thief. At the trial the judge directed the jury 
 to find for the plaintiff, unless they thought the traveller " had 
 been guilty of gross negligence in leaving the money in the 
 traveller's room." The jury found for the defendant. A rule 
 was granted by the judge's direction, on the impression that the 
 direction was that the jury were to consider whether a prudent 
 man would of his own accord have taken the parcel to the inn- 
 keeper and left it with him, or have taken it to his own room 
 and locked it up ; but, on the argument, the other facts ap- 
 pearing, and it being made evident that the judge's direction 
 was to be applied only to the facts of the case, the rule was 
 discharged, on the ground that each case must depend on its own 
 circumstances, and that though the innkeeper would be primd 
 facie, liable, his liability may be rebutted by proof of such negli- 
 gence on the part of the guest as to lead to the loss. In the case 
 before the Court the jury had found the negligence, and, in the 
 opinion of the Court, on ample evidence ; so that the verdict was 
 sustained. Lord Campbell, however, doubted whether to require 
 (jross negligence of the guest in order to discharge the innkeeper 
 was not a direction too favourable to the plaintiff, and expressly 
 guarded the decision of the Court from being interpreted as 
 laying down " that negligence on the part of the guest conducing 
 to the loss will not exonerate the landlord unless it amount to 
 crassa negligentia.'' And the very point came before the Court in 
 
 1 17 Q. B. 261 ; 20 L. J. Q. B. 524. ' 8 Eep. 33 a. 
 
 ^ 6 H. & N. 265 ; 30 L. J. Ex. 13113 « 4 M. & S. 306. 
 
 LT. N. S. 784; 9W. E. 376. 
 
556 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Cashill i'. 
 ■VVright. 
 
 Oppenheim «. 
 White Lion 
 Hotel Com- 
 pany. 
 
 Passage in 
 the report of 
 Calye's case 
 explained. 
 
 Cashill V. Wright,' when, in a considered judgment, Erie, J., thus 
 formulated the mle : — " We think that the rule of law resulting 
 from all the authorities is that, in a case like the present [i.e., 
 where a gold watch and money were stolen from the plaintiiF's 
 bedroom in defendant's inn], the goods remain under the charge 
 of the innkeeper and the protection of the inn, so as to make 
 the innkeeper liable as for breach of didy, unless the nec/ligence of 
 the guest occasions the loss in such a way as that the loss would not 
 have happened if the guest luid used the ordinary care that a 
 prudent man may he reasonably expected to have taken under the 
 circumstances." 
 
 This definition was said to lay down " the proper definition of 
 negligence, in terms which are not to be mistaken," by WiUes, J., 
 in Oppenheim v. White Lion Hotel Company" — a case in which 
 the same learned judge explained a passage in the report of 
 Calye's case' which had been the subject of frequent misunder- 
 standing. It is there said : " It is no excuse for the innkeeper to 
 say that he delivered the guest the key of the chamber in which 
 he is lodged, and that he left the chamber door open ; but he 
 ought to keep the goods and chattels of his guest there in safety." 
 This has often been referred to as an authority for the pro- 
 position that where the innkeeper had given his guest a key, 
 he had thereby relieved himself of his common law liability. 
 But Willes, J., points out" that this is not so; since it is by no 
 means laid down that proof of mere neglect to use the key is, in 
 law, conclusive to discharge the innkeeper ; in the succeeding 
 passage the same report does intimate that the guest may by 
 his conduct release the innkeeper from his common law obli- 
 gation ; and he says : " He [Sir Edward Coke] evidently means 
 that the fact of the guest having the means of securing his door, 
 and neglecting to avail himself of them, afEords the innkeeper no 
 excuse, by way of plea, as matter of law. The giving the 
 guest a key, or giving a warning to lock his door, would certainly 
 be a circumstance which might be urged in the innkeeper's favour. 
 By omitting to lock his door, a jury might well think that the 
 guest chose to take the risk of robbery upon himself, and that he 
 ought to have taken more care."' There is no question of law 
 in this. The question is, whether the guest has, or has not, 
 
 exercised reasonable care, in each case 
 
 1 6 E. & B. 891 ; Fowler v. Dorlon, 24 
 Barb. 384. 
 
 2 L. E. 6 C. P. 515, at p. 521 ; 40 
 
 This is a question for 
 
 L. J. C. P. 231 ; 25 L. T. N. S. 93. The 
 report in the Law Eejorts of the passage 
 referred to in the text is veiy obscure. The 
 LawJournal Report is, however,quite clear. 
 
 ' 8 Rep. 32 a. 
 
 * At p. 520. 
 
 « See Mitchell v. Woocls, 16 L. T. N. S. 
 676, per Kelly, C.B. : It is not a rule of 
 law ttat it is negligence for a guest at an 
 hotel not to lock his door. 
 
PART I.] BAILMENTS. 557 
 
 the jury, and it must be answered by reference to the facts and 
 circumstances of the individual case, since the innkeeper is not 
 invested with the character of an absolute and unqualified insurer ; 
 but a failure on the guest's part to use reasonable care is enough 
 to discharge him from liability;' and this it is for the jury to 
 determine, if, in the opinion of the Court, there is any evidence 
 that can be left to them.^ 
 
 A remark of Kay, J., in Angus r. M'Laclilan' has been Angus »-. 
 noticed' as "inaccurate," as reported, "in attributing to the ' *° *°' 
 learned judge a view which is clearly inconsistent with the 
 authorities." The passage referred to is as follows : — " The 
 general law was that a bailee, such as an innkeeper, was not 
 bound to be more careful in keeping the goods of his guests 
 than he was as to his own." But a perusal of the case will 
 shew that the defendant claimed a lien and detained goods, 
 which lie locked up with his own, after the plaintiffs had left the 
 hotel. They subsequently were found to be damaged by moths 
 and mice. The possession of the innkeeper was not a possession 
 of a guest's goods during the existence of the relation of host and 
 guest between them, but a possession by way of lien after the 
 relation of host and guest had terminated, to which the inn- 
 keeper was entitled by law as innkeeper if, as was the case here, 
 his bill was not paid. That being so, reference was to be had to 
 principles governing in the case of an innkeeper's lien, which 
 were as well recognized as the different principles governing in 
 the relation of host and guest. The only point Kay, .J., had to 
 decide was the right of an innkeeper or any other ordinary bailee 
 entitled to lien when holding goods in exercise of the lien. 
 And his decision as to this, that the only diligence the innkeeper 
 in such circumstances was bound to use was the diligence that 
 an average prudent business man would use with his own goods, ^ 
 seems sound in principle, and to this there does not appear any 
 just exception. 
 
 The liabilities of innkeepers have been diminished by an Act 26 & 27 Vict. 
 passed in 1863, "respecting the liability of innkeepers, and to"''^^' 
 prevent frauds on them."" By section i of this Act, innkeepers' 
 liability is limited to make good any loss or injury to goods or 
 property brought to their inns, not being a horse or other live 
 animal, or any gear appertaining thereto, or any carriage, to a 
 greater amount than .£^30, except (i) where such goods or property 
 
 1 Spice , . Bacon, 36 L. T. N. S. Ch. at p. 590 ; 48 L. T. 863 ; 31 W. R. 
 
 896. 641. 
 
 " Herberts. Markwell, 45 L. T. N. 8. ■* i Sra. Lead. Cas. 9th edit. p. 141. 
 
 649. 5 See p. 458. 
 
 ' 23 Ch, D. 330, at p. 336 ; 52 L, J. " 26 & 27 Vict. c. 41. 
 
558 THE LAW OF NEGLIGENCE. [book ii. 
 
 shall have been stolen, lost, or injured through the wilful' act, 
 default, or neglect of such innkeeper, or any servant in his 
 employ ; (2) where such goods or property shall have been de- 
 posited ex^Dressly for safe custody with such innkeeper, provided 
 that in case of such deposit they may require as a condition of 
 their liability that the property shall be deposited in a box or 
 othetf receptacle fastened and sealed by the person depositing it. 
 By section 2 they are not to have the benefit of the Act in 
 respect of property which they refuse to have for safe custody, 
 or which by their default the guest is unable to deposit with them. 
 By section 3 they are required to cause at least one copy of 
 section i , printed in plain type, to be exhibited in a conspicuous 
 part of the hall or entrance to the inn, and gives them the benefit 
 of the Act only in respect of goods brought to the inn while the 
 copy is so exhibited.^ 
 
 An innkeeiDer is not bound to provide for his guest the precise 
 room he wants. All that the law requires of him is to find for 
 his guests reasonable and proper accommodation ; if he does that, 
 he does all that is requisite.' There is some doubt whether a 
 guest can maintain proceedings against an innkeeper for refusing 
 to receive him as a guest without a tender of the amount to which 
 the innkeeper would be reasonably entitled for the entertainment 
 Fell V. furnished to his guest. Lord Abinger, in Pell v. Knight,* ex- 
 
 Knight. pressed the view that it is not sufficient for a plaintiff to allege 
 
 that he was ready to pay ; he should further state that he was 
 willing and offered to pay. In so far, however, as this is incon- 
 sistent with the subsequent considered judgment in Pickford v. 
 Grand Junction Railway Company,' it is probably not law. In 
 that case the test was that, whenever a duty is cast on a party, in 
 consequence of a contemporaneous act of payment, to be done by 
 another, it is sufficient if the latter pay, or be ready to pay, the 
 money when the other is ready to undertake the duty. 
 
 As we have already incidentally seen,* an innkeeper is entitled 
 to a lien for his charges, which attaches to the goods brought to 
 the inn by the guest, but not to the person of his guest, or to the 
 apparel he is actually wearing ;'' and avails against any goods the 
 guest has with him, even though they are not his own.' 
 
 1 "Wilful" applies to "act" only: ^ 8 M. & W. 269. On the other hand, 
 Squire a. Wheeler, 16 L. T. 93. Eex v. Ivens, 7 C. & P. 213, per Cole- 
 
 2 Spice V. Bacon, 2 Ex. V. 463 ; 36 ridge, J. 
 
 L. T. N. S. 896. On the point for which » 8 M. & W. 372. 
 
 this case was previously cited it is only ^ Angusw. M'Lachlan, 23Ch. D. 330; 52 
 
 reported in the Law Times. L. JiCh. 587 ; 48 L.T. 863 ; 31W. E. 641. 
 
 3 Fell V. Kniglit, 8 M. & W. 269. ' Sunbolt v. Alford, 3 M. & W. 248. 
 
 8 Turrill v. Ciawley, 13 Q. B. 197 ; Snead i>. Watkins, i C. B. N. S. 267 ; Thre- 
 fall V. Borwick, L. R. 7 Q. B. 711, L. E. 10 Q. B. 210; 44 L. J. Q. B. 87 ; 32 
 L. T. N. S. 32; 23 W, R. 312; Mulliner v. Florence, 3 Q. B. D. 484; 47 L. J. 
 
PART I.] BAILMENTS. 559 
 
 y. B. 700 ; 38 L. T. 167 i 26 W. E. 385. As to lien, see, too, 41 & 42 Viot. 0. 38 
 (the Innkeepers' Act, 1878). 
 
 The law of lien has been so often mentioned that an abstract of it, by way of note, 
 niay not be out of place. " Lien," it is said in Termes de la Ley, p. 416, " is a word of 
 two significations, personal lien as a bond, covenant, or contract : and real lien as 
 judgment, statute, recognisance, or an original against an heir which oblige and affect 
 the land." 
 
 Liens are either particular liens or general liens. A particular lien is where a 
 person claims a right to retain goods in respect of labour or money expended on them : 
 Chase v. Westmore, 5 M. & S. 180. A genercAWew. is one claimed in certain trades in / 
 
 respect of a general account : Eruger v. Wilson, Amb. 252. The former kind are 
 Javoured in law ; the latter, as founded in custom merely, are construed strictly : , 
 Houghton V. Matthews, 3 Bos. & F, 494, 
 
 To assert a lien it is necessary — 
 
 1 . That the person against whom the lien is asserted should own the property sought 
 to be affected in the same character as that in which he owes the debt: Watts v. 
 Christie, 11 Beay. 546. A finder of goods on land has no lien for his trouble or expense, 
 unless a reward has been offered for their restoration : Wentworth v. Day, 44 Mass. 352. 
 
 2. That there should be an actual possession of the goods : Kinloch v. Craig, 3 T. R. 
 119 ; 4 Bro. V. C. 47 ; Bruce ». Watt, 3 M. & W. 15. There may be in some cases a 
 re-transfer of possession to the owifer for a temporaiy purpose as agent or special bailee, 
 without destroying the lien : Reeves v. Capper, 5 Bing. N. C. 136. 
 
 3. That the property should have come lawfully into the possession of the person 
 claiming the lien: Madden v. Kempster, i Campb. 12 ; LempriSre v. Pasley, 2 T. R. 
 
 485. 
 
 4. That the possession should not he for a special purpose : Brandao v, Baruett, 12 
 C. & F. 787 ; Lucas v. Dorrien, 7 Taunt. 278. 
 
 5. That the interest of a third party should not be displaced : Wright v. Snell, 5 
 B. & Aid. 350. 
 
 In general, lien confers no power to sell, even though the keeping should be attended 
 with expense : Thames Iron Company v. Patent Derrick Company, i Johns. & 
 Hem. 93. ■ 
 
 As to lien for the unpaid price of goods. — This continues so long as an actual posses- 
 sion has not been taken by the vendee : Bloxam v. Sanders, 4 B. & C. 941 ; Dodsley v. 
 Varley, 12 A. & E. 632 ; Grice v. Richardson, 3 App. Cas. 319 ; 47 L. J. P. C. 48 ; 37 
 L. T. 677; 26 W. R. 358. 
 
 Aa to liens of innkeepers and carriers. — Even though a guest has stolen a horse 
 that he brings to an inn as his own, the innkeeper has a lien on it for his charges : 
 York V. Grindstone or Grenaugh, 2 Ld. Raym. 867 ; Turrill v. Crawley, 13 Q. B. 
 197, and cases cited above ; but on goods brought not as the guest's own there is 
 not a lien : Broadwood v. Granara, 10 Ex. 417 ; Threfall v. Berwick, L. R. 7 Q. B. 
 711, L. R. 10 Q. B. 210 ; 44 L. J. Q. B. 87 ; 32 L. T. N. S. 32 ; 23 W. B. 312. 
 The test of an innkeeper's lien is. Did the goods come into his possession in his 
 character of innkeeper as being brought by a guest ? Binns v. Pigot, 9 C. & P. 208. 
 The lien of a common earlier being a common law lien, he cannot detain the goods 
 of his employers for anything beyond the price of the carriage of the goods so con- 
 veyed: Skinner v. Dpshaw, 2 Ld. Raym. 752; Rushforth v. Hadfield, 6 Bast 519, 
 7 East 224. A shipowner has a lien on a passenger's goods, including personal 
 luggage, for his passage-money, also on the cargo : Wolf a. Summers, 2 Campb. 631 ; 
 How 17. Kirchner, II Moo. P. C. C. 34; but not for dead freight: Kirchner i>. Venus, 
 12 Moo. P. C. C. 360; Phillips v. Rodie, ij East 547. But as possession of the goods 
 is necessary to the right to lien attaching, where a charter-party amounts to a demise 
 the charterer has it to the exclusion of the owner : Belcher v. Capper, 4 M. & G. 502 ; 
 Paynter v. James, L. B. 2 C. P. 348; 16 L. T. N. S. 660 ; 18 L. T. N. S. 449 ; 15 
 W. R. 493 ; 16 W. R. 768 ; Glyn & Co. v. East and West India Dock Company, 
 7 App. Cas. 591 ; 52 L. J. Q. B. 146 ; 47 L. T. 309 ; 31 W. R. 201 ; Meyerstein v. 
 Barber, L. R: 4 H. of L. 317 ; 39 L. J. C. P. 187 ; 22 L. T. N. S. 808 ; 18 W. B. 
 1041. 
 
 As to lien for labour and shiU expended in preserving or improving chattels. — The 
 work must be done at the request, or by the rightful authority, of the owner of the 
 chattel : Hollis v. Claridge, 4 Taunt. 807 ; Oastellain v. Thompson, 13 0. B. N. S. 
 105 ; and must be completed : Pinnock ». Harrison, 3 M. & W^33 ; unless prevented 
 by the owner of the chattel himself: Lilley v. Barnsley, i C. & K. 344. It must be on 
 the actual thing on which the work was done : Steadman v. Hockley, 15 M. & W. 553. 
 This description of lien is favoured by law and construed liberally; per Parke, B., ^ 
 Soarfe v. Morgan, 4 M. & W. 283. But there is no lien where no additional value is 
 conferred. Thus an agister has none : Jackson v. Cummins, 5 M. & W. 342 ; and there 
 is none where the plaintiff has no right to demand payment as a condition of delivery : 
 
560 THE LAW OF NEGLIGENCE. [book ir. 
 
 Wells Laundering Company v. Hanlo, 59 Am. R. 496. There is no claim for taking 
 care of the chattels whilst so detained : British Empire Shipping Company v. Somes, 
 El. Bl. & El. 353 ; 8 H. L. C. 338 ; 30 L. J. Q. B. 229 ; 8 W. E. 707. 
 
 As to lien for a general halanee founded on labour and skill expended on chattels. — 
 In the ahsenoe of clear evidence of usage, there is no lien for a general balance in the 
 case of a carrier : Eushforth v. Hadfield, 6 East 519, 7 East 224. In other trades it 
 has been established : Kirkman v. Shawcross, 6 T. E. 14. Where it does exist the 
 general balance must arise from work done in the course of the same business in which 
 the goods whereon a lien is claimed are in the hands of those claiming : Weldon v. 
 Gould, 3 Esp. 268 ; Stevenson v. Blakelock, 1 M. & S. 535. 
 
 As to lien arising hj express contract. — This, says Tindal, C.J., is " the strongest 
 and surest ground upon whioh the right of lien can in any case be placed " :_ Small v. 
 Moates, 9 Bing. at p. 590. A special agreement will not exclude a right of lien unless 
 inconsistent with it : Chase v. Westmore, 5 M. & S. 180. A contractual lien may he 
 either particular or general : Kirkman v. Shawcross, 6 T. E. 14 ; but a carrier cannot 
 decline to carry goods except on the terms of having a lien for his general balance : 
 Addison, Contr. 4th edit. p. 1183. 
 
 As to lien for debts incurred in tJie course of business or trade. — An agent carrying 
 on business in his own name on behalf of his principal with the principal's capital has 
 a lien on all the property of his principal of which he has possession for what was done 
 in pursuance of the authority entrusted to him : Foxcraft v. Wood, 4 Euss. 487 ; 
 Bristowe v. Whitmore, 9 H. L. 0. 391. But an agent has no right of general lien 
 arising out of the mere relation of principal and agent : Bock v. GtoiTissen, 2 De G, 
 E. & J. 434. A factor has a lien for his general balance : Kruger v. Wilcox, Amb. 
 252. 
 
 As to lien arising from usage. — Where a custom has been frequently proved and 
 allowed to exist in any particular trade, the Court will not permit it to be disregarded : 
 Naylor v. Mangles, I Esp. 109 ; Spear v. Hartley, 3 Esp. 81. A notice by a body of 
 tradesmen that they will not work except on the terms of a general lien brought home 
 to the party is good : Kirkman v. Shawcross, 6 T. E. 14. A wharfinger has a lien for 
 a genera! balance due to him for freight and wharfage : The King w. Hnmphery, 
 M'Cl. & Young, 173, 185; but he can only claim iovlabowrage and icarelumse room 
 upon evidence of undisputed usage ; Holdemess v. Collinson, 7 B. & C. 212. An 
 auctioneer has a general lien : Eobinson v. Eutter, 4EI. & Bl. 954; 24 L. J. Q. B. 250. 
 As to a solicitoi-'s lien, see Story, Agency, § 383 and note. A broker employed to sell 
 has no lien : Baring v. Corrie, 2 B. & Aid. 137 ; Gurney v. Sharp, 4 Taunt. 242. 
 An insurance broker, by tlie custom of London, has a lien for both general balance 
 and premiums paid : Power v. Butcher, 5 Man. & Ey. 327 ; Levy «. Barnard, 8 Taunt. 
 149. Bankers have a general lien on all securities deposited by customers : In re 
 European Bank, Agra Bank claim, L. E. 8 Ch. App. 41 ; Johnson v. Eobarts, L. E. 
 10 Ch. App. 505 ; 44 L. J. Ch. 678 ; 33 L. T. N. S. 138 ; 23 W. E. 763. As to 
 effect of a special arrangement, In re Bowes, Earl of Strathmore v. Vane, 33 Ch. D. 
 586 ; 55 L. T. 260 ; 35 W. E. 695. Stockbrokers have a general lien : .Jones v. Pepper- 
 corne, Johns. 430. 
 
 As to lien created by statute. — This is generally designed to cover cases where the 
 possession is not with the consent of the owner of the property, or where exclusive 
 possession is impossible ; also in certain specially regulated relations — as, for example, 
 solicitors under 23 & 24 Vict. c. 127, s. 28. 
 
 As to loss and abandonment of lien. — If the possession be not continuous, the lien is 
 gone : Kruger v. Wilcox, Anib. 252 ; Dicas v. Stockley, 7 C. & P. 587 ; Hathesing v. 
 Laing, L. E. 17 Eq. 92, at p. loi. It will not arise in cases of fraud, misrepresentation, or 
 tortious seizure : Madden v. Kempster, I Campb. 12 ; Sunbolt v. Alford, 3 M. & W. 
 248. Where it existed, but the possession is terminated by fraud, the lien will revive 
 if possession be regained : Wallace v. Woodgate, R. & M. 193. A vendor's lien may 
 be waived (i) expressly, (2) impliedly — e.g., by taking a security payable at a future 
 day : Hewison v. Guthrie, 2 Bing. N. C. 755 ; Chambers v. Davidson, L. E. i P. C. 
 296 ; 36 L. J. P. C. 17 ; 15 W. E. 34 ; but it revives on non-payment of the bill : Miles 
 V. Gorton, 2 Cr. & M, 504 ; Grice v. Eichardson, 3 App. Cas. 319 ; Gnnn «;. Bolokow, 
 L. E. 10 Ch. App. 891 ; 44 L. J. Ch. 732 ; 32 L. T. N. S. 781 ; 23 W. E. 739. A 
 • vendor's lien is gone (i) if, having sold goods, he undertakes to keep them for a special 
 
 purpose : Elmore v. Stbne, i Taunt. 458 ; (2) i{, the goods being in possession of a third 
 person, he and the purchaser agree that they shall be held by him as agent for the 
 purchaser : Woodley v. Coventry, 2 H, & C. 164 ; 32 L. J. Ex. 185 ; 8 L. T. N. S. 249. 
 Harman «. Anderson, 2 Campb. 243. See Benjamin, Law of Sales, 4th edit. 812. Asto 
 what constitutes a delivery to prevent a stoppage in transitu, Lickbarrow v. Mason, 
 1 Sm, Lead. Cas. gth edit. p. 737 ; Kruger v. Wilcox, Tudor Lead. Cas. Merc, Law, 
 3rd edit. pp. 400 et seq. ; Brindley v. Cilgwyn Slate Company, 55 L. J . Q. B. 67. 
 A lien is gone (i) by tender of the debt : Martindale v. Smith, i Q. B. 389 ; {2) by 
 
PAET I.J BAILMENTS. 561 
 
 release, as by executing a composition deed : Cowpev v. Green, 7 M. & W. 633 ; (3) by 
 payment : Mornington v. "Wellesley, 4 Jur. N. S. 6 ; (4) by proof in bankruptcy : JUx 
 parte Hornby, Buck, Cases in Bankruptcy, 351 ; (5) by misconduct of the person 
 having the lien : Scott v. Newington, i M. & Eob. 252 ; (6) by setting up unjusti- 
 fiable claim : Boardman v. Sill, I Campb. 410, n. ; Jones v. Tarlton, 9 M. & W. 676 ; 
 Allen «. Smith, 12 C. B. N. S. 645 ; (7) by conduct from which abandonment is the 
 natural inference : £x parte Douglas, 3 Dea. & Chit. 310. But not (i) by set-off: 
 Pinnock v. Harrison, 3 M. & W. 532 ; (2) by part payment : Hodgson v. Loy, 7 T. E. 
 440 ; (3) by recovery in an action for goods sold : Honlditch v. Desanges, 2 Stark. 
 337. The mere taking of a security does not destroy the lien unless there is an 
 inconsistency between the taking it and the continnancy of the security : Angus v. 
 M'Lachlan, 23 Ch. D. 330; 52 L. J. Ch. 587 ; 48 L. T. 863 ; 31 "W. E. 641. 
 
 As to the lien of vendors of realty for unpaid purchase-money, see Mackreth- v. 
 Symmons, i White & Tudor, Lead. Gas. in Equity, 5th edit. p. 324. 
 
 As to lieu on deposit of title deeds, Eussel v. Eussel, i White & IViilor, Lead. Cas. 
 in Equity, 5tli edit. p. 726. 
 
 As to mercantile lien, Kmger v. Wilcox, Tudor Lead. Cas. Merc. Law, 3rd edit. 
 353- Generally as to lien see Chitty's Commercial Law, vol. iii. c. 11; Smith, 
 
 iercantile Law, gth edit. Book iv. c. 2, p. ^59; Benjamin, Sales, 4th edit. pp. 
 807-840. 
 
 L 
 
 N N 
 
CHAPTEE II. 
 
 COMMON CARRIERS, 
 
 General Considerations. 
 
 Definition. We have already incidentally considered the definition of a com- 
 mon carrier in discriminating a common carrier from a private 
 carrier for hire.' We shall now find on a closer investigation that 
 the differentia indicated by Alderson, B., in Ingate v. Christie'' — 
 that the business of carrying is for all persons indifferently and not 
 for a particular person — is that accepted in the most authoritative 
 definitions. Thus Story': "A common carrier has been defined 
 to be one who undertakes for hire or reward to transport the 
 goods of such as choose to employ him from place to place ; " and 
 Eedfield^: "To constitute one a common carrier he must make 
 that a regular and constant business, or at all events he must for 
 the time hold himself ready to carry for all persons indifferently 
 who choose to employ him." In Dwight v. Brewster," Parker, 
 C.J., defines a common carrier as " one who undertakes for hire 
 or reward to transport the goods of such as choose to employ him 
 from place to place. This may be carried on at the same time 
 with other business." In Fish v. Chapman^ it is said : " To con- 
 stitute a man a common carrier, the business of carrying must be 
 habitual and not casual. The undertaking must be general and 
 for all people indifferently. He must assume to be the servant of 
 the public ; he must undertake for all people." And, lastly, 
 Brett, J., in Nugent v. Smith'' : " The real test of whether a man 
 is a common carrier — whether by land or water — therefore really 
 
 1 Ante, p. 539. ently ") ; Upston v. Slark, 2 C. & P. 598 ; 
 
 2 3 C. & K. 61. Gilbart v. Dale, i Nev. & Per. 22. 
 
 3 Bailments, § 495. = i Pick. 50, at p. 53. 
 
 " Law of Carriers, § 19, citing Gietourn ' 12 Kelly 349, cited in judgment of 
 
 V. Hurst, I Salk. 249 (the definition in Brett, J., in Nugent v. Smith, 
 
 tills case is said by Gibson, C.J., in Gor- ' i C. P. D. 19, at p. 27. On this 
 
 don V. Hutchinson, i W. & S. 285, to be point the judgment is unaffected by the 
 
 the " best definition of a common carrier ; " judgment of Cookburn, C. J., iu the same 
 
 it V, " any man undertaking for hire to case in the Court of Appeal, i C. P, D, 
 
 cdrry the goods of all persons indififer- 423. 
 
PARTI.] COMMON CARRIERS. 
 
 563 
 
 common 
 ■ earners. 
 
 is, whether he has held out that he will, so long as he lias roonij 
 cai-iy for hire the goods of every person who will bring goods to him 
 to be carried. The test is not whether he is carrying on a public 
 employment, or whether he carries to a fixed place,' but whether 
 he holds out, either expressly or by a course of conduct, that he 
 will carry for hire, so long as he has room, the goods of all persons 
 indifferently who send him goods to be carried. If he does this 
 his fu'st responsibility naturally is that he is bound, by a promise 
 implied by law, to receive and carry for a reasonable price the 
 goods sent to him upon such an invitation." 
 
 A common carrier differs from a forwarding merchant in that How common 
 a forwarding merchant has no concern in the vehicle by which fromTi.)'a"or- 
 goods are sent, nor in the freight, and engages merely to cause wardjug mer- 
 goods to be forwarded to their destination for reward ;" and he warehouse- 
 differs from a warehouseman in that the warehouseman engages 
 merely for custody and not for transport.' Waggoners and Who are 
 teamsters ;■* coach-masters or proprietors of stage coaches (when , 
 they usually carry for all persons indifferently);* railway companies, 
 for goods which they profess to carry or actually carry ;" cartmen 
 and porters who undertake to carry goods for hire from one part 
 of a town or city to another;'' lightermen, hoymen,^ barge-owners, 
 ferrymen, canal boatmen, and the owners and masters" of ships 
 and steam- boats engaged in the transportation of goods for persons 
 generally for hire — all these are included under the designation 
 of common carriers,'" to the extent that they profess or are com- 
 pelled to carry. 
 
 ■ Compare Brind D. Pale, 8 C. & P. 207, Hob. 30, per Holt, C.J., 12 Mod. 410; 
 with Story's Comment, note to § 496 ; Dale v. Hall, i Wils. 281. 
 also the judgmentin Robertsons. Kennedy, ^ Mors i'. Slue, 2 Lev. 69. Varble v. 
 2 Dana 430: "Draymen, cartmen, and Bigley, 29 Am. 11. 435, held that the 
 porters who undertake to carry goods for owner of a tow-boat is not a common car- 
 hire as a common employment from one rier, dissenting from the Louisiana Courts, 
 part of the town to another come within See the judgment for an examination of 
 the definition ; so also does the driver of a the principles to be applied to the determi- 
 slide with an ox-team. The mode of nation of this question, 
 transportation is immaterial." ^^ Angell, Carriers, c. 4, Who are Com- 
 
 '■' Angell, Carriers, § 75. mon Carriers. In Loup v. Wabash Rail- 
 
 •' Story, Bailments, §§ 444-454. road Company, 56 Am. 374, it was held 
 
 ■• 2 Kent's Comm. 12th edit. pp. 598, that a railway company contracting to 
 
 599 ; Gisbourn v. Hurst, 1 Salk. 249 ; transport a menagerie in cars owned and 
 
 Hyde v. Trent Navigation Company, 5 controlled by the owner of the menagerie 
 
 T. R. 389. is not liable as a common carrier ; and 
 
 ^ Dwight V. Brewster, i Pick. 50; this on the ground that "the duty to re- 
 
 Middleton i\ Fowler, i Salk. 282; Story, ceive cars of other persons, when existing. 
 
 Bailments, § 500. is usually fixed by the railroad laws, and 
 
 " Palmer v. Grand Junction Railway not by the common law. But it is not 
 
 Company, 4 M. & W. 749 ; Crouch i\ incumbent on companies, in their duty as 
 
 London and North-Westem Railway Com- common carriers, to move such cars except 
 
 pany, 14 C. B. 255 ; Thomas v. Boston in their own rouline. They are not 
 
 and Providence Railroad Company, 51 obliged to accept and to run them at all 
 
 " ' iss. 472. times and seasons, and not in the ordinary 
 
 ' Story, Bailments, § 496. course of business." 
 
 " Rich V. Kneeland, Cro. Jac. 330; 
 
564 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Soman law. 
 
 Special 
 liability of a 
 carrier by tlio 
 Soman law 
 only in the 
 case of water 
 carriers. 
 
 Liver Alkali 
 Company v. 
 Johnson, , 
 
 By the Eomaii law carriers were held to the most exact 
 diligence, because they might reject or receive the goods tendered 
 to them for carriage at their option.^ If they received anything, 
 they were liable whether they received in person or by the master 
 of the vessel, or supercargo, or other person whatsoever to whom 
 the things were given in charge ; but only for those who were 
 authorized to receive goods in the way of business.' By the same 
 law, however, the carrier's (vedores or viatores) liability stopped 
 short of inevitable damage {davn/mmn fatcde)? 
 
 But the special liability of a carrier by the Roman law existed 
 only in the case of water carriers. " It is," says Cockbum, C.J.,* 
 " a misapprehension to suppose that the law of England relating 
 to the liabihty of common carriers was derived from the Roman 
 law ; for the law relating to it was first established by our Courts 
 with reference to carriers by land, on whom the Roman law, as is 
 well known, imposed no liability, in respect of loss, beyond that 
 of other bailees for reward." Historically, however, the liability 
 of a carrier by water in English law is derived from the liability of 
 land carriers ; this is pointed out by Cockbum, C.J., in the course 
 of the same judgment,^ which has already been quoted. " As 
 matter of legal history, we know that the more rigorous law of 
 later times, first introduced during the reign of Elizabeth, was in 
 the first instance established with reference to carriers by land, to 
 whom by the Roman law no such liabihty attached. K was not 
 till the ensuing reign, in the eleventh of James I., that it was 
 decided, in Rich v. Kneeland," that the common hoyman or carrier 
 by water stood on the same footing as a common carrier by land, 
 and rightly, for in principle there could be no difierence between 
 them." From this time, accordingly, it has. been held that there 
 is no distinction, as far as general principle goes, between a land 
 and a water carrier,' though there are particular developments of 
 principle in each case that require separate consideration. 
 
 So far we have dealt with the carrier of goods. 
 
 In the Liver Alkali Company v. Johnson' it was contended that 
 the character of a common carrier was not constituted unless he 
 held himself out as plying between particular places, or held him- 
 self out to go to some particular place and take all goods brought 
 him for the voyage. In that case the defendant was a barge- 
 owner, and let out his vessels for' the conveyance of any goods to 
 
 ^ D- 4, 9, i> § I. o»*«. P- 548. 
 
 2 D:4, 9,i,§§2,4, s;D.i4,i, I, §6. 
 Navem aecipere debemus sine marinam , 
 sive Jhmatuem, sive in aliquo stagno 
 naviget sive schedia tit. 
 
 8 b. 4, 9, 3, § I. 
 
 * Nugent V. Smith, i C. P, D. 423, at 
 
 p. 428 ; 4S L. J. C. P. 697 ; 34 L. T. N. S. 
 827; 25 W. E. 117. 
 
 » At p. 430. 
 
 " Cro. Jac. 330 ; Hob. 17. 
 
 ' Trent Navigation v. Wood, 3 Esp. 1 27. 
 
 * (1874) L. E. 9 Ex. 338; compare 
 Flautt V, Lashley, 36 La, An. 106, 
 
PARTI.] COMMON CAHRIEJRS. 565 
 
 any customers who applied. There were no fixed termini, which 
 were determined in each case by the customer. The majority of 
 the Court (Blackburn, J., deUvered the judgment) was of opinion 
 that the defendant " had the liability of a common carrier ;" but 
 did not " think it necessary to inquire whether the defendant " 
 was " a cajrier so as to be liable to an action for not taking goods 
 tendered to him." Brett, J., was of opinion that the defendant 
 " was not a common carrier," " because he does not undertake to 
 carry goods for, or to charter his sloop to, the first comer. He 
 wants, therefore, the essential characteristic of a common carrier ; 
 he is, therefore, not a common carrier, and therefore does not 
 incur at any time any liability on the ground of his being a 
 common carrier." 
 
 The decision in Li\«r Alkali Company v. Johnson was Soaife v. 
 mainly relied on by the plaintifE in Scaife v. Parrant,' also in 
 the Exchequer Chamber. There the defendant was the agent of 
 a railway company for collecting and delivering goods and parcels ; 
 he further carried on upon his own account the business of a 
 carrier, removing goods and furniture for hire for all persons who 
 applied to him, and in his own vans. Generally in such contracts 
 the van or vans were hired by, and filled with the goods of, one 
 person only. The plaintiff made an agreement with the defendant 
 to remove his furniture, the defendant " undertaking risk of 
 breakage (if any) not exceeding ;^S oii ^^J ^^^ article." While 
 the furniture was being removed under this contract, it was 
 burned, but without negligence on the defendant's part. The 
 plaintiff contended that Liver Alkali Company v. Johnson estab- 
 lished that the defendant was a common carrier, and so liable. But 
 the Exchequer Chamber held that the facts shewed the plaintiff 
 to have entered into a special contract, by the terms of which he 
 was bound ; and the fair construction of the agreement was that 
 the defendant was willing to undertake a particular casualty and 
 no other. Cockbum, C.J., intimated an opinion that the question 
 of what constitutes a common carrier " ought to be submitted to 
 further consideration." 
 
 In the following year, in Nugent v. Smith,^ in the Court of Nugent ». 
 Appeal, Cockbum, C.J., did examine into the authorities. After 
 noting that the Court of Appeal was bound by the judgment 
 
 ' (1875) L. E. 10 Ex. 358 ; 44 L.J. Ex. tender to him goods and the price of car- 
 
 234) 35 L. T. N. S. 278 ; 23 W. R. 840. riage, and insures these goods against all 
 
 ^ (1876) I C. P. D. 423. In this case loss hut that arising from the act of God 
 
 Cockbnm, C.J., cites Parsons' definition or the pnhlio enemy, and has a lien on 
 
 of common carrier (p. 427) — " One who the goods for the price of the carriage, 
 
 offers to carry goods for any person be- If either of these elements is wanting, we 
 
 tween certain termini and on a certain say the carriage is not a common carrier, 
 
 route. He is bound to carry for all who either by land or by water." 
 
566 THE LAW OP NEGLIGENCE. [book ii. 
 
 in Liver Alkali 'Jompany v. Johnson/ lie thus expressed his 
 own opinion: — '• 1 cannot help seeing the difficulty which stands 
 ia the way of the ruling in that case — namely, that it is essential 
 to the character of a common carrier that he is bound to carry 
 the goods of all persons applying to him, while it never has 
 been held, and, as it seems to me, could not be held, that a 
 person who lets out vessels or vehicles to individual customers on 
 their application was liable to an action for refusing the use of 
 such vessel or vehicle if required to furnish it. At all events, it is 
 obvious that, as the decision of the Court of Exchequer Chamber 
 proceeded on the ground that the defendant in that case was a 
 common, carrier,^ the decision is no authority for the position 
 taken in the court below that all shipowners are equally liable 
 for loss by inevitable accident." Prom this passage it may be 
 gathered that Cockburn, C.J., viewed the judgment of Black- 
 burn, J., in the earlier case, as introducing another than the 
 accepted elements iato the definition of a common carrier. It 
 may, however, be remarked that in the Court of Exchequer, in 
 Liver Alkali Company v. Johnson, judgment was given on the 
 ground that the defendant was within the terms of Story's 
 definition of a common carrier, and exercised a public employ- 
 ment " by means of numerous vessels, which he let to any one 
 who chose to hire them."^ If the judgment of the majority of the 
 Exchequer Chamber could be limited to the affirmance of this, no 
 difficulty would arise. It must, however, be admitted that there 
 are expressions in the judgment not confined to the facts that in 
 the particular case the defendant was exercising a public employ- 
 ment, but which led to the inference that the carrying on the 
 business of letting vehicles for the carriage of particular goods 
 would in law be held to be carrying on a pubHc employment, and 
 consequently, to be an exercise of the business of a common 
 carrier." At any rate, even if this were so, the nominal definition 
 of a common carrier need not be disturbed, though the notion of 
 what is comprehended under it may require to be extended. If 
 it is not so, then the view of Cockburn, C.J., would appear to 
 state the law, and the decision in Liver Alkali Company v. Johnson 
 would then be explained- on the facts fouild by the jury, and would 
 not have a wider application. 
 
 Another branch of a common carrier's business is to carry pas- 
 
 1 L. E. 9 Ex. 338. 3 Per Kelly, C.B., L, R. 7 Ex. 267, at 
 
 2 The decision scarcely goes so far as p. 269. 
 
 that ; only that he had " the liability of a * Compare Coggs v. Bernard, 2 Ld. 
 
 common carrier," to the exclusion of the Baym. 909, i Sm.Lead.Cas. 9th edit. 201; 
 
 question whether he would " be liable to Ingate v. Christie, 3 C. & K. 61 ; Ansell 
 
 an action for not taking goods tendered to v. Waterhouae, 2 Chit. i. 
 him " : per Blackburn, J., at p. 340. 
 
PARTI.] COMMON CARRIERS. 567 
 
 sengers for hire. This is a development of much later date than 
 his obligation to carry goods. For the first case reported in which 
 it was sought to recover damages by a person for an injury done to 
 him as a passenger was tried before Lord Kenyon in 1 79 1 , and 
 reported in Peake's Cas. 81 in 1795.' The liability arising 
 from the undertaking to carry passengers differs from that with 
 regard to goods, and must be independently considered. We 
 shall proceed, then, to consider common carriers, first, by land — 
 and in that relation as they are carriers (i) of goods, (2) of 
 passengers ; and then, secondly, common carriers by sea — and as 
 they are carriers respectively (l) of goods, (2) of passengers. In 
 the consideration of these different classes we shall, as far as 
 possible, consider those principles which are common to all the 
 subdivisions under that of carriers by land. 
 
 I. Common Cakrieks by Land. 
 I . Of Goods. 
 
 A common carrier, it has been said, dififers from a private 
 carrier,^ first, in respect of duty ; secondly, in respect of risk.' 
 
 First, as to duty. 
 
 A common carrier exercises a public employment, in which he Duty of 
 consequently has public duties to perform, so that he cannot, like carrier. . 
 an ordinary tradesman or mechanic, receive or reject a customer 
 at pleasure, or charge any price that he chooses to demand. If 
 he refuse to receive goods and to carry them according to the 
 course of his particular employment, and has no sufficient excuse 
 for what he thus does, he will be liable to an action. At the 
 same time he may only require reasonable compensation for his 
 services, and for the risks that they draw with them. Moreover, 
 at common law the carrier was not under any obligation to treat 
 all customers equally ; but if the customer, in order to induce the 
 carrier to perform his duty, paid under protest a larger sum than 
 was reasonable, he might recover back the surplus beyond what 
 the carrier was entitled to receive, in an action for money had and 
 received, as being money extorted from him.^ 
 
 It has been said^ that the carrier is liable in respect of his Carrier said 
 
 to be liable 
 
 ' White V. Boulton, Peake 81 ; referred ties Eailway Company, 27 L. J. C. P. 145 ; of his reward." 
 
 to by Hubbard, J., in Ingalk v. Bills, 50 and it may be recovered at common law 
 
 Mass. I, at p. 9. even when not paid under protest ; Parkfr 
 
 2 Angell, Carriers, § 67. v. Great Western Eailway, 7 M. & G. 
 
 ' Compare Code Napoleon, art. 1754; 253 ; Edwards w. Great Western Eailway, 
 
 Erskine's Institutes, pp. 591, 592, n. 1 1 C. B. 588 ; Heiserman 0. Burlington 
 
 * Per Blackburn, J., in Great Western Eailroad Company, 63 Iowa 732. 
 Eailway «. Sutton, L. fi. 4H. ofL. 226, at ^ Bac. Abridg. Carriers, B. Kiley v. 
 
 p. 237, and the fact of charging less to one Home, 5 Bing. 217 ; Morse v. Slue, T. 
 
 IS evidence that the greater charge is nn- Eaym. 220 ; i Vent. 238, at p. 290, per 
 
 reasonable : Baxendale v. Eastern Conn- Hale, C.J. ; Lane v. Cotton, i Salk. 143. 
 
568 THE Law Of NifiGLIGfiNGE. [book il. 
 
 reward, and this view has the sanction of Sir Edward Coke, who 
 says : " He hath his hire, and thereby implicitly undertaketh the 
 safe delivery of the goods delivered to him.'" But high though 
 the authority of Coke, C.J., or Holt, C.J., singly, is, and in con- 
 junction almost irresistible, in this case the law has been settled 
 in a way contrary to that indicated by them. For example, in 
 Forward v. Pittard,^ Lord Mansfield, 0. J., said : "It appears from 
 all the cases for a hundred years back that there are events 
 for which the carrier is liable independent of his contract. By 
 the nature of his contract he is liable for all due care and 
 diligence ; and for any negligence he is suable on his contract. 
 But there is a further degree of responsibility by the custom of 
 the realm — that is, by the common law, a carrier is in the nature 
 of an insurer ; "^ while Holroyd, J., said in Ansell v. Waterhouse,'' 
 a carrier's case : " This is an action against ' a person who, by 
 ancient law, held as it were a public office, and was bound to 
 the public. This action is founded on the general obligation of 
 Tattan ». the law ; " and, lastly, in the case of Tattan v. Great Western 
 Eaiiway Com- Railway Company,' a case on costs, and therefore keenly contested. 
 pany.i Blackbum, J., said: "Marshall v. York, Newcastle, and Berwick 
 
 Eaiiway Company ° is a distinct decision that it [an action against 
 a common carrier for the breach of his duty to carry goods 
 safely] is in substance no less than in form an action on the case." 
 The defendants there were held liable to the plaintiff, a servant 
 travelling on their line mth his master, who paid his fare, for the 
 loss of his luggage ; although not only was the declaration not 
 framed on a contract, but there was no contract with the plaintifE 
 on which it could have been framed. That is a conclusive 
 authority that a common carrier is liable to an action for a 
 breach of the duty imposed on him by the custom of the realm, 
 apart from any considerations of contract." It is, however, at 
 the option of every man whether he becomes a common carrier or 
 
 1 Co. Litt. 89 a. -with Govett v. Eadnidge, 3 JEast 62, and 
 ^ I T. E. 27. ending with Pozzi v. Shipton, 8 Ad. & B. 
 _ ^ Hyde v. Proprietors of Trent Naviga- 963, establishes that an action of this sort 
 tion, I Esp. 36. ia in snhstance, not an action of contract, 
 * 2 Chitty I. but an action ottort against the company 
 ' 2 E. & E. 844. Tattan v. Great West- as carriers. The earliest instance I find of 
 ern Railway was discussed in Baylis v. an action of this sort is in Eitzherbert's 
 Lintott, L. E. 8 C. P. 345, and distin- Natura Brevium, Writ de Trespass on the 
 guished in the Court of Appeal in Eleming Case, in which it is said : 'If a smith prick 
 V. Manchester, Sheffield, and Lincolnshire my horse with a nail, &o., I shall have an 
 Eaiiway Company, 4 Q. B. D. 81, as being action upon the case against him without 
 before the County Courts Act (30 & 31 any waiTanty by the smith to do it well ; 
 Vict. c. 142), s. 5. See Kerr v. Midland for it is the duty of every artificer to exer- 
 Great Western Ikilway, 10 Ir. C. L. Ap- cise his art rightly and truly as he ought.' 
 pendix, 45 ; Pontifex v. Midland Eaiiway There is no allusion there to any con- 
 Company, 3 Q. B. D. 23. tract": per Williams, J., at p. 663. 
 " II C. B. 655. "It seems to me that Foulkes ». Metropolitan District Eaiiway 
 the whole current of authorities, beginning Company, 4 C. P. D. 267 ; 5 C. P. D. 157. 
 
PAETi.] COMMON OAERIEHS. 569 
 
 not; i£ he does, he may limit his profession in what manner he 
 pleases, and may fix what prices he chooses to charge.' But, by 
 the common law as it stood before the Carriers' Act, 1830,^ as 
 soon as he has entered upon his duties in the manner and under 
 the regulations that he may have chosen to prescribe to himself, 
 while he so professes to carry on his business he is bound to 
 receive goods (and passengers if they are within the limits of his 
 profession) and carry them for a reasonable reward," and according 
 to the route which he holds out to the public, though it is not the 
 shortest or the most convenient ;^ and he can neither capriciously 
 in a single instance, nor by public notice seen and read by his 
 customer, nor even by special agreement, exonerate himself from 
 the consequences of gross neglect/ He may choose the kind of 
 conveyance he is to carry in, the times of transit, the mode of 
 delivery, the articles that he will profess to carry, and what price 
 he will have when he shall be paid. His duty to receive is 
 always limited by his convenience to carry,' but his liability is 
 not limited to England ; for if he holds himself out as a carrier 
 to some place without the realm, he becomes liable to an action 
 at the suit of any one for whom he may refuse to carry.' 
 
 Secondly, in respect of risk. 
 
 The common law with regard to this has been succinctly As to risk, 
 stated by Best, C.J., in Eiley v. Horne,« as follows: — "We|"^ey- 
 have estabUshed these points — that a carrier is an insurer of 
 the goods which he carries ; that he is obliged for a reasonable 
 reward to carry any goods to the place to which he professes to 
 cany goods that are offered him if his carriage will hold them 
 and he is informed of their quality and value ; that he is not 
 obliged to take a package the owner of which will not inform 
 him what are its contents, and of what value they are ; that if he 
 does not ask for this infonnation, or if, when he asks and is not 
 answered, he takes the goods, he is answerable for their amount, 
 whatever that may be ; that he may limit his responsibility as an 
 insurer by notice, but that a notice will not protect him against 
 the consequences of a loss by gross negligence."' This statement 
 
 1 2 Kent's Comm. 12th edit. p. 598. Taunt. 144; Newborn v. Just, 2 C. & P. 
 
 - 10 Geo. IV. & I Will. IV. 0. 68. 76. 
 
 ■> 2 Kent's Comm. 12th edit. p. 598 ; ^ Jackson v. Rogers, 2 Show. 327 ; Ox- 
 Harris V. Packwood, 3 Taunt. 271 ; Pick- lade v. North-Eastern Railway Company, 
 ford V. Grand Junction Railway Company, i C. B. N. S. 454 ; Johnson v. Midland 
 8 M. &W. 372. Railway Company, 4 Ex. 367. 
 
 * Hales V. London and North-Western ' Crouch v. London and North-Western 
 
 Railway Company, 4 B. & S. 66. As to sea Railway Company, 14 C. B. 255. 
 journeys, Leduc v. Ward, 20 Q. B. D. ^ 5 Bin^. 217, at p. 224. 
 
 475. ° This is laid down in Doctor and 
 
 ''Riley v. Home, 5 Bing. 217, per Student, dial. 2, c. 38. 
 Best, C.J., at p. 224 ; Smith v. Home, 8 
 
570 THE LAW OF NEGLIGENCE. [book ii, 
 
 has, however, been, contradicted in one respect, and expanded in 
 
 another by subsequent decisions, 
 (i) Denied as (i) It has teen contradicted with regard to the alleged right of 
 cai"mr to ^^^ carrier to refuse to take a package the owner of which will not 
 refuse to take inform him of its contents. The Court of Common Pleas con- 
 
 a'packag^e. 
 
 Crouch ?■. sidered this point in the case of Crouch v. London and North- 
 NorthVestem Western Railway Company,' and were of opinion that, as a general 
 '"an^'^*'' ^°™" "^1^1^ of 1^^' i* ■"'^■^ without " a shadow of authority to support it."^ 
 The Court, however, must not be misunderstood as denying that 
 there are cases, as of imperfect packing or fraudulent concealment 
 and the like, where the refusal of information of the contents of a 
 package would, in the event of loss sufEered by some casualty, 
 
 exonerate the carrier from liability. " But," says Maule, J., " to 
 
 say that the company may in all cases insist on being informed of 
 the nature and contents of every package tendered to them as a 
 condition of their accepting it seems to me to be a proposition 
 that is perfectly untenable." With this the rest of the Court was 
 in accord.' 
 Thenitro- . In a Celebrated American case* the plaintiff's premises were 
 g ycenne case. gj,gg^^jy injured by an explosion of nitro-glycerine, which was 
 being carried by the defendants without knowledge of its danger- 
 ous properties, and in the ordinary way of business. The question 
 raised was not whether the owner of the nitro-glycerine could 
 recover for the loss of the substance, but whether the innocent 
 owner of the premises had an action against the carrier, who was 
 ignorant of what he was carrying. The Supreme Court of the 
 United States was of opinion that notice of the dangerous substance 
 could not be imputed to the defendant, since, if it were, it would 
 involve a right to refuse packages offered for carriage without 
 knowledge of their contents, or a right to inspect the contents as 
 a condition of carriage. On the authority of Crouch v. London 
 and North- Western Railway' this position is held unsustainable. 
 The only righfc is to refuse to receive packages offered without 
 being made acquainted with their contents when there is good 
 ground for believing that they contain anything of a dangerous 
 character. When, then, there are no attendant circumstances 
 which should awaken suspicion there is no legal presumption of 
 knowledge, and consequently no liability for the consequences of 
 ignorance. 
 (2) Extended (2) It has been expanded with regard to the statement that if, 
 for*amouiit!^ when the carman asks and is not answered, he takes the goods, he 
 
 1 14 C. B. 2SS ; 23 L. J. C. P. 73. < The Nitro-glyoerine case, 15 Wall 
 
 2 Per Maule, .T., at p. 295. 524- 
 
 ' Per Jarvis, C.J., at p. 291 ; Cresswell, » 14 C, B, 291. 
 
 J., at p. 296 ; Williams, J., at p. 296. 
 
PARTI.] COMMON CARRIERS. 571 
 
 is answerable for their amount, whatever that might be, by the 
 
 case of Walker v. Jackson,' in the Court of Exchequer, where Walker o. 
 
 Parke, B., says': "I take it now to be perfectly well understood, ju°}g°g^t of 
 
 according to the majority of opinions upon the subject, that, if Parke, B. 
 
 anything is delivered to a person to be carried, it is the duty of 
 
 the person receiving it to ask such questions about it as may be 
 
 necessary; if he ask no questions, and there be no fraud to give 
 
 the case a false complexion on the delivery of the parcel, he is 
 
 bound to carry the parcel as it is. It is the duty of the person 
 
 who receives it to ask questions ; if they are answered improperly 
 
 so as to deceive him, there is no contract between the parties ; it 
 
 is a fraud which vitiates the contract altogether." The facts of 
 
 the case which elicited these remarks were : — There was a 
 
 delivery of a " light four-wheeled phaeton " to the defendant as 
 
 carrier, for which the plaintiff paid the regailar charge. The 
 
 carriage was safely placed on the defendant's ferry-boat, and 
 
 conveyed safely across the river, but on commencing drawing it 
 
 up the slip towards the quay on the other side, the defendant's 
 
 servants were overpowered by its weight, and it ran down into 
 
 the river, whereby jewellery and watches which were packed in 
 
 a box under the seat, and which much increased its weight, but 
 
 about which nothing was said, were injured. The Court held 
 
 that the plaintiff's right of action was unaffected by his failing 
 
 to disclose the fact of the watches and jewellery being contained 
 
 in the carriage. The principle involved here is not in any way 
 
 in conflict with that asserted in Gibbon v. Paynton,^ for there the 
 
 action of the plaintiff was misleading to the extent of being 
 
 actually fraudulent ; he put valuable property in an old nail-bag 
 
 stuffed with hay ; while in the present case the plaintiff appeared 
 
 to have not at all altered his normal mode of travelling. 
 
 Carriers are "insurers in all cases except two," says Lord papers. 
 Kenyon in Hyde v. Trent and Mersey Navigation Company ; " and all cases 
 in Thorogood v. Marsh,^ Dallas, C.J., says: "The general law ig«^»ptt^°- 
 clear. A common carrier is in every case an insurer against lire." 
 A fire caused by lightning is the only exception," and even when 
 the destruction of the goods was brought about by a high Avind 
 communicating a fire from a distance, the Court of Appeals of the 
 State of New York held the carrier liable.' But the carrier's 
 liability as an insurer is restricted, as we have seen, in two ways. Restrictions 
 and may be affected by certain other considerations, which we now liability. 
 proceed to discuss in order. 
 
 1 10 M. & W. i6i ; 12 L. J. Ex. 165. " Gow 105. 
 
 2 At p. 168. " Gatliffe v. Bourne, 4 I?ing. N. C. 314. 
 ' 4 Burr. 2299. ' Miller v. Steam Navigation Company, 
 * 5 T. R. 389, at p. 394. 10 N. Y. 431. 
 
572 
 
 THE. LAW OF NEGLIGENCE. 
 
 [book n. 
 
 (i) Act of 
 Go(- 
 
 }od. 
 
 Forward v. 
 Pittard. 
 
 M' Arthur ». 
 
 I. Speaking of the common carrier, Holt, O.J., in Coggs v. Ber- 
 nard,' says : " The law charges the person thus intrusted to carry- 
 goods against all events but acts of God and of the enemies of the 
 King. For though the force be never so great, as if an irresistible 
 multitude of people should rob him, nevertheless he is chargeable.' 
 And this is a politick institution contrived by the policy of the law 
 for the safety of all persons the necessity of whose affairs oblige 
 them to trust these sorts of persons, that they may be safe in their 
 ways of dealing ; for else these carriers might have an opportunity 
 of undoing all persons that had any dealings with them, by com- 
 bining with thieves, &c., and yet doing it in such a clandestine 
 manner as would not be possible to be discovered. And this is 
 the reason the law is founded upon it in that point." 
 
 To ascertain what class of losses are to be understood under the 
 term " act of God," it must be borne in mind that the casiis 
 fortuities^ of the civil law — what is termed in the common law 
 inevitable accident — ^is divided' into two classes ; the first com- 
 prehending those occurrences which are occasioned by the 
 elementary forces of nature unconnected with the agency of man 
 or other cause ; the second comprehending those which have their 
 origin either in whole or in part in the agency of man, whether 
 in acts of commission or omission, of nonfeasance or of misfeasance, 
 or in any other cause independent of the agency of natural forces. 
 A common carrier is not liable for inevitable accident in the first 
 of these senses, but he is liable in the second ;^ by the Koman 
 law he was liable in neither.* The strictness with which inevitable 
 accident in this second sense is excluded is illustrated by Lord 
 Mansfield, O.J., in Forward v. Pittard, where he mentions the 
 Gordon riots of 1780 as insufficient to excuse a carrier from 
 delivering goods received in the way of his business ; and an even 
 stronger case is put by Oowen, J., in M'Arthur v. Sears,* who 
 said : "1 believe it is a matter of history that inhabitants of 
 remote coasts accustomed to plunder wrecked vessels have some- 
 times resorted to the expedient of luring benighted mariners by 
 
 1 2 Ld. Kaym. 918 ; i Sm. Lead. Cas. 
 9th edit. p. 201. 
 
 2 See 9 Edw. IV. pi. 40. 
 
 * Casus fortuitus qiwdfato contingit, 
 cuivis diligenMssimo poseit contingere ; is 
 the definition of the civil law : see Kent, 
 C.J., in Colt V. M'Mechen, 6 Johns. 161 ; 
 and 3 Kent's Comtn. 12th edit. p. 217. 
 Also Casum fortuitum definitmts omne 
 qiwd humano cneptujarceaideri non potest, 
 neccuiprovisopotestreaisti. Casusfortidti 
 varii sunt : vetut a vi ventomm, turhinwm, 
 pluviarvm, grandinum, fulminum, (sstiis, 
 friqoris, et similium cakmitatvim qucB 
 ccditusimmittimtw. Nostri vim divinam 
 
 dixerjunt. Orceei Beov piav. Item nau- 
 Jragia, aqua/rwm inundationes, incendia, 
 mortes animalium, mince ceditim, fomdo- 
 rum chasmata, incv/rsus hoativ/m, pr(Bdo- 
 num impetus. His adds damna omnia, a 
 privatis illata qua quominus inferrentur 
 rniBd curd caveri potest: Vinnius, Part. 
 Juris, lib. ii. c. 66, cited by Cockburn, 
 C.J., Nugent v. Smith, i C. P. D. 423, at 
 p. 436- 
 
 * Forward v. Pittard, i T. E. 27, per 
 Lord Mansfield, C.J., at p. 34. 
 
 ^ See ante, p. 
 
 * 21 Wend. 190, at p. 198. 
 
PARTI.] COMMON CAERIERS. 573 
 
 false lights to a rocky shore. Even such a harrowing combination 
 of fraud and robbery would form no excuse." What amount and 
 character of intervention by natural agency would suffice to bring 
 a loss within the exception of " act of God " has been the sub- 
 ject of considerable difference of opinion. On the one hand, it has 
 been narrowed down to such direct and violent and sudden acts 
 of nature as could not by any amount of ability be foreseen, 
 or, if foreseen, averted.' On the other, it has been extended 
 to comprehend any sudden gust of wind working loss to a vessel 
 taken unprepared by it." For this latter view the case of Amies Amies r. 
 V. Stevens' was vouched, where a hoy going through a bridge ^'^''^■'^• 
 was driven against a pier by a sudden gust of wind, and sunk. 
 But the whole subject was elaborately investigated by the Court 
 of Appeal in Nugent v. Smith,'' where Cockburn, 0. J., adopted the 
 view of Story,* and discussing what are losses by perils of the sea, 
 was of opinion that they must arise from some overwhelming power 
 which cannot be guarded against by ordinary exertions of human 
 skill and prudence, and held that the same was equally true with 
 regard to acts coming within the designation of " acts of God ; " 
 and, therefore, all that could be required of the carrier was that 
 he should do all that was reasonably and practically possible to 
 ensure the safety of the goods. If, then, despite the resort to all 
 the means known to prudent and experienced carriers, a storm or 
 other natural agency works damage, the carrier is protected, 
 since the injury may then be said to come from the " act of God." 
 Mellish and James, L.JJ., desired to express their conclusion 
 in a proposition which they worded as follows: — "The ' act of 
 God ' is a mere short way of expressing this proposition. A com- 
 mon carrier is not liable for any accident as to which he can shew 
 that it is due to natural causes directly and exclusively without 
 human intervention, and that it could not have been prevented by 
 any amount of foresight and pains and care reasonably to be 
 expected from him."" 
 
 But the act of God will not always excuse from liability, Even act of 
 as where an Act of Parliament provides that in the event of ii°aiicase'B°' 
 damage occurring the liability should be discharged in any par- P''?'.^?' f™"* 
 ticular way the Act may indicate. This is pointed out by Lord 
 Cairns, C, in Eiver Wear Commissioners v. Adamson": "If a River Wear 
 
 Commissioners 
 V. Adamaon. 
 
 • Per Brett, J., Nugent v. Smith, i » See Nicholls ?;. Marsland, 2 Ex. D. 5 ; 
 C. P. D. 19. and per Fry, J., Nitro-phosphate and 
 
 ^ Per Spencer, J., Colt v. M'Meclion, 6 Odam's Chemical Manure Company v. 
 
 Johns. 160, at p. 165. London and St. Katharine Docks Com- 
 
 " I Str. 128. pany, 9 Ch. D. 503, at p. 516. 
 
 * I C. P. D. 424 ; 45 L. J. C. P. 697 ; "2 App. Cas. 743, at p. 750 ; 47 
 .34 L. T. N. S. 827 ; 25 W. E. 117. L. J. Q. B. 193 ; 37 L. T. 543. 
 
 ^ Bailments, § 512 a. 
 
574 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 (2) Acts of 
 the King's 
 enemies. 
 
 Pirates. 
 
 duty IS cast upon an individual by common law, the act of God 
 will excuse him from the performance of that duty. No man is 
 compelled to do that which is impossible. It is the duty of a 
 carrier to deliver safely the goods entrusted to his care ; but if in 
 carrying them with proper care they are destroyed by lightning 
 or swept away by a flood he is excused, because the safe delivery 
 has, by the act of God, become impossible. If, however, a man 
 contracts that he will be liable for the damage occasioned by 
 a pa]?ticular state of circumstances, I know of no reason why a 
 man should not be liable for the damage occasioned by that state 
 of circumstances if brought about by the act of God. There is 
 nothing impossible in that which, on such an hypothesis, he has 
 contracted to do, or which he is by the statute ordered to do — 
 namely, to be liable for the damages." 
 
 The law as thus stated is not there expounded for the first time, 
 but can be referred back as far as the case of Paradine v. Jane,' 
 where it is determined with equal distinctness. 
 
 2. The second exception to a common carrier's liability is for 
 acts " of the enemies of the King."^ 
 
 By "enemies of the King" are not to be understood mere 
 private depredators, who, in a sense, are at war with society, but 
 the public .enemies of the Sovereign of the carrier, whether that 
 Sovereign be an Emperor, a Queen, or a reigning Duke.' The 
 ground of this exception is probably the inability of process to 
 issue against the wrongdoer, and, as the King's Courts could not 
 assist the bailee to his remedy, so it was inequitable that they 
 should assist the bailor.* 
 
 Losses occasioned by robbers or rioters are not regarded as 
 losses by a public enemy, though there must be a time when riot 
 or insurrection may be merged in actual belligerency.* Public 
 enemies are not merely those who, being the agents of a de facto 
 Government, are engaged in war with the State of which the 
 carrier is a member," but the designation of public enemy is held 
 to include pirates;' and this held good in the civil law as well.^ 
 There is apparently a discrepancy in this, since robbery within 
 the realm is not an exception from the carrier's liability, and the 
 
 ^ Aleyn 26. 
 
 2 See Pickering v. Barclay, 2 Roll. 
 Abr. 248. 
 
 3 Eussell V. Nieman, 17 C. B. N. S. 
 163. 
 
 * Holmes, The Common Law, pp. 177, 
 201. 
 
 ' The Marshal of the Marshalsea, Year 
 Book, 33 Henry VI. pi. 3, cited by Holmes, 
 svipra, where it is laid down that if sub- 
 jects of the King broke a prison the jailor 
 would be liable, Tor they were not enemies, 
 
 but traitors, against whom the defendant 
 would by consequence have an action ; also 
 in Paradine v. Jane, Aleyn 26. A case 
 is cited in Story, Bailments, 8th edit.' 
 § 526, n., holding Confederate troops public 
 enemies within the meaning of the law; 
 but there is a wrong reference given. 
 
 * Gage V. Tirrell, 91 Mass. 299. 
 
 ' Story, Bailments, § 25. 
 
 ' Si quid Tiaufragio, oat per vimpira- 
 tarum perierit [non esse iniguwm excep- 
 tionem dari; D. 4, 2, 3, § i. 
 
PARTI.] COMMON CARRIERS. 575 
 
 definition of piracy' is the committing those acts of robbery and 
 depredation upon the high seas which, if committed upon land, 
 would have amounted to felony there." But the distinction has 
 probably arisen from the inability of any nation to keep a maritime 
 police to perform at sea like functions to its municipal police at 
 home; whence robbery on the high seas, from the greater facilities 
 for it and the less means of prevention against it, has come to be 
 differently regarded than robbery within the realm. Thus it is 
 that pirates have ever been regarded in the light of public enemies, 
 as Lord Bacon says^: Indubitatum sem^pcr fuit, hellunn contra 
 piratas geri posse per nationem quamquam, licet ab Us minimc in- 
 festatam et Iwsam. Vera cnim causa hiijus rei lime est quod piratce 
 covimums humani generis hostes sint; quos idcirco omnibus nationi- 
 bxis persequi incumhit nan tarn propter metus proprios quavi respectu 
 foederis inter Jwmines sociales. Sicut enim quwdam sunt fcedera 
 in scnptis et in tractatus redacta contra hostes particulares inita ; 
 ita naturalis et tacita confcederatio inter omnes homines intercedit 
 contra communes societatis humance hostes." 
 
 Mors V. Slue"* might, at first sight, seem an authority pointing Mors v. Slue, 
 the other way, and importing a liability on the part of the carrier 
 even in the case of loss from pirates. There the special verdict 
 found that the defendant's ship lay in the Thames with goods of 
 the plaintiff on board, and a sufficient number of men to look 
 after them, when, in the night, eleven persons, on pretence of 
 pressing seamen for the King's service, came on board and took 
 the goods. In an action to recover for the loss of the goods, it 
 was argued that the defendant was a common carrier, and so 
 obliged to keep the goods at his peril, to which it was answered 
 that, by the civil law, if goods were taken by pirates, the master 
 should not answer for them. Other points were taken in argu- 
 ment, and " the Court inclined strongly for the defendant, there 
 not being the least negligence in him,"* but subsequently Hale, Hale, c.J.'s, 
 C.J.,'' distinguished it from a case of hiring. " This case," said 'i'^""'"'°''- 
 he, " is not to be measured by the rules of the Admiral law, 
 because the ship was infra corpus comitatus." The fact that the 
 robbery was from a ship was thus not enough to constitute 
 piracy, but it was necessary that the crime to be so classed should 
 be committed on the high seas. 
 
 It is not, however, by yielding to every attack of a public 
 
 , Crimes, book ii. c. 8, s. i, p. ^ Dialogue, De Bello Saoro, 10 Bacon's 
 
 253. See United States|«. Smith, 5 Wheat. Works, edit. 1803, pp. 313,314; in Eiig- 
 
 153, a judgment by Story, J., and a note lish, Spedding's edition, vol. vii. p. 32. 
 
 displaying extraordinary learning and re- ■* I Vent. pp. 190, 238 ; T. Rayni.220. 
 
 search by the reporter. '' I Vent. 190 ; Barclay c. CiicuUa y 
 
 - The Magellan Pirates, 2 Ecc. & Ad. Gana, 3 Doug. 389. 
 
 81, at p. 84. " At p. 238. 
 
576 
 
 THE LAW OF NEGLIGENCE. 
 
 [book h. 
 
 enemy that a carrier is- able to excuse himself for the loss of 
 goods entrusted to him to be carried. If it be shewn that, 
 though the attack was by public enemies, he did not resort to 
 reasonable means of resistance, but at once yielded, he would 
 not be excused because his inadequate care was against public 
 enemies, any more than he would were it any ordinary and pre- 
 ventible evil. He is bound to use due diligence to prevent 
 destruction and loss. If the journey to be undertaken is a 
 hazardous one, it becomes the duty of the can-ier to provide a 
 man of good judgment to take charge of the goods, and in all 
 respects his duty then becomes identified with the general rule, 
 for the man so appointed is bound to act as an average prudent 
 man would do in the transaction of his own business, and that 
 ordinary diligence which the law demands must be judged of by 
 reference to the surroundings in which it is involved.' 
 
 3. The carrier is excused where loss or deterioration of the 
 goods arises from inherent defect in them. The law in England 
 was thus laid down in two almost simultaneous cases. Blower v. 
 Gi'eat Western Railway Company^ and Kendall v. London and 
 oS^Westem South-Western Eailway Company.' In the former a bullock 
 Eaiiway Com- delivered to the defendants to be carried escaped from the truck 
 
 pany, , ... 
 
 in which it was placed, and was killed, without any negligence on 
 
 (3) Where 
 loss or dete- 
 rioration of 
 goods arises 
 from inherent 
 defect. 
 Blower v. 
 
 Story, cited 
 by Willes, J, 
 
 the part of the defendants. Willes, J., in giving judgment, cited 
 with approval the passage dealing with the subject in Story on 
 Bailments," "where the authorities are all collected." " Although," 
 says Story, " the rule is thus laid down in general terms at the 
 common law, that the carrier is responsible for all losses not 
 occasioned by the act of God or of the King's enemies, yet it is to 
 be understood in all cases that the rule does not cover any losses, 
 not within the exception, which arise from the ordinary wear and 
 tear and chafing of the goods in the course of their transportation, 
 or from their ordinary loss, deterioration in quantity and quality 
 in the course of the voyage, or from their inherent natural in- 
 firmity and tendency to damage, or which arise from the personal 
 neglect or wrong or misconduct of the owner or shipper thereof. 
 Thus, for example, the carrier is not Hable for any loss or damage 
 from the ordinary decay or deterioration of oranges or other fruity 
 in the course of the voyage from their inherent infirmity or nature," 
 or from the ordinary diminution or evaporation of liquors," or the 
 ordinary leakage from the casks in which the liquors are put in 
 
 ^ Holladay v. Kennard, 12 Wall. 254. 
 
 2 L. R. 7C. P.6sS;4iL.J. C. P.268; 
 27 L. T. N. S. 883 ; 20 W. R. 77. 
 
 8 L. E. 7 Ex. 373 ; 41 L. J. Ex. 184 ; 
 26 L. T. N. S. 73S ; 20 W. E. 886. 
 
 * § 492 »• 
 
 ' See Ship Howard v. Wissman, 18 
 How (U. S.; 231, where the cargo was 
 potatoes. 
 
 " As to an imperfection in a bung for 
 wliich the carrier was held not liable, see 
 Hudson V. Baxendale, 2 H, & N. 575. 
 
PARTI.] COMMON CAREIEES. 577 
 
 the course of the voyage, or from the spontaneous combustion of 
 goods, or from their tendency to effervescence or acidity, or 
 from their not being packed by the owner or shipper ; for the 
 carrier's implied obligations do not extend to such cases."' In Kendall ». 
 the latter case plaintiff's horse was carried by the defendants in south* Western 
 the way of their business, and, at the end of the journey, was ^^i^^"'? Com- 
 found to be injured, without negligence on the part of the de- 
 fendants. The Court of Exchequer, after a verdict for the 
 plaintiff at the trial, directed the verdict to be entered for the 
 defendant. Bramwell, B., thus expressed the rule of law that 
 governs in cases of this class : — " There is no doubt in this case Judgment ot 
 that the horse was the immediate cause of its own injuries. That ^™™^^"' ^' 
 is to say, no person got into the box and injured it. It slipped, 
 fell, or kicked, or plunged, or in some way hurt itself. If it did 
 so from no cause other than its inherent propensities, ' its proper 
 vice' — ^that is to say, from fright, or temper, or struggling to 
 keep its legs — the defendants are not liable. But if it so hurt 
 itself from the defendants' negligence, or/any misfortune happening 
 to the train, though not through any negligence of the defendants, 
 as, for instance, from the horse-box leaving the line owing to some 
 obstruction maliciously put on it, then the defendants would, as 
 insurers, be liable. If perishable articles — say, soft fruit — are 
 damaged by their own weight and the inevitable shaking of the 
 carriage, they are injured through their own intrinsic qualities. 
 If through pressure of other goods carried with them, or by an 
 extraordinary shock or shaking, whether through negligence or 
 not, the carrier is liable."" In Nugent v. Smith,' in the Court of 
 Appeal, these two cases are referred to as authoritative ex- 
 positions of the law. Where, however, the- negligence of the 
 defendant or his servants has brought on the peril, the damage is 
 attributed to the breach of duty, and not to the vice." 
 
 In America the law is settled on similar lines, and is authorita- Law as 
 tively expounded in the cases of Nelson v. Woodruff' and The America? 
 Brig CoUenberg." The rule was thus stated in the Supreme Court 
 of the United States : "If the damage has proceeded from an 
 intrinsic principle of decay naturally inherent in the commodity 
 itself, whether active in every situation or only in the confinement 
 and closeness of the ship, the merchant must bear the loss as well 
 
 ' Compare Angell, CarrierB, §§ 210, them with liability when oil merchants of 
 
 211, 212, 214, 214 a ; Bedfleld, Railways, great experience were also ignorant. 
 
 3rd edit. vol. ii. p. 129. ^ i C. P. D. 423, at p. 443. 
 
 2 In Ohrlo'ff V. Briscall, L. R. i P. U. * Philips v. Qark, 2 _C. B. N. S. 156. 
 
 231, ignorance of shipowners as to the Gill v. Manchester Railway Company, 
 
 latent effect of heat in storing casks of oil L. B. 8 Q. B. 186. 
 
 with wool and rags was not held to affect ^ i Black. 156. ^ Ibid. 170. 
 
 
 
578 THE LAW OF NEGLIGENCE. [book ii. 
 
 as pay the freight."' This covers, not only loss by the decay of 
 fruit, as we have already seen,^ but also damage caused by the 
 effect of that condensation of vapour in the hold of a ship caused 
 by transition from a warm to a cold climate, and called " sweat." 
 In the event of this happening, if there is no defect in the ship or 
 its arrangements and navigation, the carrier is not liable.' Neither 
 is the carrier liable for loss caused by the operation of an inherent 
 tendency of some liquors to effervesce." 
 Eichardson». To this heading may be referred Richardson v. North-Eastern 
 Eftiiway.*^ ^"^ Railway.* A valuable greyhound was delivered to the servants 
 of a railway company, who were not common carriers of dogs. 
 At the time of the delivery the greyhound had on a leather collar, 
 with a strap attached to it. In the course of the journey it 
 became necessary to remove the greyhound from one train to 
 another, which had not come up at the time the dog was removed, 
 , While waiting, he was tied up to the platform of the company's 
 
 station, and, while so fastened, slipped his head from the collar, ran 
 on the line, and was killed. In the argument, a ruling of Lord 
 Ellenborough's, in Stuart v. Crawley," was much pressed on the 
 Court. There a servant of the plaintiff took a dog to the ware- 
 house of the defendant, who was a common carrier, to be carried. 
 The dog had a string about his neck, and the defendant's book- 
 keeper gave a receipt acknowledging the delivery. The dog was 
 afterwards tied by the cord to a watch-box, but, within half an 
 hour afterwards, slipped his head through the noose, and was lost. 
 It was sought to charge the plaintiff with negligence in not deliver- 
 ing the dog to the defendant's bookkeeper in a state of security ; . 
 and the case was sought to be assimilated to that of a' delivery of 
 goods imperfectly packed. Lord BUenborough, however, held the 
 defendants liable. " The case," he said, " was not like that of a 
 delivery of goods imperfectly packed, since there the defect was 
 not visible, but in this case the defendant had the means of seeing 
 that the dog was insuflQciently secured. After a coniplete delivery 
 to the defendant, he became responsible for the security of the dog; 
 the property then remained at the risk of the defendant, and he 
 was bound to lock him up, or to take other proper means to secure 
 him. The owner had nothing more to do than to see that he was 
 properly delivered, and it was then incumbent on the defendant 
 
 ^ Per Nelson, J., in Clark v. Barnwell, 563. See also the cases cited in Krie v. 
 
 12 How (U. S.) 282. The Freedom, L. R. Middle Dock Company, 44 L. T. 426. 
 3 P-^- S9S- ' L. R. 7 0. P. 75; 41 L. 3. C. P. 60; 
 
 2 The Brig CoUenherg, i Black. 170; 26 L. T. N. S. 131; 20 W. R. 461. 
 
 Ship Howard v. Wissman, 18 How 231. Harper v. North of Scotland Railway Cora- 
 
 ' Clark V. Barnwell, 12 How 272. pany, 23 Sc. L. R. 814. 
 
 * Warden v. Greer, 6 Watts 424. Com- ' 2 Stark. 323. 
 
 pare Johnson v. Chapman, 19 0. B, N. S. 
 
PABTi.] COMMON CARRIERS. 579 
 
 to provide for his security." In giving a considered judgment in "vraies, J.,'s 
 Eichardson r. North-Eastern Railway, Willes, J., pointed out ^'"^^"'™'- 
 that the facts were " obviously different," from what they were in 
 Stuart V. Crawley, as the greyhound was fastened by a strap, 
 which indicated that that was the thing by which it was to be 
 secured. "If it was negligence on the part of the guard to 
 fasten her by the strap, it was a negligence which was suggested 
 by the person who delivered her to him without notice that the 
 fastening was an unsafe one. There are, therefore, two important 
 distinctions between that case and the present : first, that there 
 the defendant was a common carrier, and here the defendants are 
 not; and, secondly, that, when the dog was delivered to the 
 defendant's servant, he had the means of seeing that it was insuffi- 
 ciently secured, whereas here the mode of securing the dog was 
 that which is ordinarily adopted — viz., by a collar and strap." 
 Though the first point, that the defendants were not common 
 carriers, would have been sufficient to have discharged them, without 
 neghgence — which, in the opinion of the Court, does not appear to 
 have been shewn — the second ground, that the course adopted 
 by the servant in fastening the dog up with a strap, that had the 
 effect of misleading, would have been sufficient, even had the 
 defendants been common carriers, to discharge them, on the 
 analogy of the cases, cited in Stuart v. Crawley,' of goods badly 
 packed ; and it is in that view that the case is here considered. 
 
 If, however, the defect in the packing were visible — as, for Viaible defect 
 example, if casks of wine or spirits were delivered in a manifestly ^'oiude 
 unsafe condition, so that, unless coopered, the contents would leak J^'^^.j^P' 
 out — the defendant would not be excused, for he is an insurer, and, 
 as such, is bound to deliver the goods in the state in which he 
 received them. But it is othenvise if there is no omission or 
 negligence on the carrier's part.^ Again, if the injury were partly 
 caused by the plaintiff's want of care, the defendant would not be 
 excused, though, in that case, it would have to be left to the jury 
 to consider what the effect on the damages would be.^ This case 
 differs from the case previously touched on, where negligence of 
 the defendant and the vice of a living animal co-operate to pro- 
 duce injury.*" There, if the negligence had been absent, the vice 
 might have been quiescent, and the plaintiff may recover for the 
 whole ; but, in the present case, the plaintiff's default would 
 
 ' 2 Stark. 323. Railway Company, 3 F. & F. 77 ; Bar- 
 
 ° Hndson v. Baxendale, 2 H. & N. 575 ; bour v. South-Eastem Eailway, 34 L. T. 
 
 27 L. J. Ex. 93. 67. 
 ' HigginLotham v. Great Northern Kail- '' Gill «. Mancbester Eailway Company, 
 
 way Company, 10 W. R. 358 ; 2 F. & F. L. R. 8 Q. B. 186 ; 42 L. J. Q. B. 89 ; 
 
 796; Cox V. London and North-Westem 28 L. T. >f. S. 587 ; 21 W. R. 525. 
 
580 THE LAW OF NEGLIGENCE. [book ii. 
 
 operate in any event, and hence should go in reduction of, though 
 it would not excuse, the defendant's liability.' 
 Perishable With regard to perishable goods so damaged by salt water that 
 
 ty'elu-^^i. they cannot be taken forward to the port of discharge so as to 
 earn the freight, it becomes the duty of the master to save and 
 dry the cargo, even as between himself and his owner, though the 
 expense of his performing the duty falls upon the cargo saved.^ 
 He is at liberty, on occasion arising, to trans-ship, and would be 
 protected if the jury found it to be the proper course of dealing 
 with the goods, but he is not bound to do so." And it has been 
 laid down generally that there is not merely a power, but a duty, 
 for the master, as representing the shipowner, to take reasonable 
 care of the goods entrusted to him, not merely in doing what is 
 necessary to preserve them on board the ship during the ordinary 
 incidents of the voyage, but also in taking reasonable measures to 
 check and arrest their loss, destruction, or deterioration by reason 
 of accidents, for the necessary effects of which there is, by reason 
 of the exception in the bill of lading, no original liability,* and, 
 in some cases, he may even be bound to sell,* as, for instance, 
 where they cannot be conveyed to their destination without an 
 expenditure in excess of their value.' 
 joiinson V. Under this head may also be noticed the case of Johnson v. 
 
 EaUway Com- North-Eastem Eailway,'' an action to recover a locomotive engine 
 pany. entrusted to the defendants to be carried by them, but during the 
 
 transit, which, by special contract, was on the engine's own wheels, 
 and under steam, a bolt gave way, and prevented it being for- 
 warded further by the method contracted for. The plaintiffs con- 
 tended that the defendants had undertaken the carriage, and, if 
 it could not be conveyed in the stipulated mode, it became the 
 duty of the defendants to forward it by some other mode. The 
 defendants contended that the break-down of the engine constituted 
 an exception to their duty to deliver, and this view was accepted 
 by the majority of the Court of Appeal — by Bowen, L. J., because 
 there was an implied exception to the duty of common carriers in 
 
 1 See as to improperly packed goods : Q. B. 225, at p. 235, per Willes, J. ; 41 
 
 Baldwin!). London, Chatham, and Dover L.J. Q. B. 158; 26 L. T. N. S. 442; 
 
 Eailway Company, 9 Q. B. D. 582. Com- 20 "W. R. 442 ; Tronson v. Dent, 8 Moo. 
 
 pare The Figlia Maggiore, L. R. 2 A. & P. C. 419. 
 
 E. 106 ; 37 L. J. Adm. 52 ; i8 L. T. N. S. = Australasian Navigation Company v. 
 
 532- Morse, L. R. 4 P. C. 222 ; 27 L. T. N. S. 
 
 3 Mordy v. Jones, 4 B. & C. 394 ; Phil- 357 ; 20 W. B. 728 ; Acatos v. Burns, 3 
 
 pott V. Swann, 1 1 C. B. N. S. at p. 281 ; Ex. D. 282 : 47 L. J. Ex. i;66 ; 26 W. B. 
 
 30 L. J. C. P. 358 ; S L- T. N. S. 183. 624. 
 
 s Per Patteson, J., Tronson v. Dent, 8 « Atlantic Insurance Company ». Huth, 
 
 Moo. P. C. 0. 417, at p. 455. 16 Gh. D. 474 ; 44 L. T. 67 ; 29 W. R. 
 
 * Cargo ex Argos, L.E. 5 P. C. 134, at 387. 
 
 p. 165 : 28 L. T. N. S. 745 ; 21 "W. R. '5 Times L. R. 68, 
 707 ; Notara v. Henderson, L. R. 7 
 
PARTI.] , COMMON CARRIEKS. 581 
 
 the case of inherent defects, and by Lord Esher, M.R., on the 
 ground that the contract was a special one, but that even then 
 there was an implied exception in the case that had happened. 
 The Lord Chancellor, however, dissented, holding, on the facts, 
 that the defendants were bound to make delivery. 
 
 4. The common carrier is not liable for loss of goods where the (4) Whore 
 goods are of a dangerous nature, or, being apparently safe, require, fdangerous 
 for any reason, special precautions to be used in their carriage, ™*™'«- 
 though not obviously so unless the fact of such dangerous or 
 special nature is communicated to him so that he may adopt the 
 necessary precautions.' 
 
 This amounts to no more than the principle of contributory 
 neghgence being applicable in the case of common carriers as it 
 is in other relations. Thus, where the owner of goods makes his 
 selection of the carriage they are to be conveyed in, or loads 
 them in a carriage allotted to him by the carrier, the carrier is 
 not liable for loss if, in the first instance, the loss arises from 
 defects in the carriage which were pointed out to him before 
 choosing,^ or if, in the second instance, the loss arises from defects 
 in the loading, which the owner of the goods has himself under- 
 taken,' for in both cases the act of the owner of the goods has 
 varied the duty that else the common law would have imposed. 
 As to this, a passage from the judgment of Willes, J., in Talley v. Willes, J., in 
 Great Western Railway Company'' is much to the point. He says,* Great Western 
 confining his remarks to the case of passengers' luggage, though p*^'^™^ ^°'^' 
 the principle is equally good for goods generally: " If the passenger 
 packed up articles liable to ignition by friction, and by the shaking 
 of the carriage they caught fire ; if a passenger were to look on 
 whOst his luggage was being taken away or rifled, when he might 
 be reasonably expected to interfere ; if he were to expose small 
 articles of apparent great value in a conspicuous part of the 
 carriage and leave them there while he unreasonably absented 
 himself, and they were in consequence purloined, he would have 
 no more just reason for complaint against the carrier than 
 if he had, upon some false alarm, thrown his property out of 
 the wiadow." And a little further on he states the principle 
 that comprehends all these cases : " There is, moreover, a general 
 principle applicable to these as to all bailments — viz., that the 
 
 ' Brass v. Maitland, 6 E. & B. 470 ; ^ Harris v. Northern Indiana Eailway, 
 
 26 L. J, Q. B. 49. See, per Blackburn, 20 N. Y. 232. 
 
 J., Eeadkead ii. Midland Eailway Com- ' East Tennessee Eailroad v. Whittle, 
 
 pany, L. E. 2 Q. B. 412, at p. 436; 27 Ga. 535. 
 
 Hntchinson v. Guion, 5 C. B. N. S. 149 ; ■• L. E. 6 C. P. 44 ; 40 L. J. C. P. 9 ; 
 
 28 L. J. C. P. 63 ; Alston v. Herring, 11 23 L. T. N. S. 413 : 19 W. E. 154. 
 
 Ex. 822 ; Pierce v. Winsor, 2 Sprague 35 ; ^ At p. 51. 
 Angell, Carriers, § 212, n. (c). 
 
582 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Railway 
 Clauses Act, 
 184s, s. los- 
 
 Ameilcau 
 decision. 
 
 Acatos V, 
 Burns. 
 
 (5) Where 
 there has been 
 fraud. 
 
 bailee shall not be heard to complain of loss occasioned by his own 
 fault." 
 
 By the Eailways Clauses Act, 1845, s. 105 (8 Vict, c. 20), 
 there is a statutory prohibition, imposing a fine of A 20 for its 
 violation, against ^sending goods of a dangerous nature without 
 distinctly marking the nature of the goods on the outside of the 
 package containing them, and giving notice to the carrier. But 
 where the sender has himself received the goods without a know- 
 ledge of their contents, and forwarded them without negligence 
 and without acquiring a knowledge of their contents, he is not 
 within the purview of the Act.^ 
 
 In America it has been held that a defendant is Hable to 
 answer in damages for putting on board contraband goods with- 
 out the knowledge of the owner, whereby a seizure of the plaintifE's 
 ship was brought about ; ^ and there seems no doubt on principle 
 that, where this is done without the knowledge or against the 
 orders of the shipowner, as in the case cited, it would be so ; but 
 it would be otherwise if the shipowner acted with knowledge and 
 without a special contract. 
 
 In Acatos v. Bums' it was contended that Brass v. Maitland^ 
 shewed there is a warranty by the shipper that the goods 
 shipped have no concealed defect at the time of shipment; 
 but the Court of Appeal negatived this, and distinguished that 
 yt&se on the ground that the nature of the danger was as much 
 known to the one side as to the other. The rule of law to be drawn 
 from that decision is thus stated in the head-note : — " Where 
 the owner of a vessel has an opportunity of examining goods , ,, 
 shipped on board of her, no warranty on the part of the owner of 
 the goods can be implied that they are fit to be carried on the 
 voyage." It is doubtful whether the expressions in the judg- 
 ments go further than, as above stated, that there is no warranty 
 that the goods shipped have no concealed defect, and whether 
 an opportunity of examining goods would in all cases be con- 
 clusive. 
 
 5. The common carrier is not liable for a loss where there has 
 been fraud on the part of the owner of the goods in the con- 
 stitution of the contract, " for the common law abhors fraud, and 
 will not fail to overthrow it in all the forms, whether new or old, 
 in which it may be manifested." As, then, the carrier incurs 
 
 ^ Hearne v. Garton, 2 E. & E. 66. As 
 to the restrictions on the carriage of dan- 
 gerous goods, see 36 & 37 Vict. 0. 85, 
 SB. 23, 28. As to gunpowder, &c., Ex- 
 plosives Act, 187s (38 Vict. c. 17) ; 39 & 
 40 Vict. c. 36, 8, 139 ; the Petroleum 
 
 Act, 1871 (34 & 35 Vict. c. 105), amended 
 by 42 & 43 Vict. c. 47. 
 
 '■^ Sparks v. West, i Wash. 238. 
 
 3 3 Ex. D. 282 ; 47 L. J. Ex. 566 ; 26 
 W. E. 624. 
 
 * 6 E. & B. 471 ; 26 L. J. Q. B. 49. 
 
PART I.] COMMON CARRIEES. 583 
 
 great responsibility by his business, so he has a right to look for 
 an amount of good faith from the owner of the goods that will 
 enable him to decide on the care that the charge of the goods 
 requires and the fair remuneration he should receive. The law on 
 this point dates back a great while — so long ago as 1649, when 
 the case of Keurig v. Eggleston' was decided. The plaintiff de- 
 Hvered a box to the porter of the carrier, saying " there was a 
 book and tobacco in the box," when in truth it contained ;^ioo 
 in money besides. Rolle, C.J., " directed that although the 
 plaintiff did tell him of some things in the box only and not of 
 the money, yet he must answer for it, for he need not tell the 
 carrier all the particulars in the box. But it must come on the 
 carrier's part to make special acceptance. But in respect to the 
 intended cheat to the carrier, he told the jury they might consider 
 him in damages; notwithstanding, the jury gave £gy against 
 the carrier, for the money only (the other things being of no con- 
 siderable value), abating £^ only for carriage. Quod durum 
 videhatur circumstantibus." As to which last remark, in Gibbon v. lord Mans- 
 Paynton," Lord Mansfield, C.J., said, as this was a case of fraud, in Gibbon"^" 
 he " should have agi'eed in opinion with the circumstantibus." '^^7^^^- 
 In Tyly v. Morrice,' two bags of money, sealed up, were delivered 5i^J.^ce 
 to the carrier, saying they contained £206, for which sum he 
 gave a receipt. The bags haviag been lost, the carrier paid the 
 £206 ; but it appeared that they really contained ;^450, for the 
 difference between which sum and the sum paid an action was 
 brought. The Chief Justice told the jury that, " since the plaintiffs 
 had taken this course to defraud the carrier of his reward, they 
 should find for the defendant." The cases are commented on bj' 
 Lord Mansfield, C.J., in Gibbon 'O. Paynton,'' where plaintiff sent Gibbon i-. 
 .^100 by the defendant's coach hid in hay in an old nail-bag. ^^^ °°" 
 " The bag and the hay arrived, but the money was gone." In 
 argument, the case of Titchburne v. White, tried at Guildhall by Titchbm-ne 
 King, C.J., was cited, where the Chief Justice held " that if a box 
 is delivered generally to a carrier and he accepts it, he is answer- 
 able though the party did not tell him there is money in it." Lord 
 Mansfield said : " This action is brought against the defendant 
 upon the foot of being a common carrier. His warranty and 
 insurance is in respect of the reward he is to receive, and the 
 reward ought to be proportionable to the risque. If he makes 
 a greater warranty and insurance, he will take greater care, use 
 more caution, and be at the expense of more guards or other 
 methods of security, and therefore he ought in reason and justice 
 
 ^ Aleyn 93. ' Carthew 485. 
 
 = 4 Burr. 2298. ' 4 Burr. 2300. 
 
584 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Miles V. 
 Cattle, 
 
 Orange 
 County Sank 
 V. Brown. 
 
 to have a greater reward. Consequently, if the owner of the goods 
 has heen guilty of a fraud upon the carrier, such fraud ought 
 
 to excuse the carrier And if he has been guilty of a 
 
 fraud, how can he recover ? Ux dolo malo non oritur actio." 
 
 In Gibbon v. Paynton' there was actual fraud. In Miles v. 
 Cattle,'' if the moral quality of the plaintiff's act was not quite the 
 same as that of the plaintifif in the earlier case — if the intention 
 to deceive was not so prominent — the effect on the defendant's 
 interests was similar, and the decision of the Court identical. The 
 plaintiff was entrusted with a ;^5o note to deliver to the defendant 
 for carriage. Instead of doing so, he slipped it into his own bag 
 of clothes, and thus deprived the carrier of the charge for booking. 
 The bag containing the note was stolen. It was held that he 
 could recover for the loss of the bag and the clothes, but not for 
 the note, since, in violation of his trust, " the plaintiff thought 
 proper not to deliver the parcel to the defendants, but to deposit 
 it in his own bag, thereby depriving the owner of any remedy he 
 might have had against the defendants in case the parcel had been 
 lost by them, and becoming himself a wrongdoer towards the 
 defendants by depriving them of the sum they would otherwise 
 have earned for the carriage of the parcel." 
 
 An American case of some authority, where the cases were 
 well considered — Orange County Bank v. Brown' — is similar to 
 Miles V. Cattle, and carries the principle there laid down even 
 further, though not beyond the boundaries of sound principle. 
 The plaintiff, a passenger by the defendants' boat — ^the defendants 
 were common carriers of passengers — had with him as baggage 
 an ordinary travelling trunk. In this, in addition to his clothing, 
 was a very considerable sum of money. The trunk and its con- 
 tents were lost. On action being brought, it was held that as a 
 passenger the plaintiff was merely entitled to have his "baggage"'' 
 conveyed. That the sum of money in the trunk could not be 
 regarded as baggage, and therefore the plaintiff could not recover, 
 because his conduct in' representing the trunk and its contents as 
 mere baggage, when in fact he was conveying a large portion of 
 very valuable property, was not fair, since it deprived the 
 defendants of the reward they were entitled to for the carriage 
 of such property, and exposed the carrier to greater risks than 
 he was prepared to encounter, and was only carried by him on 
 the terms alleged in so far as he was a victim to a deception 
 
 ' 4 Burr. 2298. 
 
 2 6 Bing. 743- 
 
 3 9 Wend. 8s 
 
 As to what ia " baggage,'" see Phelps 
 V. London and North-Westem Bailway 
 Company, 19 C. B. N. S. 321 ; Hudston v. 
 
 Midland Eailway Company, L. E. 4 _Q. B. 
 366 ; Macrow 11. Great Western Eailway 
 Company, L. E. 6 Q. B. 612, at p. 622 ; 
 Jordan v. Fall Eiver Eailroad Company, 
 59 Mass. 69. 
 
FAETi.] COMMON OAREIERS. 585 
 
 practised by the plaintiff. Thus, the law regards in the same view 
 conduct actually fraudulent and conduct the effect of which is 
 fraudulent by wilfully depriving the carrier of his rights, though 
 no actual dishonest intent may be consciously present/ 
 
 6. The common carrier is not liable for delay in delivery arising re) where 
 from circumstances beyond his control. The earliest case on this beyrad 
 point, Briddon v. Great Northern Railway Company,^ has been carrier's 
 explained as being referable to the "act of God." A heavy Briddon d. 
 snowstorm obstructed the defendants' line, so that the delivery of Northern 
 cattle was impeded. But it was admitted that " extraordinarv 5*'^™^ 
 effort "' would have enabled the delivery to have been made ; and 
 it was the opinion of the Court that extraordinary effort was not 
 in the circumstances to be expected from the company, whose 
 contract was only to carry " without delay and in a reasonable 
 time under ordinary circumstances." But in the following case 
 of Taylor v. Great Northern Railway Company^ delay took place Taylor f. 
 through the negligence of another company, who had running Northern 
 powers over the defendants' line. The county court iudge held Eaiiway 
 
 ConiDtiuv 
 
 the defendants responsible, but the Court of Common Pleas 
 reversed his decision, holding'' that " the first duty of a common 
 carrier is to carry the goods safely, and the second to deliver them, 
 and it would be very hard to oblige a carrier, in case of any 
 obstruction, to risk the safety of the goods in order to prevent 
 delay. His duty is to deliver the goods within a reasonable time, 
 which is a term implied by law in the contract to deliver ; as 
 Tindal, C. J., puts it when he says ' the duty to deliver within 
 a reasonable time being merely a term ingrafted by legal 
 application upon a promise or duty to deliver generally.'"^ 
 Baldwin v. London, Chatham, and Dover Railway Company" was 
 a case of delay, but the county court judge found " that the 
 proximate cause of the loss of the goods was the improper con- 
 dition in which they were packed, and not the delay." Had the 
 packing been proper, he would have had to find, as a question of 
 fact, whether the delivery was within a " reasonable " time after 
 the receipt.' 
 
 7. The common carrier may not be liable at common law where (7) ^^ certain 
 
 circumstances 
 where he has 
 1 The law of the United States is clear ' Wren v. Eastern Counties Eailway S'''«=^ i°''<='=- 
 
 on this point : 2 Kent's Comm. p. 603 ; Company, i L. T. N. S. 5. A contract 
 
 Eailroad Company v. Fraloif, 100 U. S. to cany goods by a given train does not 
 
 (10 Otto) 24. amount to a wairanty that the train will 
 
 "^ (1858) 27 L. J. Ex. 51. arrive at a particular hour : Lord v. Mid- 
 
 ' (i866)L.E. iC.P. 385; 3SL.J.C.P. laud Eailway Company, L. E. 2 C. P. 
 
 210. 339. A train arriving several hours late 
 
 ^ Per Byles, J., at p. 387. is primd facie evidence of unreasonable 
 
 ^ Eaphael v. Pickford, 5 M. & G. at p. delay in carrying goods, and demands 
 
 558. explanation : Eoberts v. Midland Eailway 
 
 ' 9 Q. B. D. 582. Company, 25 W, E. 323. 
 
586 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Smith V. 
 Home. 
 
 T'orwaid v. 
 Pittard. 
 
 Nicholson v. 
 Willan. 
 
 he has given a notice, communicated to the customer, that he 
 will only carry goods under certain conditions set out in the 
 notice.' By subsequent changes in the law a notice is not suffi- 
 cient ; there must now be a contract.^ " The doctrine of notice," 
 says Burrough, J., in Smith v. Home,' " was never known until 
 the case of Forward v. Pittard,* which I argued many years ago. 
 Notice does not constitute a special contract ; if it did, it must be 
 
 shewn on the record ; it only arises in defence of the carrier 
 
 I lamelit that the doctrine of notice was ever introduced into 
 Westminster Hall." The case of Forward v. Pittard was decided 
 in 1785, and the decision was against the carrier (though not on 
 the point of notice). In 1804, however, Nicholson v. Willan 
 was before the King's Bench.* The action was on a carrier's 
 common law liability for the loss of goods. The plea was Not 
 guilty, under which it was proved that the defendants had some 
 time before put up an advertisement in their office at Notting- 
 ham limiting "liability above ;^5 unless the goods were insured. 
 Lord Ellenborough said the practice of making a " special accept- 
 ance " had prevailed for a long time, and that there was " no 
 case to be met with in the books in which the right of a carrier 
 thus to limit by special contract his own responsibility had ever 
 been by express decision denied." ° It is here seen that Lord 
 Ellenborough treats "notices" and "special acceptances" as 
 identical. Moreover, in Kenrig v. Eggleston ;' in the note to 
 Southcote's case ;' ia Gibbon v. Paynton' by Tates, J. ; in Mors v. 
 Slue ; " in Catley v. Wintringham by Lord Kenyon, O.J.," the 
 validity of a special acceptance as a limitation of the carrier's 
 common law liability was distinctly recognized ; and the recog- 
 nition carries back the law of the subject to a very early period. 
 Notice as a form of special acceptance, it must be gathered from 
 the dictum of Burrough, J., was of much later introduction thau 
 special acceptance as a special and personal contract. Whatever 
 the earlier view may have been, there is no doubt that at the 
 time of Nicholson v. Willan any distinction there may have 
 originally been drawn between notices and special acceptances 
 had been abandoned, since in that case not only is there no 
 
 ^ Thorogood v, Mavsh, Gow 107. 
 
 3 II Geo. IV. & I Will. IV. c. 68. 
 
 ' 8 Taunt. 144, at p. 146. 
 
 '' I T. E. 27. In the case as reported 
 there is no allnsion to the point. 
 
 5 5 East 507. 
 
 ^ See Hanis v. Packwood, 3 Taunt. 264. 
 
 ' Aleyn 93. 
 
 8 4 Co. 84a. "It is good policy for 
 him who takes any goods to keep, to take 
 them in special manner, acH. to keep them 
 
 as his own goods or to keep them the best 
 he can at the peril of the party ; or if 
 they happen to he stolen or purloined, 
 that he shall not answer for them ; for he 
 who accepteth them ought to take them 
 in such or the like manner or otherwise 
 he may be charged by his general ac- 
 ceptance." 
 • * 4 Burr. 2299. 
 
 " I Vent, igo, 238. 
 
 " Peake N. P. C. 150. 
 
PARTI.] COMMON CARRIEES. 
 
 587 
 
 special plea of notice, but, further, no preof of the publication of 
 the notice. Lord Ellenboroiigh treats the fact of notice as 
 identical with a special acceptance. Save, then, that historically 
 special acceptances in the sense of individual contracts varying 
 the carrier's liability were of earlier origin than special accept- 
 ances 'indicated by notices, there seems no logical distinction 
 between them so far as their effectual working goes. A notice is Effect of 
 not to be considered as the public profession of the carrier, in °''*'°^- 
 which light Burrough, J., probably regarded it, since the public 
 profession was ex hypotJiesi that of common carrier, to which the 
 law aflSxes definite liabilities. The notice had nothing to do with 
 the public profession, but merely with details in the working of 
 it. It was not a limitation of the sphere of the carrier, but of 
 the method of acting within that sphere. Given the office of a 
 common carrier, the law affixed incidents, one of which was that 
 a special contract might be made. If, then, the common carrier 
 does not make a special contract, he would appear to continue 
 with the liability of common carrier, which is fixed by law. But 
 if the common carrier claimed a right to carry on his business 
 freed from the regulations of law, he would not be a common 
 carrier — i.e., a person with defined duties and responsibilities. 
 If he were a common carrier, and desirous of evading the full 
 onerousness of his duties as a common carrier, he could do it in 
 one mode, that is, by making a contract in any case on special 
 terms. Should it, then, be assumed that another class of 
 exceptions had sprung up, when they could with perfect pro- 
 priety be referred to an existing class ? However that may be, 
 in 1816 Lord Ellenborough, O.J., in Leeson v. Holt,' treated leeeon r. 
 "notices" and "special acceptances" as indistinguishable, and loid EHen- 
 operating as contracts. " If," says he, " this action had been ^?e™"o/'tii6 
 brought twenty years ago, the defendant would have been liable, '"■w- 
 since by the common law a carrier is liable in all cases except 
 two — where the loss is occasioned by the act of God, or of the 
 King's enemies using overwhelming force, which persons with 
 ordinary means of resistance cannot guard against. It was 
 found that the common law imposed upon carriers a liability 
 of ruinous extent, and, in consequence, qualifications and 
 limitations of that liability have been introduced from time 
 to time, till, as in the present case, they seem to have ex- 
 cluded all responsibility whatsoever ; so that under the terms of 
 the present notice, if a servant of the carrier's had in the most 
 wilful and wanton manner destroyed the furniture entrusted to 
 them, the principals would not have been liable. If the parties 
 
 1 I Stark. 186. 
 
588 THE LAW OF NEGLIGENCE, [book ii. 
 
 in the present case have so contracted, the plaintiff must ahide 
 by the agreement, and he must be taken to have so contracted 
 if he chooses to send his goods to be carried after notice of the 
 conditions. The question, then, is, whether there was a special 
 contract. If the carriers notified their terms to the person 
 bringing the goods by an advertisement which, in all probability, 
 miTst have attracted the attention of the person who brought the 
 goods, they were delivered upon those terms ; but the question in 
 these cases always is whether the deHvery was upon a special 
 contract." This may be termed the high-tide mark that the 
 doctrine of notice reached. The case was at Ifisi Frius, and 
 the views enunciated seem never to have obtained general accep- 
 tation amongst judges ; indeed, in no other case is the effect 
 of a notice stated with anything like the uncompromising 
 Hy(ie«. thoroughness with which it is here set out. In Hyde v. Pro- 
 
 rfTrenfand prietors of the Trent and Mersey Navigation, Mn 1793, Lord 
 Mersey Nayi- Kenyon, C.J., thus expresses his view: — "There is a difference 
 Lord Kenyon's where a man is chargeable by law generally and where on his 
 ™w t e contract. Where a man is bound to any duty, and chargeable to 
 a certain extent by the operation of law, in such a case he cannot 
 by any act of his own discharge himself; as in the case of com- 
 mon carriers, who are liable by law in all cases of losses except 
 those arising from the act of God or of the King's enemies, they 
 cannot discharge themselves from losses happening under these 
 circumstances by any act of their own, as by giving notice, for 
 example, to that effect. But the case is otherwise where a man 
 is chargeable on his own contract. There he may qualify it as 
 he thinks fit." Between these views there is no necessary con- 
 trariety. They may merely indicate different considerations 
 applicable in the case of a general and a special notice, and 
 probably this is the explanation of any divergency between the 
 View of Lord views that have been advanced. The two may be reconciled by 
 compared with Considering what stress must be laid on the notice to make it 
 LOTdKrayon constitute a contract. Lord EUenborough, it is true, requires 
 less. Lord Kenyon greater, stress, yet something akin to an 
 actual contract is required by both, and the mere fact of notice 
 would seem not suflScient ; for some time, at any rate, stress was 
 laid on the broader interpretation of Lord EUenborough, and the 
 mere publication of notice came to be looked on as sufficient, 
 so that it became the prevalent opinion that a carrier might 
 restrict his liability by a notice — that is, if brought home to his 
 employer — even though that notice was general and not sufficient 
 to constitute a special contract. So non-essential was any active 
 1 I B^p. 36. See also i T. E. 387. 
 
PARTI.] COMMON CARRIERS. 
 
 589 
 
 assent on the part of tlie consignor to create the binding agree- 
 ment, that it was, and remained, a matter of doubt and con- 
 troversy whether the operation of the notice was by creating a 
 limitation by the mere expression of the will of the carrier 
 stating the terms and conditions on which he did business and 
 the customer delivering goods to be carried having knowledge of 
 them, or as creating a contract between them.' The result of 
 this was that an absolute uncertainty as to the extent to which 
 the law permitted the carrier to excuse himself existed, that was 
 fruitful in litigation. The effect is thus stated by a writer of Summary of 
 high authority^ : " One carrier frees himself from responsibility for Beii'sTjom- 
 fire;' another, even from the common responsibility of the con-™™**"es. 
 tract for negligence.'' One man is bound by a notice which has 
 appeared in a newspaper lihat he has been accustomed to read ;'^ 
 another, because a large board was stuck up in the coach office ;" 
 while a third is freed from the effect of the notice in the office 
 because handbills were circulated of a different import.' Then it 
 is said : What if he cannot read ?^ or if he does not go himself, 
 but sends a porter, and he cannot read ? or what if he be 
 blind, and cannot see the placard ? And thus difficulties multiply, 
 the Courts are filled with questions, and the public left in 
 uncertainty." 
 
 But it was in all cases necessary that " effectual notice " should Effectual 
 be given. " The rule of law might be superseded in the particular giVe'n, 
 case by a special contract, since modus et conventio inncunt legem ; 
 but then such special contract must be proved, and whether it 
 exists or not is always a question for the jury."' 
 
 The decisions upon the fact, and the effect of notice and what Review of 
 acts or neglects avoided it, were conflicting and embarrassing ; a 
 review of some of the principal will be sufficient. There could, 
 however, be no doubt as to the correctness of the decision in 
 Beck V. Evans," one of the earliest, where the goods were a cask Beck v. Evans. 
 delivered to be carried by the defendant's waggon, when nothing 
 was said about the value. While on the road the cask was 
 perceived to be leaking, and the waggoner, though told, paid no 
 attention, so that the contents — ^brandy — was lost. Here the 
 
 ' See M'Manna v. Lancashire and York- ' A person who can read, and sends a 
 shire Bailway, 4 H. & N. 327 ; 27 L. J. servant who cannot read to sign a con- 
 Ex. 201. Per Lord Wensleydale, Peek v. tract note under 17 & 18 Vict. c. 31, s. 8, 
 North Staffordshire Bailway Company, 10 is in the same position as if he had signed 
 H. L. C. 473, at p. S74 : 32 L. J. Q. B. the note himself: Kirby w. Great Western 
 241 ; 8 L. T. N. S. 768 ; 11 W. E. 1023. Railway Company, 18 L. T. N. S. 658 ; 
 
 " I Bell's Comm. 7th edit. p. 503. Foreman v. Great Western Railway Com- 
 
 ' Having v. Todd, I Stark. 72. pany, 38 L. T. N. S. 851. 
 
 ' Leeson v. Todd, I Stark. 187. ' Per Lord EUenborough, C.J., Kerr v. 
 
 ' Ibid. Willan, 2 Stark. 53 • 6 M. & S. 150. 
 
 ' Clerk V. Gray, 4 Esp. 177. Davis v. Willan, 2 Stark. 279. 
 
 ' Cobden v. Bolton, 2 Campb. 108. " 16 East 144. 
 
590 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Levi V. 
 Waterliouse. 
 
 Judgment of 
 
 Thompson, 
 
 C.B. 
 
 Bodeuham v. 
 Bennett, 
 
 conduct of the waggoner was negligence of the grossest, such as 
 would have fixed even a gratuitous bailee with Kability, and 
 consequently he was held answerable. In Levi v. Waterhouse' 
 the point was of more difficulty. A silversmith at Exeter 
 delivered to the defendant's under-bookkeeper, at the mail-coach 
 office there, a brown-paper parcel, enclosing two hundred guineas, 
 and addressed to London. The under-bookkeeper knew the value 
 of the contents, yet he booked it, and signed a receipt for it, and, 
 moreover, caused it to be put in the bankers' bag for greater 
 safety. The parcel was lost. The carrier had given a special 
 notice. Gibbs, C.J., ruled that mere knowledge of the value did 
 not waive the notice ; and this was affirmed in the Court of 
 Exchequer. The decision of the Court of Exchequer does not 
 place the case so high as it would appear to be from other portions 
 of the report, where it is expressly said it was "proved that the 
 bookkeeper knew the value " of the contents of the parcel ; while 
 the judgment of Thompson, O.B., is : " It appears that the book- 
 keeper might have inferred that the parcel was one of value, but 
 nothing was distinctly said about the actual value, nor did he 
 undertake that the notice should be dispensed with. He did not, 
 therefore, warrant its safe conveyance ; and on that ground we 
 think the direction correct." The decision would be distinctly 
 correct on the ground put by the Court of Exchequer ; nor would 
 it be less so if the facts were as stated in the report, on the ground 
 that an under-bookkeeper could not be considered entitled to vary 
 the published conditions of his master's business.^ That the deci- 
 sion must not be vouched for more than this may be gathered from 
 a succeeding case in the same Court,^ where a valuable parcel was 
 sent, which was usually carried by the coachman in his side-pocket. 
 When the coach arrived at its destination the bookkeeper unloaded 
 it, received the way-bill, took two parcels out of the front seat of 
 the coach, but did not inquire for the plaintiff's parcel, since it was 
 usually carried by the coachman (who on the day in question was 
 intoxicated), from whom he, therefore, ought to have asked it 
 The judge at the trial left to the jury the question whether there 
 had been gross negligence, which they found ; and the Court 
 refused to disturb the verdict, being of opinion that there was 
 gross negligence ; in which event the fact of the notice did not 
 exonerate from liability. This decision was sought to be dis- 
 tinguished in Batson v. Donovan,* on the ground that the 
 
 1 I Price 280. 
 
 " Slim J). trreatNorthern Railway Com- 
 pany, 14 C. B. 527 ; 23 L. J. C. P. 160. 
 Compare Page v. Great Northern Bailway, 
 Ir, B. 3 C. L. 228; and Anderson v. 
 
 Chester and Holyhead Railway Company, 
 4 Ir. C. L. R. 435, 440. 
 
 ' Bodenham v. Bennett, 4 Price •?!. 
 
 ^ 4 B. & Aid. 21, ^ 
 
PART I.] COMMON CARKIERS. 591 
 
 defendant's bookkeeper had knowledge of the contents. In that 
 view it would conflict with the earlier decision ; since there the 
 Court laid stress on the fact that the under-bookkeeper in that 
 case did not " undertake that the notice should be dispensed 
 with ; " and, secondly, " it did not appear that the plaintiffs knew 
 of the notice." As to this the report says : " The learned judpe 
 stated to the jury the common law liability of carriers, and that 
 they might stipulate to restrain it by notice ; that they had given 
 such a notice in this case," &c. Thirdly, " the Court thought that 
 the parcel was carried beyond its destination, which would make 
 it a case of misfeasance." Reference to the report will shew that, 
 though the Court inclined to the probability of this view being 
 the correct one in fact, it was not the view on which their 
 judgment was based. Indeed, it must have been considered 
 immaterial, else it would have been left to the jury. Batson v. Batson v. 
 Donovan was decided by the majority of the Court on the ground 
 that there was a duty to inform the carrier of the contents of the 
 parcel, and failure in this was equivalent to fraud, as in the case 
 of Gibbon v. Paynton.' There was also a second ground of 
 decision — that the conduct of the defendant did not amount to 
 gross negligence ; but, as the case was decided on the first point, 
 much stress was not laid upon this. The view of Best, J., Best, J.,'3 
 which seems the sounder,^ was that there was no obligation to ^" ^"^^ ' 
 communicate to a carrier, unasked, what the contents of a parcel 
 are, since if he makes inquiry he may either know and take 
 what extra precautions are necessary, or, being misled, if loss 
 occurs may be exonerated on the score of fraud or misconduct. 
 In Marsh v. Horne^ the facts were the same as in Levi v. Water- Marsh r. 
 house, and there was distinct knowledge on the carrier's part °™''' 
 that the value of the goods exceeded ;^5 — the limit in his notice. 
 The King's Bench, following that case, in a considered judgment 
 adopted the rule that knowledge of value alone on the defend- 
 ant's part was no waiver of the condition in a communicated 
 notice. In Brooke v. Pickwick,"* in the Common Pleas, it did Brooke ?-. 
 not appear that the plaintifE was apprised of the carrier's notice 
 Umiting liability, and he was therefore held entitled to recover 
 against the carrier under the common liability as an insurer. The 
 case is interesting, however, for an expression of opinion by Best, 
 O.J. : " I wish that these notices had never been holden sufficient Best, c.J.,'s 
 to limit the carrier's responsibility. It is too late, however, now to i^'^sment. 
 hold that they are without effect where the customer is distinctly 
 informed of their existence. But, though the judges have holden 
 
 ' 4 Burr. 2298. "' 5 B. & C. 322. 
 
 - Crouch j;. London and North-Western '' (1827) 4 Bing. 218. 
 
 Railway Company, 14 C. B. 255. 
 
592 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 Macklin v, 
 Waterhouse. 
 
 Eiley v. 
 Horno. 
 
 Law in 
 America. 
 
 Nelson, J., in 
 New Jersey 
 Steam Navi- 
 gation Com- 
 pany «. 
 Merchants' 
 Bank. 
 
 that they will in such a case exempt the carrier from his common 
 law responsibility as an insurer, it has never been decided that 
 they will excuse him from the consequences of gross negligence. 
 If the jury find that there was gross negligence — and they 
 could not find otherwise under the circumstances of this case, 
 the trunk having been lost at midday — it is immaterial whether 
 the carrier has been apprised of the value of the article or not. 
 He must have supposed in the present instance, from the size of 
 the trunk and jbhe condition of the passenger, that it was worth 
 more than ;^5 ; and where is the line to be drawn if passengers 
 are always to disclose the exact value of their luggage ? It would 
 be dangerous to extend to cases of gross negligence the doctrine 
 of modern law that a carrier is not liable as an insurer where 
 
 he has given notice to limit his responsibility I must 
 
 continue, therefore, to retain the opinion I expressed in Batson v. 
 Donovan till the twelve judges decide I am wrong." In Macklin 
 V. Waterhouse' the same Court decided that a notice that the 
 proprietor of a general coach oflSce will not be responsible for the 
 carriage of parcels of more than £$ value unless entered as such 
 will not avail the proprietor of a coach who takes a parcel from 
 the office unless it be otherwise shewn that he is connected with 
 the office ; and, further, that the carrier's agent telling the female 
 servant of the owner of a parcel that it ought to be insured is not 
 a sufficient notice of the limitation of responsibility ; while in 
 Eiley v. Home, decided at the same time, it was held that where 
 there is a notice limiting liability for one journey it must be held 
 to apply to the return journey. 
 
 In America the law was somewhat differently construed, and 
 continued to adhere more nearly to the common law strictness of 
 interpretation. The rule laid down in the American decisions is 
 expressed by Nelson, J., in New Jersey Steam Navigation Com- 
 pany v. Merchants' Bank'': "He [the carrier] is in a sort of 
 public office, and has public duties to perform, from which he 
 should not be permitted to exonerate himself without the consent 
 of the parties concerned. And this is not to be implied or in- 
 ferred from a general notice to the public limiting his obligation, 
 which may or may not be assented to. He is bound to receive 
 and carry all the goods offered for transportation, subject to all 
 the responsibilities incident to his employment, and is liable to 
 an action in case of refusal. And we agree with the Court in 
 Hollister v. Nowlen' that if any implication is to be indulged 
 from the delivery of the goods under the general notice, it is as 
 
 I (1828) S Bing. 212. 2 6 How (U. S.) 344. 
 
 ' 19 Wend, 234; Cole v. Goodwin, 19 Wend. 251. 
 
PAKTT.] COMMON CAERIEES. 593 
 
 strong that the owner intended to insist upon his rights and the 
 duties of the carrier as it is that he assented to their qualifica- 
 tion. The burden of proof lies on the carrier, and nothing short 
 of an express stipulation by parol or in writing should be per- 
 mitted to discharge him from duties which the law has annexed 
 to his employment. The exemption from these duties should not 
 depend upon implication or inference founded on doubtful or 
 conflicting evidence, but should be specific and certain, leaving 
 no room for controversy between the parties." 
 
 The preponderance of American authority seems to be in favour 
 of the following propositions : — 
 
 1. It is competent for a common carrier to limit his common 
 law liability by special agreement with the owner of the goods,' 
 provided the limitation be such as the law can recognize as 
 reasonable and not inconsistent with sound policy." 
 
 2. He is jiot j^ermitted to exonerate himself from liability for 
 his own negligence or the negligence of the agents^ whom ho 
 employs to perform the carriage," but is responsible for ordinary 
 neglect — that is, for want of ordinary diligence — notwithstanding 
 a contract to exonerate him.* 
 
 3. He may, however, enter into a contract by which the subject- 
 matter of the goods to be carried by him may be taken at an 
 agreed valuation, beyond which sum he will be exonerated from 
 liability even against his own negligence.'* 
 
 In 1830 Parliament intervened, and, by the Carriers' Act (i i TheCaniers' 
 Geo. IV. & I Will. IV. c. 68), placed the law on a certain footing. ' ^ 3 ■ 
 This Act, by sec. i, provides that no common carrier by land" for 
 hire shall be liable for the loss of,' or any injury to, any gold or 
 silver coin, gold or silver in a manufactured or unmanufactured state, 
 precious stones, jewellery, watches, clocks, time-pieces, trinkets," 
 
 ' 2 Eedfield, Eailways, p. 93 ; 2 Par- and South-Wcstera Kailway Company, 
 
 aons, Law of Contracts, pp. 233, 237, n. L. R. i Q. B. 54; 35 L. .1. Q. B. 40; 
 
 -Express Company v. Caldwell, 21 13 L. T. N. S. 325 ; 14 W. E. 80 ; Pian- 
 
 Wall. (IT. S.) 264. ciani v. London and Soutli-AVestern Kail- 
 
 " Grace v. Adams, i Am. B. 132; way Company, 18 C. B. 226. 
 
 M'Kinney »•. .Tewett, 24 Hun. 19. ' As to the detention, Hearn W.London 
 
 *2 Redfield, Eailways, pp. 9S-108; and South-Western Eailway Company, 10 
 
 2 Parsons, Contracts, p. 247, n. Ex. 793 ; 24 L. J. Ex. 180 ; as to the 
 
 ■' Angell, Carriers, §§ 54, 268 ; Chris- temporary loss, Millen v. Brasch, S 
 
 tensoni'.Araerican Express Company,2 Am. Q. B. D. 35, (C. A.) 10 Q. B. D. 142; 
 
 11. 122 ; Shriver r. Sioux City Eoad Cora- 52 L. J. Q. B. 127 ; 47 L. T. 685 ; 31 
 
 pany, 31 Am. E. 353; Montgomery Eail- W. E. 190; as to taking beyond their 
 
 road Company v. Culver, 51 Am. E. 483. destination, Morritt c. North-Eastern Eail- 
 
 " Hall V. Pennsylvania Kailroad Com- way, i Q. K D. 302 ; 45L. J. Q. B. 289 ; 
 
 pany, 112 U. S. (5 Davis) 331. 34 L. T. N. S. 940 ; 24 W. R. 386. 
 
 ' The Act applies, though the carriage ' Ivory, black and agate bracelets, 
 is partly by water, in so far as the con- shirt pins, gilt rings, brooches, tortoise- 
 tract is by land : Baxendale v. Great shell purses, glass smelling-bottles, are 
 Eastern Bailvvay, L. E. 4 Q. B. 244 (Ex- trinkets : Bernstein v. Baxendale, 6 C. B. 
 chequer Chamber) ; 38 L. .J. Q. B. 137 ; N. S. 251 ; 28 L. .T. C. P. 265 ; 7 W. E. 
 17 W. I!. 412; Le Conteur v. London 396; so are ivory fans : Attorney-General 
 
 P P 
 
594 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Seution 2. 
 
 Bection 3. 
 
 bills, bank-notes, orders, notes or securities for payment of money,' 
 stamps, maps, writings, title deeds, paintings,'' engravings,' pic- 
 tures," gold or silver plate or plated articles, glass,' cHna, silks 
 manufactured or unmanufactured, wrought up or not wrought up 
 with other materials," furs,' or lace, contained in any parcels' or 
 package' when the value exceeds the sum of ;^io, unless at the 
 time of delivery at the office, warehouse, or receiving-house" of 
 such carrier, or to his bookkeeper, coachman, or other servant, 
 the value and nature of such article or articles shall have been 
 declared," and the increased charge, or an engagement to pay the 
 same, accepted by the person receiving the parcel. 
 
 By section 2 common carriers, on' the delivery of such parcels or 
 packages exceeding the value oi £10 and so declared as aforesaid, 
 may demand an increased rate of charge, to be announced by a 
 notice in legible characters affixed in the office,'^ and persons sending 
 parcels are to be bound by such notice without further proof of 
 the same having come to their knowledge. 
 
 By section 3 carriers shall, if required, give a receipt for the 
 
 V. Harley, 5 Euas. 173, 174; but not an 
 eye-glasB with a gold chain attached to it 
 for the purpose of being worn round the 
 neck, Davey v. Mason, Car. & M. 45, 
 
 ^ A document in the form of a bill of ex- 
 change, accepted, but with no drawee, and 
 found by the jury to be of no value, is not 
 within these words : Stoessiger v. South- 
 Eastern Eailway Company, 3 E. & B. 
 549 ; 23 L. J. Q. B. 293. 
 
 ^ Woodward v. London and North- 
 western Eailway Company, 3 Ex. D. 121 ; 
 47 L. J. Ex. 263; 38 L. T. 321; 26 
 W. E. 354. 
 
 3 Boysw. Pint, 8C. &P. 361. 
 
 * Anderson v. London and Nortli-West- 
 ern Eailway Company, L. E. 5 Ex. 90; 
 39 L. J. Ex. 55 ; 21 L. T. N. S. 756 ; 
 18 -W. E. 352. 
 
 ^ Owen V. Burnett, 2 C. & M. 352. 
 The same case decides that "articles of 
 great value in a small compass " spoken 
 of in the preamble does not limit the 
 enactment to articles of small size. 
 
 ' Davey v. Mason, Car. & M. 45. See 
 Bernstein v. Baxendale, 6 C. B. N. S. 
 251 ; Brunt u. Midland Eailway Company, 
 2 H. & C. 889 ; Flowers v. South-Eastern 
 Eailway Company, 16 L. T. N. S. 329. 
 
 ' Mayhew v. Nelson, 6 C. & P. 58. 
 "Hat bodies" made partly of the soft 
 substance taken from the skin of rabbits 
 and partly from the wool of sheep do not 
 come within the description of " furs." 
 
 ' Treadwin ■». Great Eastern Eailway 
 Company, L. E. 3 C. P. 308; 37 L. J. 
 C. P. 83 ; 17 L. T. N. S. 601 ; 16 W. E. 
 365. See Carriers Amendment Act, 1865 
 (28 & 29 Vict. i;. 94). 
 
 ° A waggon containing articles of the 
 
 kind mentioned in the section, but open at 
 the top so that the company can see what 
 the articles are, is a parcel or package : 
 Whaite v. Lancashire and Yorkshire Eail- 
 way Company, L. E. 9 Ex. 67 ; 43 L. J. 
 Ex. 47 ; 30 L. T. N. S. 272 ; 22 W. E. 
 
 374- 
 
 1" Syms V. Chaplin, 5 Ad. & E. 634. 
 
 '^ If the value and nature of the articles 
 is declared, the common law liability re- 
 vives whether the carrier demands an in- 
 creased charge or not : Behrens v. Great 
 Northern Eailway Company, 6 H. & N. 
 366, 7 H. & N. 950 ; 8 L. T. N. S. 328 -^ 
 10 W. E. 389. It is a question of fact 
 for the jury whether the goods in ques- 
 tion are within the meaning of the sec- 
 tion: Brunt «. Midland Eailway Company, 
 2 H. & C. 889 ; 33 L. J. Ex. 187; 9 
 L. T. N. S. 690 ; Woodward v. London 
 and North- Western Eailway Company, 3 
 Ex. D. 121. The value is the price the . 
 consignee is to pay, not the price at whichr 
 the consignor bought : Blankensee v. Ijoh- 
 don and North-Western Eailway Company^ 
 45 L. T. 761. 
 
 '^ For form of notice, Owen v. Burnett, 
 2 0. & M. 353. A formal notice of the 
 nature of the goods is not necessary if the 
 value is, in fact, brought to the knowledge 
 of the company, so that they may fix the 
 additional charge if so minded : Bradbury 
 V. Sutton, 19 W. E. 800, 21 W. E. 128. 
 The notice should be in such large char-. 
 acters that a person delivering goods at 
 the office could not fail to read it without 
 gross negligence : Clayton v. Hunt, 3 
 Campb. 27 ; Butler v. Heane, 2 Campb. 
 415- 
 
PABT I.] 
 
 COMMON CARRIERS. 
 
 595 
 
 parcel, acknowledging the same to have been insured, which 
 receipt shall not be liable to any stamp duty, and carriers who 
 do not give such receipt when required, or affix the proper 
 notice, are not entitled to the benefit of this Act, but shall be 
 responsible as at common law and liable to refund the increased 
 charge. 
 
 By section 4 carriers cannot by a notice^ limit their liability Soctiou 4. 
 at common law to answer for the loss of any articles in respect 
 whereof they are not entitled to the benefit of this Act. By Section 5. 
 section 5 every office of such common carrier shall be deemed a 
 receiving house f any one proprietor shall be liable to be sued, and 
 no action shall abate for the want of joining any co-proprietor. 
 By section 6 special contracts are excepted from the operation of Section 6. 
 the Acts. 
 
 By section 7 persons entitled to damages for parcels lost or Section 7. 
 damaged may recover the extra charge for insurance. By section Section 8. 
 8 a common carrier shall not be protected by this Act from 
 liabihty to answer for losses arising from the felonious acts of 
 servants in his employ ; or to prevent the servant himself answer- 
 ing for his own misconduct.^ By section 9 the declared value Section 9. 
 of a parcel is not conclusive against the carrier ; and by section 
 
 ^ Tliis means a public notice : Walker 
 ■». York and Xoitli Midland EaiKvay, 2 
 E. & B. 750, where Loi-d Campbell, C.,T., 
 says, at p. 759 : " It seems to be contended 
 that, since the statute II Geo. IV^. & 
 1 1 Will. IV. c. 68, it is not lawful to 
 make n. special contract limiting the lia- 
 bility of a can-ier ; but I am clearly of 
 opinion that the Legislature had no such 
 intention, and that such is not the opera- 
 tion of the Act. Seclicn 4 in i^ffect says 
 that a carrier shall not limit his liability 
 merely by apuhlic notice, but leaves it open 
 to him to limit his liability by a special 
 contract." See, too, per Wightman, J. ; 
 23 L. J. Q. B. 73. 
 
 - Burrell v. North, 2 Car. & K. 680 ; 
 Daveyj). Mason, Car. & M. 45 ; Williams 
 1'. Gesse or Jessey, 3 Bing. N. C. 849 ; 
 
 7 C. & P. 777 ; 5 Scott, 56 ; Boys v. Pink, 
 
 8 Car. & P. 361. 
 
 * InMachuj). London and Soul h-Western 
 EaiUvay Company, 2 Ex. 415 ; 17 L.J. 
 Ex. 271. " Sei-vant" is not confined to a 
 seiTant in the strict sense of the word, 
 but includes a person employed, not di- 
 rectly, but through his employer's em- 
 ployment ; Syms v. Chaplin, 5 Ad. & E. 
 634 ; where goods are received by the 
 agent of two companies, without indication 
 as to which he receives them for, they are 
 not received for either until the agent 
 makes up his mind, but from that time 
 they are held for that he determines : 
 Stephens v. London and South- Western 
 
 Railway Company, (C. A.) 18 Q. B. D- 
 121 ; 56 L. J. Q."B. 171 ; 56 L. T. 226 ; 
 35 W. E. 161 ; where a felony is set up as 
 an answer to a defence under this Act, the 
 question of negligenceis immaterial : Great 
 Western Railway Company v. Rimell, 18 
 C. B. 575 ; 27 L. .1. C. P. 201 ; Metcalfe 
 V. London and Brighton Railway Com- 
 pany, 4 C. B. N. S. 307 ; 27 L. J. C. P. 
 333. It is enough for the plaintiff to make 
 onl, a, prima facie ca,&a\ if this is left un- 
 answered, plaintiff is entitled to snccced : 
 \^aughton v. London and North- Western 
 Railway Company, L. R. 9 Ex. 93 ; 43 
 L. J. Ex. 75 ; 30 L. T. N. S. 119 ; 22 
 W. E. 336 ; M'Quecn v. Great Western 
 Railway Company, L. R. 10 Q. B. 569 ; 
 44 L. J. Q. B. 130 ; 32 L. T. N". S. 759 ; 
 23 AV. E. 698. But mere shewing that 
 goods have been delivered to the company, 
 and lost, or a portion abstracted, is not 
 sufficient : Great Western Railway Com- 
 pany V. Eimell, and Metcalfe v. London 
 and Brighton Eailway Company, supra. 
 See Gogarty ?;. Great Southern and West- 
 em Eailway Company, Ir. E. 9 C. L. 233 ; 
 Turner i\ Great AVestern Eailway Com- 
 pany, 34 L. T. N. S. 22. As to evidence 
 admissible, see Kirkstall Brewery Company 
 V. Furness Eailway Company, L. R. 9 
 Q. B. 468 ; 43 L. J. Q. B. 142 ; 30 L. T. 
 N. S. 783 ; 22 W. R. 876. Brett v. Great 
 Western Railway Company, 1 1 C. B. 140, 
 was not within the statute. 
 
596 
 
 THE. LAW OF NEGLIGENCK 
 
 [book II. 
 
 Fatteson, J.,'s 
 summary of 
 the Aat in 
 Baxendale v. 
 Hart. 
 
 Special con- 
 tract after the 
 Act. 
 
 lO money can be paid into court with the same effect as money 
 paid into court in any other action.^ 
 
 In the Exchequer Chamber in Baxendale v. Hart, Patteson, J.,^ 
 thus sums up the effect of the Act : — " The meaning of the Legis- 
 lature is, that all persons sending goods of a particular description 
 and value, whenever they deliver them to the carrier are bound to 
 give information of the nature and value of the articles. That is 
 the I st clause ; and the object of the Legislature was, that such 
 information shall be given whether the goods were delivered at 
 the office of the carrier, or at the vendor's house, or on the road, 
 or elsewhere ; and clauses follow with certain provisions as to 
 what is to be then done. Although the value and nature of the 
 articles may be declared, it does not necessarily follow that the 
 carrier would be protected ; but a different clause must be acted 
 on before his liability ceases. However, the first step to be taken 
 is that the sender of the goods notify their value ; then it is that 
 the carrier is entitled to have a larger charge. He cannot have 
 that larger charge, or save himself from responsibility, by saying, 
 I will have such a sum of money, but he must have a tariff stuck . 
 up in his office to notify to all persons sending articles of that 
 kind what he proposes to demauid beyond the usual charge. The 
 notice required by the 2nd section to be affixed in the office is 
 not a notice that the carrier means to avail himself of the benefit 
 of the Act, and that all persons who send articles of a particular 
 value shall tell him that they are of that description and value, 
 for the statute requires that in the first instance ; but it is only a 
 notice of what the extra charge is to be." 
 
 Further, from the date of the coming into force of the Act a 
 mere general notice ceased to have any operation as a pubUc con- 
 dition or public declaration, and, in order to give a notice any 
 effect, it had to be incorporated in a special contract. This 
 special contract was different from the contract that in the view 
 of some was effected by means of a general notice. Its scope 
 was with reference to goods sent on fecial terms — ^in the accurate 
 use of the word special applying to contracts, properly so called, 
 made with particular persons in the usual way by mutual bargain — 
 
 1 The summary of the Act is substan- 
 tially that in Smith's Mercantile Law, 
 gth edit. pp. 279, 280. 
 
 2 6 Ex. 769, at p. 789 ; 21 L. J. Ex. 
 123. The carrier loses the benefit of the 
 Act if, after declaration of value, he receives 
 the goods without demanding the extra 
 charge : Behrens v. Great Northern Eail- 
 way, 6 H. & N. 366, 7 H. & N. 950 ; 31 
 L. J. Ex. 299 ; 8 L. T. 328 ; 10 W. B. 389. 
 And he has an insurable interest in goods 
 
 the value of which has not been declared 
 in accordance with the Act : London and 
 North-Western Railway v. trlyn, 28 
 L. J. Q. B. 188. Every person actually 
 engaged in the perlbrmaiioe of the contract 
 of can-ia^e and delivery is a servant of the 
 cairier within the 5lh section, though not 
 strictly so within the meaning of Quarman 
 V. Burnett, 6 M. & \V. 499 : Martin v. 
 South-Western Bailway Company, 2 Ex. 
 415. 
 
PARTI.] COMMON CAEEIEHS. 597 
 
 where, for instance, provision was made for the protection of goods 
 
 in any individual case from wet during the journey, for a reduction 
 
 of charge in consideration of quantity, or to the ascertainment of 
 
 value, or for notice of damage, and not with regard to terms, 
 
 differing, indeed, from the terms implied by the common law, but 
 
 terms imposed on all persons with whom the carrier had dealings 
 
 by means of a public and general notice. As to the conditions 
 
 that might be imposed by this special agi-eement there has been 
 
 considerable conflict of authority. By the common law, common 
 
 carriers are bound to cari-y for all persons who apply, and for 
 
 a reasonable reward, unless they have a reasonable excuse for 
 
 refusing to do so.' So that, in the event of a special contract being 
 
 made, its interpretation nominally is that, having the right to 
 
 insist on the performance by the carrier of his common law duty, 
 
 the consignor had elected to waive this right and substitute a 
 
 contract more to the mind of the parties. This nominal freedom 
 
 of choice became ever more and more illusory as the business of 
 
 a common carrier was concentrated more and more in a limited 
 
 number of powerful corporations, who were able absolutely to 
 
 dictate the acceptance of what terms they pleased, on pain of 
 
 practically prohibiting carriage on any other terms. But there 
 
 were certain limitations beyond which they were not permitted to 
 
 go. Story, J., writing in 1832, thus states the limit at that limitations to 
 
 date^ : — " It is to be understood that common carriers cannot by m^di^ 
 
 any special agi-eement exempt themselves from all responsibility ti?a^°t'*as°'' 
 
 so as to evade altogether the salutary policy of the common law. stated by 
 
 They cannot, therefore, by a special notice exempt themselves 1832. ' ' 
 
 from all responsibility in cases of gross negligence and fraud, or, 
 
 by demanding an exorbitant price, compel the owner of the goods 
 
 to yield to unjust and oppressive limitations of their rights. And 
 
 the carrier will be equally liable in case of the fraud or misconduct 
 
 of his servants as he would be in case of his own personal fraud 
 
 and misconduct." As to this statement of the law, Blackburn, J., Bkckburn, 
 
 in Peek v. North Staffordshire Eailway Company,' is of opinion the change 
 
 that, though this was the law in 1832, between that time and J," j'^^J^'^jg^^ 
 
 1854 a contrary rule gradually came to be established by the a^d 1854. 
 
 cases, and that at the time of the passing of the Eailway and 
 
 Canal Traffic Act, 1854, the decisions had come to hold that a 
 
 1 Benett v. Peninsular Steamboat Com- duty : per Martin, B., Carr v. Lancashire 
 
 pany, 6 C. B. 775. Story, Bailments, and Yorkshire Eailway, 7 Ex. 707; 21 
 
 §591. No doubt at common law a carrier L. J. Ex. 261. 
 
 may enter into a special contract. He ' Bailments, § 549. 
 
 may, it is true, be bound to carry goods, ' 11 H. L. C. 473, at p. 494 ; 32 L. J. 
 
 and, if he refuses to do so except on the Q. B. 241 ; 8 L. T. N. S. 768 ; 11 W. E. 
 
 terms of a special contract, he may subject 1023. 
 himself to an action for a breach of that 
 
598 
 
 THE LAW Of NEGLIGENCE. 
 
 [book u. 
 
 Wyid V. 
 Fickford. 
 
 Judgment of 
 Parke, B. 
 
 Hinton v. 
 Dibbin. 
 
 earriei? mlglit by a special contract limit his responsibility, even 
 in the case of gross negligence, misconduct, or fraud on the part 
 of his servants. 
 
 This change is to be traced through a series of cases, the 
 
 first of which to notice is Wyld v. Pickford,' decided on demurrer. 
 
 The first count of the declaration charged the defendants with a 
 
 breach of duty as carriers in not taking proper care of maps that 
 
 they had received for carriage. The second count was trover. 
 
 To the first count there was a plea setting out that the plaintiffs 
 
 had notice that the defendants would not be responsible for loss 
 
 and damage to maps unless insured and paid for at the time of 
 
 the delivery to the defendants, and that the defendants accepted 
 
 on this condition. There was a similar plea to the second count, 
 
 setting out that the conversion was a mis-delivery through mistake 
 
 and inadvertency. To these pleas there was a demurrer. Parke, B., 
 
 in delivering judgment, said : " If the notice furnishes a defence, 
 
 it must be either on the ground of fraud or of a limitation of 
 
 liability by contract, which limitation it is competent for a carrier 
 
 to make, because, being entitled by common law to insist on the 
 
 full price being paid beforehand, he may, if such price be not 
 
 paid, refuse to carry them upon the terms imposed by the common 
 
 law, and insist upon his own, and if the proprietor of the goods 
 
 still chooses that they should be carried, it must be on those 
 
 terms. And probably the effect of such a contract would be only 
 
 to exclude certain losses, leaving the carrier liable, as upon the 
 
 custom of England, for the remainder." The conclusion to be 
 
 drawn is that a condition or declaration was considered to operate • 
 
 only as being incorporated in a special contract on the plea to the 
 
 count in trover. The judgment was for the plaintiff, and this 
 
 because on the balance of the authorities a notice that the carrier 
 
 "would not be responsible for loss or damage done to goods" 
 
 unless insured did not make the carrier irresponsible for every 
 
 loss,, but only for such as occurred without negligence, whether 
 
 gross or ordinary, and the inadvertent misdelivery admitted on 
 
 the plea might even be grossly negligent, though inadvertent. 
 
 This decision went on the view that the authorities bound the 
 
 Court to construe the terms of the notice, that the carrier " wonld 
 
 not be responsible for loss or damage," to mean would not be 
 
 responsible for loss or damage unless caused by negligence. 
 
 The matter was next considered in Hinton v. Dibbin,' where 
 the action was for the negligent loss of silk of a greater value 
 than ;^ 10. The plea was the Cai-riers' Act. Gross negligence 
 was averred by way of replication : to this there was a demurrer. 
 
 1 (i84i)8M. &W. 443. 
 
 (1842) 2 Q. B. 646. 
 
PARTI.] COMMON CARRIERS. 509 
 
 This raised the precise point whether, under the Carriers' Act, the 
 carrier was exempted from negligence as well as mischance. The 
 Court held that he was. 
 
 Then came a series of railway cases. The first of these was Shaw r. 
 Shaw V. York and North Midland Railway Company.' The North^MWiaDd 
 plaintiff claimed for the loss of a horse against the defendants as ^*'^^™y ^°™- 
 carriers. It appeared at the trial that, when the horse was received 
 by the defendants, a ticket was given to the plaintiff with the fol- 
 lowing notice on it : — " N.B. — This ticket is issued subject to the 
 owners undertaking all risks of conveyance whatsoever, as the 
 company will not be responsible for any injury or damage, howso- 
 ever caused, occurring to horses or carriages while travelling, or in 
 loading or unloading." The injury to the horse in respect of which 
 the action was brought was caused by a defect in the horse-box, 
 pointed out to the defendants' servants, who had ineffectually 
 tried to put it right. Alderson, B., at the trial, was of opinion, 
 first, that the defendants were bound to the exercise of ordinary 
 care, the notice notwithstanding ; secondly, that, on the authority 
 of Lyon v. Mells,^ the notice was subject to an implied exception 
 of injury arising from the defective horse-box ; and he accordingly 
 directed a verdict for the plaintiff. A new trial was, however, 
 granted on the ground of misdirection, Lord Denman holding 
 that the terms of the ticket must be adhered to as expressing the 
 contract, and though the plaintiff "might have alleged that it 
 was the duty of the defendants to have furnished proper and 
 sufficient carriages, and that the loss happened from the breach 
 of duty," he had not done so, but had alleged instead a duty 
 arising from the contract the existence of which was disproved 
 by the evidence. 
 
 Austin V. Manchester, Sheffield, and Lincolnshire Railway Aiistinc. 
 Company' followed — also the case of the conveyance of a horse. Sheffield, and 
 This case, like the former, was decided on the form of the gaiiwa^'com- 
 declaration, though the effect of the decision was that where the pauy. 
 plaintiff by signed conditions took upon himself all risks of con- 
 veyance, the carriers were not liable for gross negligence. 
 
 Then came Chippendale v. Lancashire and Yorkshire Railway Chippendale 
 Company,' an appeal from a county court, which held the de- "id XorksUira 
 fendants exonerated from liability for any injury, even if caused Railway Com- 
 by a defect in the carriages, on the terms of the condition on 
 their ticket. 
 
 ' (1849) 13 Q. B. 347 ; 18 L. J. Q. B, of conditions is "against unforeseen and 
 
 181. unexpected losses and injuries not occa- 
 
 ^ 5 East 428. See, too, Garnett v. sioned by actual negligence or default." 
 Willan, 5 B. & Aid. 53, authorities to ^ (1851) 16Q.B.600 ; 20L.J.Q.B.440, 
 
 shew that the construction of this kind * 21 L. J. Q. B. 22. 
 
GOO THE LAW OF NEGLIGENCE. [book ii. 
 
 Austin V. Manchester, Sheffield, and Lincolnshire Railway 
 Oompany next cropped np again in the Common Pleas.' The 
 declaration alleged " gross and culpable negligence " in the de- 
 fendants' servants, which was proved at the trial. The condition 
 on the ticket, said Cresswell, J., which exempted the defendants 
 from responsibility of whatsoever kind and howsoever caused, 
 protected them from responsibility for the negligence of the 
 defendants' servants; "whether it was called negligence merely, 
 or gross negligence, or culpable negligence, or whatever epithet 
 might be applied to it, it was within the exception." 
 Carr o. Then Carr v. Lancashire and Yorkshire Railway'' was decided in 
 
 and Yortehire ^^^ Exchequer. The declaration stated that the defendants had 
 Eaiiway Com- received a horse to be carried for hire in a horse-box on their rail- 
 
 pany. 
 
 way, subject to the conditions in a notice at the foot of a ticket 
 for the conveyance of a horse, in these words : — " This ticket is 
 issued subject to the owners undertaking all risks of conveyance 
 whatsoever, as the company will not be responsible for any injury 
 or damage (however caused) occurring to live stock of any descrip- 
 tion travelling upon the Lancashire and Yorkshire Railway, or in 
 their vehicles." The declaration went on to allege that whilst 
 the horse was in the custody of the defendants, and through the 
 improper conduct and gross negligence and from want of proper 
 care on the part of the defendants, the horse-box was propelled 
 on the railway against certain trucks, and the horse thereby, 
 killed. The jury found as a fact that the accident was due to 
 the gross negligence of the defendants. This finding was not 
 complained of, yet judgment was arrested, on the ground that 
 there was a special contract by which the plaintiif had taken on 
 himself all risk, and agreed that the company should not be 
 responsible for any injury or damage, however caused. Parke, B., 
 in delivering judgment, observed, with reference to the argument 
 on the inconvenience arising from such contracts, that that " was 
 not matter for the interference of the Court, but must be lefb 
 to the Legislature, who might if they pleased put a stop to this 
 mode which the carriers had adopted of limiting their liability." 
 The Legislature apparently answered that appeal by passing the 
 "Railway and Canal Traffic Act, 1854."' But before it passed 
 Walker «. occurred the case of Walker v. York and North Midland Railway 
 North Midland Company.' The defendants caused notices to be personally served 
 Railway Com- ^^ g^ number of fishermen at Scarborough Station that they would 
 not carry fish except on certain conditions limiting liability, 
 
 1 (1852) 10 C. B. 454 ; 21 L. J. C. P. Gieat Nortbern Eailway v. Morville, 21 
 179. L. J. Q. B. 319. 
 
 2 (1852) 7 Ex. 707 ; 21 L. J. Ex. 261 ; » 17 & 18 Vict. c. 31. 
 
 Garmell v. Ford, 5 L. T. N. S. 604. ^ (i853)2E.&B. 7so;23L.J.Q. B.73. 
 
PAUTi.] COMMON CARlilEES. 601 
 
 which conditions the servants of the company had no power to 
 modify or affect. A riot ensued amongst the fishermen in conse- 
 quence, and it was after this that the plaintiff sent his goods. The 
 judge directed the jury that, if they thought that the plaintiff was 
 one of those served with the notice, they might infer from that 
 fact a special contract according to its terms, and he advised them 
 to draw that inference from the receipt of the notice and the sub- 
 sequent sending of the goods, unless in the meanwhile the plaintiff 
 had unambiguously refused to deliver the goods on the terms of 
 the notice, and the defendants had acquiesced in the refusal. 
 The jury having found that there was a special contract, the Court 
 of Queen's Bench held that the direction had been right, and the 
 verdict was not disturbed.' 
 
 The year following the Eailway and Canal Traffic Act, 1854, Railway c. 
 was passed. Contrasting this with the Carriers Act, Blackburn, J., ac",\854? 
 says : " There is considerable difference in the purview of the two 
 Acts. Carriers were under the risks of the common law liability, 
 and the first Act was passed for their protection. The monopoly 
 which railway companies had was the ground of the extension of 
 their liability by the second Act."" 
 
 In making an analysis of the act we find section i deals with Sectiou i. 
 definitions. By sections 2 to 6 ' a scheme is provided whereby Sectious 2 to 6. 
 persons to whom sufficient facilities are not afforded, or against 
 whom any undue preference for a competitor is shewn, may obtain 
 relief. Section 7 provides that every railway and canal company 8ectiou 7. 
 " shall be liable for the loss of, or for any injury'' done to, any 
 
 ' See, too, York, Newcastle, and Berwick If a company refuse to carry a certain class 
 
 Railway v. Crisp, 14 C. B. 527 ; Hughes of goods as common earner, and require 
 
 V. Great Western Railway, 14 C. B. 637 ; special rates to be paid for the carriage of 
 
 Slim V. Great Northern Railway Company, such goods, this is a refusal of reasonable 
 
 14 C. B. 647. facilities : Great Western Railway Com- 
 
 ^ Harrison v, London and Brighton panyj). Railway Commissioners, 7 Q.B. D. 
 
 Railway Company, 2 B. & S. 122, at p. 182, 194 ; 50 L. J. Q. B. 483 ; 45 L. T. 
 
 134 ; 31 h. J. Q. B. 113. 206 ; 29 "W. R. 901. As to undue prefer- 
 
 ^ By the Regulation of Railways' Act, ence, see Denaby Colliery Company v. 
 1873 (36 &37 Vict. c. 48), s. 6, tihe juris- Manchester and Sheffield Railway, 11 
 diction is transferred to the Railway Com- App. Cas. 97; 55 L. J. Q. B. 181; 54 
 mlBsiouers. Since the passing of this L. T. i ; Evershed v. London and North- 
 Act, railway companies cannot refuse to Western Railway Company, 3 App. Cas. 
 sarry traffic which they have facilities for 1029 ; 48 L. J. Q. B. 22 ; 36 L. T. 12. 
 caiTjing ; but they carry it not as common There is no right of action by a common 
 caniers, but as ordinary bailees, and sub- carn'er against a company on the ground 
 ject to reasonable conditions under section that he is excluded from their station; 
 7 : Dickson v. Great Northern Railway his remedy is by this Act : Barker v. 
 Company, 18 Q. B. D. 176; 56 L. J. Midland Railway Company, 18 C. B. 46; 
 Q. B. Ill ; 55 L. T. 868 ; 35 W. R. 202, 25 L. .J. C. P. 184. As to competing 
 where the company refused to carry dogs omnibuses, In re Marriott v. London and 
 except on most onerous terms. But a com- South-Westem Railway Company, i C. B. 
 pany will not be compelled to carry\goods N. S. 499. 
 
 easily damaged to a particular station if •* AUday v. Great Western Railway 
 
 there is no means of providing proper ac- Company, 34 L. J. Q. B. 5 ; 5 B. & S. 
 
 commodation there : Thomas?,'. North Staf- 903; 34 L. J. Q. B. 5; 11 L. T. N. S. 
 
 fordshire Railway Company, 3 N. & M. i. 267. 
 
603 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 horses, cattle, or other animals,' or to any articles, goods' or things 
 in the receiving,' forwarding, or delivering thereof occasioned by the 
 neglect or default^ of such company or its servants,' notwith- 
 standing any notice, condition, or declaration made or given by 
 such company contrary thereto or in any wise limiting such lia- 
 bility, every such notice, condition, or declaration being hereby 
 declared to be null and void." 
 
 But (i) the company may make such conditions as " shall be 
 adjudged by the Court or judge, before whom any question relating 
 thereto shall be heard, to be just and reasonable."" 
 
 (2) The amount of damage that may be recovered is limited 
 to a sum not exceeding ;^5o for any horse, £1^ per head for 
 neat cattle, £2 per head for any sheep or pig,' unless a higher 
 value shall have been declared at the time of delivery," in which 
 
 1 Harrison v. London and Brighton 
 Railway Company, 2 B. & S. 122, 149 ; 
 31 L. J. Q. B. 113 ; dogs are not such a 
 description of animal as at common law a 
 carrier could be compelled to caiTy : per 
 Wightman, J., at p. 144. Dickson v. 
 Oreat Northern Railway Company, 18 
 Q. B. D. 176 ; 56 L. J. Q. B. in ; 55 
 L. T. 868 ; 35 W. R. 202. 
 
 ^ Passengers' luggage is within the 
 section : Cutler v. North London Railway 
 Company, 19 Q. B. V. 64 ; 56 L. J . Q. B. 
 648 ; 56 L. T. 639 ; 35 W. R. 575 ; Cohen 
 V. South-Eastern Railway Company, 2 
 Ex. D. 253. 
 
 ^ This does not apply to goods receiyed 
 as warehonsemen : Van Toll v. South- 
 Eastern Railway Company, 31 L. J. C. P. 
 241 ; Hodgman v. West Midland Railway 
 5 B. & S. 173; in Exchequer Chamber, 
 35 L. J. Q. B. 85 ; 13 W. R. 1054 (as to 
 remarks in dissenting opinion of Cockbum, 
 C.J., in the Queen's Bench, see Hart v. 
 Baxendale, 6 Ex. 769^ ; nor to carriage 
 beyond the company's line : Zunz v. South- 
 Eastern Railway Company, L. R. 4 Q. B. 
 S39; 38L. J. Q. B. 209. 
 
 * In Harrison u. London and Brighton 
 Railway Company, 2 B. & S- 122; Ex- 
 chequer Chamber, 252, Erie, C.J., and 
 Keating, J., held that if the loss was 
 occasioned by pure accident, it was not 
 within the statute ; but the majority of 
 the Court gave no opinion on the point. 
 
 ^ " Servants " includes agents : Doolan 
 ». Midland Railway Company, 2 App. Cas. 
 792; 37L.T. 317; 2SW. R.882. 
 
 ' The carrier must shew that tlie con- 
 tract is reasonable : Ruddy v. Midland 
 Great "Western Railway Company, 8 L. R. 
 Ir. C. L. 224. If the higher charge is 
 not in terms authorized by statute, it 
 lies upon the carrier to shew that it is 
 reasonable : Harrison v. London and 
 Brighton Railway Company, 2 B. & S. 
 122; 31 L. J. Q. B. 113. 
 
 ' A condition exonerating the earner 
 from liability for negligence in carrying 
 cattle is invalid, even though there be a 
 subsequent condition offering a free pass 
 to induce the owner to send a drover in 
 charge, and the free pass is accepted : 
 Rooth V. North-Eastern Railway Company, 
 L. R. 2 Ex. 173; 36 L. J. Ex. 83; IS 
 L. T. N. S. 624 ; IS W. R. 695. A con- 
 dition requiring dama^ to be pointed out 
 at the time of unloading is unreasonable 
 where there is no option : Lloyd v. Water- 
 ford and Limerick Railway Company, iS 
 Ir. C. L. 37 ; but one requiring claims for 
 loss to be sent in within seven days of de- 
 livery has been held good : Lewis v. Great 
 Western Railway Company, 5 H. & N. 
 867 ; 29 L. J. Ex. 42s. See also Simons 
 V. Gx-eat Western Railway Company, 18 
 C. B. 80s ; 26 L. J. C. p. 2S ; Moore v. 
 Midland Railway Company, 10 L. R. Ir. 
 C. L. 9S. A condition that the carrier will 
 not be liable for the overcrowding of cattle 
 is unreasonable : Corrigan v. Great North- 
 em Railway Company, 6 L. R. Ir. C. L. 
 91 ; so is one that the carrier will not be 
 responsible for the correct selection of 
 cattle : M'Nally v, Lancashire and york- 
 shire Railway Company, 8 L. B. Ir. C. L. 
 81. A condition exonerating the carrier 
 from the loss of the market by the con- 
 signor has been held good : Ecal v. South 
 Devon Railway Company, 5 H. & N. 87s ; 
 3 H. & C. 337 ; II L. T. N. S. 184 ; 12 
 W. R. ins ; Lord »■ Midland Railway 
 Company, L. R. 2 C. P. 339 ; 36 L. J. 
 C. P. 170; IS L. T. N. S. 576; IS W.R. 
 40s ; Robinson v. London and South- 
 western Railway Company, 19 C. B. N. S. 
 SI ; 34 L. J. C. P. 234 ; 13 W. R. 660; 
 M'Canoe v. North-Westem Railway Com- 
 pany, 7 H. & N. 477, 3 H. & C. 343 ; 34 
 L. J. Ex. 39 ; II L. T. N. S. 426 ; iz 
 W. R. io86. 
 
 " Robinson v. Loudon and South-West- 
 ern Railway Company, 19 C. B. N. S. 51 ; 
 
PARTI.] COMMON CARRIERS. 603 
 
 case the company may demand an additional sum by way of in- 
 surance, and " such percentage or increased rate of charge shall 
 be notified in the manner prescribed in the statirte 1 1 Geo. IV. & 
 I Will. IV. 0. 68, and shall be binding upon such company in 
 the manner therein mentioned." 
 
 (3) The burden of proof is in all cases under the Act to lie 
 on those claiming compensation for loss or injury. 
 
 (4) No special contract under the Act shall be binding unless 
 signed by the person delivering property for carriage.' 
 
 (5) The Carriers' Act, 1830, is to be in all respects un- 
 affected. 
 
 There was for some time after the passing of the Act a very Two views 
 keen conflict as to its interpretation. Two different views were hiterpretatiou 
 advanced. The one view was that there was no distinction to °' *'^ ■*■"''• 
 be drawn between notices, conditions, or declarations on the one 
 hand and special contracts on the other ; that, in both instances, 
 the judge at the trial was required to decide whether they were 
 " just and reasonable," and in both instances they must be signed. 
 The other view was that, to guard against the unreasonableness 
 of companies being allowed to protect themselves from respon- 
 sibility for negligence, they should be liable for any loss or 
 injury occasioned by the neglect or default of themselves or of 
 their servants, notwithstanding any notice, condition, or de- 
 claration made and given by them contrary thereto ; and by the 
 Act " every such notice, condition, or declaration " that had the 
 effect of limiting their liability in this respect was " to be null 
 and void." Then, recognizing that by law a notice delivered to 
 the owner of goods and assented to by him amounted to a contract, 
 and further recognizing that the assent which is frequently given at 
 the time of the delivery of goods is often without any actual 
 knowledge of the conditions to which assent is by law presumed 
 to be given, this second view regarded the Act as providing that 
 only such conditions should be made " as shall be adjudged by 
 the Court or judge, before whom any question relating thereto 
 shall be tried, to be just and reasonable." Then, having thus 
 dealt with notices, conditions, or declarations, it regards the 
 section as proceeding to deal with special contracts, and as pre- 
 serving the liberty secured by the Carriers' Act, 1830, to make 
 special contracts with the owners of goods upon any terms of 
 carriage which might mutually be arranged between them, pro- 
 vided such contract were signed. 
 
 M'Cance v. London and North- Western the carrier to receive, goods is sufficient to 
 
 Eailway Company, 7 H. & N. 477. bind the sender : Aldridge v. Great West- 
 
 ^ The signature of a railway agent em- ern Eailway Company, 15 C. B. N, S, 
 
 ployed by the consignor to deliver, and by 582 ; 33 L. J. C. P. 161. 
 
eo4 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Conflicting 
 decisions 
 maintaining 
 these views. 
 
 Peek V, North 
 
 Staffordshire 
 
 Kailway. 
 
 Summsu'y of 
 
 points 
 
 decided. 
 
 Manchester, 
 ShefSeld and 
 Lincolnshire 
 Kailway v. 
 Brown. 
 
 Jlictum of Lord 
 Bramwell. 
 
 Early decisions in favour of the former view were Simons v. 
 Great Western Railway Company' in the Common Pleas and 
 M'Manus v. Lancashire and Yorkshire Railway Company" in the 
 Exchequer Chamber ; in favour of the latter. Wise v. Great 
 Western Railway Company' and Pardington v. South Wales 
 Railway Company/ both in the Exchequer. But in Peek v. 
 North Staffordshire Railway the controversy was carried up to 
 the House of Lords, after a considerable division of opinion in 
 the courts below. The judges were summoned to deliver their 
 opinions, when a division of opinion again appeared. The former 
 of the two views above stated was supported by Blackburn, 
 Crompton, and Williams, JJ., and Cockbum, C.J. ; and the latter 
 by Willes, J., Martin, B., and Pollock, C.B. The majority of 
 the Houser- of Lords, the Lord Chancellor (Westbury) and Lords 
 Cranworth and Wensleydale, agreed with the majority of the 
 judges who delivered their opinions before them. Lord Chelms- 
 ford took the contrary view. 
 
 Peek V. North Staffordshire Railway Company,* then, decides — 
 first, that between conditions and contracts there is no distinc- 
 tion ; secondly, that a condition or contract, to bind a trader, 
 must be • in writing ; thirdly, that every condition or contract 
 made under the Act must be proved, to the satisfaction of the 
 Court trying the case, to be just and reasonable ; fourthly, that, 
 whether a condition or contract, in either case it must be signed 
 to be valid ; and, fifthly, that the onus of shewing that the con- 
 dition or contract is just and reasonable is on the company that 
 alleges it. 
 
 But, though the authority of Peek v. North Staffordshire 
 Railway is insuperable, the justice and wisdom of it have been 
 called in question as late as 1883 in Manchester, Sheffield, and 
 Lincolnshire Railway Company v. Brown,^ by Lord Bramwell, who 
 says of it : " At the time it was decided, and from thence con- 
 tinuously until now, I have thought it was wrongly decided, as I 
 know it was contrary to the intention of the framers of the Act ; 
 and this case confirms me in that opinion. For here is a contract 
 made by a fishmonger and a carrier of fish who know their 
 business, and whether it is just and reasonable is to be settled 
 by me, who am neither fishmonger nor carrier, nor with any 
 knowledge of their business. And although that case has been 
 in existence for twenty years, and has been acted upon in points 
 
 1 18 C. B. 80s ; 26 L. J. C. P. 25. 5 10 H. L. 0. 473 ; 32 L. J. Q. B. 241 ; 
 
 2 4 H. & N. 327 ; 28 L. J. Ex. 353 ; 8 L. T. N. S. 768 ; 11 W. E. 1023. 
 
 33 L. T. 0. S. 259. 6 8 App. Cas. 703, at p. 716 ; 53 L. J. 
 
 3 I H. & N. 63 ; 25 L. J. Ex. 258. Q. B. 124 ; 50 L. T. 281 ; 32 W. B. 207; 
 ■• I H. & N. 392 ; 26 L. J. C. P. Beal v. South Devon Railway, 3 H. & C. 
 
 105. 337. 
 
PARTI.] COMMON CAREIERS. 605 
 
 of law, if it were within my competency to overrule it I would 
 do so, because it is impossible to say that people have regulated 
 their contracts in reference to it. They have done nothing of 
 the sort. What they have done is this, — they have entered into 
 their contracts without reference to it, and when it has become 
 conveaient they have broken those contracts, and, having had the 
 benefit of them, they have turned round and have sought to avoid 
 them." But in the same case Lord Fitzgerald goes out of his 
 way to express his concurrence with Simons r. Great Western 
 Railway,^ where the scheme of construction afterwards adopted 
 in Peek v. North Staffordshire Railway Company- was first 
 enunciated by Jarvis, C.J. 
 
 The case of Manchester, Sheffield, and Lincolnshire Railway Proposition 
 Company v. Brown' turned largely on the facts proved therein. ManSte.!'^ 
 It may, however, be cited as establishing the following pro- siieffieid ami 
 position : that if the consignor has an offer hond fide made to Railway v. 
 him of having his goods carried upon terms just and reasonable, '"""' 
 and voluntarily chooses, in consideration of a pecuniary benefit, 
 to exonerate the carrier from any part of his ordinary responsi- 
 bility, a contract thus limiting the carrier's liability may be just 
 and reasonable, though without the alternative option it would 
 not be so.* This decision was supplemented by that in the 
 Great Western Railway Company v. M'Carthy,'* where it was laid Great Western 
 down by Lord Watson" that whether a condition is just and pjfn^p.^ 
 reasonable " is not a question of law, but a question of fact, or, it M'Carthy. 
 may be, a mixed question of law and fact, which must be de- 
 termined according to the special circumstances of the con- 
 tract in which it is inserted;" but though this be so, yet the 
 judge "is not entitled to ask the jury to find the facts which 
 he may consider it necessary to ascertain in forming his own 
 judgment." 
 
 In special contracts the liability of carriers for their own LialiiUty for 
 negligence must be excluded either directly or by necessary negligence 
 implication ; for the law raises a presumption that it continues ^"lu^gji 
 to exist if it is not manifestly excepted. Thus a condition that a either directiy 
 
 carrier accepts no responsibility will not exclude liability for actual sary implica- 
 tion. 
 
 ' i8 C. B. 829. London and Brighton Railway Company, 
 
 " 10 H. L. C. 473 ; 32 L. .T. Q. B. 241 ; 5 Ex. D. 190, the action was in respect 
 
 8 L. T. N. S. 768; II W. E. 1023. of a dog ; no alternative was offered, and 
 
 " 8 App. Cas. 703 ; Eonan v. Midland the contract was held not just and reason- 
 Railway Company, 14 L. K. Ir. C. L. able. 
 
 157 ; Foreman v. Great Western Railway ^ 12 App. Cas. 218 ; 56 L. J. P. C. 33 ; 
 
 Company, 38 L. T. N. S. 851. ^ 56 L. T. 5S2 ; 35 W. R. 429 ; M'Nally 
 
 ■' In Lewis v. Great Western Railway r. Lancashire and Yorkshire Railway 
 
 Compaay, 3 Q. B. D. 195, the case of the Company, 8 L. R. Ir. C. Ti. 81 ; Moore 1: 
 
 conveyance of some cheeses, this altenia- Great Northern Railway Company, 10 
 
 tive was offered, and the contract was held L. R. Ir. C. L. 95. 
 
 just and reasonable. In Ashendon v. " At p. 233. 
 
G06 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Contract to 
 carry at 
 owner's 
 risk only 
 exempts from 
 ordinary risks. 
 
 Goods trans- 
 ferred from 
 the line of one 
 company to 
 another in 
 order to 
 facilitate 
 conveyance. 
 
 Muschamp v. 
 Lancaster 
 and Preston 
 Railway 
 Company. 
 
 negligence ;' nor yet will one exonerating a carrier from liabiKty 
 for damage occasioned by kicking, plunging, or restiveness of a 
 horse protect him where the restiveness is induced by his negli^ 
 gence^; but one saving a carrier from all liability for loss or 
 damage by delay in transit or from whatever other cause 
 arising" is good to excuse the negligence of the carrier's 
 servants.' 
 
 Again, a contract to carry goods "at the owner's risk" only 
 exempts the carrier from the ordinary risks incurred by goods 
 going along the railway, but not from liability from negligence,* 
 unless the consignor has notice that the carriers cany at a 
 lower rate " where the sender relieves them from all liability of 
 loss, damage, or delay," when the contract must be interpreted by 
 the sender's knowledge of its meaning, and will exonerate from 
 liability for negligence.^ But an exempting from negligence does 
 not carry immunity from the consequences of wilful misconduct." 
 Mere mis-delivery, however, does not amount to wilful misconduct, 
 and is no more than negligence.' But where the consignee has 
 refused to accept, and the goods are then delivered to a person 
 with a name like that of the consignee, without inquiry, there is 
 wilful misconduct.' 
 
 The great increase of intercommunication between railways, 
 whereby goods can be forwarded from one end of the kingdom to 
 another without break, has made very frequent arrangements by 
 which goods are transferred from the company with whom the 
 contract of carriage was originally made through three or four or 
 even more other companies until they reach their destination. 
 The legal effect of this, in case of loss on a part of the journey 
 not on the line of the company with whom the contract was 
 directly made, has been the subject of considerable difference of 
 opinion, terminated, however, by a decision in the House of Lords. 
 The earliest of these cases is Muschamp v. Lancaster and Preston 
 Eailway Company.' A parcel was delivered at Lancaster to the 
 defendants directed to a person at a place in Derbyshire. The 
 
 1 Martin v. Great Indian Peninsular 
 Eailway Company, L. E. 3 Ex. 9 ; 37 
 LaT. Ex. 27 ; 17 L. T. N. S. 349. 
 
 2 Grill V. Manchester Eailway Company, 
 L. E. 8 Q. B. 186; 42 L. J. Q. B. 89; 
 28 L. T. N. S. 587 ; 21 W. E. 525 ; Moore 
 D. Great Northern Eailway Company, 10 
 L. E. Ir. C. L. 95. 
 
 ' Manchester, Sheffield, and Lincoln- 
 
 Cas.. 703 ; 53 L. J. Q. B. 124 
 
 5; 53 J 
 
 en, » App. 
 ; 50 L. T. 
 
 shire Eailway Company v. Brown, 8 Ap£. 
 Cas. ^ ^ ~ - 
 
 281 ; 32 W. E. 207. 
 
 * Eobinson i>. Great Western Eailway 
 Company, 35 L. J. C. P. 123 ; D'Aro t: 
 London and North- Western Eailway Com- 
 
 pany, L. E. 9 Q. B. 325 ; 30 L. T. N. S. 
 763 ; 22 W. E. 919 ; Goldsmith v. Great 
 Eastern Eailway Company, 44 L. T. 181. 
 ' Lewis p. Great Western Eailway 
 Company, 3 Q. B. D. 195, at p. 206. 
 
 * Eonan v. Midland Eailway Company 
 14 L. E. Ir. C. L. 157. 
 
 ' Slevens v. Great Western Eailway 
 Company, 52 L. T. 324. 
 
 * Hoare v. Great Western Eailway 
 Company, 37 L. T. N. S. 186. See Webb 
 V. Great Western Eailway Company, 26 
 W. E. Ill; Haynes v. Great Western 
 Eailway Company, 41 L. T. N. S. 436. 
 
 9 (1841) 8 M, & W. 42J;, 
 
PARTI.] COMMON CAERIERS. 607 
 
 defendants were proprietors of the line only so far as Preston. 
 There the railway united with another line, by whom the carriage 
 should have been performed, but who lost the parcel, for which 
 the plaintiff sued. At the trial, before Eolfe, B., the learned 
 judge stated the law to the jury to be that, where a common 
 carrier takes into his care a parcel directed to a particular place, 
 and does not by positive agreement limit his responsibility to a 
 part only of the distance, that is primd facie evidence of an under- 
 taking on his part to carry the parcel to the place to which it is 
 directed. A rule was moved for, on the ground of misdirection, 
 but, on argument, was discharged, the opinion of the Court being 
 summed up by Rolfe, B. : " All convenience is one way, and there 
 is no authority the other way." This decision was followed in 
 "Watson V. Ambergate Railway Company.' In Scothorn v. South Soothom v. 
 Staffordshire Railway^ there was a countermand communicated to gtrfiordsMro 
 defendants' agent, who was authorized to deliver the goods ac- Railway 
 cording to the original contract. By some negligence that order 
 was disobeyed, and the goods were lost. The case was distin- 
 guished from the earlier cases on this ground, and the decision 
 turned mainly on the construction of the facts, that the contract 
 of the defendants was to procure their agents to deliver according 
 to the plaintiff's directions, that, as they had not done so, and, in 
 consequence, a loss had been occasioned to the plaintiff, the 
 defendants were bound to make it good. Collins v. Bristol and Collins v. 
 Exeter Railway Company ^ was the occasion of a great division of Exeter 
 judicial opinion. The principle upon which Muschamp v. Lan- ^^^^ 
 caster and Preston Railway was decided was accepted on all sides 
 as good, and, as Crompton, J., said, speaking of that case in the 
 House pf Lords,^ was " acted upon by judges and juries without 
 any doubt at almost every sittings and assizes." But the effect 
 of it was sought to be eluded on the ground that a condition in 
 the contract in Collins v. Bristol and Exeter Railway, the effect 
 of which was that the Great Western Railway Company, the 
 company with whom the contract nominally was, should not be 
 held carriers beyond the extent of their own railway, but that 
 they would receive the entire sum to pay themselves as carriers 
 on their own Hne, and then would, as forwarding agents, pay the 
 residue after their own charge to the next railway or other carrier, 
 being responsible as carriers no further than the extent of their 
 own line. It was contended that this made the contract with 
 the plaintiff beyond the Great Western line that of common 
 carriers merely. The facts, as proved at the trial before Williams, 
 
 ' IS Jur. 448. 5 7 H. L. C. 194 ; 29 L. J. Ex. 41. 
 
 " ("853) 8 Ex. 341 ; 22 L, J. Ex, I2L * 7 H. L, C. at p. 212. 
 
608 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 View of the 
 Court of 
 Exchequer. 
 
 View of the 
 Court of 
 Exchequer 
 Chamber. 
 
 Declaration 
 of the law iu 
 the House 
 of Lords. 
 
 J. (who reserved leave to move to enter a nonsuit if there was 
 no evidence to go to the jury in support of the plaintiffs case), 
 shewed that the plaintiff delivered at the station of the Great 
 Western Eailway at Bath a van-load of furniture to be conveyed 
 to Torquay. The plaintiff signed a receipt-note, headed : " Bath 
 Station. — To the Great Western Eailway Company. — Eeceive the 
 under-mentioned goods on the conditions stated on the other side 
 to be sent to Torquay Station, and delivered to the plaintiff or his 
 agent." One condition was that the company would not be 
 answerable for loss or damage by fire. Another condition was 
 that the company would not be responsible for loss or damage to 
 goods beyond the limits of their railway. The van was placed on 
 a truck and conveyed to Bristol, where the Great Western line 
 ended and the defendants' began. The same truck and guard 
 went with the van to Exeter, where the defendants' line ended, 
 and was joined by the line of the South Devon Eailway, which 
 ran to Torquay. While the van and furniture were at the 
 defendants' station at Exeter they were accidentally destroyed by 
 fire. The plaintiff sued the Bristol and Exeter Eailway, on whose 
 line the accident happened, for the loss. They objected that the 
 conditions governed the whole of the transport and exempted them 
 from liability. A verdict was entered for the plaintiff. A rule 
 was then obtained and made absolute in the Court of Exchequer, 
 on the ground that there was only one contract to carry the goods 
 from Bath to Torquay, and that the company were under the 
 "conditions," expressly exempted from liability to loss by fire.' 
 In the Exchequer Chamber^ this was reversed, as the Great 
 Western Eailway Company received the goods to be carried on 
 their line subject to the stipulation against loss by fire, and that 
 they discharged themselves by forwarding the goods to be carried 
 by the defendants ; and, there being no evidence of the terms on 
 which the goods were to be carried on the defendants' line, they 
 must be treated as having received them as common carriers, and 
 were consequently liable for their loss. The case was then taken 
 to the House of Lords, and the judges were summoned. The 
 majority^ agreed with the opinion of the Exchequer Chamber; 
 two^ were in favour of restoring the judgment of the Exchequer^ 
 The House of Lords' unanimously adopted the view of the 
 Exchequer Chamber, and held that the contract was entire for 
 
 1 1 1 Ex. 790. 
 
 2 Before Coleridge, Wightman, Cress- 
 well, Brie, Williams, Crompton, Crowder, 
 and Willes, JJ. 
 
 ' Tliere were Bjles, J., Crompton, J., 
 who delivered the jndpnent in the Ex- 
 chequer Chamber, and Williams and Wight- 
 
 man, JJ.^ who formed part of the Court. 
 
 * Martin, B., and AVatson, B., had been 
 appointed to the Bench after the decision 
 of the Court ofExchequer. 
 
 5 Lord Chelmsford, C, Lord Wensley- 
 dale, Lord Brougham, Lord Cranworth, 
 and Lord Kingsdown, 
 
PAETi.] COMMON CAREIERS. 609 
 
 the whole journey, and that the goods were carried on the 
 defendants' railway under the contract, so that the defendants 
 were consequently either not liable at all, as no agreement was 
 entered into with them, or that, if the contract in any way 
 attached, the exception as to loss by fire accompanied it and 
 freed them from liability. In the course of the judgment it 
 was pointed out that the case differed from Musohamp v. Lanca- 
 shire and Preston Railway Company in the point that there were 
 no conditions in the contract, but it was created merely by the 
 receipt of a parcel by the railway company to be dehvered at 
 a place on another line. What, then, was the effect of the con- 
 dition? "A contract," said Lord Chelmsford, "to convey goods 
 from A. to B., with a condition that for a certain part of the 
 journey the company shall i^ot be responsible, will be no more 
 inconsistent with the absolute contract for the whole journey than 
 where a carrier undertakes to convey goods with a condition that 
 for a certain description of goods he will not be liable at all." 
 Thus, assuming the condition limiting liability to apply to the 
 Great Western line alone, it was not inconsistent with the con- 
 dition that the carrier was not to be liable for loss by fire which 
 was not so limited. Lord Cranworth, however, disposes of the 
 whole contention that there was a right of action against the 
 Bristol and Exeter Eailway Company in the following words : — 
 " A person sending goods by a railway cannot be supposed to 
 know, in the case of a continuous line, who are the owners of its 
 difEerent portions. He has a right to suppose, when the oflicers 
 of the company at one extremity receive goods to be delivered at 
 the other extremity, either that the whole line belongs to them or 
 at all events that they mean so to represent it, and that they con- 
 tract on that footing." Thus, if the plaintiff had contracted with 
 the Great Western Railway without limitation of liability, his 
 action must be against them ; if with limitation of liability, the 
 contract was still with them, and against them the action must be 
 brought, to the complete exoneration of auxiliary lines. 
 
 While Collins v. Bristol and Exeter Railway Company was before 
 the House of Lords, and between the argument and the judgment,' 
 the Court of Exchequer decided Mytton v. Midland Railway Mytton v. 
 Company,^ a case of passenger's luggage, in accordance with its Eaiiway 
 previous decisions, negativing a contention that the two companies ^°™v^'^7- 
 concerned were partners, and that the plaintiff had therefore a 
 right to sue either of them.^ Shortly after the decision in Oollins's coxon ». 
 case was given, the case of Coxon v. Great Western Eailway Baiiwa"^*^'^™ 
 ' June 13, 1859. Belfast Eailway Company, 8 Ir. C. L. B. Company, 
 
 '^ 4 H. & K. 615 • 38 L. J. Ex. 385. 167 ; Hayes v. South Wales Bailwav Com- 
 
 5 Compare two Irish cases : Keys v, pany, 9 H. L. C, 556 ; 9 Iv. C. L. E. 474. 
 
 QQ 
 
610 THE LAW OF NEGLIGENCE. [book ii. 
 
 Company* came on for argument in the Exchequer. The plaintiff 
 sent some oxen to the Craven Arms Station of the Shrewsbury and 
 Hereford Eailway to be carried to Birmingham. A portion of this 
 journey would be made over the Great Western Railway's line. The 
 plaintiff's drover signed a way-bill with the following condition : — 
 " For the convenience of the owner, the company will receive the 
 charges payable to other companies for conveyance of such cattle 
 over their lines of railway, but the company will not be subject 
 to liability for any loss, delay, default, or damage arising on such 
 railway." One sum was charged for carriage, which was to be 
 paid at Birmingham, on the Great Western's line. The oxen 
 were placed in trucks belonging to the Great Western Eailway 
 Company, and on the arrival of the train at Wolverhampton it 
 was found that the bottom of one of the trucks was broken, that 
 one of the oxen was dead, and that others were injured. ^ In an 
 action against the Great Western Railway it was contended by 
 the defendants that the contract was with the Shrewsbury and 
 Hereford Railway, and not with them. This defence the Court 
 sustained, Bramwell, B., pointing out that in Collins v. Bristol 
 and Exeter Railway Company^ it was not said that a divided 
 contract was impossible, but that such a contract had to be proved. 
 He then examined the condition, and concluded that "they [the 
 S. and H. Railway] do not say that they will not carry on another 
 railway, but only that they will not be liable for damage arising 
 on such railway, so that there is an absolute refusal of liability for 
 damage, but not a refusal to carry." That being so, the Court 
 further held that this primd facie exoneration was not affected by 
 anything in the contract, 
 ^ooper V. In. Hooper v. London and North-Western Railway Company,' 
 
 North-Westem where the facts were identical with Mytton v. Midland Railway 
 Company. Company,-* Denman and Lindley, JJ., treated Mytton v. Midland 
 Railway Company as overruled, since they regarded it as being 
 inconsistent with Fonlkes v. Metropolitan Railway Company.' A 
 careful study of the cases will shew that this is not so, and the 
 difference in the decisions is more due to the greater latitude 
 allowed in proving a case by virtue of the Judicature Acts than to 
 the enunciation of any necessarily conflicting principle. In Hooper 
 Considered, v. London and North-Western Railway Company the action was 
 for delay in forwarding, and injury to, goods in a portmanteam, 
 which the defendants — not the company with whom the plaintiff 
 
 1 (Bleb. II, i860) S H. & N. 274 ; 29 Company, 9 Q. B. D. 582. 
 L. J. Ex. 165 ; I L. T. N. S. 442. *l H. &N. 615. 
 
 2 7 H. L. C. 194. 6 5 C. P. D. 157 ; 49 L. J. C. P. 361 ; 
 2 SO L. J. Q. B. 104 ; Baldwin v. 42 L. T. 345 ; 28 W. E. 526, 
 
 London, Chatham, and l)oTer Bail^ay 
 
PART I.] COMMON OAREIERS. 611 
 
 had contracted, but a company into whose train he changed during 
 the course of his journey in pursuance of his contract — had 
 received to forward and had neglected to do so, whereby the 
 contents were injured and the plaintiff deprived of their use. The 
 facts disclosed something that "was therefore wrongful, not 
 as a breach of contract, but a wrongful act in itself;'" so might 
 the act be in Mytton v. Midland Eailway Company.- Whether 
 it was so or not is immaterial, since the decision was merely 
 that the plaintiff could not sue in contract, on which alone he 
 claimed, as clearly appears from the judgment of Martin, B. : 
 " There was no evidence whatever of any privity of the Midland 
 Eailway Company to that contract." As a decision on privity of 
 contract it is not, and cannot be, overruled ; and no other point than 
 this was ever suggested in the argument or judgment. Neither 
 does Foulkes v. Metropolitan Railway Company' conflict with these 
 earlier cases. Two points were there decided. First, it was held 
 that there was a contract with the two railway companies, cither 
 of which could sue or be sued— a point as to which Bristol and 
 Exeter Eailway Company v. Collins' treated as possible, but to 
 be proved. The Court in Foulkes's case treated it as proved. 
 Secondly, that there was a duty, independent of contract, not to do 
 an act to injure another, and it is to this duty that Thesiger, L.J., 
 is referring when he says: "I think that the true principle in 
 such a case as the present is, that the company, so far as concerns 
 its own line, in which term I include a line over which running 
 powers are exercised, and its own acts and omissions, is under 
 the same obligations in reference to the security of the passenger 
 as it would have been if he had directly contracted with him," 
 and though the succeeding words used by the Lord Justice are 
 somewhat opposed to this view, the whole of the preceding 
 passage directly enforces it. 
 i The law as established in England has, however, been seriously Law in 
 doubted in America.^ There the tendency of decisions has been ™™''*" 
 to hold that the carrier is only liable for the extent of his own 
 route, and for the safe storage and delivery to the next carrier." 
 This tendency has been supposed to have taken its rise from 
 Garside v. Trent and Mersey Navigation Company,' which is cited Garside v. 
 by Eedfield, O.J.,' as affording a rule in that direction. An Mersey 
 examination of that case will, however, shew that such a suppo- co^'pany ° 
 sition is quite erroneous. The contract there, as alleged in the 
 
 ' Hayn v. CuUiford, 4 C. P. D. i8z. American rules, see 3 Alb. Law Journ. 
 
 ^ 4 H. & N. 615. 485-; 2 Am. Law Bev. 426. 
 
 ' 5 C. P. D. 157. " See casos collected, Eedfield, Law of 
 
 " 7 H. L. C. 194. Carriers, § 181. ' 4 T. E. 581. 
 
 ' For a discussion of the English and ' Law of Carriers, § 181. 
 
612 THE LAW OF NEGLIGENCE. [book ii, 
 
 declaration, was to carry as common carriers from Stourport to 
 Manchester, and thence to forward to Stockport. From the 
 evidence it appeared that the course of business was that, when 
 the goods arrived at Manchester, "if any carrier to the place of 
 their destination be at Manchester ready to receive them, they are 
 immediately delivered, upon payment of the carriage from Stour- 
 port to Manchester, and, if not, the defendants keep them in their 
 warehouse till a carrier arrive to whom they may be delivered on 
 making the above payment, the defendants not charging anything 
 for lodging and keeping the goods in their warehouse." The goods 
 were consumed by an accidental fire after their arrival in Man- 
 chester, and before any carrier came from Stockport to whom they 
 could be delivered. The Court held that the holding of the goods 
 was as warehousemen, " not for the convenience of the carrier, but 
 of the owner of the goods," and that, as there was no laches, the 
 defendants were not liable, -^t will be seen, then, that so far is 
 this from being a decision that the carrier is only liable to the 
 extent of his own route, that the facts of the case would not 
 allow the question to be raised, and that the real decision was 
 that on the facts the defendants were not carriers at all, and 
 that a warehouseman is not an insurer, so that, when an accident 
 happens while he is in charge of goods, default of some sort must 
 be shewn. 
 Hyde v. Trent With Garside V. Trent and Mersey Board should be considered 
 Navigation the Subsequent case against the same defendants, Hyde v. Trent 
 Company. ^^^ Mersey Navigation Company,' where more, though slight, 
 countenance is given the American view. The plaintiffs delivered 
 to the defendants eighteen bags of cotton to be safely carried 
 "from Gainsborough to Manchester, and there to be delivered to 
 the plaintiffs." There was a second count for other goods. The 
 goods were put on board the defendants' barges and were conveyed 
 to Manchester, where they were landed upon the quay and lodged 
 in the warehouse, where they were consumed by an accidental 
 fire the same night. The usage had uniformly been for the cotton 
 merchants to have their goods conveyed to their own warehouses 
 in carts furnished by the defendants. Formerly the defendants 
 employed their own carts for this, but had latterly given up the 
 business, together with the profits, to a person in their employ^ 
 whom the plaintiffs knew to receive it. The question was whether 
 the defendants were liable as common carriers, or whether the 
 transit had ceased as far as they were concerned, and the goods 
 were held by them as warehousemen pending delivery to the carter. 
 The case was decided on the wording of the contract, " to Man- 
 
 15T. «.:389. 
 
PARTI.] COMMON CAERIERS. 613 
 
 Chester there to be delivered," on which words the Court were of 
 opinion that the defendants held the goods as carriers till they 
 were delivered. On the more general question there was a 
 difference of opinion, Lord Kenyon dissenting from the rest of the 
 Court, and being of opinion that the fact of the notoriety of the 
 defendants' practice to hand over the goods to the carter to carry 
 would have imposed a limit to their liability as carriers had it not 
 been for the special terms. But the rest of the Court were of 
 opinion that "the carriers have the direction of the goods, and 
 are responsible for them until they are delivered to the owner.'" 
 The case of Garside was distinguished, since there, by the contract, 
 the carriers' duty was terminated at Manchester, while here the 
 general duty was to carry, or to procure to be carried, further, and 
 was likened " to the case of an innkeeper who agrees with 
 his head ostler that the latter shall supply the customers with 
 post-horses ; in which case, if goods were lost the innkeeper is 
 liable, because he holds himself out to the public as the responsible 
 person, and his engagement with his servant cannot vary the con- 
 tract between him and the public." 
 
 Neither of these cases, then, is an authority for the view taken 
 in the American decisions, though some countenance for it may 
 be derived from what Lord Kenyon said in Hyde's case.' But 
 this view was. dissented from by the other members of the Court, 
 and was not the point of the actual decision.'' 
 
 There are, "however, in the American courts many cases that incoDsistent 
 hold the carrier liable beyond the limits of his own route, upon "''^^^' 
 the ground of a special undertaking, express or implied ; but in 
 most of these cases the matter is for the jury to draw, or refuse 
 to draw, an inference to that effect from the facts." 
 
 It makes no difference to the liability that the goods are sent Euie not 
 partly by sea, and are injured on the sea voyage, for the Courts the'lransif 
 infer a contract to carry through.* tiaii^by'sea 
 
 Where, as in Gill v. Manchester Railway Company," the traffic q.jjj „_ 
 of a railway is carried on for the joint benefit of two companies, Manchester 
 either may be sued. For the constitution of such a liability, Company, 
 however, there must be some agreement, the effect of which is to 
 
 ' Per BuUer, J., at p. 397, liability continues while they are sn stored. 
 
 '^ Hyde v. Trent and Mersey Naviga- * E.g., Weed v. Saratoga and Schenec- 
 
 tion, s T. E. 389, at p. 395. tady Railroad , 19 Wend. 534. These cases 
 
 ' The case of London u. Marquette, 54 are considered in a note to Stoiy, Bailments, 
 
 Am. E. 367, may be referred to for the § 538. 
 
 American decisions. It lays down — one ^ Wilby v. West Cornwall Eailway 
 judge dissenting — that, if goods to be trans- Company, 2 H. & N. 703; 27 L. J. Ex. 
 .ferred from one carrier to another are 181 ; Doolan v. Midland Eailway Corn- 
 merely stored in a warehouse whence the pany, 2 App. Cas. 792. 
 other carrier is in the habit of taking them ° L. E. 8 Q. B. 186; 42 L. J. Q. B, 
 at his convenience, the common carrier's 89 ; 28 L. T. N, S. 587 ; 21 W. E. 525. 
 
614 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Aldrldge v. 
 Gre.it Western 
 Eailway 
 Company. 
 
 Liability for 
 the convey- 
 ance of live 
 stock. 
 
 constitute one company the agent of the other, so as to bring the 
 matter within the principle stated by Lord Oranworth in Cox v. 
 Hickman ' : " The real ground of liability is that the trade is 
 carried on by persons acting on his [the defendant's] behalf." 
 But where goods are delivered to the agent of two companies, at 
 a place where only one of the companies has a station, and are 
 handed by him to that company to go by the line of the other, 
 there is evidence of a contract for the whole distance by the first 
 company.^ And where there is a written contract for carriage to 
 a particular station, parol evidence may be given of a further 
 contract to carry to a remoter station.^ 
 
 Aldridge v. Great Western Railway Company^ decided three 
 points that are of importance.- 
 
 First, that in cases where the contract is, in addition to carriage 
 over the company's own line, to forward over a line not under the 
 control of the contracting party, and for which no extra payment 
 is received, a condition that the contracting company is not to 
 be responsible for loss or delay on the further line is just and 
 reasonable. 
 
 Secondly, that the liability of a railway company for " empties" 
 is not that of gratuitous bailee, because the company may be justly 
 considered as having had the carriage of the empties prepaid in 
 the shape of the previous payment for the carriage of the same 
 packages when full, so that the contract includes the obligation 
 on the railway to carry the " empties " back without further 
 charge. 
 
 Thirdly, a special contract under the Railway and Canal Traffic 
 Act, 1854, may be signed by the carrier employed to cart and 
 deliver between the consignor and the railway, though he is the 
 common agent of both parties." 
 
 There has been some doubt whether the common law liabiUty 
 of carriers extends to live stock conveyed by them. But it has 
 never been necessary to decide it, since the carriage of cattle is 
 universally a matter of special contract. On principle, it would 
 seem that the liability of bailees of cattle would be less than that 
 of insurers, or at least that of any number of cases of injury 
 arising to cattle in the hands of bailees, the probability of the 
 injury in any case affecting the bailee with liability would be 
 
 '^ 8 H. L. C. at p. 306. See per Lord 
 Wensleydale at p. 315. See, also, per 
 Bramwell, L.J., Foulkesr. Metropolitan 
 District Railway Company, 5 C. P. D. 
 157, at p. 158. 
 
 2 Webber v. Great Western Railway 
 Company, 4 H. & C. 582. 
 
 2 Malpas V. London and Soutli-Westevn 
 
 Railway Company, L. R. i C. P. 336; 
 35 L. J. C. P. i66 ; 13 L. T. N. S. 710; 
 14 W. R. 391 ; commenting on Jeffrey v. 
 Walton, I Stark. 267. 
 
 * 15C. B. N. S. 582; 33 L. J. C. P. 
 161. 
 
 ^ Citing Sugden'e Vendor and Pur- 
 cbaser, I4tli edit. p. 147. 
 
PAETi.] COMMON CARRIERS. 615 
 
 greatly less than in most other cases, since harm may happen to 
 cattle, despite all precautious, through the vices of their dis- 
 position or through a casual impulse seizing them which it would 
 he impossible to guard against. It has been said that in this 
 latter event the carrier would be protected by reason of the 
 implied exception to the carrier's liability arising from internal 
 defect in the subject of the bailment to him.' It seems, how- 
 ever, an unsatisfactory method to treat that as an exception to 
 a rule which is an ever present quality in all the cases under the 
 rule, and not to treat the class itself as an exception to the 
 broader rule of the carrier's liability. The greater number of the 
 authorities on the subject point in the same direction — to the 
 eliminating cattle from the list of things carried with the common 
 earner's liability, though there is very weighty authority as 
 well as the latest for the other view. In Carr v. Lancashire and Can- v. 
 Yorkshire Railway Company," Parke, B., intimates a doubt whether and Yorksliiio 
 a carrier is a common carrier with regard to cattle. " Most cer- ^'^'I'^'^y 
 
 ° _ _ Company. 
 
 tainly,'' he says, " every common carrier is bound only to carry 
 goods of that description which his public calling requires him to 
 carry." And in M'Manus r. Lancashire and Yorkshire Railway M'Manus 
 Company,'' Martin, B., said : " We are able to decide this case with- guj YorksWre 
 out referring to the second point made by the defendants — viz.,EaiiwRy 
 the alleged distinction between the liability of carriers as to the 
 conveyance of horses and live stock and ordinary goods ; but should 
 the question ever arise, we think that the observation that fell 
 from Mr. Baron Parke in Oarr v. Lancashire and Yorkshire Railway 
 Company is entitled to much consideration." The view of the 
 law that railway companies are not common carriers of cattle 
 further appears to have been acted upon in MofFatt v. Great Moffatt v. 
 Western Railway Company,^ where, in an action for the loss of a Kluwa^"^*^"^ 
 horse, on a declaration against the defendants as carriers, Keating, Uompany. 
 J., told the jury that the question for them to decide was whether 
 defendants had been guilty of negligence in the carriage of the 
 horse, meaning by carriage their treatment of the animal from the 
 moment they took it into their custody. " The company were not 
 responsible for accidents of a nature beyond the range of ordinary 
 risks, but they were for anything resulting from the negligence 
 of their servants." In Blower v. Great Western Railway Com- Blower «. 
 pany,' however, Willes, J., considers the point, and though he jf^fjllyay^^ ""^ 
 
 Company. 
 
 ^ Blower v. Great Western Eailway Shaw v. Yorkshire Eailway Company, 13 
 
 Company, L. JB. 7 C. P. 655, per Willes, Q. B. 347. 
 
 J., at p. 662 ; 44 L. J. C. P. 268. ' 2 H. & N. 693 ; in Exchequer Cham- 
 
 ^ 7EX.707. See, too, Chippendale «. Lan- ber, 4 H. & N. 327. 
 
 cashire and Yorkshire Eailway Company, * 15 L. T. N. 8. 630. 
 
 21 li. J. Q. B. 22 ; Great Northern Eailway ^ L. E. 7 C. P. 655 ; 44 L. J. C. P. 
 
 Company v. Morville, 21 L. J. Q. B. 319 ; 268. 
 
616 
 
 THE LAW OF iSTEGLlGENCE. 
 
 [book II. 
 
 Company. 
 
 indicates tliat any difference there may be between his view and 
 that of Parke, B., may be referred to a difference in words and 
 not in substance, he expresses a clear opinion that railway com- 
 panies are common carriers of cattle. He arrives at this con- 
 clusion by eliminating any liability for the acts of animals of an 
 extraordinary character by reason of a vice inherent in them or 
 of a disposition p^-oducing frenzy or unruly conduct ; either of 
 which he regards as something naturally inherent in the thing, 
 and which by its natural development leads to the destruction of 
 the thing, though then an insurer is bound to safeguard the thing 
 entrusted to him, he is not liable for a loss necessarily incidental 
 to the property insured ; that being so, in the case of animals 
 the carrier is liable as a common carrier, subject to his non- 
 liability for injuries arising from ordinary inherent qualities. 
 That there is this limitation is the important point. The classifi- 
 cation of it is but of very minor interest. 
 Oombeii. The same rule was also acted on by the Court of Com men 
 
 Southwestern Pleas in Combe v. London and South-Western Eailway Company,' 
 Eaiiway where the plaintiff brought his action for negligence in the carriage 
 
 of a horse, and the negligence alleged was the not providing a 
 truck reasonably fit. Lord Coleridge, C.J., expressed the de- 
 fendant's liability : " The law implies an undertaking on the part 
 of the carrier to provide a reasonably fit truck for the conveyance 
 of the horses." And the rest of the Court reiterated the opinion 
 that negligence was required to be shewn in order to give a right 
 of action. Thus, it may be taken as, if not established by an actual 
 decision, assumed by the course of decisions, that the liability of 
 carriers with regard to cattle is not that of common carriers, but 
 is no greater than that with regard to passengers.'^ 
 
 Delivery is of two kinds — 
 
 L Delivery to the carrier for the purposes of the carriage. 
 
 II. Delivery by the carrier when the carriage has been com- 
 pleted. 
 
 It is only between these periods that the special liability as 
 common carrier subsists,' commencing so soon as he has possession 
 for the purpose of carriage and terminating when his duty to 
 deliver them on the completion of tlie transit has been dis- 
 charged. 
 
 Generally speaking, it may be said that slighter evidence is 
 
 Delivery. 
 
 I. To the 
 carrier. 
 
 II. By the 
 carrier. 
 
 1 31 L. T. N. S. 613; M'Canoe v. 
 London and North-Westem Kailway Com- 
 pany, 31 L. J. Ex. 65. 
 
 " As to duty with regard to living 
 animals, Shaw v. Great Soutliern ana 
 ^Western Railway, 8 L. K. Ir. C. L. 10. 
 It is negligence to treat a horse like a 
 
 mineral : Pickering v. North-Eastem Eail- 
 way Company, 4 Times L. R. 7. As to 
 injury to cows, Smith v. Midland Eailway 
 Company, 4 Times L. R. 68. As to onus 
 on the company in conveyance of animals, 
 Prior V. London and South-Western Eail- 
 way Company, 2 Times L. E. 89. 
 
PART I.J COMMON CAEEIERS. 617 
 
 sufficient in practice to charge the carrier on delivery to him than 
 would be required to discharge him when he is to make delivery 
 on the completion of the transit. 
 
 I. Delivery to the carrier. i. Delivery 
 
 In one sense it is the reward that renders the carrier liable ; ^ common '^'" 
 as Sir Edward Coke says, the carrier " hath his hire, and thereby caniiiis 
 implicitly undertaketh the safe delivery of the goods delivered receive and 
 to him.'" ' This, however, does not mean that unless a reward is offered wHUn'^ 
 fixed beforehand, the carrier is not liable. The fact that the ,*« '™''^ 9' 
 
 . . his profession 
 
 carrier makes a public profession and accepts the delivery of and to cany 
 
 goods will raise the duty to carry them in accordance with his rea^nabie 
 
 profession. It is in this point of view that a carrier is said to ''i^'"'*''*- 
 
 be liable by reason of his profession, and not by reason of the 
 
 reward ; on the other hand, there is a presumption that the person 
 
 who intrusts goods to a carrier will pay for the carriage. This 
 
 would not be so, but for the fact of a common carriers' business 
 
 being a public profession. Hence, with equal accuracy it may be 
 
 said that the carrier is liable by reason of his profession, or by reason 
 
 of the reward ;" because the law from the exercise of the profession 
 
 implies the reward ; and the two expressions are merely aspects of 
 
 one fact — of which the profession is the substance, but the reward 
 
 the property. But the carrier must carry for a reasonable amount ; 
 
 and if the person desiring his goods should be carried avers and 
 
 proves his readiness to pay the reasonable sum for the carriage, no 
 
 actual tender of the money will be needed." Neither is it necessary 
 
 that the compensation should be a fixed sum. It is sufficient if 
 
 it be in the nature of a quantum, meruit enuring to the benefit 
 
 of the owner .'' The acts to be done by both parties — namely, 
 
 the receipt of the goods and the payment of a reasonable sum 
 
 for their carriage — being contemporaneous acts, the carrier being 
 
 bound to receive the goods on the money being paid or tendered, 
 
 and the bailor to pay the reasonable amoimt demanded on the 
 
 carrier's taking charge of the goods, the case of Eawson v. 
 
 Johnson' clearly shews that, whenever a duty is cast on a party 
 
 in consequence of a contemporaneous act of payment to be done 
 
 by another, it is sufficient if the latter pay or be ready to pay 
 
 the money when the other is ready to undertake the duty.'^ 
 
 ' Co. Litt. 89 a; Dalston v. Janson, i considered judgment of Story, J., on the 
 
 hi. Eaym. 58. nature and extent of the obligations of 
 
 - Crouch V. Great Northern Railway, 1 1 common carriers. 
 Ex. 742 ; New Jersey Steam Navigation ' i East 203 ; Levy l\ Herbert, 7 Taunt. 
 
 Company r. Merchants' Bank, 6 How. 344. 314; AVaterhouse v. Skinner, 2 B. & P. 
 
 '' iPickford v. Grand Junction Railway 447. 
 Company, 9 Dowl. 766. ^ Per Parke, B., Pickford v. Grand 
 
 ■* Citizens' Bank c. Nantucket Com- Junction Canal Company, 8 M. & W. 
 
 pany, 2 Story 16. This case is valuable 372. 
 on account of an exceedingly elaborate 
 
61S 
 
 THE LAW OF NEGLIGENCE. 
 
 [book It. 
 
 When 
 
 liability 
 
 attaches. 
 
 Test. 
 
 ■yVhat carrier 
 IS bound to 
 carry. 
 
 What 
 
 constitutes 
 
 delivery. 
 
 As soon as the acceptance of the goods for the purpose of 
 carriage is absolute, the liahility of a common carrier attaches. 
 The carrier may in some cases receive goods to warehouse pre- 
 paratory to the transit ; like as he often holds goods as ware- 
 houseman after the completion of the transit. The test in these 
 cases is whether the goods are received for deposit in the custody 
 of the carrier as a mere accessory to the carriage, or whether they 
 are there for some independent purpose. In the former case the 
 carrier is liable as common carrier ; in the latter, only as bailee for 
 hire.^ The carrier may also give notice that he will not be 
 responsible for loss unless an additional sum is paid. If the 
 owner /refuses this payment, but leaves the goods, the liability of 
 the bailee is not that of a common carrier, but of a bailee for 
 hire.^ If he makes the payment, the liability becomes that of 
 a common carrier. But the carrier is only bound to convey 
 goods he has room for in his carriage' and can carry with 
 security,* and which he holds himself out to carry.* In case of 
 dispute, the omos prdbandi is on the plaintiff to establish that the 
 persons sought to be charged by them is common carrier by 
 reason that the goods conveyed by him are within the true 
 nature and extent of the business in which he holds himself 
 out to the public as engaged.' Yet the carrier is not in every 
 case bound to receive goods tendered to him for carriage even 
 when his profession is to carry goods of the description tendered. 
 A condition is superadded that the goods tendered to him are fit 
 to be carried in the ordinary course of business, and, if they are 
 not in a fit condition with reference to the ordinary requirements 
 of business, the carrier has an absolute right to refuse them until 
 they are tendered to him in suitable condition.^ 
 
 The principle of what constitutes delivery to a carrier is thus 
 stated in a work of authority': — "Whilst it is the undoubted 
 general rule that the delivery, to bind the carrier, must be made 
 either to him, or to some one with authority from him, or who 
 may be rightly presumed to have such authority,' it is not to be 
 
 ' Mavins «. Todd, i Stark. 72 ; Hyde 
 V. Trent Navigation Company, 5 T. E. 
 389; Koskell V. Waterhouse, 2 Stark. 
 461 ; Camden Railroad Company v. Belk- 
 nap, 21 Wend. 354. 
 
 2 Wyld V. Piokford, 8 M. & W. 443. 
 See per Parke, B., Fowler v. Great 
 Western Eailwiw Company, 7 Ex. 700. 
 
 ' Per Best, C.J., Eiley v. Home, 5 
 Bing. 217. .Ee /)<w*e Eobins, 7 Dowl. 
 566 ; Jackson v. Eogers, 2 Show. 327; 
 
 * Edwards v. Sherrat, i East 604, 
 ■where Lord Kenyon said: "AH the cir- 
 cumstanceS'^Bnd urgency of the case should 
 haru been disclosed to the boatman at 
 
 the time, and he should have been asked 
 whether he chose to undertake the risk. 
 Common honesty would have Fuggested 
 this, for no man in his senses would, 
 under these circumstances, have taken 
 the corn under a liability as a common 
 carrier." 
 
 '^ Citizens' Bank v. Nantucket Com- 
 pany, 2 Story 16. 
 
 " Keddie v. North British Eailway 
 Company, 24 Sc. L. E. 172. 
 
 ' Hutchinson, Law of Carriers, § 90. 
 
 ° Culpepper v. Good, 5 C. & P. 380 ; 
 Gilbert d. Dale, 6 A. & E. 543 ; Camden 
 Bailroad v. Belknap, 21 Wend. 354. 
 
PART I.] COMMON CARRIERS. 619 
 
 understood that it is not subject to such conventional arrange- 
 ments between the parties as they may choose to make in regard 
 to the mode of delivery, or that it may not be varied by usage 
 
 or by a particular course of dealing between them If, 
 
 therefore, the parties agree that the goods may be deposited for 
 transportation at any particular place, and without any express 
 notice to the carrier, such notice will be a sufficient delivery ; 
 and proof of a constant and habitual practice and usage of the 
 carrier to receive the goods when they are deposited for him in a 
 particular place, without special notice of such deposit, is sufficient 
 to shew a public offer by the carrier to receive goods in that 
 mode, and to constitute an agreement between the parties, by 
 which the goods when so deposited shall be considered as 
 delivered to him without any further notice. Such a practice 
 and usage are tantamount to an open declaration, a public 
 advertisement, by the carrier that such a delivery should of itself 
 be deemed an acceptance by him ; and to permit him to set up, 
 against those who have been thereby induced to omit it, the want 
 of the formality of an express notice, which had been thus waived, 
 would be sanctioning injustice and fraud." 
 
 The question of delivery in the individual case must ultimately Delivery a 
 become a question of fact ; and the test seems to be whether it l^ct. 
 appears that the party sought to be charged had themselves or '^''^^' 
 through their agents assumed the charge and custody of the 
 goods.' Thus, in the case of a warehouseman. Lord Ellen- 
 borough, in summing up to the jury, said : " The whole question Thomas v. 
 turned upon the single point, when the warehouseman's liability ^^' 
 commenced, and the agency of the carman ended ; for until the 
 goods were delivered to the warehouseman, the carman was to 
 be considered as the agent of the person sending them ; but 
 when the warehouseman took them into his own hands, the 
 moment the warehouseman applied his tackle to them, from 
 that moment the warehouseman's liability commenced."" Where 
 the goods are placed in the carrier's conveyance without the 
 knowledge or assent of him or his agents, there is, of course, 
 no delivery.'' The jury have to find the facts, and say whether 
 they amount to a taking in charge (of which the circumstances 
 are as many as the cases)'' and which imports the commencement 
 
 'Story, Bailments, § 453; Harris ^ Lovett y. Hobbs, 2 Show. 127 ; Leigh 
 
 V. Packwood, 3 Taunt. 264 ; JBoehra v. v. Smith, i 0. & P. 640. 
 Combe, 2 M. & S. 172 ; Briud v. Dale, * Boys v. Pink, 8 C. & P. 361 ; Davey 
 
 8 C. & P. 207. '■• Mason, 1 Car. & M. 45. An inn where 
 
 ' 'I'homas v. Day, 4 Esp. 262. See parcels were deposited without express 
 
 Eoskcll V. Waterhouse, 2 Stark. 461 ; authority was held a receiving-house of the 
 
 Eandleson r. Murray, 8 A. & E. 109 ; defendants, in Syms r. Chaplin, 5 A. 
 
 Story, Bailments, § 536. & E. 634. Where goods were delivered 
 
620 
 
 THE. LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Bradley v. 
 Dunipa.ce. 
 
 Finn «. 
 Western 
 Bailroad 
 Company. 
 
 Goods 
 
 imperfectly 
 
 addressed. 
 
 of the carrier's liability. This is subject to the implied exception 
 that the delivery is for the purpose of immediate transportation. 
 If the carrier for his own purposes puts the goods in his ware- 
 house, his liability is still that of carrier. But if the transit is 
 delayed to enable the consignor to give oi'ders as to the destina- 
 tion, or in any other way for the convenience of the owner, during 
 the time of such delay the liability is not that of a common 
 carrier, but of a warehouseman only. What the exact relation 
 may be is very seldom a matter of specific arrangement between 
 the parties. The determination of the extent of responsibility is 
 inseparable from the preliminary findings of fact, which often are 
 of great indefiniteness, but the principles governing are easily 
 ascertainable.' 
 
 When once the goods are received, the liability in respect of 
 them becomes absolute, with the exceptions we have already con- 
 sidered. In Bradley v. Dunipace,^ in the Exchequer Chamber, 
 a shipping case, the master was held liable for the wrong delivery 
 of sacks of rye-meal, for which he had given bills of lading, 
 but which were not so marked as to be properly discriminated. 
 In an American case, Finn v. Western Railroad Company,' it is 
 said : " A consignor who neglects to give proper directions for the 
 transmission of his goods has no right to expect that the carrier 
 will take the responsibilty of investigating the history, of his 
 business in order to ascertain his probable intentions in regard 
 to the particular consignment. The carrier has the right to wait 
 and hold the goods on storage until he receives the proper direc- 
 tions before he undertakes the severe obligations of that service." 
 But Bradley v. Dunipace was not a case where the carrier hesi- 
 tated to assume the responsibility ; for there can be no doubt that 
 a delivery imperfect through defective numbering or addressing 
 of the goods would be sufficient to justify him abstaining from 
 conveying the goods as carrier. But the question there more 
 particularly was, What was the contract he entered into ? and he 
 was held liable because that was unperformed. Yet it seems to 
 follow that where a carrier receives goods imperfectly addressed 
 to carry, he thereby, in the absence of any fraud or concealment, 
 undertakes to carry them on the carrier's ordinary terms. In 
 the event of his carrying them, the American case already 
 quoted decides : " The carrier is entitled to have some authority 
 or direction from the consignor himself to justify his delivery 
 
 at a wliarf to an unlcnown person there, 
 and no knowledge of the fact was brought 
 home to the wharfinger or his agents, it 
 was held no delivery : Buokmau v. Lewis, 
 3 Campb. 414. A delivery to a recognized 
 servant is sufficient, as to the mate of a 
 
 ship : Cobban v'. Downe, 5 Eap. 41. 
 
 ' Story, Bailments, § S35 5 2 EedBeld, 
 Law of Bailways, 3rd edit. p. 46 ; Judsou 
 V. Western Railwny, 86 Mass. 520. 
 
 ' I H. & C. 521. 
 
 ' 102 Mass. 283. 
 
PARTI.] COMMON CAREIERS. 621 
 
 to anothei". If none such accompanies tlie goods, lie is not 
 bound to take the risk of delivery to any one wLo does not 
 produce evidence of his title or authority from the consignor,"' 
 
 II. Delivery by the carrier. il. Delivery 
 
 When goods are arrived at their destination the common carrier \^ittfii"^"LT' 
 has a further duty — to deliver. The time of delivery has, how- *'™®' 
 ever, nothing to do with the duty to deliver safely. Where there 
 is an express contract, the terms of the contract of course govern ; 
 where there is no express contract, there is an implied contract to 
 deliver within a reasonable time, " the dtity to deliver within a 
 reasonable time being merely a term engrafted by legal application 
 upon a promise or duty to deliver generally,"^ and this delivery 
 must be without unnecessary deviation.^ So that where a railway Taylor v. 
 company was prevented, ,by an accident on its line resulting Northern 
 from the negligence of another company who had running powers, Railway 
 from delivering a parcel of goods, it was held that the railway 
 company was not liable for damage to the goods caused by the 
 delay." And shortly after the same Court held, in Lord v. Midland Lord ». 
 Eailway Company,* that a contract to carry by a pai;ticular train R^uway 
 does not amount to a warranty that it shall so arrive, even though Company, 
 at the time of receiving the goods the company's servants are in- 
 formed that the object of the sender requires that it should so 
 arrive. As regards the circumstances of delivery, the carrier is 
 bound to provide a safe and proper means. If, as in Eooth v. Booth >. 
 North-Bastem Eailway Company," the defendants undertake to ^"a^'y""'®™ 
 carry cattle, there is an obligation to provide a safe and proper Company, 
 means for these cattle to cross the line and leave the premises. In 
 that case the jury were asked two questions — Was there a complete 
 and safe delivery ? and. Was there a proper place to deliver ? Com- 
 menting on this, Kelly, C.B., said' : " The one question involves 
 the other. That question — that is, of safe and complete delivery 
 — ^involves that of whether a safe and convenient place to deliver 
 was provided ;" and the same learned judge pointed out that in 
 Eoberts v. Great Western Eailway Company" the defendants Eoberts e. 
 succeeded because the declaration there contained an express H^ihray^^ °™ 
 
 1 Three New Hampshire cases! should " PerTindal, C.J., Davis v. Garrett, 6 Company, 
 
 be Consulted on this : Stimson v. Jackson, Bing. at p. 725. 
 
 58 N. H. 138, on duty of carrier when ■■ Taylor v. Great Northern Eailway 
 
 goods wrongly addressed ; Peoria Bank v. Company, L. E. i C. P. 385 ; 35 L. J. C. P. 
 Northern Eailway Company, 58 N. H. 210 ; 14 W. E. 639 ; 14 L. T. N. S. 363 ; 
 203, on delivery without production of the Briddon 0. Great Northern Eailway Com- 
 bill of lading ; Converse v. Boston Eail- pany, 28 L. J. Ex. 51. 
 road Company, 58 N. H. 521, on ratiflca- = L. E. 2 C. P. 339 ; 36 L. J. C. P. 
 
 tion of unauthorized delivery. As to 170; 15 W. E. 405; 16 L. T. N. S. 576. 
 failure to receive goods through a strike, " L. E. 2 Ex. 173 ; 36 L. J. Ex. 83 ; 
 
 see Pittsburg Eailroad Company v. Hoi- 15 W. E. 695 : 15 L. T. N. S. 624. 
 lowell, 32 Am. E. 63. ' At p. 179. 
 
 = Per Tindal, C.J., Eaphaelr. Pickford, » ^ q, 3 ^ g j^g . 27 L. J. C, P. 266. 
 
 5 M. & G. at p. 5s8. 
 
632 
 
 THE LAW OF NEGLIGENCE. 
 
 [book ir. 
 
 Shepherd v, 
 Bristol and 
 Exeter Bail- 
 way Company, 
 
 Distinction 
 between 
 ordinary 
 road carriers 
 and railway 
 carriers. 
 
 allegalaon of an absolute legal obligation to provide a fence to a 
 yard near a railway station, and it was impossible to say that that 
 as a matter of law was the special precaution that must neces- 
 sarily be taken. 
 
 The circumstances which constitute delivery were the subject 
 of discussion in Shepherd v. Bristol and Exeter Bail way' where 
 there was a difference of judicial opinion. Cattle delivered by 
 the plaintiff to the defendants, and carried by them as commoii 
 carriers, arrived at the defendants' station on a Sunday morning, 
 between eleven and twelve o'clock, but owing to certain police 
 regulations the plaintiff was unable to take them away before 
 midnight. They arrived and were taken out of the trucks safely. 
 The plaintiff's servant was at the station, and would at once have 
 driven them away but for the regulations. They were put into a 
 pen where the plaintiff, who subsequently came, fed them, buying 
 the hay of the railway's foreman. Between twelve and one o'clock 
 on Monday liioming plaintiff's servant went to fetch them, but 
 found that two had been killed. He desired to take the remain- 
 ing twenty, but was not allowed to do so unless he signed for 
 the lot. This he refused to do, and in consequence was not 
 permitted to take the cattle away. The majority of the Court of 
 Exchequer* held that " nothing more remained to be done by the 
 defendants under their contract as carriers when the alleged 
 damage occurred." Martin, B., considered the matter " a pure 
 question of fact," and that the cattle were " not delivered either 
 actually or constructively." The question would seem largely to 
 turn on what was the due course of business,^ and would therefore 
 ordinarily have been for the jury, but in this particular case the 
 Court was to have the power to draw inferences of fact, with the 
 result that two judges drew one inference, one another. Where 
 the facts are not in dispute, and the course of business of the 
 carrier is uniform, then the relationship of the carrier and the 
 consignee is settled by law. 
 
 There is apparently a difference as to the duty of delivering goods 
 carried between ordinary road carriers and railway carriers. In 
 Hyde v. Trent and Mersey Navigation Company^ the majority of 
 the Court was of opinion that the risk of the carrier continued 
 until a personal delivery at the house or place of deposit of the 
 consignee with notice. But with railway companies the rule is 
 otherwise.' The trucks cannot leave the line of rails on which they 
 
 1 L. R. 3 Ex. 189 ; 37 L. J. Ex. 113 ; 
 18L. T.N. 8.528; 16 W.E. 982. Com- 
 pare M'Kinney v. jewett, 90 N. Y. 267, 
 the case of some hams spoiled while wait- 
 ing at the defendants' station. 
 
 ^ Bramwell and Channell, BB, 
 
 ' Stevenson v. Hart, 4 Bing. 476. 
 
 ^ S T. R. 389- 
 
 ' Thomas v. Boston and Providence 
 Railroad Company, 51 Map. 472 ; Sonth 
 and North Alabama Railroad Company v. 
 Wood, 41 Am. R. 745, 
 
PARTI.] COMMON CARRIERS. 62i5 
 
 move, while if they are drawn up on the line they necessarily 
 obstruct other traflBc, so that it is often essential that as soon as 
 may be after their arrival they should be unloaded, without waiting 
 for instructions or intervention from those to whom their contents 
 belong. Hence arises as an almost inseparable incident to a rail- 
 way company's business the necessity for large warehouses for the 
 storage of goods pending delivery ; the contract made by railway 
 carriers of goods is accordingly modified from that of ordinary 
 road carriers, and may be thus stated : — They contract to " carry Euie of duty 
 the goods safely to the place of destination and there discharge s*haw°c j''^ 
 them on the platform, and then and there deliver them to the ^° Norway 
 consignee or party entitled to receive them, if he is there ready to pimy v. Boston 
 take them forthwith ; or if the consignee is not there ready to take "■' '°* " 
 them, then to place them securely and keep them safely a reason- 
 able time ready to be delivered when called for." ' 
 
 Actual delivery to the proper person is generally conceded to 
 be the duty of the carrier.^ If the carrier has delivered to the 
 wrong person, he is pnmd facie guilty of a conversion.' But Heugh v. 
 says Kelly, C.B., in Heugh v. London and North- Western Eail- Nor?h.° *°^ 
 way Company," referring to the cases just cited, " in neither case S,^f'^.™ 
 was it held, or even contended, that the mis-delivery amounted. as Oompany. 
 a matter of law to a conversion ; but in both cases it was admitted 
 to be a quesjtion for the jury — and the question was, in fact, left 
 to them — whether under all the circumstances the defendants, 
 had acted with reasonable care." This and similar decisions turn 
 upon the fact that the transit has been completed, and the carrier 
 has done all he could to secure delivery, so that the character in 
 which he holds the goods is changed from that of an insurer to 
 that of a less onerous responsibility.'' To make him liable there 
 must be some fault ; it is a question of fact whether there has 
 been any such negligence as makes him guilty of a conversion ; 
 and, where he has carried out the directions of the sender, the mere Mere wrong 
 fact that he has delivered the goods to some person to whom the auffide^t'to 
 sender did not intend delivery to be made is not sufla.cient to support a 
 
 " claim for 
 
 support the allegation that he has converted them." The propo- conversion. 
 sition would, perhaps, be more strictly accurate put in another 
 
 ' Per Shaw, C.J., Norway Plains Com- 757, at p. 762. 
 pany v. Boston Hailroad Company, 67 * L. B. 5 Ex. Jl ; 39 L. J. Ex. 48 ; 
 
 Mass. 263, at p. 272. Bice v. Boston Rail- 21 L. T. N. S. 676. 
 road Company, 98 Mass. 212. ° See post, p. 534. 
 
 ^ Smith V. Home, 8 Taunt. 144; Gar- « M'Kean v. M'lvor, L. E. 6 Ex. 36 ; 
 
 nett V. Willan, 5 B. & Aid. 53 ; DufiF v. 40 L. J. Ex. 30 ; 18 L. T. N. S. 410 ; 24 
 
 Budd, 3 Brod. & B. 177. _ L. T. N. S. 559 ; Samuel v. Cheney, 135 
 
 'Stephenson v. Hart, 4 Bing. 476; Mass. 278, at 283, in the judgment is said 
 
 Daff«. Budd, 3. Brod. & B. 177. As to to be "in some respects similar.'' See 
 
 the law of conversion, see opinion of Black- also Southern Express Company v. Van 
 
 burn, J., Hollins v. Fowler, L. K. 7 H. L. Meter, 35 Am. B. 107. 
 
624 THE LAW OF NEGLIGENCE. [book ii. 
 
 way. The liability of the carrier having been terminated by the 
 fulfilment of the contract, the new contract substituted requires 
 some negligence in order to fix the bailee of the goods with re- 
 sponsibility for their mis-delivery ; and, until negligence is shewn, 
 it does not follow that that set of circumstances which in law 
 points to conversion wotld necessarily afiix liability to the bailee 
 in the circumstances of the bailment. This may be tested by 
 assuming a similar mis-delivery while the carrier's liability is sub- 
 sisting. The carrier is liable in trover for the mis-delivery." 
 Where oanier But whei'c he holds the goods in another and less onerous capacity 
 in another* than that of Carrier, he is not liable. This cannot depend upon 
 cftpacitj- than ^he facts shewing conversion in one case, and not a conversion in 
 
 that of carrier. » » , , . , 
 
 the other ; for the facts, by hypothesis, are the same ; and " con- 
 version " is a matter of law concluded from ascertained facts.^ Tf, 
 then, the bailee held the goods in one capacity — as carrier — he 
 is liable for a conversion ; if he held them in another capacity — 
 as warehouseman — he is not ; but the facts are the same in each 
 instance, so far, that is, as they relate to the alleged converting. 
 Therefore it is not the question of conversion which is for the 
 jury, but the question in what capacity does he hold ; and, if in 
 the capacity of bailee, whether depositary or for hire ; then, has 
 his conduct been negligent in that degree which would affix a 
 responsibility to him in a case where he is not necessarily, and in 
 all events, liable ? Actual delivery, of course, cannot be insisted 
 on in all cases : circumstances may imply it ; it may be waived ; 
 it may be impossible. 
 Termination The law of England with regard to goods does not differ from 
 biiltj-f™^'" what it has been decided to be with regard to passengers' lug- 
 gage,^ though there is no decision precisely in point — that the 
 responsibility does not terminate uhtil the owner or consignee 
 might reasonably have an opportunity to remove it,' if, that is, 
 there is a contract or a custom for him to do so. If, however, 
 the owner neglects his opportunity, he cannot thereby impose a 
 greater burthen'" on the carrier than he is liable to if the owner 
 Test. did what he ought. The test to be applied with regard to the 
 
 liability of railway companies is whether in the circumstances the 
 consignee has used reasonable diligence to ascertain whether the 
 
 1 Youl V. Harbottle, Peake N. P. C. ' Hodkinson v. London and North- 
 64,citedbyBayley, J., inDevereuxu. Bar- Western Railway Company, 14 Q. B. D. 
 clay, 2 B. & Aid. 703, at p. 704 ; Wyld 228 ; M'Cavty v. New York and Erie 
 V. Piekford, 8 M. & W. 443. As to what Eailroad Company, 30 Penu. St. 247. 
 constitnteB a mis-delivery, see Cnnnington ^ Great Western Eailway Company v. 
 V. Grreat Northern Bailwav, 49 L. T. 392. Crouch, 2 H. & N. 491 ; 3 H. & N. 183. 
 
 2 Hollina v. Fowler, L. E. 7 H. L. 757. ^ Chapman v. Great Western Railway 
 As to a conversion of baggage, see M'Cor- Company, 5 Q. B. D. 278 ; 49 L. .1. Q. B. 
 mick V, Pennsylvania Eailroad Company, 420 ; 42 L. T. 252 ; 28 W. B. 566. 
 
 99 N. Y. 65. 
 
PART I.] COMMON OAREIERS. 625 
 
 goods are arrived, and (if they are) to remove them before the 
 responsibility of the carrier is terminated. When this reasonable 
 interval is elapsed, the carriers' obligation ceases, and they only 
 remain liable as bailees.' 
 
 " When once," says Cockburn, C. J.," speaking of railway carriers, Cookbum, 
 " the consignee is in mm'd by delaying to take away the goods man ^rGreaT 
 beyond a reasonable time, the obligation of the carrier becomes 'w?stem 
 that of an ordinary bailee, being confined to taking proper care Company. 
 of the goods as a warehouseman ; he ceases to be liable in case of 
 accident.' What will amount to reasonable time is sometimes a 
 question of difficulty, but as a question of fact, not of law. As 
 such, it must depend on the circumstances of the particular case." 
 
 Thus it is seen that the same contract at difierent times may Distinctions. 
 import different liabilities to those entrusted with goods." A further 
 distinction must be drawn, where a reasonable time has elapsed 
 after receipt but without delivery, between those cases, on the one 
 hand, where the continued custody of the goods is for the con- 
 venience of the carrier, and those cases, on the other hand, where 
 the custody is not incident necessarily to the carriage, but is for 
 the convenience or through the negligence of the bailor. In the 
 former class the liability continues that of the common carrier. 
 In the latter it is that of a mere bailee. 
 
 Yet a further distinction has been drawn, in this latter class On what 
 of cases, between the cases where the bailment is a bailment remain after 
 for hire, and those where it is held as a mere deposit. There can of™m^er™ 
 be no doubt that a common carrier or other bailee for hire may responsibility, 
 refuse to enter into any new contract for keeping goods after he 
 has completed his undertaking for the carriage of them and has 
 discharged himself from responsibility by a delivery of the goods 
 to the bailor, or by tender of them, or by some other act which 
 the law regards as delivery.' If he does this, it is said in an 
 American case of authority," the goods remain with him as an invo- 
 luntary depositary, for he has discharged his duty to the owner, 
 which is — failing actual delivery, which, if the owner refuses, 
 he cannot compel — to do those things which are fairly equiva- 
 lent to a delivery,' and has refused to undertake any further 
 obligation to him. There does not then appear to be any dis- 
 
 ' Thomas». Boston and Providence Eail- ' Heugh v. London and North-Western 
 
 road Company, 51 Mass. 472. Compare, Eailwivy Company, L. R. 5 Ex. 51; 39 
 
 however, Cairns v. Robins, 8 M. & W. 258. L. J. Ex. 48 ; 21 L. T. N. S. 676. 
 
 ^ Chapman v. Great Western Railway ^ Smith v. Nashua Raih-oad Company, 
 
 Company, 5 Q. B. D. 278, at p. 282. 27 N. H. 86. 
 
 ^ j(!e., as distinguished from negligence. ' Ostrander v. Brown, 15 Johns. 35; 
 
 * Garside v. Trent and Mersey Naviga- Story, Bailments, § 347 ; Angell, Carriers, 
 
 tion, 4 T. R. 581 ; Hyde v. Trent and § 289 ; Patten v. Johnson, 131 Mass. 297, 
 
 Mersey Navigation Company, 5 T. E. is a case on what amounts to waiver of 
 
 389. delivery. 
 
 ER 
 
620 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Hudson V. 
 Baxoudale. 
 
 Great 
 Western 
 Hallway v. 
 Crouch. 
 
 Mitchell V. 
 Lancashire 
 ;i.nd Yorkshire 
 Railway 
 Company. 
 
 Blackburn, 
 J./s judgment. 
 
 tinction between his position and that of a mere finder of goods. 
 He may sufEer them to remain undisturbed, or he may remove 
 them to a convenient distance and there leave them in a suitable 
 place for the owner, doing no unnecessary damage ; and he will 
 then incur no responsibility.' 
 
 In Hudson v. Baxendale^ the rule was laid down apparently 
 more in favour of the owner. There Bramwell, B., said : " The 
 true rule is that, when a consignee refuses to accept a parcel 
 tendered to him by a carrier, the carrier must conduct himself as 
 a reasonable man would do with reference, to it." But the learned 
 judge continues: "I doubt if a consignor has a right to impose 
 on a carrier the burden of doing anything after he has tendered 
 the goods. But, assuming that he has it, it is sufficient if the 
 carrier does what is reasonable." The question arises — As a reason- 
 able man, with respect to what standard ? This was referred to by 
 Willes, J., in Great Western Railway Company v. Crouch,^ in the 
 Exchequer Chamber, when, after referring with approbation to the 
 decision in Hudson v. Baxendale, he said: " Generally speaking, 
 dealing with a parcel under such circumstances in a reasonable 
 manner wiU impose upon the carrier the duty of keeping it for a 
 reasonable time, if he have the means of doing so, at the place to 
 which it was originally consigned." And Crompton, J., considered 
 that, according to the general law, where a carrier undertakes to 
 carry goods to a particular place he must deposit them for a 
 reasonable time if the consignee is not ready to receive them. 
 This Willes, J.," agreed was the correct rule. That being so, it 
 would seem that not every hasty refusal must be taken by the 
 carrier as irrevocable, but a locus posnitentice must be given. The 
 consignee, whether refusing acceptance or not, is to have his 
 reasonable time for the purposes of getting delivery. After the 
 expiry of this, the position of the carrier may be that of an in- 
 voluntary depositary; still, he must act reasonably with regard to 
 the subject-matter and to the circumstances. In Mitchell r. 
 Lancashire and Yorkshire Railway Company* — where, on the 
 arrival of goods at their station, the defendant sent plaintiff an 
 advice-note of their arrival, requiring him to remove them, and 
 stating that the defendants would hold them, " not as common 
 carriers, but as warehousemen, at owner's sole risk, and subject to 
 the usual warehouse charges " — Blackburn, J., said : " I take it 
 the law is very clear to this extent, that where a carrier receives 
 goods to carry to their destination, with a liability as carrier 
 
 1 2 SnunO. PI. & Ev. 388 ; 2 Chitly 
 
 PI. 548- 
 
 2 2 H. & N. 575 ; 27 L. J. Ex. 93. 
 
 3 3 H. & N. 183 ; 26 L. J. Ex. 418. 
 
 * At p. 202. 
 
 5 L. E. 10 Q. B. 256 ; 44 L. J. Q. B. 
 107 ; 33 L. T. N. S. 161 ; 23 W. E. 853. 
 
PART I.] COMMON f'AREIERS. G27 
 
 (except so far as that duty is qualified by exceptions), he may be 
 said to be an insurer. The goods are then to be carried at the 
 risk of the carrier to the end of the journey, and, when they arrive 
 at the station to which they were forwarded, the carrier has then 
 complied with his duty when he has given notice to the consignee of 
 their ari-ival ; ' and after this notice, and the consignee does not 
 fetch the goods away and becomes in mord, then I think the carrier 
 ceases to incur any liability as carrier, but is subject to the ordi- 
 nary liability of bailee."" The natural meaning of this passage 
 would seem to be that there is a duty on the railway carrier to 
 give notice to the consignee, though the expression is susceptible 
 of the meaning that the giving notice to the consignee would be 
 the clearest and most emphatic way of shewing that he has had 
 reasonable opportunity to reniove his goods, without laying down 
 as an absolute rule of law that the giving of notice is a conditio sine 
 qttd non of reasonable opportunity. Further, Blackburn, J., leaves 
 ambiguous the answer to the question, what sort of bailee's liability 
 it is that is incurred — that of the bailee for hire, or that of the in- 
 voluntary depositary ? In the case before him there was no dispute 
 as to which; for if the defendants were not liable as carriers, then 
 their liability was that of warehousemen. " I think," continues 
 Blackburn, J., ' ' in this case the railway company in holding these 
 goods could have charged warehouse rent ; and, that being so, I 
 think there can be no doubt that ^Ji'i'ma facie there was a liability 
 in them as bailees for reward. The liability of an ordinary bailee 
 is to take ordinary and reasonable care." But, as the case did not 
 raise the question whether in any circumstances the liability of 
 the carrier may not be only that of an involuntary depositary, 
 Blackburn, J., does not discuss it. Probably in the existing state Suggested 
 of opinion, and with the present methods of the conduct of rail- the difficulty, 
 way business, the question is not likely practically to be raised. 
 But assuming reasonable notice given of the arrival of goods, 
 and non-omission to remove them, with a further distinct notice 
 that the carrier repudiated all liability with regard to them, there 
 seems no reason why the liability of the carrier should be other 
 than that of an involuntary bailee.' 
 
 As to the right to put them in warehouse, there seems to be, Eight to 
 says a high authority," " no question but that the carrier will be them, 
 justified." 
 
 ' In Hudson r. Baxendale, 2 H. & N. ^ Clark v. Eastern Kailroad Company, 
 
 575; 27L.J. Ex. 93; the Court held that 139 Mass. 423, holds in certain ciroum- 
 
 notice, as a matter of law, was not neces- stances a railway company may be a 
 
 sary. gratnitoiis bailee of baggage brought to be 
 
 - Bourne v. Gatliffe, 4 Bing.N. 0. 314; conveyed with a passenger. 
 
 3 M. & G. 643 ; 1 1 CI. & F. 45 ; Cairns v. * 2 Eedfield, Law of Railways, 3rd edit. 
 
 Eobins, 8 M. & W. 258. P 66. In National Steamship Company ti. 
 
628 
 
 THE LAW OF NEGLIGENCE. 
 
 [book it. 
 
 Eetentjon of 
 the goods. 
 
 33uty of 
 earner where 
 he is required 
 to hold the 
 goods when 
 such holding 
 involves 
 expense. 
 Notara v. 
 Henderson, 
 
 Gaudet v. 
 Brown. 
 
 Gi'eat 
 Northern 
 Kail way 
 Company v, 
 Swaffield. 
 
 Again, the carrier may refuse to undertake any new duties with 
 respect to the goods, yet he may continue to retain them in his 
 hands without any further contract. In such a case the law implies 
 that the goods are held by him as a depositary, when he is liable 
 for gross negligence, and is bound to the exercise of slight care, 
 such as that as is taken by a man of common-sense of his own 
 property.' Further, though he has at first refused, he may sub- 
 sequently so act that he may become bound by the same contract 
 intb which he has at first refused to enter ; and this liability may 
 be either that of depositary'or of a bailee for hire, the question of 
 which will be of fact, and for the jury.^ 
 
 There is one point more — What is the duty of the carrier 
 during the time that he is required to hold the goods pending 
 the taking of delivery of them By the consignee, when the holding 
 of them either necessitates expense or renders it expedient ? In 
 the well-known case of Notara v. Henderson," in the Exchequer 
 Chamber, in reference to shipowners, it was held that there is a 
 duty imposed upon the master, as representing the shipowner, to 
 take reasonable care of the goods entrusted to him, not merely in 
 doing what is necessary to preserve them on board the ship during 
 the ordinary incidents of the voyage, but also in taking reasonable 
 measures to check and arrest their loss, destruction, or deteriora- 
 tion by reason of accidents, for the necessary efiects of which there 
 is, by reason of the exception in the bill of lading, no original 
 liability.'' This was followed by Gaudet v. Brown,' also a ship- 
 ping case, where Montague Smith, J., after citing the cases, pro- 
 ceeds : " It results from them that not merely is a power given, but 
 a duty is cast on the master, in many cases of accident and emer- 
 gency, to act for the safety of the cargo in such manner as may 
 be best under the circumstances in which they may be placed ; 
 and that, as a correlative right, he is entitled to charge its owner 
 with the expenses properly incurred in so doing." Referring to 
 this in the case of Great Northern Eailway Company v. SwaflSeld," 
 the case of a land carrier, Pollock, B., says : " That seems to me 
 to be a sound rule of law. That the duty is imposed upon the 
 carrier I do not think any one has doubted, but if there were 
 
 Smart, 107 Penn. St. 492, where the lia- 
 bility of earlier has ceased, the goods are 
 said to be held ou the obligation " to exer- 
 cise ordinary care in keeping and pre- 
 serving" them. 
 
 1 In re "Webb, 8 Taunt. 443 ; Hvde v. 
 Trent and Mersey Navigation, 5 T. R. 
 389 ; Garside v. Trent and Mersey Navi- 
 gation, 4 T. B. 581 ; Story, Bailments, 
 §§ 41, 292. 
 
 2 Smith V. Nashua Eailroad Company, 
 27 N. H. 86 ; Cairas v. Kobins, 8 M. & 
 
 W. 258 ; White v. Humpheiy, 11 Q. B. 
 
 43' 
 
 3 L. E. 7 Q. B. 22s ; 41 L. J. Q. B.158. 
 
 * CompareTaff Vale Railway Company 
 V. Giles, 2 E. & B. 823, where it was lielj 
 in the Exchequer Chamber to be the duty 
 of a railway company to plant " quicks " 
 pending delivery. 
 
 = L. R.5P.C. 134; 28 L.T.N. S. 745; 
 21 W. R. 707. 
 
 " L. R. 9 Ex. 132 ; 4'? L. J, Ex. 89 ; 30 
 L. T, N. S 563. 
 
PAKTi.] COMMO]!^' CARRIERS. 629 
 
 that duty without the correlative right, it would be a manifest 
 injustice." And Kelly, C.B., in the same case — where a horse 
 was received at a station, and, there being no one to receive him, 
 was sent on to a livery stable keeper, for whose charges the 
 company sued — said: "My brother Pollock has referred to a 
 class of cases which is identical with this in principle, where it 
 has been held that a shipowner who, through some accidental cir- 
 cumstances, finds it necessary, for the safety of the cargo, to incur 
 expenditure, is justified in doing so, and can maintain a claim for 
 reimbursement against the owner of the cargo. That is exactly 
 the present case. The plaintiffs were put into much the same 
 position as the shipowner occupies under the circumstances I have 
 described. They had no choice, unless they would leave the horse 
 at the station or in the high road, to his own danger and the 
 danger of other people, but to place him in the care of a livery 
 stable keeper ; and, as they are bound by their implied contract 
 with the livery stable keeper to satisfy his charges, a right arises 
 in them against the defendant to be reimbursed those charges 
 which they have incurred for his benefit." 
 
 In the event of the consignee absolutely refusing to receive Duty of the 
 goods, it was contended that there was an absolute duty on the event o'Ahe 
 carrier to give notice to the consignee. The Court of Exchequer, ^fiisaibythe 
 in Hudson v. Baxendale,^ refused to go this length, but agreed receive, 
 with the direction of the judge at the trial, that "there is no Baxendaie. 
 law requiring a carrier to give notice, though in certain cases it 
 might be reasonable that he should do so."' 
 
 With regard to the proof of loss or non-delivery of goods, the Proof of loss 
 principle is well stated in Hutchinson on Carriers' : " Although delivery, 
 the claim of the plaintiff in an action for the loss of the goods 
 may rest upon negligence or nonfeasance, and not upon a positive 
 misfeasance, and would therefore seem to require proof of a nega- 
 tive character, the burden of shewing the loss is unquestionably 
 upon him, and he must give some proof of the allegation of the 
 loss notwithstanding its negative character ; and, if it be out of 
 his power to shew positively the loss of the goods, he must at 
 least shew such circumstances as would create the inference 
 against the defendant that they had been lost, as, for instance, 
 that they had been bailed to the carrier a sufficient length of 
 time to be transported to their destination, and had not been 
 
 ' 2 H. & N. 575 ; 27 L. J. Ex. 93. see CaiT v. London and North- Western 
 
 '' As to American decisions, see Mer- Bailway Company, L. R. 10 C. P. 307 ; 
 
 chants' Dispatch Company r. Moore, 30 44 L. J. C. P. 109 ; 31 L. T. N. S. 785 ; 
 
 Am. B. 541, and note ; Gashweiler v. 23 W. R. 747. 
 
 Wabash Railroad Company, 53 Am. E. ' § 764. 
 
 558. As to effect of notice when given, 
 
630 THE. LAW OF NEGLIGENCE. [book ii. 
 
 there reoeiYed or delivered to the person entitled to them to whom 
 they were consigned."^ 
 Demand of Where goods are delivered to a carrier to be carried to a 
 
 pkoe^ottier Certain place, with the name of the consignee stated, he may 
 whSh'thV" demand them in another place, and the carrier is discharged 
 are consigned, from any liability to the vendor if he delivers them to the con- 
 signee so designated." , 
 
 2. Carriers of Passengers by Land. 
 
 The liability of carriers of passengers^ for injuries sustained by 
 a passenger through the negligence of their servants, though strictly 
 not a subdivision of the law of bailments, may most conveniently be 
 First decision treated here. This liability was first the subject of a reported deci- 
 m 1791. g-^^ ^^ White ■!;. Boulton'' in 1 791. In the course of the case the 
 
 counsel for the defendant referred to a case said to have been tried 
 before Lord Loughborough, in which his lordship had' held that the 
 proprietors of a mail-coach were not answerable for the negligence 
 of their servants ; saying that those coaches were not under the 
 government of the proprietors, but the concern of the public, 
 being established merely for the conveyance of letters ; and there- 
 fore if any person travelled in them he went at his own risk, and 
 the law implied no promise for his safety. To this Lord Kenyon 
 answered that "he was certain no such determination had ever 
 been made by Lord Loughborough. It was too absurd to enter 
 into the head of any man. Doubts had been entertained by great 
 lawyers in the last and the present century whether the Post- 
 master-General was liable for letters sent. He would not deliver 
 any opinion upon that point, as it had nothing to do with the 
 present case ; but when these coaches carried passengers, the pro- 
 prietors of them were bound to carry them safely and properly." 
 AstouD. In 1797, in Aston v. Heaven, Eyre, C.J.,' laid down the rule 
 
 governing in cases of this kind, in the following often-quoted 
 terms: — "This action is founded entirely in negligence. It 
 has been said by counsel for the plaintiff that wherever a case 
 happens, even where there has been no negligence, he would 
 take the opinion of the Court whether defendants circumstanced 
 as the present — ^that is, coach-owners — should be liable in all cases, 
 except where the injury happens from the act of God or of the 
 King's enemies. I am of opinion the cases of the loss of goods 
 
 1 Woodbury «. Prink, 14 111. 279. ject himself to the liability of a common 
 
 ^ Cork Distilleries Company «. Great carrier of passengers : Moffatt ?■. Bateman, 
 
 Sonthern and Western Railway Company, L. E. 3 P. C. 115 ; 22 L. T. N. S. 140. 
 
 L. E. 7 H. L. 269 ; 8 Ir. E. C. L. 334. * Peake 81. 
 
 ^ A person driving his own carriage " 2 Esp. 533, at p. 534. 
 
 who gives a seat to another does not suU- 
 
pABTi.] COMMON CARRIERS, 631 
 
 by carriers and the present are totally unlike. When that case 
 does occur, he will be told that the carriers of goods are liable by 
 the custom to guard against frauds they might be tempted to 
 commit by taking goods entrusted to them to carry, and then 
 pretending they had lost or been robbed of them ; and because 
 they can protect themselves ; but there is no such rule in the case 
 of the carriage of persons. This action stands on the ground of 
 negligence alone." Then, after commenting on the facts, he con- 
 tinued : " The immediate cause of tl^ accident is agreed on all 
 hands ; the question, therefore, depends on the consideration of 
 whether there was any negligence in the driver ? It is said he 
 was driving with reins so loose that he could not readily command 
 his horses ; if that was the case, the defendants are liable, for a 
 driver is answerable for the smallest negligence. But if this 
 does not appear, and the accident appears to- have arisen from 
 any unforeseen accident or misfortune, as from the horses suddenly 
 taking fright, in. such case the defendants are not liable." The 
 law was even more clearly put by Mansfield, C.J., in Christie v. Christie r. 
 Griggs.^ " There was a difference," he said, " between a contract "^^^' 
 to carry goods and a contract to carry passengers. For the goods 
 the carrier was answerable at all events. But he did not warrant 
 the safety of the passengers. His undertaking as to them went 
 no farther than this — that, as far as human care and foresight 
 could go, he would provide for their safe conveyance. Therefore, 
 if the breaking down of the coach was purely accidental, the 
 plaintiff had no remedy for the misfortune he had encountered." " 
 In the subsequent case of Harris v. Costar,^ Serjeant Vaughan Harris i-. 
 took the point that there was nothing in law that required that 
 " a passenger is to be carried, Hke a bale of goods, safely at all 
 events;" and Best, O.J., replied: "I shall not say that there 
 is any such contract," and ruled that the contract averred in the 
 declaration was to be construed, " like all other instruments, 
 taking the whole together, and meant that the defendants were 
 to use due care." These cases were all at iVm Frius ; but at the 
 end of the same year* in which Harris v. Costar was decided, the 
 obhgation of a carrier of passengers came before the Court of 
 Common Pleas in Crofts v. Waterhouse.' The driver of a stage- Crofts v. 
 
 - . , Waterhoitse. 
 
 1 2 Campb. 79. Anaell v. Waterhouse, tune might have arisen though the vehicle 
 
 6 M. & S. 385, decides that an action was reasonably fit for the journejr, ancl so 
 
 against a common carrier for the over- be purely accidental, and the pbasible view 
 
 tumingof acoach isin tort, and therefore that the accident and the circumstances 
 
 it was not necessary that all the proprie- attending it shewed that the coach could 
 
 tors should be joined. not in fact be reasonably fit for the 
 
 " In fieadheadc. Midland Eailway Com- journey." 
 pany, L. E. 2 Q. B. 412, Blackburn, J., ^ I C. & P. 636. 
 
 at p. 438, says: "Mansfield, C.J., does * 1825. 
 
 not very accurately distinguish here the ° 3 Biiig. 319 ; Stokes v. Saltonstall, 
 
 possible view of the case that the misfor- 13 Pet. (U, S.) 181. 
 
632 
 
 THE, LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Conditious 
 on wMoh a 
 carrier of 
 passengers is 
 to conduct 
 his business 
 laid down by 
 Best, O.J. 
 
 Duty of the 
 proprietor. 
 
 Israel v. 
 Clark. 
 
 Christie v. 
 Griggs. 
 
 coacli upset his coach while turning a comer. He had passed the 
 same spot twelve hours before, when a cottage that served him as 
 a landmark had been there, but this had been pulled down in 
 the interval. The judge directed the jury at the trial that, as 
 there was no obstruction in the road, the driver ought to have 
 kept within the limit of it. On motion for a new trial on the 
 ground of misdirection, a rule was made absolute, as it ought to 
 have been put to the jury whether the deviation was the effect of 
 negligence. Best, C.J., thus laid down the conditions on which 
 a carrier of passengers must conduct his business : — " This action 
 cannot be maintained, imless negligence be proved ; and whether 
 it be proved or not is for the determination of the jury, to whom 
 in this case it was not submitted. The coachman must have 
 competent skill, and must use that skill with diligence ; he must 
 be well acquainted with the road he undertakes to drive ; he must 
 be provided with steady horses, a coach and harness of sufficient 
 strength and properly made, and also with lights by night. If 
 there be the least failure in any one of these things, the duty of 
 the coach proprietors is not fulfilled, and they are answerable for 
 any injury or damage that happens. But with all these things, 
 and when everything has been done that human prudence can 
 suggest for the security of the passengers, an accident may 
 happen : the lights may in a dark night be obscured by fog ; the 
 horses frightened ; or, as it happened in the present case, the 
 coachman may be deceived by a sudden alteration in objects near 
 the road by which he had used to be directed on former journeys. 
 It is not his fault if, having exerted proper skill and care, he from 
 accident gets off" the road ; and the proprietors are not answ^able 
 for what happens from his doing so." 
 
 So far we have considered the duty rather of the coachman*- 
 There was for some time more doubt as to what the duty of the 
 proprietor was as to the providing a vehicle in which the journey 
 should be accomplished. The first case with reference to this was 
 Israel v. Clark,' where the plaintiff sought to recover damages for 
 an injury arising from the overturning of the defendant's coach 
 in consequence of the axle-tree having broken. Lord Ellenborough 
 said carriers of passengers " were bound by law to provide suffi- 
 cient carriages for the safe conveyance of the public who had 
 occasion to travel by them. At all events, he would expect a 
 clear landworthiness in the carriage itself to be established." 
 AJfter this came the case of Christie v. Griggs,^ before alluded to, 
 in which the axle-tree of a coach snapped asunder at a place where 
 there was a slight descent from the kennel crossing the road, and 
 
 1 (1803) 4 E«p. 259. 
 
 * (1809) 2 Campb. 79. 
 
PART I- 
 
 ■] 
 
 COMMON CARRIEES. 
 
 633 
 
 the plaintiff was thrown from the top of the coach. Mansfield, 
 
 O.J.: "As the driver had been cleared of negligence, the question 
 
 for the jury was as to the sufficiency of the coach. If the axle-tree 
 
 was sound as far as human eye could discover, the defendant was 
 
 not liable." In Bretherton v. Wood,* in the Exchequer Chamber, Bietiiertoa 
 
 Dallas, O.J., uses ambiguous expressions coupling the carrier's "" ^°°'^' 
 
 liability as to goods and passengers without any discrimination 
 
 between them. He says: "The action is on the case against a 
 
 common carrier, upon whom a duty is imposed by the custom of 
 
 the realm, or, in other words, by the common law, to carry and 
 
 convey their goods or passengers safely and securely, so that by 
 
 their negligence or default no injury or damage happen." Then 
 
 came the case of Bremner v. Williams,'' where Best, C.J., said he Bremner ». 
 
 considered that " every co%ch proprietor Warrants to the public 
 
 that his stage-coach is equal to the journey it undertakes, and 
 
 that it is his duty to examine it previous to the commencement 
 
 of every journey." But in the subsequent case of Crofts ■;;. Crofts c. 
 
 Waterhouse^ the same judge says the coachman must be provided "'"'^'" ''"^''■ 
 
 with "a coach and harness of sufficient strength and properly 
 
 made;" and in Harris v. Costar,^ where the declaration was to Harris «. 
 
 carry " safely," Best, C.J., said that this meant to use " due ^°^"'''- 
 
 care. 
 
 1 3 B. & B. 54. 
 
 ° (1824) I C. &P. 414. Where an acci- 
 dent happened by the breaking down of a 
 carriage, or, in the case of a railway, by a 
 carriage running off the rails, Pollock, 
 C.B., was of opinion there was primd facie 
 evidence of negligence : Dawson v. Man- 
 chester Eailway Oompany, 5 L. T. N. S. 
 682. In Carpne v. London and Brighton 
 Eailway Oompany, 5 Q. B. 751, Lord 
 Denman, C.J., told the jury that they must 
 he satisfied that the accident had been 
 brought about by the negligence of the 
 defendants in the course of carrying the 
 plaintiff upon the railway ; and that, it 
 having been shewn that the exclusive 
 management both ofthe machinery and the 
 railway was in the hands ofthe defendants, 
 it was presumable that the accident arose 
 from their want of care, unless they gave 
 some explanation of the cause by which it 
 wasproduced, which explanation the plain- 
 tiff, not having the same means of know- 
 ledge, could not reasonably be expected to 
 give. This was held to apply in cases of 
 collision between trains of the same com- 
 pany : Skinner v. London and Brighton 
 Railway Company, 5 Ex. 787 ; Burke v. 
 Manchester, &o., Kailway Oompany, 18 
 W. R. 694 ; Bird v. Great Northern Hail- 
 way Company, 28 L. .J. Ex. 3. See, too, 
 Flannery«. Waterford and Limerick Rail- 
 way Company, 1 1 L. R. Ir. C. L. 30. The 
 rule is stated by Erie, O.J., in Scott v. 
 
 London Dock Company, 3 H. & C. 596 : 
 " Where the thing is shewn 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 defend- 
 ants, that the accident arose from want of 
 care." Latch v. Eumner Railway Com- 
 pany, 27 L. J. Ex. 155 ; Hanson v. Lanca- 
 shire and Yorkshire Eailway Oompany, 
 20 W. E. 297. The American rule — at 
 least the New York rule — is laid down in 
 a railway case. " Whenever it appears 
 that the accident was caused by any de- 
 ficiency in the road itself, the cars or any 
 portion of the apparatus belonging to the 
 company, and used in connection with its 
 business, a presumptiou of negligence on 
 the pari; of those whose duty it was to see 
 that everything was in order immediately 
 arises, it being extremely unlikely that 
 any defect should exist of so hidden a 
 nature that no degree of skill or oare could 
 have foreseen or discovered it " : Curtis v. 
 Rochester Eailroad Company, 18 N. Y. 
 S34, at p. 536 ; Brehm v. Great Western 
 Eailroad Company, 25 Barb. 256. 
 
 = (182s) 3 Bing. 321. 
 
 * I 0. & P. 636 ; Curtis v. Drinkwater, 
 2 B. & Ad. 169, was a case where luggage 
 was jolted onto the plaintiff. 
 
634 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Shai-p V. Grey. In Sharp V. Grey' the point directly arose. The axle-tree of 
 the defendant's coach broke on a journey, whereby the plaintiff 
 was thrown off it and sustained injury. It appeared that the 
 axle-tree was an iron bar inclosed in a frame of wood consisting of 
 four pieces bound together by clamps of iron fastened by screws. 
 Before the journey the defendant's servants had examined this 
 part of the vehicle in the usual way, when no defect was obvious 
 to the sight, but upon investigation after the accident a defect 
 was discovered in that portion of the iron bar which could only 
 be examined by unscrewing the iron clamps and taking off the 
 wooden frame. At the trial it was made a question whether that 
 examination should have been made. Tindal, O.J., directed the 
 jury to consider whether there had been on the part of the 
 defendant that degree of vigilance which was required by his 
 engagement to carry the plaintiff safely. On a verdict for the 
 plaintiff' there was a motion to set it aside on the ground of mis- 
 direction, as the defendant had conducted his business with all 
 the caution that could be reasonably required. In refusing the 
 rule, Gaselee and Bosanquet, JJ., are certainly reported to have 
 used expressions which seem to indicate that they thought the 
 defendant bound to supply a road worthy vehicle. Park, J., uses 
 language which, as reported, is ambiguous ; but the judgment of 
 Alderson, J., is distinctly opposed to the notion of a warranty 
 against latent and undiscoverable defects.' He said : " A coach 
 proprietor is liable for all defects in his vehicle which can be seen 
 at the time of construction, as well as for such as may exist after- 
 wards and be discovered on investigation." This opinion of 
 Alderson, J.,'s was cited by Parke, B., in Grote v. Chester and 
 Holyhead Railway Company,' who said : "In that case the coach 
 proprietor is liable for an accident which arises from an imper- 
 fection in the vehicle, although he has employed a clever and 
 competent coachmaker." But the meaning to be attributed to 
 this is said by Mellor, J., in Readhead v. Midland Railway Com- 
 pany,'' to be " merely intended to express that a coach proprietor 
 could not shelter himself from the consequences of using an unsafe 
 coach by the fact that he had employed a competent coachmaker 
 to make it." 
 
 The cases in the earlier part of the centiiry were concerned 
 with accidents happening to coaches merely, and were of not 
 widely reaching importance, but, as in the other branches of 
 carriers' law so also in this, the general construction of railways 
 
 Fna-ke, B., iu 
 Grote V, 
 Chester and 
 Holyhead 
 Railway 
 Company. 
 
 Kevolutioa 
 in the law 
 necessitated 
 by the eon- 
 sti'uction of 
 railways. 
 
 1 (1833) 9 Bing. 457. As to the various 
 reports of the case and the discrepancy of 
 them, see note, L. E. 2 Q. B. 438. 
 
 " See Smith, J., judgment in Eeadhead 
 
 V. Midland Railway Company, L. E. 4 
 Q, B. 379, at p. 387. 
 
 ' 2 Ex. at p. 255. 
 
 * L. E. 2 Q. B. 412, at p. 424. 
 
MM I.] COMMON CAREIEES. 635 
 
 and the revolution thereby effected in the amount and methods of 
 travelling made an authoritative decision on the subject of the 
 greatest moment. The two views on the subject may be thus Two views of 
 stated : — On the one hand, it was held that the obligation of a obligation :— 
 carrier of passengers to the passenger was merely to take every (') '^° '*'"* 
 
 '^ ° JT D J J every preoau- 
 
 precaution to procure a vehicle reasonably sufficient for the journey tion to pro- 
 it was to assist in performing ; on the other hand, that there was reasonably fit ; 
 an absolute obligation on him to supply a vehicle fit for the ^b^oj^je 
 purposes for which it was provided, or to be responsible for the obligation to 
 damage resulting from its defects. Ultimately, in Readhead v. Law settled 
 Midland Railway Company,' the question came before the Ex- jj'^j^f^*!^^^'"^ 
 chequer Chamber, when that which is least onerous to the carrier Railway 
 was authoritatively declared to be the law of England. In that 
 case the accident arose from the fracture of one of the wheels of 
 a railway carriage, the tire of which had split into three pieces 
 owing to an aii'-bubble in the welding, which could not be 
 detected by inspection nor by any of the usual tests. The jury 
 at the trial found there was no neglect on the part of the de- 
 fendants, who took every reasonable precaution in examining the 
 tire before the journey. Lush, J., had directed the. jury that, that 
 being so, the defendants were not responsible for the accident, and 
 they accordingly found their verdict for the defendants. A rule 
 was granted for a new trial, on the ground that a carrier of 
 passengers is bound at his peril to provide a roadworthy carriage, 
 and is consequently liable if the carriage turns out to be defective, 
 notwithstanding that the infirmity was of such a nature that it 
 could neither be guarded against nor discovered." The Queen's The majority 
 Bench was divided in opinion. Lush, J., adhered to the opinion °'f Q^^een's"^' 
 that he had expressed at the trial, and Mellor, J., gave judgment Bench decide 
 to the same effect. Blackburn, J., however, dissented, being of with the 
 opinion that, " in principle and by analogy to other cases, there is Bkckburn,"j., 
 a duty on the carrier to the extent that he is bound at his peril ^isaents, hoid- 
 
 •' . '^ ing the latter. 
 
 to supply a vehicle in fact reasonably sufficient for the purpose, » 
 
 and is responsible for the consequences of his failure to do so, 
 though occasioned by a latent defect; and therefore that the 
 direction was wrong, and that there should be a new trial." The The decision 
 case was then taken to the Exchequer Chamber^ where, after an Bench ^^^° " 
 elaborate examination of the authorities, Montague Smith, J., t^™xcheVer 
 summed up the decision of the Court as follows": — " It seems to Chamber, and 
 be perfectly reasonable and just to hold that the obligation well view esta- 
 known to the law, and which, because of its reasonableness and expresdng 
 accordance with what men perceive to be fair and right, has been the law. 
 
 ■^ ° Judgment of 
 
 L. E. 2 Q. B. 412, L. E. 4 Q. B. 379 ; Eobertson v. Amazon Tng and Ligliterage Montague 
 
 38 L. J. Q. B. 169 ; 17 W. E. 737. See, Company, 7 Q. B. D. 598. Smith, J. 
 
 as to implied condition of a speciflo article, ^ L. E. 4 Q. B, 379, at p. 392. 
 
636 THE LAW OF NEGLIGENCE. [book.ii. 
 
 found applicable to an infinite variety of cases in the business of 
 life — viz., the obligation to take due care — should be attached to 
 this contract. We do not attempt to define, nor is it necessary to 
 do so, all the liabilities which the obligation to take due care 
 imposes on the carriers of passengers. Nor is it necessary, inas- 
 much as the case negatives any fault on the part of the manu- 
 facturer, to determine to what extent and under what circumstances 
 they may be liable for the want of care on the part of those they 
 employ to construct works, or to make or furnish the carriages 
 and other things they use. See on this point Grote v. Chester 
 and Holyhead Railway Company.^ ' Due care,' however, un- 
 doubtedly means, having reference to the nature of the contract to 
 carry, a high degree of care, and casts on carriers the duty of 
 exercising all vigilance to see that whatever is required for the 
 safe conveyance of their passengers is in fit and proper order. 
 But the duty to take due care, however widely construed, or how- 
 ever rigorously enforced, will not, as the present action seeks to 
 do, subject the defendants to the plain injustice of being compelled 
 by the law to make reparation for a disaster occasioned from a 
 latent defect in the machinery they are obliged to use, which no 
 human skill or care could either have prevented or detected."' 
 ^^v^'ii"' ■'■^ *^® following year the case of Francis v. CockrelP was decided 
 
 Summary of in accordance with the principles here enunciated. These Kelly, 
 Keiiy7o^B. O.B., thus expressed " : — "First, there is the principle, 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 thrag, 
 whether 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 impliedly 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 or unknown defect which cannot be discovered, or which 
 may be said to be undiscoverable, by any ordinary or reasonable 
 means of inquiry and examination."* 
 
 ^ 2 Ex. 251. _ jury if the tackle was sufficient and proper 
 
 ^ In Manser u. Eastern Counties Eail- was equivalent to asking them if it was rea- 
 
 way Company, 3 L. T. N. S. 585, the sonably and absolutely fit " : M'Whinnie 
 
 verdict for the plaintiff was upheld, on the v. Union Steamship Company, 9 N. S. 
 
 ground that hy precaution the cause of W. R. Cases at Law, at p. 7. 
 injury could have been foreseen. ^ At p. 508. 
 
 3 h. E. S Q. B. 184, at p. SOI ; 39 L. J. ^ Eandull v. Newsou, 2 Q. B. D. 102 ; 
 
 Q. B. 291 ; 23 L. T. N. S. 466; 18 W.E. 46 L. J. Q. B. 259; 36 L. T. N. S. 164; 
 
 1205. In a New South Wales case, Innes, 25 W. E. 313 ; guarded against an undue 
 
 j., criticizing the term " reasonably fit," extension of the principle of Keadhead t: 
 
 says: "I can see no difference between llidland Eailway Company by engrafting 
 
 reasonably fit anil absolutely fit. A thinpc the limitation that that case did not apply 
 
 must be absolutely fit or not. To ask the to the sale of a chattel ; in that case the 
 
PARTI.J COMMON CAEEIEES. 637 
 
 In a Scotcli case the jury were charged: "You are to say law as kid 
 whether there was such appearance of defect as the eye of an s°Xnd 
 artificer, applied with reasonable attention, could discover, and 
 will take into consideration that the eye of an experienced person 
 might discover defects imperceptible to others.'" 
 
 The principles settled in Eeadhead v. Midland Eailway Com- 
 pany- and Francis v. CockrelP were applied in Eichardson v. Eichardson 
 Great Eastern Eailway Company," though with some difiiculty, Partem 
 since the decision of the Court of Common Pleas, overruling the Railway 
 decision of the judge at the trial, was itself overi-uled by the 
 Court of Appeal. A coal-truck belonging to the Birmingham 
 Waggon Company, but which had been lent to a colliery company, 
 came on the defendants' line at Peterborough. The defendants 
 were compelled by statute to forward foreign traffic — i.e., through 
 traffic from other lines. At Peterborough an examination of the 
 truck was made, and two defects were discovered. Notice, was 
 given to the Birmingham Waggon Company that they might get 
 one of the defects, which interfered with the safety of the car- 
 riage, remedied ; the other, which it was unnecessary immediately 
 to remedy, was left for subsequent care. The first defect being 
 repaired, the truck was sent on, when an accident occurred through 
 a defect in no way connected with the two previously mentioned 
 — ^viz., a defect in the axle. In consequence of the accident the 
 plaintiff was injured. The question was whether the company 
 were guilty of negligence in not making a more minute examina- 
 tion than they did, as there was no doubt that the crack, having 
 reached the surface, might have been discovered by a more minute 
 examination. Three questions were left to the jury — First, Questions for 
 whether the defect in the axle would have been discovered upon ^ ■'"'^" 
 any fit and careful examination of it. The jury answered it 
 would. Secondly, whether it was the duty of the defendants to 
 examine the axle by scraping off the dirt and so minutely looking 
 at it as to enable them to see the crack. The jury answered no. 
 Thirdly, whether, if this was not their duty at first, it became so 
 on discovering the two first-discovered defects. The answer of 
 the jury was : "It was their duty to require from the Birming- 
 ham Waggon Company some distinct assurance that it had been 
 thoroughly examined and repaired." 
 
 rale is that there is a warranty by the of all defects irrespective of nesligence, has 
 
 vendor that it is reasonably fit for the pur- been adopted : Alden v. New York Central 
 
 pose for which it is bought, and there is no Eailroad Company, 26 N. Y. 102. The 
 
 exception of latent defects. See Benjamin opposite view is taken in Massachusetts 
 
 Sales, 4th edit. p. 659. Ingalls v. Bills, g Met. i ; Moreland v. 
 
 ' Anderson v. Pjper, 2M. 261. In the Boston Corporation, 141 Mass. 31. 
 
 New York courts the doctrine that the ^ L. E. 2 Q. B. 412, L. R. 4 Q. B. 379. 
 
 carrier is absolutely bound to provide safe ' L. R. 5 Q. B. 184, L. E. j Q. B. 501. 
 
 vehicles, and is liable for the consequence * L. E. 10 C, P, 486, i C. P. D. 342. 
 
638 
 
 THE LAW OF NEGLIGENCE. 
 
 [book ii. 
 
 Kelly, O.B.,'s 
 view of the 
 effect of the 
 verdict. 
 
 Lord 
 
 Coleridge's 
 opinion to the 
 contrary 
 overruled iu 
 the Court of 
 Appeiil. 
 
 Jessel, M.B.,'s 
 vii'W. 
 
 Bule as laid 
 down by 
 Jeesel, IVT.B. 
 
 Hyinan r. 
 Nye. 
 
 Kdly, C.B., was of opinion that the last answer was immaterial, 
 and directed the jury to find a verdict for the defendants, reserving 
 leave to move to enter a verdict for the plaintiff. The Court of 
 Common Pleas made a rule absolute to do so, Lord Coleridge 
 holding the answer to the third question to be " most material." 
 The judgment of Kelly, C.B., was, however, restored by the Court 
 of Appeal, Jessel, M.R., saying, with reference to the third answer, 
 "I do not think we ought to give any effect to this finding of the 
 jury, and the case for the plaintifE therefore fails;" in which con- 
 clusion the rest of the Court copcurred. "The real question," 
 said Jessel, M.E.., "is whether the company were guilty of negli- 
 gence in not making a more minute examination, for there is no 
 doubt that the crack, having reached the surface, might have 
 been discovered by a sufficiently minute examination. We must 
 look to what is reasonable in reference to the exigencies of the 
 case. The company cannot stop all foreign trucks and empty 
 them for the purposes of a minute examination. If they were 
 entitled to do so, it would practically destroy the right given by 
 statute to other companies of having the through traffic forwarded, 
 and give a monopoly to the company itself. The suggestion 
 that they should do this is too absurd to bear discussion. It 
 cannot be said that it is obligatory on the company to treat the 
 foreign trucks so as to destroy the very object for which they were 
 sent on the line — ^viz., for the purposes of through traffic. There 
 must be some reasonable limit to the amount of examination 
 required, and the substantial question was whether the mode of 
 examination adopted by the company was reasonably satisfactory." 
 The learned judge, after having commented upon the three ques- 
 tions and the answers to them made by the jury, and their effects, 
 thus laid down the rule : — " If the defect discovered were such 
 as ought reasonably to induce a person of experience to think that 
 some other defect existed, or was likely to exist, then there would 
 be a duty to examine further, but if the defect discovered had no 
 probable connection with any other undiscovered defect, then I 
 see no reason why any further or other examination should be 
 made."' 
 
 The Court in Hyman v. Nye^ was concerned with the liability 
 of a jobmaster for the breaking down of a carriage which had 
 been hired from him ; and the consideration of that case, conse- 
 quently, belongs more particularly to another branch of our subject; 
 but, as the learned judge — Lindley, J. — who delivered the leading 
 
 ^ Cockbum, C.J., deals with the same 
 point in Stokes v. Eastern Counties Rail- 
 way Company, 2 F. & JB\ 691. An 
 American case of authority is Ingalls v. 
 
 Bills, 50 Mass. i ; Meier v. Pennsylvania 
 Eailroad Company, 64 Penn. St. 225. 
 = 6 Q. B. D. 685 ; 44 L. T. 919. 
 
PAKXi.] COMMON CARRIEES. 639 
 
 opinion in that case held that the liability of the jobmaster with 
 respect to the vehicle he supplies is identical with that of the 
 carrier of passengers with respect to the carriage he supplies — viz., 
 that " he is an insurer against all defects which care and skill can 
 guard against " — and laid down the rule governing in both with 
 care and precision, this seems an appropriate place for extracting 
 the rule he there formulated. The "duty," he says, "appears 
 to me to be to supply a carriage as fit for the purpose for which it 
 is hired as care and skill can render it ; and if whilst the carriage 
 is being properly used for such purpose it breaks down, it 
 becomes incumbent on the person who has let it out to shew that 
 the break-down was, in the proper sense of the word, an accident 
 not preventible by any care or skill. If he can prove this, as the 
 defendant did in Christie v. Griggs,^ and as the railway company 
 in Readhead ■;;. Midland RaiRvay Company,^ he will not be liable ; 
 but no proof short of this wiU exonerate him." 
 
 We have considered what the duty of a carrier of passengers is who is a 
 to those whom he carries, but we have not yet inquired what igP''''"'"sei- 
 sufficient to constitute a person a member of the class to whom 
 the duty is owing. A passenger has been defined" as "a person 
 who undertakes, with the consent of the carrier, to travel in the 
 conveyance provided by the latter otherwise than in the service 
 of the carrier as such." The cases go to shew that the relation- 
 ship may be constituted in the very slightest manner, and that, 
 however constituted, the whole duty attaches. It has been held 
 that neither entry into the conveyance nor yet payment of the 
 fare is essential to create the relation of .carrier and passenger, 
 and that being within the waiting-room waiting for a carriage 
 may make a person as effectually a passenger as if actually seated 
 in the conveyance itself.^ In Great Northern Railway Company Great 
 V. Harrison ° the contention was that the plaintiff was entitled to Eaiiway 
 recover for injuries received while travelling on the defendants' g"™.?*"^ ''" 
 railway if there was any evidence, however small, that he was 
 
 ^ 2 Campb. 80. ■y- London and Brighton Eailway Com- 
 
 2 L. B. 2 Q. B. 412 ; L. B. 4 Q. B. 379. pany, 5 Ex. 787, is cited as an authority 
 
 Compare Jones v. Page, 15 Ii. T. N. S. to shew that a passenger may maintain 
 
 619 ; Warner j>. Banks, 17 L. T. N. S. 147. an action for the negligence of a company 
 
 ^ Shearman and Bedfield, Lawof Negli- in whose train he lawfully is, whether he 
 
 gence, § 488. M'Donoughw. Metropolitan has received a ticket or not: see Brown 
 
 Road Tram Company, 137 Mass. 210, held and Theobald, Law of Bailways, p. 297. 
 
 the fact that a boy had not taken his seat The decision, however, goes no further 
 
 in a tramcar when he was injured did not than that in that case there was a question 
 
 prevent his being a "passenger." for the jury. Way v. Chicago Eailroad 
 
 ■• Gordon v. Ifew Town Railroad Com- Company, 52 Am. E. 43, is the case of an 
 
 pany, 40 Barb. 546 ; Buss v. War Eagle, injury arising while falsely personating 
 
 14 Iowa 363 ; Warren v. Fitchbnrg Rail- some one entitled to a not transferable 
 
 way Company, 90 Mass. 227 ; Hamilton v. ticket. The company was held not liable. 
 
 Caledonian Company, 19 D. 4S7- In a note other cases bearing on the point 
 
 ' loiSx. 376; 23 L. J. Ex. 308. Skinner are collected. 
 
640 
 
 THE liAW OF NEGLIGENCE. 
 
 [bOOE II. 
 
 in tlie defendants' railway carriage by the licence of the company. 
 In that case it was proved that there was a practice of allowing 
 the reporters of a London newspaper going down to country 
 races to travel on the defendants' line free. The reporter was 
 for this purpose supplied with a ticket with the name of a person 
 in the reporting department of the newspaper written on it ; in 
 addition it purported to be not transferable, and, moreover, had 
 on it an intimation that any person other than he whose name 
 was inscribed using the pass would be liable to the penalty which 
 a passenger incurs by travelling without having paid his fare. The 
 plaintiff, acting in good faith and while engaged on the business 
 of his paper, went to the station with a ticket as described, but 
 with the name of another reporter in the same department as 
 himself written on it ; and this he shewed to a porter, who said, 
 " All right," and put him in a carriage. The plaintiff and other 
 persons had previously travelled with similar tickets not bearing 
 the name of those who used them. An accident happened during 
 the join-ney, and the plaintiff, being injured, brought his action. 
 The defendants submitted at the trial that there should be a non- 
 suit, but the judge refused to nonsuit, and the jury found for the 
 plaintiff. On a bill of exceptions, the Exchequer Chamber held 
 that there was " such evidence of a licence as would make it 
 wrong to say that the plaintiff was a trespasser." The effect of 
 the decision is to extend the obUgation attaching to a passenger 
 on the part of a railway to all persons lawfully on the railway, 
 and to admit evidence to shew the character in which a person is 
 thus travelling, even where the primd facie conditions constitutive 
 of lawful travelling appear to have been violated. And the 
 breadth of this principle was, if possible, extended in Austin v. 
 l^lf^J*"'"™ Great Western Eailway Company,' where the mother of the 
 Company. plaintiff, a child of just over three years old, took a ticket for 
 herself, at the time having the plaintiff in her arms, by one of the 
 trains on the defendants' railway, but did not take a ticket for 
 the plaintiff, though by 7 & 8 Vict. c. 85, s. 6, the defendants 
 were entitled to half the fare charged for an adult in respect 
 of all children between three and twelve years of age, but were 
 not allowed to charge for children under three years of age. In 
 the coTU'se of the journey an accident happened to the train, and 
 the plaintiff's leg was broken. The plaintiff recovered in an 
 action ; whereupon the Court was moved on the part of the 
 defendants, on the ground that the plaintiff was not lawfully a 
 passenger, as there had been concealment which was equivalent 
 to a fraud in the circumstances attending his being in the 
 
 ' L. E. 2 Q. B. 442. 
 
 Wide inter- 
 pretatiou 
 given by the 
 Court. 
 
 Austin V, 
 
PAUTi.] COMMON CARRIERS. 641 
 
 cavriages of tlie company. The verdict of tlie jury was, however, 
 sustained by the Queen's Bench. In the course of his judgment, 
 Blackburn, J., thus states the principle that governs : — " I think Blackburn, 
 that what was said in the case of Marshall r. Newcastle and of'tho^raU™''"* 
 Berwick Eailway Company' was quite correct. It was there laid TC^y'^ flutyto 
 
 T . , , those earned 
 
 do^Yn that the right which a passenger by railway has to be by them. 
 carried safely does not depend on his having made a contract, 
 but that tlie fact of his being a passenger casts a duty on the 
 company to carry him safely. If there had been fraud on the 
 part of the plaintiff, or if the plaintiff had been taken into the 
 train without the defendants' authority, no such duty would arise. 
 AVhether the mother's fraud could be treated as the fraud of the 
 child so as to bring the present case within the principle of the 
 cases which have been referred to we need not now inquire. 
 The averment of fraud which may be thought to make the plea 
 valid is disproved. We must take it that the child, without fault 
 and through an honest mistake on the mother's part, was taken 
 into the train by the railway company, and received as a pas- 
 senger by their servants with their authority It seems to 
 
 me that a duty to carry safely arises under those circumstances." 
 
 In the subsequent case of Foulkes r. Metropolitan District Fouikes r. 
 Railway Company," Thesiger, L. J., examines and classifies the District 
 decisions with regard to the circumstances in which the rights of qq^^™J 
 a passenger as against a carrier may arise. He treats them in 
 four classes. 
 
 1 . Where a railwav company issues a ticket for a journey Tour classes 
 
 I- n ,1 ,1 , r. ,1 of decisions 
 
 partly ou its own line and partly on that oi another company. stated by 
 
 In this case the company issuing the ticket is primd facie, ■'■"^^'6'"' ,•''• 
 responsible for injuries caused by negligence throughout the whole 
 route.^ 
 
 2. Where, as between the company and the individual 
 passenger, though there is no contract, but yet there are cir- 
 cnmstances which raise a presumption that the person carried is 
 not unlawfully in the company's carriage — e.g., in the case of a 
 servant travelling with his master,'' or in the case of a child 
 travelling with its mother.'' 
 
 ' II C. B. 655. '' Marshall J). York, Newcastle, and Ber- 
 
 ^ 5 C. P. D. 157, at p. 168 ; 49 L. J. wick Railway Company, 11 C. B. 655. 
 
 0. P. 361 ; 42 L. T. 345 ; 28 W. E. 526. ■' Austin v. Great M'estern Eailway 
 
 ' Great Western Eailway Company v. Company, Ii. R. 2 Q. B. 442. The case 
 
 Blake, 7 H. & X. 987, at p. 991 ; 31 Tj. .T. of Stockdale v. Lancashire and Yorkshire 
 
 Ex. 346; 10 W. R. 388; Thomns v. Railwav Company, 11 AV. R. 650, seems a 
 
 Rhymney Railwaj' Company, L. i!. 5 better illustration, at any rate a more ex- 
 
 Q. B. 226 ; in Exchequer Chamber, 6 treme illustration, than either of these. 
 
 Q. B. 266; 40 L. .T. Q. B. 89 ; 24 ]j. T. The plaintiff, with tlie guard's permission, 
 
 N. S. 145 ; 19 W. R. 477. See John r. got into his van ; when the train got to ita 
 
 Bacon, L. R. 5 C. P. 215. destination the van was not opposite the 
 
 S S 
 
U2 
 
 THE LAW OF NEGLIGENCE. 
 
 [book ii. 
 
 In what cir- 
 cumstances a 
 person not 
 rightfully in 
 a carriage is 
 disentitled 
 to recover. 
 
 In this case a duty is implied by law. 
 
 3. Where, as between the carrier and the passenger, there may 
 be a contract, but the performance of the carrier's portion of it 
 has become devolved on some other person. 
 
 In this case such other person is liable for the default.' 
 
 4. Where a railway company contracts to carry for a journey 
 over a line of which another company has running powers, with 
 which other company there is an arrangement for mutual con- 
 veyance of passengers, and where the person with whom the 
 contract of carriage is so made is carried by the company other 
 than that with which the contract of carriage is made, and is 
 injured. 
 
 In this case the carrying company is under the same obligations 
 in reference to the security of the passenger, and as to its own 
 acts and omissions, as it would be under had it directly contracted 
 with him.^ - 
 
 But the question that is suggested by these decisions is — Is a 
 person not rightfully in or about a carriage in all cases disentitled 
 to recover ? The point was assumed in Great Northern Railway v. 
 Harrison,^ as against a trespasser, by that name ; and there is the 
 case of Lygo v. Newbold,* which is a decision that a person of 
 full age, who got into a cart without authority to do so; could not 
 maintain an action by reason of the breaking down of the cart. 
 But there the cart was for the purpose of carrying luggage only, 
 and not passengers ; and though the servant in charge assented 
 to the plaintiff riding, the owner had only provided a vehicle 
 for. one purpose, and could not reasonably have been held liable 
 when it was applied, without reference to him, for another.' 
 
 quence was held evidence to go to the 
 jury to support a declaration as to the 
 stopping of the omnibus implying a consent 
 to take plaintiff as a passenger. 
 
 ' 10 Ex. 376. * 9 Ex. 302. 
 
 ^ Kailroad Company v. Jones, 95 U.S. 
 (5 Otto) 439. Comparo Kentucky Cen- 
 tral Kailroad Company v. Thomas's Ad- 
 ministrators, 42 Am. B. 208. This dis- 
 tinction has received judicial sanction 
 in America, where, the driver of a car 
 having permitted a person to ride On his 
 car without pay, but without any collnsion 
 for the purpose of defrauding the company, 
 it was held, on the person suing for injuries 
 received while so riding, that the permit- 
 ting one to ride without pay is not outside 
 the scope of the driver's duty, but a vio- 
 lation of instructions for which he is re- 
 sponsible to his master, but still an act 
 affecting the master with liability. In 
 this case the oar was for the conveyance 
 of passengers : Wilton v. Middlesex Kail- 
 road Company, 107 Mass. 108. 
 
 platform. In attempting to get out she 
 was injured. Held, that as she got into 
 the van at the invitation and imder the 
 superintendence of the guard, the guard's 
 van became a carriage for passSngers, and 
 there was a breach of duty in not allowing 
 time for her to alight. 
 
 1 Dalyell v. Tyrer, 28 L. J. Q. B. 52, 
 the case of a fenyman, unable for a cer- 
 tain day to work his ferry, who hired a 
 boat and crew in substitution, the owner 
 of which was held liable in the case of an 
 accident to a regular customer of the ferry- 
 man. In Eeynolds v. North-Eastern Kail- 
 way Company, Eoscoe N. P. 14th edit. p. 
 591 : A. took a ticket over the lines of B.,, 
 C., and D. railways ; through negligence 
 of C. an accident happened, for which the 
 defendant company was held responsible. 
 
 " Foulkes V. Metropolitan District Rail- 
 way Company, 5 C. P. D. 157. In an 
 omnibus case, Brien v. Bennett, 8 C. & P. 
 724, holding up a finger to the driver and 
 the stoppage of the omnibus in conse- 
 
PAETi.] COMMON CARRIERS. 643 
 
 In the frequent cases, however, of people Jiarrying into trains 
 about to start, with no time to take tickets ; of people getting 
 into wrong trains ; or of people carried beyond their distance — in 
 all cases travelling without tickets, and without direct authorization 
 from the companies — it would be impossible to say the law would 
 put them in the position of mere trespassers.' The criterion Suggested 
 probably would be, whether any act or declaration of the railway "■"^"°"- 
 company or its servants could be shewn as affecting them with 
 knowledge : as, in the case of travelling without a ticket, the 
 opening of the gate to let the traveller pass without asking for a 
 sight of the ticket ; in the case of getting into a wrong train, any 
 circumstances of ambiguity whereby the passenger could have been 
 misled ; in the case of travelling beyond his distance, a practice of 
 paying excess fares at the station of his arrival ; in all cases, any 
 act, whether general or special, by which the conclusion could be 
 drawn that the company waived the tort and elected to resort to 
 other remedies to secure their rights." Thus, in Watkins v. Great Watkius r. 
 Western Railway Company,' a mother was going with her vfestein 
 daughter, an intending passenger, to a train, when she knocked Railway 
 her head against an obstruction. Denman, J., was of opinion 
 that acquiescence by the company in such accompaniment would 
 be enough to put the licensee on the same level as to rights 
 with a passenger. Of course the fact of a person being a 
 trespasser does not authorize brutal conduct or wilful injury of 
 any kind ; as was said in Rounds v. Delaware Railroad Com- 
 pany"' — a case where a boy trespassed on a railway car : "The 
 fact that the plaintiff was a trespasser on the cars is not a 
 defence. The lad did not forfeit his life or subject himself 
 to the loss of his limbs because he was wrongfully on the car. 
 The defendant owed him no duty of care by reason of any special 
 relation assumed or existing between the company and him, but 
 he was entitled to be protected against unnecessary injury by the 
 defendant or its servants in exercising the right of removing him, 
 and especially from the unnecessary and unjustifiable act of the 
 brakeman by which his life was put in peril, and which resulted 
 in his losing his limb " (the boy was kicked off the car). Where where the 
 
 T 1 • 11 T 1 1 i Bail way 
 
 the carrier has undertaken, or is compelled by law, to cany a company is 
 passenger, there the consideration of whether the passenger paid eaSythe*^ *" 
 or was carried free is altogether irrelevant. In CoUett v. London passenger, 
 
 ° . the terms on 
 
 and North- Western Railway Company,* in the case of a post- which he is 
 
 carried are 
 
 1 See, as to what thisposition is, Arnold L. J. C. P. 316 ; 40 L. T. 183 ; 27 W. E. irrelevant. 
 ». Pennsylvania Kailroad Company, 2 614. ,^^„^,^ 
 
 Am. St. E. 542, and note. •* 37 L- T. N. S. 193; 46 L.J. Q. B. D. 
 
 2 See London and Brighton Eailway 817. ■■ 64 N. Y. 129. 
 Company v. Watson, 4 C. P. D. 118 ; 48 ^ (1851) 16 Q. B. 984. 
 
644 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 CoUett V. 
 London and 
 North- 
 Western 
 Eailway 
 Company, 
 
 Philadelphia 
 and Beading 
 Ballroad 
 Company v, 
 Derby, 
 
 American law 
 based on the 
 consideration 
 that carriers 
 hare public 
 duties to 
 discharge. 
 
 Exception 
 of company's 
 negligence 
 void. 
 
 office officer injured while travelling on their line in the execution 
 of postal duty, which by statute he was authorized to do free of 
 charge, the Court of Queen's Bench held the company liable, 
 Lord Campbell saying : " That it was the duty of the company to 
 use due and proper care and skill in conveying^is admitted. That 
 duty does not arise in respect of any contract between the com- 
 pany and the persons conveyed by them, but it is one which the 
 law imposes ; if they are bound to carry they are bound to carry 
 safely ; it is not sufficient for them to bring merely the dead body 
 to the end of the journey." ' And the year following the same 
 law was held by the highest Court of the United States to be law 
 there in Philadelphia and Reading Railroad Company v. Derby .- 
 The terms of the judgment are most comprehensive : " If the 
 plaintiff was lawfully on the road at the time of the collision, the 
 Court was right in instructing the jury that none of the antecedent 
 circumstances or accidents of his situation could affect his right to 
 recover." The plaintiff was a stockholder in the company, riding 
 by invitation of the president, paying no fare, and not in the usual 
 passenger cars. 
 
 The American law' is settled on the basis that common carriers 
 have public duties to discharge, from which they are not able to 
 exonerate themselves even with the consent of their customers ; 
 and that special contracts made by them with their customers are 
 good and valid to the extent only of excusing them, for example, 
 for all losses happening by accident without any negligence or 
 fraud on their part ; but that an exemption from liabUity for 
 negligence is repugnant to the law of their foundation and the 
 public good, and is consequently inoperative. These principles 
 are applied both to carriers of goods and carriers of passengers^ 
 and especially to the latter. Thus, where a drover travelling with 
 cattle had signed an agreement " to take all risk of injury to them 
 and of personal injury to himself," and was injured through the 
 negligence of the company's servants, it was held by the Supreme 
 Court of the United States that the stipulation was void, and that 
 he was entitled to recover for his injuries from the company.^ 
 
 1 Seybolt v. New York Eailvoail Com- 
 pany, 95 N. Y. 562 ; see note to 47 Am. 
 E. 83 ; iiarton v. Thompson, 26 Am. E. 
 131 ; Welch v. Jagenheimer, 41 Am. R. 
 
 77- 
 
 2 14 How (U. S.) 468. In Steamboat 
 New World Company v. King, 16 How 
 (Q. S.) 469, at p. 474, Grier, J., alluding 
 to the decision, says : " We desire to be 
 understood to reaffirm that doctrine, as 
 resting not only on public policy, but on 
 sound principles ol'law." 
 
 ^ A valuable and interesting^jndgment 
 
 in Pennsylvania Kailroad Company v. 
 Henderson, 51 Penn. St. 315, sets out' the 
 mature view of American lawyers, wilh 
 some forcible considerations that should be 
 regarded in weighing certain dissentient 
 opinions. 
 
 •* Railroad Company v. Lockwood (1873), 
 17 Wal. (U. S.) 357 ; Hart v. Pennsylvania 
 Eailroad Company, 112 U. S. (5 Davis) 
 331 ; but where the drover gets in an im- 
 proper place, see Ijittle Rock Eailway v. 
 Miles, 48 Am, E. 10, and note at p. 15. 
 
PAETi.] COMMON CARBIEES. 645 
 
 The year previously to this decision being given the judges of Contradictory 
 the Court of Queen's Bench decided a very similar case in the oppo- EnXn'd!" 
 site way. jSI'Cawley y. Furness Railway Company^ was decided on M'Ca-sviey v. 
 demurrer. The plaintiff, who was a cattle drover, and who Railway 
 travelled on defendants' line as a drover with cattle, declared on a °™P'™5' 
 contract to be safely and securely carried. The defendants pleaded 
 a contract " ' to carry under an agreement whereby it was, amongst 
 other things, provided that any drover accompanying cattle .... 
 should travel at his own risk." The replication set up " gross 
 and wilful negligence and mismanagement of defendants.'' To 
 this there was a demurrer. The point of law was thus cleared of 
 all ambiguities and presented barely to a very strong Court/ who Judgment of 
 decided that the plaintiff could not recover. The judgment of ' " 
 
 Blackburn, J., is as follows : — " The duty of a carrier of passengers 
 is to take reasonable care of a passenger, so as not to expose him 
 to danger ; and if they negligently expose him to danger, and he 
 is killed, they might be guilty of manslaughter, and they would 
 certainly be liable to the relatives of the deceased in damages. 
 But here the passenger was carried under special terms. That 
 aoreement would not take away any liability that might be in- 
 curred as to criminal proceedings, but it regulates the right of 
 the plaintiff to recover damages. The plea states that it was 
 agreed that the plaintiff, being a drover travelling with cattle, 
 should travel at his own risk ; that is, he takes his chance, and, 
 as far as having a right to recover damages, he shall not bring 
 an action against the company for anything that may happen in 
 the course of the carriage. It would, of course, be quite a 
 different thing were an action brought for an independent wrong, 
 such as an assault or false imprisonment. Negligence in almost 
 all instances would be the act of the company's servants, and ' at 
 his own risk ' would of course exclude that, and gross negligence 
 would be within the tenns of the agi-eement ; as to wilful, I am at 
 a loss to say what that means ; but any negligence for which the 
 company would be liable (confined, as I have said, to the journey 
 —and it is so confined by the declaration) is excluded by the 
 agreement." 
 
 The authorities on which the Court came to this decision Case decided 
 
 were Carr v. Lancashire and Yorkshire Railway Company,^ Austin it stood inde- 
 pendently of 
 
 The Eailway 
 
 ' L. E. 8 Q. B. 57 ; 42 L. J. Q. B. 4; through the carriage in which he was and Canal 
 
 27 L. T. N. S. 485 ; 21 W. E. 140. In carried stopping short of the platform, Traffic Act, 
 
 Duff «. Great Northern Eailway Company, see Johnson v. Great Southern and West- 1854. 
 
 4 L. E. Ir. C. L. 178, the drove]' signed the ern Eailway Company, Ir. E. 9 C. L. 708. 
 
 conditions. As to the position of a pas- ^ Cockburn, C.J., Blackburn, Mellor, 
 
 senger, taking a ticket by a goods train and Quain, JJ. 
 
 with condition that the company should be ^ 7 Ex. 707. 
 freed from responsibility, who was injured 
 
646 
 
 THE LAW Oi NEGLIGENCE. 
 
 [book II. 
 
 GiiUiti V. 
 London 
 and North- 
 Western 
 Bailway 
 Company, 
 
 Opinion o{ 
 Bramwell, B. 
 
 V, Manchester, &c., Railway Oompaiiy,' and that class of cases as 
 to which Blackburn, J., in giving his opinion to the House 
 of Lords in Peek v. North Staffordshire Railway Company,'' said 
 they established that what was regarded in 1832 as law was 
 not the law — ^viz., that a carrier might, by a special notice, make 
 a contract limiting his responsibility even in cases of negUgence, 
 misconduct, or fraud, and the law as declared in these cases, 
 as far as related to goods, was altered by the Railway and 
 Canal Traffic Act, 1854; so far, however, as the case of 
 carriers of passengers was concerned, they continued unaffected, 
 and thus the decision in M'Oawley v. Pumess Railway Company' 
 was inevitable. 
 
 In Gallin v. London and North- Western Railway Company,^ 
 the principle of this decision was held applicable to negligence 
 incidental to the actual conveyance, and arising not from the 
 circumstances of the transit but from defect in arrangements 
 made for the purpose of conducing to its effective fulfilment. 
 There a drover, being carried on terms identical with those we 
 have already seen held good in M'Cawley's case, got out of the 
 van in which he was being carried on a stoppage occurring, and, 
 in walking from the spot where the train stopped along the 
 railway to the passenger station, fell over a bridge into a river 
 and was injured. It was held that he could not recover, since 
 the terms on which he was travelling " at his own risk" 
 covered not only the direct, but the incidental perils of the 
 transit.* Mellor, J., was of opinion that the words " travel 
 at his own risk " include all the incidents connected with the 
 journey. He said : " All those risks which arise duiing the 
 transit, and until the transit is actually at an end, are intended to 
 be guarded against, and are actually guarded against, by these 
 words." ^ Even assuming that the plaintiff in this case was in 
 the position of an ordinary paying passenger, it is not at all clear 
 that his position would have been improved. For, as is said by 
 Bramwell, B., in Siner v. Great Western Railway Company': 
 " Suppose the train had stopped just against the parapet of a 
 bridge .... can there be any doubt that it would have been 
 
 Eailway CommisBionerp, 13 V. L. E. L. 
 399, was decided. 
 
 ' L. E. 3 Ex. 150, at p. 154; Exchequer 
 Chamber, L. E. 5 Ex. 117. Compare Prae- 
 gerv. Bristol and Exeter Bailway Conipany, 
 24 L. T. N. S. 105, distingaishing Siner's 
 case on two grounds — first, beoanse there 
 was a clear invitation ; secondly, because 
 the danger was not apparent. Cockle v. 
 London and South-EaBtern'E»ilway Com- 
 pany, L. E. 7 C. P. 321 ; 41 L. J. C. P. 
 140 ; 27 L. T. N. S. 320 ; 20 W. E. 754. 
 
 1 10 C. B. 454. 
 
 2 10 H. L. C. 473. 
 
 » L. E. 8 Q. B. 57 ; 42 L. J. Q. B. 4 ; 
 27 L. T. N. S. 485 ; 21 "W. E. 140. 
 
 * L. E. 10 Q. B. 212 ; 44 L. J. Q. B. 
 89 ; 32 L. T. N. S. ssp ; 23 W. E. 308. 
 
 ' See Hodgman v. AVest Midland Eail- 
 way Company (the case of a horse injured 
 before fully received by the carrier), 5 
 B. & S. 173, 6 B. & S. 560. 
 
 8 On the authority of these cases the 
 Victorian case of M 'Donald v. Victorian 
 
PARTI.] COMMON CARRIERS. 047 
 
 the duty of the passengers to stay in, and that they would have 
 got out at their peril ?" 
 
 Bristol and Exeter Railway Company v. Collins' decided, as 
 we have already seen, that the terms of a contract for the carriage 
 of goods made with one company at the outset of the journey held 
 good for the whole journey. In Great AVestern Railway Com- Great- 
 pany v. Blake,^ in the Exchequer Chamber, on a bill of excep- ^^alZj 
 tions, it was held that in the case of a passenger sustaining an Company r. 
 injury on a portion of the line over which he was being conveyed 
 in performance of the contract of carriage, though such portion 
 was not the liae of the company contracting to convey him, but 
 was the line of another company, and the negligence was not the 
 negligence of the company with whom the contract was, but of the 
 other, the contracting company was liable to the passenger for injury 
 arising as well on their own line as on the passage over another 
 line. In this case the injury arose from the condition of a part of 
 the line over which the appellants had no direct control, since it 
 was part of an auxiliary line and under the management of an 
 auxiliary company. A point having been made of this in the case 
 gave occasion to Cockburn, C.-J., to lay stress on the distinction in 
 this respect between railway companies and stage-coach proprietors. 
 " This," said he, " is not like the case of a stage-coach proprietor, 
 because the road is not in his hands, and he has no means of 
 securing its proper conditions when the contract is entered into. 
 The road would be in a certain condition without anything being 
 required to be done on the part of the coach proprietor to keep 
 it in a safe condition. Railway companies ought at least to use 
 due and reasonable care to keep in a safe condition the line over 
 which they contract to carry passengers. There is no doubt that 
 is the. obligation which attaches to a railway company who under- 
 take to convey passengers through the whole distance on their 
 line ; and if, by arrangement with another company, they convey 
 passengers over the whole or part of another line, the same 
 obligation attaches, and they make the other company their agent, 
 and on their part they undertake that the other company shall 
 keep their line in a proper condition." The converse case occurred Convorse 
 in Hall v. North-Eastern Railway Company,' complicated by the ^. North- 
 fact that the plaintiff was a drover in charge of sheep, and travel- S^;,'"" 
 Ung " at my own risk without paying any fare." He was injured Company, 
 on an auxiliary line, and brought his action against the injuring 
 company, and not against the company with whom his contract 
 was, and an action against whom would have been within Great 
 
 ' 7 H. L. C. 174. = L. E. 10 Q. B. 437 ; 44 L. J. Q. B. 
 
 » 7 H. & N. 987 ; 31 L. J. Ex. 346 ; 164 ; 33 L. T. N. S. 306 ; 23 W. B. 
 10 W. E. 388. 860. 
 
648 
 
 THE LAW OF KEGLIGENCE. 
 
 [book II. 
 
 Point 
 expressly 
 reserved by 
 Cockbnm, J,, 
 in Great- 
 Western 
 Bail way 
 Company v, 
 Slake. 
 
 Buxton ii. 
 North-Bastern 
 Bail way 
 Oompany. 
 Thomas v. 
 Bhymney 
 Eailway 
 Company. 
 
 Daniel v. 
 Metropolian 
 Eailway 
 Company. 
 
 Western Eailway Oompany v^-. Blake.' But the point raised in the 
 present case was expressly reserved there, where Cockbum, C.J., 
 says "it is unnecessary to say " whether or not such a claim could 
 be sustained.^ The Queen's Bench, however, decided that the true 
 construction of the contract was, " In consideration of my being 
 carried the whole way free of charge, I agree that I shall be travel- 
 ling the whole way at my own risk," and that consequently the 
 auxiliary company were as much protected from the effects of 
 their negligence as the principal and contracting company, eVen 
 though " the plaintiff did not sign the ticket, and he was not 
 asked to do so," for " he travelled without paying any fare, and 
 he must be taken to be in the same position, as if he had 
 signed it." 
 
 Great Western Eailway Company v. Blake^ was followed 
 without discussion in Buxton v. North-Eastern Eailway Com- 
 pany." But in Thomas v. Ehymney Eailway Company' a 
 distinction was sought to be established between those cases 
 and the case before the Court, on the ground that in the earlier 
 cases the companies had an agreement for the sharing of profits, 
 and so became the agents the one of the other ; while in the 
 present case, where the defendant company merely had running 
 powers over the line of another company, by whose negligence, 
 and without negligence on the part of the defendants, the accident 
 happened, the relation was only that of different stage-coach 
 proprietors at common law. But the Exchequer Chamber was of 
 opinion that " where a railway company issues a ticket for a 
 journey, in the course of which the train which conveys the 
 passenger has to pass along a portion of a line of railway 
 belonging to another company (whether it be under running 
 powers, or whether it be under any particular contract for a 
 participation in profits, or otherwise), the contract between the 
 railway company and the traveller to whom such ticket is issued 
 is, upon every principle, of law, a contract not only that they will 
 not themselves be guilty of any negligence, but that the passenger 
 shall be carried with due and reasonable care along the whole 
 line from one end of the journey to the other." In the House of 
 Lords, in Daniel v. Metropolitan Eailway Company,'' the Lord 
 Chancellor (Hatherley), alluding to the duty of a railway com- 
 
 1 7 H. & N. 987 ; 31 L. J. Ex. 346 ; 
 loW. R. 388. 
 
 = At p. 993. 3 7 H. & N. 987. 
 
 ^ L. E. 3 Q. B. 549. 
 
 ^ L. K. S Q. B. 226 ; in Exchequer 
 Chamijer, L. K. 6 Q. B. 266 ; 40 L. J. 
 Q. B. 89 ; 24 L. T. N. S. 145 ; 19 W. R. 
 477- 
 
 6 L. E. 5 H. of L. 4S, at p. 55,. re- 
 ferring to Birtelt u. Whitehaven Junc- 
 tion Eailway Company, 4 H. & N. 230, 
 where switches on the line over which the 
 defendants had running powers got out of 
 order, and there was neglect of precautions 
 by the defendantSj 
 
PART I.] COMMON CARRIERS. 649 
 
 pany conveying passengers over a line of part of which the 
 company is not owner, said : ' • They [the company] would be 
 obliged to see that their own line of road was in perfect order, 
 and they vs'ould be responsible for am' negligence which oc- 
 curred on the other line of road, whether under their control 
 or not, if they have contracted to carry people over that par- 
 ticular piece of road ; but they would not be answerable, as I 
 apprehend, for any mischief occasioned by any matter extra- 
 neous altogether to the work in which they were engaged, and 
 as to which they had no reasonable ground for supposing that 
 ordinary and proper care had not been taken by those persons 
 whose duty it was to take such care." An illustration of this 
 exception arising from collateral negligence, and not from any- 
 thing inci'dent to" the carriasre, occurs in Wright r. Midland Eail- ^.''js''' "■ 
 
 jMiclliiiia 
 
 way Company.' At the junction of the Midland Company's line Railway 
 with the North-"\Vestern"s was a signal-box in charge of a servant °™P''"'y- 
 of the defendants, who set the signal in favour of the defendants' 
 train, so that it could proceed over a portion of the line over 
 which both companies had running powers ; while on this line, it 
 was run into by a train of the North-Western's, which was driven 
 by persons who negligently disregarded the signal. The plaintifi' 
 was injured, and brought his action, but was held, by th^ Court 
 of Exchequer, not entitled to recover, since the accident did not 
 arise from any negligent act which made the road unsafe, nor the 
 carriage or engine unsafe, or the signals wrong, but from something 
 done outside the carrying, and which was really an independent 
 trespass. The case, in fact, was like that which was repeatedly 
 alluded to in Daniels v. Metropolitan Railway Company ^ during Case pul in 
 its progress through the various courts, where a waggon heavily Metropolitan 
 laden with goods, " piled up to that enormous height to which commnv 
 we often see waggons piled up in this metropolis," is so impro- 
 perly packed that a bale of goods falls off upon a stage-coach, 
 and kills or injures a passenger. In reference to that case, the Considevud 
 Lord Chancellor (Hatherley) said : " I apprehend that all that is to ohanceiior 
 be done by those who carry passengers for hire is that they are (Ha'lierley). 
 bound to see that everything under their own control is in full 
 and complete and proper order. They are bound to see, also, if 
 there be a certain and definite risk as to which they have any 
 knowledge or can reasonably be supposed to have any knowledge, 
 that it is sufficiently guarded against." In Wright's case they The cases 
 had done all this, and the accident was due to a pure tort of 
 some one over whom they had no control ; just as if a ditch had 
 
 ' L. K. 8 Ex. 137 ; 42 L. J. Ex. 89; " L. R. 5 H. of L. 45 ; 40 L. J. C. P. 
 
 29 L. T. N. S. 436 ; 21 W. R. 460. 121 ; 24 L. T. N. .S. 815 ; 20 W. R. 37. 
 
650 THE LAW OF NEGLIGENCE. [book ii. 
 
 been dug across the line by a wrongdoer. Indeed, this is a 
 case expressly excepted by Kelly, O.B., in his judgment in 
 Thomas v. Ehymney Railway Company, where he says' : " We 
 must not be considered as holding that, where the mischief com- 
 plained of has arisen from the act of a stranger, such as would 
 arise from any mischievous person leaving a log of wood across 
 the railway, or any other act which might endanger a railway 
 traifi passing along, an action would be maintainable against the 
 railway company, because in that case there would not be any 
 direct or indirect breach of contract on their part.'' Breach of 
 contract, then, is the test that is to be applied ; and it is not the 
 duty of a railway company to take precautions against possible 
 negligence on the part of persons who are not in their employ- 
 ment nor under their control in the discharge of duties which, if 
 rightly performed, will not affect them.' 
 Question of In the cases we have been considering as to the validity of a 
 
 person'^* Condition exonerating the carrier from liability for negligence in 
 travelling consideration of the supplying a "free pass" there has been no 
 railway is to question raised as to the fact of the person so travelling being 
 by conditions Cognizant of the terms and travelling subject to them. But it is 
 oommn^oated ^^ important question how far a passenger is bound by conditions 
 to him. not actually communicated to him, and the effect of which he 
 
 has not troubled himself to master. Most of the cases decided 
 on this point are cases of the terms on which luggage is received 
 or dealt with, but. the principle on which conditions attached to a 
 ticket are valid may not inconveniently be treated in this place. 
 The earliest case it is necessary particularly to notice is that of 
 
 Van Toll ». Van Toll V. South-Eastern Railway Company,^ where a bag was 
 South-Eastem -, •, -, , ii i j- i , • ■ ■, 
 
 Eaiiway deposited at a cloak-room, and a ticket given m exchange, con- 
 
 Company, taining the conditions of the deposit, which was produced when 
 the depositor went to demand the bag, that had, however, pre- 
 viously been delivered to another person. In the Court of Common 
 Pleas, on motion, the judgment was for the defendants, because, 
 as stated by Brie, C.J., the facts were " that the plaintiff knew 
 that the deposit was to be made according to some terms imposed 
 by the defendants, because she conformed to some of them, not 
 upon inquiries then made, but as having knowledge ; that the 
 defendants had used all reasonable means to make known to the 
 depositors, and among them to the plaintiff, the terms on which 
 they received deposits; and that the plaintiff knew there were 
 
 1 L. E. 6 Q. B. at p. 274. As to the ' (1862) 12 C. B. N. S. 75 ; 31 L. J. 
 American law, see Bailroad Company v. C. P. 241 ; 6 L. T. N. S. 244 ; 10 W. E. 
 ~" ~ ■ "the " - — 
 
 BaiTon, 5 Wall. (U. S.) 90, and the cases 578 ; Stallard v. Great Western Eailway 
 
 stropolitan 
 pany, L. K. 5 H. of L. 45. 
 
 there referred to. (Jompany, 2 U 
 
 2 Daniel v. Metropolitan Eailway Com- 137 ; 6 L. T. N. S. 217 ; 10 W. E. 488. 
 
PARTI.] COMMON CARRIERS. 661 
 
 special terms, and either knew what they were or, with the 
 means of knowing what they were, chose to make the deposit 
 without ascertaining them — either assenting to them on the 
 assumption that they were reasonable, or being willing to be 
 bound by them whatever they might be." And from these it 
 followed " that the plaintiff does not prove that the deposit was 
 made on the terms of absolute liability stated in the declaration." 
 The next case, Stewart v. London and North-Western Railway Stewart v. 
 Company,' was decided on the broad ground that " a person must North" *" 
 be presumed to know what he has the means of knowing." The ??j^*^™ 
 facts shewed the loss of luggage carried by an excursion train. Company, 
 tickets for which were issued at one-fourth the ordinary fare, and 
 on which was printed, " Tickets as per bill," and on the back, 
 "Issued subject to the conditions contained in the company's 
 time and excursion bills," one of which was luggage under 60 lb. 
 free at passenger's own risk. Lewis v. M'Kee^ raised a ques- Lewis v. 
 tion of discharge of liability by reason of an indorsement on a 
 bill of lading made by the party to be charged, and unseen and 
 unassented to by the other party, and is unimportant to the 
 present point, save for a dilemma propounded by "Willes, J., Dilemma 
 in giving judgment : " If one person seeks to impose on by°wiiics! J. 
 another a liability by contract, but chooses to abstain from read- 
 ing the terms of the document in which the liability is sought 
 to be expressed, he is in this dilemma — either he has chosen 
 to accept the terms without taking the trouble of informing 
 himself what they are, or if, not reading, he did not assent to 
 the terms proposed, then no action lies, because one side has 
 intended one thing, and the other a different thing, and the 
 transaction is vitiated by. mutual error.'" This dilemma, how- ^™°"^^''®'^- 
 ever, would only arise in those cases where there is no duty 
 independent of the contract ; for where there is a duty, there, 
 failing the communication of the terms of the contract, the terms 
 would be those that the law implied. In other cases, too, it 
 assumes that any communication to the person to be bound is 
 suflScient to bind him if he fails to shew circumstances of 
 exoneration. But it is precisely on this point that the subse- 
 quent controversy turns. And in the cases where there is a duty 
 to receive, it is obvious that something more should be required 
 to vary the terms that the law implies than the fact that the 
 person to be exonerated has so willed, for which the very case of 
 
 Lewis V. M'Kee^ is an authority. Zunz v. South-Bastem Eailway Zunz v. 
 
 ' South-Eastem 
 
 1 (1864) 3 H. & C. 13s; 33 L. J. Ex. 3 xhat is, with reference to the special c^^^*^^ 
 
 199 ; 10 L. T. N. S. 302 ; 12 W. E. teims ; for some liability— e.gr., that of an ""'"i"" ^• 
 
 6gg ' involuntary bailee — there must be. ■ 
 
 »L. E. 4EX. S8. «L.E. 4EX.S8. 
 
652 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Cookburn, 
 C.J., con- 
 sidered the 
 passenger 
 presumed to 
 know con- 
 ditions on 
 whicli the 
 ticket issued. 
 Henderson v. 
 Steyenson. 
 
 lord Chancel- 
 lor (Oaims) 
 doubts Cock- 
 bum, C.J.,'3 
 principle. 
 
 Company' is important as containing a distinct enunciation of the 
 proposition there involved, and without the limitations the asser- 
 tion of which would yet have left the decisions in both those 
 cases unaffected. The plaintiff took a ticket from the defendant 
 company, to he conveyed as a passenger from London to Paris, on 
 which was printed : " The South-Eastern Railway Company is not 
 responsible for loss or detention of, or injury to, luggage of the 
 passenger travelling by this through ticket, except while the 
 passenger is travelling by the South-Eastern Eailway Company's 
 trains or boats." The plaintiff's luggage was lost on a French 
 railway. Cookburn, C.J., there said : " We are bound on the 
 authorities to hold that when a man takes a ticket with conditions 
 on it, he must be presumed to know the contents of it and must 
 be bound by them." The subsequent case of Henderson v. 
 Stevenson^ considerably qualifies this as a universal proposition ; 
 and, though a Scotch case, is, as pointed out by Blackburn, J., in 
 Harris v. Great Western Railway Company,' not only an authority, 
 but a decision " oh a subject in respect of which the law of Scot- 
 land and the law of England are one and the same." A ticket 
 having on its face only the words " Dublin and Whitehaven" was 
 given to a passenger, who, without looking at it, paid for it, and 
 went on board the vessel on which he had taken his passage. 
 Having lost his luggage, he brought an action against the company, 
 who referred to a condition on the back of the ticket by which 
 they intimated they would not undertake liability in a case like 
 the plaintiff's. The judgment of the Lord Chancellor (Caims) laid 
 great stress on the circumstances, first, that in point of fact the 
 plaintiff did not read the ticket, and did not know what was written 
 on the back ; and, second, that there was nothing on the face 
 of the ticket referring to the back. On these facts he based his 
 judgment. " Can it be held," he said, "that when a person is 
 entering into a contract containing terms which de facto he does 
 not know, and as to which he has received no notice, that he ought 
 to inform himself upon them ? My lords, it appears to me to be 
 impossible that that can be held." This gi'ound of decision seems 
 absolutely irreconcilable with the dictum of Cockbum, C.J. There 
 he held that the fact that a man takes a ticket with conditions on 
 it raises a presumption that he knows the contents, and therefore 
 must be bound. But in Henderson v. Stevenson the Lord Chan- 
 cellor' is of opinion that " it would be extremely dangerous, not 
 
 t. B. 
 
 1 L. E. 4 Q. B. 539 ; 38 L. J. 
 209 ; 20 L. T. N. S. 873 ; S. C. nom. 
 Turner v. South-Eastern Railway Com- 
 pany, 17 W. E. 1096 ; 10 B. & S. 594. 
 
 2 L. E. 2 So. App. 470 ; 32 L. T. N. S. 
 709 ; Great Western Railway Company v. 
 
 Goodman, 12 C. B. 313. 
 
 ' I Q. B. D. 515, at p. 528 ; 45 L. J. 
 Q. B. 729 ; 34 L. T. N. S. 647 ; 25 W. E. 
 
 63. 
 
 * (1875) L. E. 2 So. App. at p. 475. 
 Johnson v. Great Southern and Western 
 
PARTI.] COMMON CAKEIERS. 653 
 
 merely with regard to contracts of this description, but with 
 regard to all contracts, if it were to be held that a document, 
 complete upon the face of it, can be exhibited as between two 
 contracting parties, and without any knowledge of anything 
 beside, from the mere circumstance that upon the back of that 
 document there is something else printed, which has not actually 
 been brought to, and has not come to, the notice of one of the 
 •contracting parties, that contracting party is to be held to have 
 assented to that which he has not seen, of which he knows 
 nothing, and which is not in any way ostensibly connected with 
 that which is printed or written upon the face of the contract 
 presented to him." Some of the other law lords go milch further 
 than this: thus, Lord Chelmsford said': " I think that such an Lord cheims- 
 exclusion of liability for negligence cannot be established with- eVen^morr 
 out very clear evidence of the notice having been brought to the thmough- 
 
 . . going. 
 
 knowledge of the passenger, and of his having expressly assented 
 
 to it. The mere delivery of a ticket with the conditions indorsed 
 
 upon it is very far, in my opinion, from conclusively binding the 
 
 passenger." And Lord Hatherley^ : " I agree with the observa- Also Lord 
 
 tion that was made by my noble and learned friend,' that the " ^^ ^^^" 
 
 money having been paid, and the ticket having been taken up, 
 
 a contract was completed upon the ordinary terms of conveyance 
 
 for himself and his luggage, unless it can be made out that he 
 
 entered into a special contract to the contrary. A ticket is in 
 
 reality nothing more than a receipt for the money which has been 
 
 paid.""* But these, it was pointed out by Blackburn, J., in Consideration 
 
 Harris v. Great Western Railway Company,* "are expressions jf_ of the "™' 
 
 used by the different lords which seem to express opinions which f*^^"' ?' ^^^ 
 
 *> ^ ^ ^ ^ foregoing 
 
 were not, I think, part of the decision of the case then before opinions, 
 them, and which are not, in my opinion, correct when applied to 
 the case we have before us of a ticket given on the deposit of 
 goods with a company, who do not hold themselves forth as 
 general receivers of goods to be kept for hire, but let it be known 
 that, though they do not, and will not, as a general rule, receive 
 or keep such goods, they will take them if the passenger brings 
 them to a particular office, and there receives a ticket on the- 
 production of which the goods will be given up to the person 
 producing it." In that case, in the opinion of Blackburn, J., in 
 
 Railway Company, Ir. E. 9 C. L. 108, ciaion of the House, and indeed seems to 
 
 was decided the year before Henderson v. be contrary to the view taken by the Lord 
 
 Stevenson, with which it seems identical as Chancellor ": per Blackburn, J., Harris 
 
 to its facts, though inconsistent in the con- v. Great Western Railway Company, i 
 
 elusion arrived at. Q. B. D. at p. 532. 
 
 1 At p. 477. = (1876) I Q. B. D. SIS, at p. 529 ; 45 
 
 2 At p. 478. L. J. 729; 34 L. T. N. S. 647 ; 2S W. R 
 " Lord Chelmsford, 63. 
 
 * " This certainly is no part of the de- • 
 
6oi 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Bule stated by 
 Blackburn, 3., 
 in Harris v. 
 Great Western 
 Bail way 
 Company. 
 
 Approved 
 in the Court 
 of Appeal by 
 Mellish, L. J. 
 
 View of 
 Mellish, LJ. 
 
 wHcli the other members of the Court of Queen's Bench agreed, 
 the rule applicable is — " If ' the bailor and bailee agree that the 
 goods shall be deposited on other terms than those implied by 
 law, the duty of the bailee, and consequently his responsibility, is 
 determined by the terms on which both parties have agreed. 
 And it is clear law that where there is a writing into which the 
 terms of any agreement are reduced, the terms are to be regulated 
 by that writing. And though one of the parties may .not have 
 read the writing, yet, in general, he is bound to the other by those 
 terms."^ In giving judgment in Parker v. South-Eastern Rail- 
 way Company,^ Mellish, L.J., expressed his opinion that Harris i). 
 Great Western Eailway Company was rightly decided, because the 
 plaintiff there admitted that he believed there were some con- 
 ditions on the ticket, distinguishing the case from Henderson v. 
 Stevenson,^ which he held to be a "conclusive authority" that 
 where a person does not know that there is writing on the back 
 of a ticket he is not bound by what is contained in the writing. 
 In Parker •;;. South-Eastern Railway Company' and in Gabell v. 
 South-Eastern Railway Company, judgment in which was given at 
 the same time with it, the plaintiffs in each case admitted that they 
 knew there was writing on the back of the tickets they respectively 
 received, though they swore that they did not read it, and, further, 
 that they did not know or believe that they contained conditions. 
 In these circumstances, Mellish, L. J., thus expressed his view of the 
 law, overruling the Common Pleas Division' (where the case was 
 decided a month previously to the argument of Harris v. Great 
 Western Railway Company in the Queen's Bench Division') : — 
 " I am of opinion that we cannot lay down, as a matter of law, 
 either that the plaintiff was bound or that he was not bound by 
 the conditions printed on the ticket from the mere fact that 
 he knew there was writing on the ticket, but did not know that 
 the writing contained conditions. I think there may be cases in 
 which a paper containing writing is delivered by one party to 
 another in the course of a business transaction where it would be 
 quite reasonable that the party receiving it should assume that 
 the writing contained in it no condition, and should put it in his 
 pocket unread." The learned judge then gives the instance of a 
 person receiving a toll-ticket, when driving through a turnpike- 
 gate, as one where the receiver might reasonably put it in his 
 pocket unread ; and that of a bill of lading as one where the 
 
 1 At p. 530. 
 
 " Skipwith V. Great Western Eailway 
 Company, 4 Times L. R. 589. 
 
 3 2 C. P. D. 416 ; 46 L. J. C. P. 768 ; 
 37 L. T. 540 ; 2S W. B. 564. 
 
 * L. E. 2 So. A pp. 470. 
 ' 2 C. P. D. 416. 
 8 I C. P. D. 618. 
 ' I Q. B. 1). 515. 
 
PAETI.J COMMON OAERIERS. 655 
 
 receiver would be bound, whether he read it or not., He then 
 discusses the case of a railway ticket where he could see there 
 was some writing on it. "The railway company," he says,' 
 " must, however, take mankind as they find them, and, if what 
 they do is sufficient to inform people in general that the ticket 
 contains conditions, I think that a particular plaintiff ought not 
 to be in a better position than other persons on account of his 
 exceptional igfnorance or stupidity or carelessness. But if what 
 the railway company do is not sufficient to convey to the minds 
 of people in general that the ticket contains conditions, then 
 they have received goods on deposit without obtaining the con- 
 sent of the persons depositing them to the conditions limiting 
 their liability. I am of opinion, therefore, that the proper Proper 
 direction to leave to the jury in these cases is, that if the person the jury. 
 receiving the ticket did not «ee or know that there was any 
 writing on the ticket, he is not bound by the conditions ; that if 
 he knew there was writing, and knew or believed that the writing 
 contained conditions, then he is bound by the conditions ; that if 
 he knew there was writing on the ticket, but did not know or 
 believe that the writing contained conditions, nevertheless he 
 would be bound if the delivering of the ticket to him in such a 
 manner that he could see there was writing upon it was, in the 
 opinion of the jury, reasonable notice that the writing contained 
 conditions." This question of reasonable notice Bramwell, L.J., Bramweii, 
 considered rather a matter of law than of fact,'' and that judg- that'reaaonabie 
 ment should be entered for the defendants. To the objection ""^tterofiaw 
 that the conditions imposed on a person might be unreasonable, ''"* °^ **•"■ 
 his answer was : " I think there is an implied understanding 
 that there is no condition unreasonable to the knowledge of the 
 party tendering the document, and not insisting on its being 
 read — no condition not relevant to the matter in hand." 
 
 The Common Pleas Division had the subject before them again 
 in Burke v. South-Bastern Railway Company.' The plaintiff took Burke v. 
 a ticket from London to Paris from the defendants. On the out- Railway " 
 side of the cover was " Cheap return ticket, London to Paris and Company, 
 back, second class," and other matter, but no reference to the 
 inside of the cover. On the inside was a condition limiting the 
 responsibility of the defendants to their own trains. The plaintiff 
 was injured while travelling in France. He sued the defendants, 
 and said he had not read the condition, and did not know it. 
 Gockburn, C. J., directed the jury that if the condition was brought 
 to the plaintiff's notice it was a defence ; and, besides, asked the 
 
 1 At p. 423. " At p. 430. 
 
 » 5 C. P. D- I ; 49 L- J- C P. 107; 4« L- T. 554; 28 W. E. 306. 
 
656 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Henderson v. 
 
 (Stevenson 
 
 distinguished. 
 
 Stephen, J.,'s 
 doubt in 
 Watkins i: 
 Eymill. 
 
 The cases 
 discussed. 
 
 question suggested ia Parker ■;;. South-Eastem Railway Company,' 
 whether what was done by the company was reasonably sufficient 
 to bring the condition to the notice of the plaintiff. The jury 
 found that it was not, and gave ;^2S0 damages. Oockburn, O.J., 
 left the plaintiff to move the Court for judgment, and, on motion, 
 the Common Pleas Division^ entered judgment for the defendants 
 without calling on their counsel to argue, holding that the whole 
 book was the contract, and the only contract made with the 
 plaintiff; and distinguishing Henderson v. Stevenson,^ on the 
 ground that on the face of the card in that case there was printed 
 " Dublin to Whitehaven," and nothing else, and on the back a 
 condition. There the House of Lords split it in two, and said 
 there was room to find that the contract was what appeared on 
 the face of the card ; but in this case no such separation wafe 
 possible. Stephen, J., in Watkins v. Eymill,'' seems to throw 
 doubt on this judgment, as he says it " can hardly be supported 
 by any principle short of that laid down in Zunz v. South-Eastem 
 Eailway Company,'' if, indeed, it does not go further." This 
 would suggest the inference that the principle involved in Zunz's 
 case had been disputed. This, however, is not so. The decision 
 in that case was that the Railway and Canal Traffic Act, 1854, 
 only extends to the traffic on a company's own lines ; so that it 
 does not apply to a contract exempting from liability for loss on 
 a railway not belonging to, or worked by, the company. The 
 point of notice was never directly raised in the case, and conse- 
 quently never directly decided. True, Cockburn, C.J., said " that 
 when a man takes a ticket with conditions on it, he must 
 be presumed to know the contents of it ;" but that was with 
 reference to a contract where there was no duty at law, and when, 
 without proof of the contract, there could be no claim against the 
 company. True, also, it is that that dictum has not been accepted 
 as a complete statement of the law in all cases ; but that is in 
 cases where either the plaintiff could rely upon a duty apart from 
 the contract or upon special circumstances which rebutted the 
 inference drawn from the constitution of the contract — for ex- 
 ample, as is pointed out by Stephen, J., in Henderson u Steven- 
 son," because the document is misleading, and actually misleads. 
 But, broadly, the statement that where a person sues on a contract, 
 with no other and alternative claim, the terms of the contract must 
 be shewn, and the apparent terms are presumptively, the terms by 
 which both parties must be bound. The imperfection in the 
 
 1 2 C. P. D. 416. = Lord Coleridge, C.J., and Lindley, J. 
 
 s L. R. 2 Sc. App. 470. 
 
 ■• 10 «. B. D. 178, at p. 187; 52 r,. J. Q. B. 121 ; 48 L. T. 426 ; 31 W, B. 337. 
 6 L. E. 4 Q. B. 539. e L. R. 2 So. App. 470. 
 
PAETi.] COMMON CARRIERB, 657 
 
 dictum of Cockburn, C. J., was that it did not express limitations 
 which circumstances not arising in the case with which he was 
 dealing might in some cases make material to be considered. 
 The decision in Burke v. South-Eastern Eail way Company is no 
 more than the decision in Zunz's case as to luggage applied to pas- 
 sengers.' Apart from special contract there was no duty ; and the 
 claim of the plaintiff was to sever the contract, insisting on what 
 made for him, repudiating what was against him. The decision 
 of the Court was that the whole ticket was the contract ; and, in 
 effect, that, the construction of it being for the Court, the plain- 
 tiff was out of court. But the case of Parker r. South-Eastern True effect of 
 Eail way Company" may be cited as an authority that where there s^th-Eastem 
 was writing on a ticket, and the recipient did not know or believe Railway 
 that the writing contained conditions, it must be submitted to the 
 jury whether, in their opinioif, the recipient had notice that the 
 writing contained conditions. The case of the plaintiff is not stated 
 high enough to bring him within this ruling, since his assertion of 
 ignorance was limited to this condition. For example, he must 
 have been aware of the previous condition, " This ticket is available 
 for fourteen days, includiag the day of issue and expiry," and most 
 probably of the condition, " The cover without the coupons, or 
 the coupons without the cover, are of no value." If so, he came 
 within that branch of the rule laid down by Mellish, L.J., " that 
 if he knew there was writing, and knew or believed- that the 
 writing contained conditions, then he was bound by the -conditions,'' 
 and there was no case for the jury. In Parker v. South-Eastern 
 Railway Company, Mellish, L.J., must be intended as referring to 
 the passenger being affected with notice of any writing containing 
 conditions, and not of the particular writing, otherwise the rule of 
 law that requires the construction of the whole of a document 
 would be seriously infringed on. 
 
 The last case is Watkins v. Rymill' — a decision on the presump- Watkiusf. 
 tion of assent to conditions upon which a waggonette was received by ^™ " 
 the defendant, the keeper of a repository for the sale on commission 
 of horses and carriages — where Stephen, J., elaborately examines General rule 
 
 ? . , 1 • . , ,, « , formulated by 
 
 the earlier cases, and enunciates a general prmciple : "A great Stephen, J. 
 number of contracts are, in the present state of society, made by 
 the delivery, by one of the contracting parties to the other, of a 
 document in a common form, stating the terms by which the person 
 delivering it will enter into the proposed contract. Such a form 
 
 ' " An undertaking to transport and deliver bejond the terminus of tlie carriers' 
 lines is not within the common law liability of a common carrier": per Bowie, J., 
 Baltimore Eailway Company v. Green, 25 Maryland, 72, at p. 89. 
 
 2 2 C. P. D. 416, at p. 423- 
 
 > 10 Q. B. D. 178 ; 52 L. J. Q. B. 121 ; 48 L. T. 426 ; 31 W. E. 337. 
 
 TT 
 
658 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 rour excep- 
 tions : 
 
 I. Seasonable 
 ignoranee. 
 
 II. Fraud. 
 
 III. Mistake. 
 
 IV. Want of 
 equity. 
 
 Conditions 
 prima facie to 
 be construed 
 against the 
 company pro- 
 pounding 
 them. 
 
 constitutes the offer of tlie party who tenders it. If the form is 
 accepted without objection by the person to whom it is tendered, 
 this person is, as a general rule, bound by its contents, and his 
 act amounts to an acceptance of the offer made Jo him, whether 
 he reads the document or otherwise informs himself of its con- 
 tents or not." To this general rule he finds four exceptions : — 
 
 I. Where the nature of the transaction is such that the person 
 %ccepting the document does so on the presumption (not unreason- 
 able) that the document is a mere acknowledgment of an agree- 
 ment not intended to be varied by special terms.' 
 
 II. Where there is fraud. 
 
 III. Where the document is misleading, and actually misleads.^ 
 
 IV. Where the conditions are unreasonable in themselves.' 
 Since the purpose of conditions is to limit the liability which 
 
 the company would otherwise be under by the common law, and 
 as the conditions are expressed in the language of the company, 
 in putting a construction upon them they are to be construed, as 
 far as they are ambiguous, against the company proposing them.'' 
 Thus, a statement, forming part of a condition, that " Every 
 attention will be paid to insure punctuality as far as practicable " 
 is not merely a "vague assurance," but a part of the contract of 
 carriage ; and where there is " wilful delay or reckless loitering" 
 the company must be held not to have performed the contract 
 entered into with reference to the condition to ensure punctuality.' 
 If there was a clear refusal to guarantee the punctuality of their 
 trains, such a condition as part of the contract would be valid," 
 and the company would be protected from everything except 
 wilful misconduct of their servants.'' But if the condition is for 
 
 Railway near as may be, and charge him for the 
 expense incurred in so doing." (The dic- 
 tum does not appear in the report i H. & 
 N. 408.) But this was reversed in the 
 Court of Appeal, Mellish, L..T., agreeing 
 that as a genei-al rule this was correct, 
 but that "the question must always be 
 whether what was done was a reasonable 
 thing to do having regard to all the cir- 
 cumstances," and suggesting the rule for 
 the determination of what was reasonable 
 "to consider whether the expenditure was 
 
 B. 2 
 
 ' Parker v. South-Eastern 
 Company, 2 C. P. D. 416. 
 
 ^ Henderson v. Stevenson, L. 
 H. L. So. 470. 
 
 ' Parker w. South-Eastern Eailway 
 Company, 2 C. P. D. 416, per Bramwell, 
 L..T., at p. 428. 
 
 * Taubman v. Pacific Steam Navigation 
 Company, 26 L. T. N. S. 704, does not 
 seem to conform to this condition. 
 
 ^ Le Blanche v. London and North- 
 western Eailway Company, i C. P. D. 
 286 ; 45 L. J. C. P. 521 ; 34 L. T. N. S. 
 667 ; 24 W. B. 808. In this case where 
 the plaintiff, having lost his train, had 
 taken a special train to carry him to his 
 destinatiofi, the question whether he was 
 entitled to charge the defendant com- 
 pany for it by way of damages was con- 
 sidered. It was held in the Common 
 Pleas, following the dictum of Alderaon, 
 B., in Hamlin u. Great Northern Eail- 
 way Company, 26 L. J. Ex. 22, that 
 " where one party to a contract does not 
 perform it, the other may do so for him as 
 
 one which any person in the position of 
 the plaintiff would have been likely to in- 
 cur if he had missed the train through his 
 own fault, and not through the fault of the 
 company." Earlier cases on conditions 
 are Buckmaster v. Great Eastern Eailway 
 Company, 23 L. T. N. S. 471 ; Thompson 
 V. Midland Eailway Company, 34 L. T. 
 N. S. 34. 
 
 8 M'Oartan v. North-Eastern Eailway 
 Company, 54 L. J. Q. B. 441. 
 
 ' Woodgate v. Great Eastern Eailway 
 Company, 51 L. T. 826. 
 
PARTI.] COMMON CARRIERS. 
 
 659 
 
 the benefit of the company, they may waive it if they see fit, as in 
 Jennings v. Great Northern Railway Company,' where a master Jennings v. 
 took tickets for himself and three servants, keeping the tickets in sliiwa'"^''"'" 
 his own care, and telling the guard he had the servants' tickets. Company. 
 when the servants were allowed to enter the train without each 
 shewing his ticket. Upon which facts being shewn, it was held 
 that the company were estopped in an action by the master 
 against the company for afterwards expelling the servants from 
 the train from pleading a bye-law : " No passenger shall be allowed 
 . to enter any carriage or travel therein without having paid his 
 fare and obtained a ticket, which ticket such passenger is to shew 
 when required, and to deliver up before leaving the company's 
 premises." Or the passenger on his part may waive his right to 
 claim the performance of duties which by the contract the com- 
 pany may have in the first instance taken upon themselves.^ 
 
 In so far as a carrier is a common carrier of passengers — that Bound to 
 is, within the limits within which he holds himself out to carry soM^rabfe^r 
 for hii-e passengers who apply — he is bound to carry, from his {? "^Jf " 
 accustomed place of setting out to his usual place of destination, to conduct, &c., 
 all persons who apply, so long as he has convenient accommoda- 
 tion for their safe carriage, and unless there is sufficient excuse 
 for a refusal — and sufficient excuse is, where there is a refusal to 
 obey reasonable regulations, or gross and vulgar conduct, or con- 
 duct creating disturbance, or where the character of the suggested 
 passenger is doubtful, dissolute, or suspicious ; and ci fortiori where 
 the character is unequivocally bad, or the object of the journey 
 to interfere with the business of the carrier.' But, though the 
 carrier can properly refuse to carry an improper and dangerous 
 person — e.g., an insane or drunken man,'' or one whose character 
 is bad — ^he cannot expel him after having admitted him as a 
 passenger and received his fare, unless he misbehaves .° With 
 these and the like exceptions, it is the duty of the carrier, a duty 
 imposed on him by the custom of the realm — in other words, by 
 the common law — to carry passengers safely and securely, so that 
 by his negligence or default no injury or damage happen. A 
 
 ' 13 L. T. N. S. 254. and leading principles " according to Hall 
 
 ^ Fitzgerald v. Midland Railway Com- v. Power, 53 Mass. 482, are laid down. 
 
 pany, 34 L. T. N. S. 771. As to perform- Pittsburg Eailroad Company ». Hinds, 53 
 
 ance of positive conditions, Cooper v. Penn. 512. 
 
 London and Brighton Bail way Company, * Atchison Eailroad Company u. Weber, 
 
 4 Ex. D. 88 ; 48 L. J. Ex. 434 ; 4° L. T. 52 Am. E. 543. 
 
 N. S. 324; 27 W. E. 474. As to obliga^ ' Butler v. Manchester, Sheffield, and 
 
 tions of railway company where the train Lincolnshire Eailway Company, 57 
 
 ia full, Great Northern Eailway Company L. J. Q. B. 564 ; Massiter v. Cooper, 4 
 
 V. Hawcroft, 21 L. J. Q. B. 178. Esp. 260 ; Coppin v. Braithwaite, 8 Jur. 
 
 ' Jeucks V. Coleman, 2 Summ. 221, 875 ; Prendergast v. Compton, 8 C. & P. 
 
 summing up by Story, J. ; Bennett v. 462, per Tindal, C.J. ; Pearson v. Duane, 
 
 Button, 10 N. H. 486 ; Commonwealth 4 Wal. (U. S.) 605. 
 
 V, Power, 48 Mass. 596, where the "great 
 
660 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 and subject to 
 the conditions 
 nnder which 
 the carrier 
 conducts his 
 Vm^esB, 
 
 Effect of the 
 issue of a 
 time-table. 
 
 Benton v. 
 Great Northern 
 Eailway 
 Company. 
 
 Hurst V. Great 
 Western Eail- 
 way Company. 
 
 breach of this duty is a breach of the law, and for this breach an 
 action lies founded on the common law, and does not require any 
 contract to support it.' The carriage is, however, subject to the 
 conditions on which the carrier carries on his business, provided 
 only the intended passenger have reasonable notice. With regard 
 to this it was held in Mesnard -v. Aldridge^ that the printed con- 
 ditions of an auction are sufBciently made known to bidders by 
 being pasted up in the auction-room ; and the printed conditions 
 of a line of coache^s are, with equal reason, sufficiently made known 
 to passengers by being posted up at the place where they book 
 their names.' But, as the passengers are bound to conform to 
 the regulations of the carrier so far as they are reasonable and , 
 they have reasonable notice of them, so, too, is the carrier bound 
 by his public profession — as, for example, when he circulates time- 
 tables, he is bound to start at or about the time he represents. 
 There has been some doubt about the ground on which he is 
 bound. In Denton v. Great Northern Railway Company,* Lord 
 Campbell and Wightman, J., were of opinion that the putting 
 forth of a time-table by the company amounted to a contract with 
 those who came to the station in consequence of the announcement 
 thus made. To this Crompton, J., did not assent, but was " much 
 inclined to think that the company, by holding out the time- 
 table as theirs, and by not carrying in accordance with the times 
 therein specified, committed a breach of their duty as public 
 carriers, by which they were bound to carry according to their 
 public profession." But the whole Court agreed that the com- 
 pany were liable on the ground of fraudulent representation. 
 
 In the subsequent cases the view that there is a contract seems 
 to have been adopted without further controversy.^ 
 
 In Hurst v. Great Western Railway Company ° the circumstances 
 were a little peculiar. The company's time-table, which " would 
 
 ' Bretherton v. Wood, 3 B. & B. 54: 
 Ansel! V. Watcrhonse, 2 Chitty i. 
 Though a pevson injured by a railway 
 company or carrier may elect whether he 
 will sue in contract or tort, this election is 
 personal, so that an action will not lie 
 against a railway company at suit of the 
 master of a servant who has sustained 
 injury while being carried by them, for 
 the relation arose out of contract to which 
 the master was not a party : Alton v. 
 Midland Kailway Company, 19 C. B. 
 N. S. 213. Where, however, the action 
 is against independent wrongdoers' — as, 
 for example, if the contract had been with 
 the Midland Company, and was injured 
 by a train of the Great Eastern's running 
 into it — the master could recover : Berrin- 
 ger V. Great Eastern Railway Company, 
 
 4 C. P. D. 163 ; 48 L. J. C. P. 400 ; 27 
 W. E. 681. Alton V. Midland Bailway 
 was followed in Passenger Railroad Com- 
 pany V. Stutter, 54 Penn. St. 375, where 
 a multitude of cases are cited in argu- 
 ments. 
 
 2 3 Esp. 271. 
 
 3 Whitesell a.Crane, 8 Watts & Ser. 369. 
 ^ S E. & B. 860; Hamlin ». Great 
 
 Northern Railway, i H. & N. 408 ; Hobbs 
 V. London and North- Western Railway 
 Company, L. R. 10 Q. B. iii. 
 
 ^ Le Blanche v. London and North- 
 Western Railway Company, i C. P. D. 
 286 ; 45 L. J. C. P. 521 ; 34 L. T. N. S. 
 667 ; 24 W. R. 808. 
 
 » (1865) 19 C. B. N. S. 310 ; 34 
 L. J. C. P. 264 ; 12 L. T. N. S. 634 ; 
 34 W. B. 950. 
 
PARTI.] COMMON CAKEIERS. 661 
 
 doubtless have shewn that there was an absolute repudiation of 
 a warranty of punctuality,"' were not put in, but the plaintiff 
 claimed to recover on proof that he took a ticket at Cardiff to be 
 carried by the Great Western Railway to Newcastle vid the 
 Midland Railway. The grievance was that the train by which he 
 was to proceed on his journey, instead of arriving at Cardiff at 
 the regular time, was nearly an hour and- a half late. The 
 plaintiff got a verdict at the trial, but judgment was entered for 
 the defendants by the Court of Common Pleas, the Court being 
 of opinion "that the mere taking of a ticket does not amount 
 to a contract on the part of a railway company, or impose upon 
 them a duty to have a train ready to start at the time the pas- 
 senger is led to expect it, and, in order to maintain an action, it 
 is incumbent on the plaintiff , to shew either a breach of contract 
 or a breach of some legal duty." 
 
 The representation by a carrier made by means of a time-table Nature of tho 
 
 ,,.,, . ~ Ti- J. ay • -I representation 
 
 is somewhat m the nature oi an advertisement onering a reward, by a carrier ; 
 and, therefore, though when once publicly made it becomes '*' effects. 
 binding if accepted before it is retracted," yet it is not irrevocable, 
 but may be retracted by a notice of the change made circulated as 
 extensively as the notice of the regular trains, or in such a way as 
 it would be reasonably calculated to come to the intending pas- 
 sengers' knowledge, or, indeed, if there was a reservation of the 
 right to make occasional changes in the running of particular 
 trains, he would be bound to make reasonable inquiries whether 
 such reservation had been acted on.^ 
 
 When once the passenger has been received he must, if he Duty to carry- 
 desire it, be carried the whole route, so that, if the usual place of ^^®'"''™®^*y' 
 alighting from a stage-coach is at an inn yard, the passenger 
 must be put down there, and cannot be compelled to alight even 
 at the inn gate.^ That is, the carrier's duty is absolute," and, in 
 case of disablement by accident of the conveyance he provides, he 
 is bound to provide another" for the completion of the journey. 
 He is bound to stop at the usual places, and to allow the usual 
 intervals for refreshments,' for it may be that the practice of 
 stopping at certain places may be the passenger's reason for pre- 
 ferring that particular conveyance to another line.' 
 
 The law cannot exactly define what is the length of time that Time for 
 
 stoppages. 
 
 1 Per Willes, J., at p. 329. ' On long routes, " easy and safe modes 
 
 ' Boston and Maine Eailroad Company and reasonable time for obtaining food 
 
 V. Bartlett, 57 Mass. 227. and safe ingress and egress to and from 
 
 ^ Sears v. Eastern Eailroad Company, refreshment stations" must be afforded: 
 
 96 Mass. 433. Peniston v. Chicago Eailroad Company, 44 
 
 * Dudley v. Smith, i Campb. 167. Am. E. 444. 
 
 = Ker V. Mountain, I Esp. 27. ' Jeremy, Carriers, p. 23 ; Barker v. 
 
 ^ Jeremy, Carriers, p. 23. New York Eailroad Company, 24 N. Y, 599. 
 
662 
 
 THE LAW OF NEGLIGENCE. 
 
 II. 
 
 Duty during 
 
 transit. 
 
 Blamires ». 
 
 I^ancashire 
 
 and Yorkshire 
 
 JBailway 
 
 Company. 
 
 Eelativity of 
 the notion of 
 negligence 
 enforced by 
 Grove, J. 
 
 stoppages should be jnade on tlie way for the purpose of those who 
 have taken tickets for intermediate stations on the route to alight. 
 This must be a matter for the jury va estimating the facts of the 
 individual case; but "prudence and duty would require a con- 
 ductor to detain a train longer to pass out fifty aged females than 
 five active men." And the question that must be left to the jury 
 in each case is, whether in the actual facts of the particular case 
 reasonable time to leave the carriage was afibrded.^ 
 
 Blamires v. Lancashire and Yorkshire Railway Company/ in the 
 Exchequer Chamber, must be considered as throwing light on the 
 duty of a railway company to its passengers during their transit. 
 By the Regulation of Railways Act, 1868,' s. 22, " every company 
 shall provide and maintain in good working order, in every train 
 worked by it which carries passengers and travels more than 
 twenty miles without stopping," means of communication between 
 the passengers and the servants of the company in charge of the 
 train. In an action for negligence brought by a passenger in a 
 train within the meaning of the Act, it appeared that the pre- 
 caution had not been adopted, and the plaintifi" relied on this want 
 of communication between the passengers and the guard as con- 
 stituting negligence in the defendants, though the accident was 
 caused by the breaking of a tire across a rivet-hole. Kelly, O.B., 
 at the trial, directed the jury that " it is not every disobedience 
 to an Act of Parliament that will constitute negligence in a rail- 
 way company so as to make the railway company responsible for 
 accidents of this nature. It is only if the duty imposed by Act 
 of Parliament be such that the breach of it, the neglect of the 
 duty, was likely to conduce to an accident of this nature that 
 the Act of Parliament would have any efiect upon it ; and if there 
 had been any duty imposed on the company, any precaution which 
 they have failed in taking, any duty which they have not per- 
 formed, and the non-performance of which led to this accident or 
 was likely to conduce to this accident, then, whether there was an 
 Act of Parliament or not, that breach of duty is worthy of your 
 consideration to see whether you can find negligence." The jury 
 found that there was no negligence in respect of the breaking of 
 the tire, but that the want of communication was negligence. In 
 the Exchequer Chamber the verdict of the jury was sustained, on 
 the ground that it was right to use the Act as some evidence of 
 what due and ordinary care in the circumstances would be. This 
 is put most clearly by Grove, J., who said: " Negligence must 
 depend very much on the state of knowledge at the time. If a 
 
 ^ Pennsylvania EailroaJ Company «. 
 Kilgore, 32 Penu. St. 292. 
 
 2 L. E.. 8 Ex. 283 ; 41 ^- J- Ex. iSt. 
 ' 31 & 32 Vict. c. 119. 
 
PARTI.] COMMON CASEIEES. 6&3 
 
 particular precaution has not been hitherto known or used, or if 
 its use is obscure, the omission of it is not negligence ; but if it 
 is used to any considerable extent, that changes the case, and 
 
 makes the omission some evidence of negligence The Act 
 
 is important evidence as shewing, not merely that the means ex- 
 isted, but that it was known and sanctioned by the Legislature." 
 Blackburn, J., however, limits his decision. "We have not to Judgment of 
 decide," said he, "whether, if the Act did not apply, there was ■^^''^^"™"^- 
 sufficient evidence to shew that it was the duty of the company 
 to provide means of communication, whether such an obligation was 
 cast upon them by the common law duty to take reasonable care of 
 their passengers." He prefers to " leave it open for future decision 
 what may be the duty of companies in cases where the train is 
 intended to stop at shorter dis^nces than twenty miles, and what 
 may be the effect of the Act in that case." This reservation does Considered. 
 not affect the principle laid down by Grove, J., and also by 
 Brett, J. (which is, that proof of ordinary usage is admissible to 
 shew whether a particular act is careful or not), but seems rather 
 directed to the proposition that, when the Legislature has made 
 provisions for some special purpose, the exceptional state of 
 things thereby produced is not an element in the determining 
 what should be done or omitted in cases not thus exceptionally 
 governed. 
 
 The duty owed by a railway company to their passengers is 
 to take reasonable care — to use the best precautions in known 
 practical use for securing their safety and convenience. It is for 
 the jury to say what is reasonable care and whether proper pre- 
 cautions have been used. ^ Still, passengers are not entitled to expect 
 the utmost care that coiild possibly be conceived, for the manage- 
 ment of railways is a matter of practical experience to which addi- 
 tions are made day by day. It is not, therefore, to be required 
 that every suggestion of science should be adopted ;^ but it is 
 the duty of railway companies to use every precaution in known 
 practical use. But there are safeguards that can only be secured 
 by the sacrifice of conveniences' — as, for instance, a slower rate 
 
 ■■ In Flint v. Norwich, &o.. Company, So. L. E. 315 ; Eobiflson v. New York Cen- 
 34 Conn. 554, a company was held liahle tral Railroad Company, 20 Blatclif. 338. 
 for an injury caused by the explosion of a 'In America it has been held that a 
 gun caused by some disorderly soldiers railway company is liable to a person 
 carried by the company under a Govern- waiting for a train in a proper place and . 
 mental obligation. Simmons v. New Bed- using due care, who is strnck by a mail- 
 ford Company, 97 Mass. 362, where pas- bag thrown from the postal car, though it • 
 flengers scrambled into a small boat hung was a well-known custom to throw bags 
 over the deck of a steamboat, and caused as the train was passing through stations : 
 it to fall on other passengers. Snow v. Fitohburg Railroad Company, 
 
 2 Hanson v. Lancashire and Yorkshire 136 Bfass. 552. This was on the ground 
 
 Railway Company, 20 W. R. 297 ; Wisely that the act was itself dangerous, and the 
 
 V. Aberdeen Harbour Commissioners, 24 company therefore owed a duty of pre- 
 
664 
 
 THE LAW OF NEGLIGENCE. 
 
 [book It. 
 
 What improve- 
 ments should 
 be adopted. 
 
 Comman v. 
 
 Eastern 
 
 Counties 
 
 Eailway 
 
 Company. 
 
 of speed, whicli might add sometliing to the Security while greatly 
 sacrificing the convenience of the passengers. A company 
 would not be liable merely because they preferred considerable 
 convenience to a slight enhanced security in travelling.' If, then, 
 the statutory precaution were adopted merely because it was a 
 statutory requirement, and without necessarily indicating any 
 advance in science or aid to security, the fact of legislative enact- 
 ment would not seem in principle to add anything to the obliga- 
 tion of the company in that respect. If, on the other hand, the 
 legislative requirement in certain cases were an indication of a 
 recognized sense of the propriety of such a safeguard as was there 
 stipulated for, it would seem evidence of the growth of that 
 practical experience to the assured results of which railway com- 
 panies are bound to conform." 
 
 To determine what improvements are and what are not required 
 to be adopted by railway companies, several factors have to be 
 considered. They are bound to avail themselves of all improve- 
 ments which will contribute materially to the safety of the pas- 
 sengers. 
 
 First, when the utility of such impi'ovements has been thor- 
 oughly tested and demonstrated ; but 
 
 Secondly, subject to a reasonable regard to the ability of the 
 company and the nature and cost of the improvements. 
 
 If the improvement related to a matter in respect of which 
 there were numerous accidents, and could be effected at a small 
 price, the obligation on the railway to adopt it would be peremp- 
 tory. If, on the other hand, it were a matter of inadequate 
 benefit at a cost of great expense, or even of trivial concern 
 without the probability of expense, they would not be bound.' 
 The case of Oornman v. Eastern Counties Eailway Company" is 
 somewhat in point. There the plaintiff, being at the defendants' 
 station on Christmas Day, was driven by a crowd against a 
 portable weighing-machine, the foot of which projected about 
 six inches above the level of the platform. It was unfenced, 
 and it had stood in the same position without any accident 
 occurring to persons passing it for about five years. Evidence 
 
 caution ; Cai'penter v. Boston Eailroad 
 Company, 97 N. Y. 540. 
 
 ' Ford V. London and SoutL-Westem 
 Bailway Company, 2 F. & F. 730, and 
 Stokes V. Eastern Oonnties Eailway Com- 
 pany, 2 F. & F. 691. _ 
 
 '' There is an American case on a some- 
 what ludicrous point, deciding that a rail- 
 way company is not liable for the neglect 
 of its guard to fulfil his promise to wake 
 a passenger, whereby he was carried be- 
 yond his destination: Nunn u. Georgia 
 
 Eailway, 51 Am. E. 284. 
 
 s Smith V. New York, &o., Kailroad, 19 
 N. Y. 127. 
 
 * 4 H. & N. 781 ; 29 L. J. Ex. 94. 
 A similar case is Blackman c London 
 and Brighton Eailway Company, 17 W. E. 
 769. For the American cases, see Hamil- 
 ton V. Texas Eailroad Company, 53 Am. 
 E. 756 ; Gillis v. Pennsylvania Eailroad 
 Company, 98 Am. Dec. 317, and note at 
 p. 322. 
 
fARTi.] COMMON CARRIEHS. 665 
 
 was given that most of the great railway companies adopted 
 precautions which would have rendered such an accident impos- 
 sible. But the judge at the trial told the jury " that one company 
 was not bound to adopt all the arrangements of another, and he 
 asked them whether they thought that the machine was in such a 
 position as that, without any negligence of persons' coming on 
 the platform, accidents might occur." The jury found for the 
 plaintiff. But a verdict was entered for the defendant in the 
 Court of Exchequer. Bramwell, B., said : " I think that all 
 the ingredients to make out a case of negligence against the 
 company exist, except that proof is wanting that the mischief 
 which happened is one which could have been foreseen. In such 
 a case it is always a question whether the mischief could have 
 been reasonably foreseen. Jfothing is so easy as to be wise after 
 the event. But here no witness stated that he would have known 
 that the position of the weighing-machine was likely to, cause 
 danger. I adopt the rule stated by Williams,, J., in Toomey v. 
 Brighton Railway Company': ' It is not enough to say that there 
 was some evidence ; a scintilla of evidence or a mere surmise that 
 there may have been negligence on the part of the defendants 
 clearly would not justify the judge in leaving the case to the jury. 
 There must be evidence on which they might reasonably and pro- 
 perly conclude that there was evidence.' Here the evidence was 
 that the company might reasonably have anticipated that no mis- 
 chief could occur, since no mischief had resulted from keeping the 
 machine in the position in which it stood for so long a period." 
 
 Hart V. Lancashire and Yorkshire Railway Company^ may also Hart ». Lan- 
 be used in illustration of the duty of railway companies to their Yorkshire 
 passengers. A pointsman having but an instant to decide what ^jj,^*^ , 
 to do with a runaway engine (the man in charge of which, who 
 was alone, had fallen down in a fit), turned it into a siding 
 on which there was a train at rest, rather than allow it to meet 
 an advancing express train. The plaintiff, who was in the train 
 at rest, was injured, and sued the company for damages for 
 negligence, first, in not having two men on the engine while 
 engaged in coaling, from which it was returning when the fit of 
 the driver left it without guidance ; and, secondly, in having 
 the points of the sidings so arranged that the engine must 
 necessarily, in case of the driver being incapacitated, pass on 
 to the main line. The fact that an alteration had been made 
 
 J_3-CL3. N. S. 146 ; 27 L. J. C. P. evidence given was sueoeptible of either 
 ''SgT Compafe^as to this, DubKn, Wicklow, reading, and that could not affect the 
 and Wexford EMI way Company v. Slattery, defendants with liability, since the plaintiff 
 3 App. Cas. Il55iv This case is not, how- must give evidence that pointed to a con- 
 ever, within the irule there enunciated ; elusion of negligence, 
 for what the Coura practically say is, the ^ 21 L. T. N. S. 261. 
 
666 
 
 THE lAW OF NEGLIGENCE. 
 
 [book. II. 
 
 Subsequent 
 precaution not 
 evidence of 
 iuitecedaut 
 neglect. 
 
 Withers v. 
 North Kent 
 Bail way 
 Company. 
 
 since the accident, so that a runaway engine would pass -along a 
 supplementaiy siding leading up to a "dead end," was urged 
 as evidence of previous negligence. The contention as to the 
 first point was that the work of coaling an engine was dangerous 
 from an alleged liability of the men engaged in the work to 
 become affected by the sulphurous vapour arising from the 
 burning coal. The Court refused, in the absence of evidence, 
 to accept this, Kelly, C.B., remarking : " Surely, it was never 
 heard that sickness of any kind was ever produced by ifc" 
 From this starting-point the Court arrived at the conclusion that, 
 if the operation were usually conducted by one man, it would 
 be a very strong thing to say that the not employing two men to 
 perform the operation was negligence. As to the second point, 
 the Court was of opinion that it would be most um-easonable that 
 the company should be held negligent in not foreseeing that the 
 plan which had been in use safely for twenty years should occasion 
 an accident ; and the fact that, when they found that it had, 
 they altered their method should even less be a circumstance 
 going to fix them with hability. As Bramwell, B., said in his 
 forcible way : " People do not furnish evidence against themselves 
 simply to prevent the recuiTence of an accident. I think that a 
 proposition to the contrary would be barbarous. It would be, as 
 I have often had occasion to tell juries, to hold that because the 
 world gets wiser as it gets older, therefore it was foolish before."' 
 
 But the Court held there was evidence of negligence where a 
 passenger, walking by daylight up and down the platform of a 
 station, was injured by slipping on a strip of ice extending half 
 way across the platform, and of the presence of which no ex- 
 planation was given.^ 
 
 Again, in Withers v. North Kent Railway Company,' an 
 accident happened through the subsidence of an embankment, 
 made five yeai's previously, through a marshy country subject 
 to floods, after an extraordinary storm, accompanied for sixteen 
 hours with very violent rain, whereby the " sleepers " of the 
 
 1 Two suggestions were thrown out in 
 this case that may be noted. First, one 
 byBr^well, B., whether the pointsman, 
 whose presence of mind saved a great 
 catastrophe, was not liable in trespass, 
 since his act was voluntary and wilful. 
 And, secondly, one hy Cleasby, B., whether 
 the company could be held responsible for 
 an injury proximately caused by such an 
 act of their servant done under such cir- 
 cumstances. As to this latter point, see 
 Lirapus V. London General Omnibus Com- 
 pany, I H. & C. S26. 
 
 ^ Shepherd v. Midland Railway Com- 
 pany, 25 L. T. N. 8. 879 ; 20 "W. E. 705. 
 
 Compare Grafter v. Metropolitan Eailway 
 Company, L. E. i C. P. 300 — case of brass 
 nosing to steps of station worn smooth; 
 Davis 11. London and Brighton Railway 
 Company, 2 F. & F. 588 — not enough to 
 shew improper condition of station if acci- 
 dent not caused thereby ; Eigg v. Man- 
 chester, ShefBeld, and Lincolnshire Eail- 
 way, 14 W. E. 834 — cpinion of witnesses 
 that a platform is dangerous no evidence 
 of it ; Longniore ». Great Western Eailway 
 Company, 19 C. B. N. S. 183 — faulty con- 
 struction of bridge. 
 5 22 L. J. Ex. 417. 
 
PARTI.] COMMON CARRIEES. 
 
 667 
 
 railway were unsupported and gave way as the ordinaiy express 
 train went over them. The negligence alleged was, first, the 
 construction of a line " on a low embankment composed of a 
 sandy sort of soil likely to be washed away by water, and that 
 the culverts were insufficient to carry oif the water ; " and, 
 secondly, the rate of speed at which the train was going at the 
 time. The jury found for the plaintiff, with heavy damages, 
 but the Court directed a new trial. As to the first ground, " the 
 line had lasted five years in a country subject to floods, and it 
 does not appear that there had been any accident or objection 
 to its construction until this extraordinary flood occuri'ed. The 
 company were not bound to have a line constructed so as to meet 
 such extraordinary floods." As to the second point, the speed " was 
 the ordinary express train gpeed, and there had been nothing to 
 indicate there would be danger in continuing it." 
 
 In none of these cases was the state of circumstances revealed Conclusion, 
 by a subsequent accident considered to be sufficient to warrant the 
 inference of a negligent inefficiency. But they point to the con- 
 clusion that, if apart from the accident a presumption could have 
 been reasonably drawn against the suitability of the provision 
 made, the defendants in each case would have been liable. The 
 ground for imputing liability is not what a reasonably prudent 
 man would conclude with the fact of an accident having arisen to 
 direct his judgment, but what would a reasonably prudent man 
 conclude as to the likelihood of an accident occurring apart 
 altogether from the fact of its occurrence. 
 
 The duty of railway companies to provide means of alighting Duty to pro- 
 for their passengers has been the subject of a series of decisions,' sSighUng? 
 in the course of which many fine distinctions have been drawn. 
 It has never in terms been decided that it is the duty of a rail- 
 way company to provide a platform for the purposes of alighting, 
 but it has been assumed, and that, too, in the decision which is 
 looked on as most favourable to railway immunity,^ that in 
 England (though certainly not in America or the Colonies) plat- 
 forms are now so usually provided that to stop a train for the pur- 
 poses of passengers alighting warrants the inference that there is a 
 platform on which they can alight, unless some intimation is given 
 them to the contrary, for this seems to be the purport of a somewhat 
 
 ''■ In Geirk v. Connolly, 13 V. L. K. L. her injury, since it was his duty, before 
 
 446, the Supreme Court of Victoria held going on, to ascertain whether all had 
 
 that where a carrier of passengers had alighted who wished to do so. 
 stopped at an ordinary stopping-place at ^ Siner v. Great Western Eailway Com- 
 
 the request of certain passengers to enable pany, L. E. 4 Ex. 117; 38 L. J. Ex. 67 ; 
 
 them to alight, he was liable to one who 20 L. T. N. S. 114 ; 17 W. E. 417. See, 
 
 had given him no intimation of her wish too, what is said in Bridges's case, L. K. 
 
 to afight for driving on while she was in 7 H. of L. 213. 
 the act of alighting, and thereby causing 
 
668 THE LAW OF NEGLIGENCE. [book li. 
 
 obscure sentence (as reported) in the jadgment of Hannen, J., in 
 Siner v. Great Western Eailway Company.^ But the diity of the 
 company in the case of the absence of a platform has been a 
 I'oy f. london, matter of more difficulty to settle. In Poy v. London, Brighton, 
 Soirth*o"o'ast ^^^ South Coast Railway Company^ the train was too long to be 
 Eailway all drawn up at the platform, and the plaintiffs wife was asked by 
 
 the porter to alight a little beyond the end of the platform ; in 
 doing so she was injured. The Court of Common Pleas was of 
 opinion that there was negligence on the part of the railway com- 
 pany, " because the place and the means of descent provided were 
 not reasonably convenient." It is to be noted that here it was 
 assumed that the plaintiff was intended to alight. The decision 
 is not that any of the preliminaries were wanting, but, all i things 
 being provided, the provision was not that reasonable provision 
 without which the obligation of the carrier is not discharged. But 
 HaiTold o. in Harrold ■;;. Great Western Railway Company^ judgment was 
 Railway ^^'^™ entered for the defendants where the plaintiff, knowing that the 
 CompaDy. carriage in which he was had overshot the platform, without waiting 
 to see whether or not the train would be backed so as to bring 
 the carriage back to the platform, chose to get out of the carriage 
 in the dark, and in so doing missed -his footing and fell upon 
 the line (which at that spot was upon an embankment) and, roll- 
 ing over the embankment into the roadway beneath, was injured. 
 Here the decision turned on the doubt whether the preliminary 
 conditions to alighting were complied with. The railway had 
 not shewn with sufficient unequivocality that the state of things 
 they looked to as the prior condition to alighting had been 
 brought about ; therefore the defendants succeeded, because the 
 plaintiff had not shewn that the time for alighting had arrived. 
 And that was assumed which, in the earlier case, had been 
 decided against the company, that the place for alighting was 
 not reasonable. The cases, then, so far from being contradictory, 
 are complements the one of the other. This case was very like in 
 Siner v. Great its facts to Siner V. Great Western Railway Company,^ which has 
 
 Western Sail- . jt ./ ^ 
 
 way Company, been before alluded to, and which was decided in the Exchequer 
 Chamber. The only material distinction was that in Siner's 
 case the plaintiff jumped down from the carriage in daylight, 
 while in Harrold's case the plaintiff jumped down in the dark. 
 The judges in the Exchequer Chamber (Keating, J., who tried 
 the case, dissenting) affirmed the judgment of the Court of 
 Exchequer (Kelly, C.B., dissenting) making absolute a rule for a 
 nonsuit on the ground that there was no evidence for the jury. 
 
 1 L.E.4EX. the laetsentenoe on p. 124. ^ (1866) 14 L. T. N. S. 440. 
 
 2 (i865)i8C.B.N.S.a2S;iiL.T.N.S. *L. E. 4EX. 117. 
 606; 13 W. E. 293. 
 
PARTI.] COMMON CAEEIERS. 669 
 
 The decision was based on the facts that there was no evidence 
 of invitation to alight — no evidence that a reasonable time had 
 been given for the alighting of the people in the other part of 
 the train, which must have been effected before the train could 
 have been put back for the plaintiff to alight, and that there was 
 evidence that she could see where she was getting out, and the 
 risks attending her movements. The decision, in short, was on 
 the same point as in Harrold's case ; the plaintiff, to prove his 
 case, had to shew that the company had provided for his alight- 
 ing, or had given him a reasonable expectation that they looked to 
 his alighting there and then ; as the plaintiff failed to give any 
 evidence of this, and the facts were equally consistent with some 
 additional precaution being taken by the company, the plaintiff 
 was held disentitled to recover. But, further than this, the 
 majority of the Exchequer Chamber was of opinion that the 
 whole surroundings being apparent to the plaintiff, and the risk, 
 if any, manifest, the plaintiff, in jumping from the carriage with- 
 out making any requisition to the company's servants for other or 
 additional facilities to alight, and without an invitation to alight, 
 was the author of her own wrong, and that the case thus 
 became one of simple contributory negligence. 
 
 Praeger v. Bristol and Exeter Eailway Company ' was also Praeger v. 
 
 . -. ■, -^ ^ A^i 1 TT .T n ,P n ,, Bristoland 
 
 carried to the Exchequer Chamber. Here the platiorm or the Exeter Eaii- 
 station, " at the end which was first reached by the train," instead ^*^ ompany, 
 of having its edge parallel with the line of the train, sloped off 
 into a curve. The plaintiff sat ia the compartment drawn up 
 opposite the curved part, so that a space of eighteen inches or 
 two feet were left between the footboard and the platform. A 
 guard opened the door, but said nothing. It was a dark evening, 
 and the station was dimly lighted. TKe plaintiff, stepping out, 
 fell between the carriage and the platform, and was injured. The 
 Court of Exchequer Chamber, consisting of seven judges, unani- 
 mously held there was evidence of negligence.'' This decision Discnssed. 
 seems a very clear one. The recession of the platform was in the 
 nature of a trap ; the guard opened the door, which was in the 
 nature of an invitation to alight ; while " the evening was dark, 
 and the station dimly lighted." Had there been no platform at 
 all, the case would have been much more arguable. But as there 
 was a platform up to within such a space of the carriage door 
 that it would be sufficient to mislead into the confidence that it 
 was continuous without affording the safety of a continuous plat- 
 form, the defendants had not only not provided a platform, but had 
 
 1 (1871) 24 L. T. N. S. loj., Kelly, C.B., and Pigott, B. ; Martin, B., 
 
 2 Overruling the Court of ilzcbequer, diBsentJng. 
 
670 THE LAW OP NEGLIGENCE. [book ii. 
 
 suggested its existence while they withheld its use. Even with 
 a course of decisions greatly more favourable to the companies, 
 this case would seem to contain very strong evidence of negligence. 
 Praeger v. Bristol and Exeter Eailway Company' was said in 
 Cockle V. Cockle V. London and Soath-Bastem Railway Company^ to afford 
 SoutMiastem *^^ principle applicable to that case. There was the same reces- 
 Eaiiway Oom- gjon of the platform, the same alighting by the plaintiff and 
 with Praeger mjury, and action. In Cockle s case, however, the evidence went 
 Exeter'iiat" further in one respect than in Praeger's. " It was a very dark 
 way Company, night," and ^' the part of the platform at which the train would 
 in the ordinary course have stopped was well lighted with gas- 
 lamps, but the light towards the place where the accident happened 
 had been put out, because at that place the trains did not usually 
 stop or the passengers alight." In another respect it did not go 
 so far. In Praeger's case the guard opened the carriage door ; but 
 in Cockle's case " there was no evidence of any invitation to alight 
 having been given by any of the defendants' servants," though 
 this was qualified by the fact that it was " clear that the train had 
 been brought to a final standstill, as it was not again set in motion 
 until it started on its onward journey." The Exchequer Chamber 
 was of opinion that this last fact was tantamount to an invitation 
 to alight, "at all events after such a time has elapsed that the 
 passenger may reasonably infer that it is intended that he should 
 get out if he purposes to alight at the particular station;" also, 
 that, the danger not being " visible and apparent," there was 
 Lewis V. negligence in the company. The next case was Lewis v. London, 
 ham.and Dover Chatham, and Dover Railway Company.' The carriage in which 
 Eailway ^jjg plaintiff was travelling in one of the defendants' trains shot 
 
 Company. ^ i i t n m 
 
 a little beyond the platform. The name of the station was called 
 
 out ; the plaintiff, who knew the station well, began to alight, 
 
 when the train backed into the station ; the jerk of the train in 
 
 backing threw the plaintiff down and injured her, for which 
 
 injury she sued. But it was held in the Court of Queen's 
 
 Bench that she could not recover. " I do not at all agree," said 
 
 Blackburn, J., "that 'Bromley, Bromley!' meant ' Jump out." 
 
 The calling out the name of the station is generally done just as 
 
 the train is drawing up, and before it has quite stopped; and 
 
 this is matter of common knowledge. It is in fact done by way 
 
 Weiieri). of preparing people to get out." Then came Weller v. London, 
 
 Br^hto'n, Brighton, and South Coast Railway Company.^ On the approach 
 
 Coast fiSway °^ ^ ^T^sm. to a Station a porter called out the name of the station 
 
 Company. _ 
 
 1 24L. T. N. S. 105. 8 ; 29 L. T. N. S. 397 ; 22 W. E. 153. 
 
 2 L. E. 7 C. P. 321 ; 41 L. J. C. P. * (Jan. 24, 1874) L. E. 9 C. P. 126; 
 140 ; 27 L. T. N. S. 320. 43 L. J. C. P. 137 ; 29 L. T. N. S. 888 ; 
 
 s (i873)L. E. 9 Q. B. 65 ; 43 L- J. Q. B. 22 W. E. 302. 
 
PARTI.] COMMON CAERIERS. 671 
 
 and the train was brought to a standstill. The plaintiff, a season- 
 ticket holder and accustomed to stop at the station, not being 
 able to see whether there was a platform or not because it was 
 so dark, but seeing another person get out of the next carriage, 
 concluded it was all right, and in attempting to alight was 
 injured ; hence the action. " There was no evidence to shew 
 that the stoppage of the train was a temporary one only, or that 
 the train was afterwards backed ; but, on the contrary, it seemed 
 to be clear that the train pursued its journey without having been 
 backed.'' The Court of Common Pleas held there was evidence of 
 "negligence. For this there seems to have been abundant material : 
 " There was no evidence of any warning to the passengers not to 
 get out, or of any intimation that the train was going to back, 
 but, on the contrary, it afterwards pursued its journey without put- 
 ting back." Merely overshooting the platform it was agreed was 
 not negligence, and Honyman, J., expressed his opinion that the 
 calling out the name of the station would not "per se be any 
 evidence of negligence. " For," said he,' " I rather agree with my 
 brother Keating in Cockle v. South-Bastern Eailway Company,^ 
 that it amounts to no more than an intimation to the passengers 
 that the train is approaching the station." This was much con- 
 sidered in the case of Bridges v. North London Railway Company Bridges v. 
 decided a few months after in the House of Lords.' Much of EaUway"" ™ 
 the argument in that case turned on the effect of calling out the Wompany. 
 name of a station. The conclusion of the House on the point is 
 expressed by Lord Hatherley, referring to the leading opinion of 
 the Lord Chancellor (Cairns)^: "I entirely concur with the views 
 taken of this case by the noble and learned lord on the woolsack; 
 and, concurring with him especially in that part of his observa- 
 tions in which he stated that he thought we were not bound to 
 lay down any special rule as to what the effect of calling out the 
 name of a station would be, I cannot help observing that when 
 the name of a station has been called out, accompanied by a 
 stoppage, and a considerable interval has elapsed, there is a certain 
 amount of evidence to go to the jury." Bridges's case is an im- 
 portant one in the series now under consideration. The injured 
 man, who was very near-sighted, was in the last carriage of a 
 train that arrived at Highbury a few minutes before seven on a 
 night in January, when the tunnel through which the train had 
 to pass to reach the station was filled with steam. The station 
 platform extended into the tunnel for a space, but was narrower 
 than the main platform. Then further in the tunnel there was a 
 
 1 At p. 134. IS" ; 30 L. T. N. S. 844; 23 W. E. 
 
 2 L. B. s 0. p. 468. 62. 
 
 s L. R. 7 H. of L. 213 ; 43 L. J. Q- B. * At p. 240. 
 
672 THE LAW OF NEGLIGENCE. [book ii. 
 
 short sloping piece of ground ; then a heap of hard rubbish lying 
 by the side of the rails, irregular in form and height. The train 
 only went partially up to the main platform. The last carriage but 
 one came opposite the narrower portion in the tunnel ; the last 
 carriage was opposite the rubbish. The injured man appeared to 
 have attempted to alight, and to have fallen ; from which fall he 
 sustained injuries that caused his death. The evidence shewed 
 that after some of the passengers had got out there was a warning, 
 " Keep your seats !" and the train moved further into the station. 
 Blackburn, J., at the trial, nonsuited, being of opinion that there 
 was no evidence of negligence. The Court of Queen's Bench' 
 sustained this ruling, which was affirmed in the Exchequer 
 Chamber by a majority of four to three of the judges there 
 present." In the House of Lords the judges who were summoned 
 to give their opinions^ were unanimous in favour of reversing the 
 decision of the Courts below. The Lords' were also unanimously 
 in favour of reversing the decision of the Exchequer Chamber, 
 and this was done, a verdict according to agreement being entered 
 for the plaintiff, the widow of the injured man. " It was not 
 negligence," says the Lord Chancellor,' " to stop the train in the 
 tunnel ; it was not negligence not to have a platform in the 
 tunnel. But the question, and the only question in the case, 
 appears to me to be this- — Was there evidence to go to the jury 
 that in this state of things the company or its servants so con- 
 ducted themselves as to lead to the deceased getting out of the 
 carriage at the time that he did get out ? " This question the 
 House of Lords answered in the affirmative. Not, as we have 
 seen, because the name of the station was called out, but because, 
 first, "the train having actually stopped ;" secondly, " the servants 
 of the company having called out ' Highbury ! ' " thirdly, " the 
 requisite time having elapsed for any of the passengers to get out 
 and leave the carriage ; " fourthly, the admission by the subse- 
 quent cry of " Keep your seajs ! " that the previous call of the 
 name of the station " was an invitation to leave the seats.'' 
 Eobsoni). Eobson V. North-Eastern Railway Company" was a case where 
 
 BaUway*^ °™ the station at which the injury to the plaintiff occurred was a very 
 
 Company. i L. E. 6 Q. B. 379— Cookburn, C.J., « The Lord Chancellor (Cairns) and 
 
 and Blackburn, Mellor, and Lush, JJ. Lord Hatherley. Lord Colonsay heard the 
 
 Cockbam, C. J., said" if a rule was granted argument, but died before judgment was 
 
 it would be certain in that court to be dis- given, 
 charged, and therefore it was refused." ^ At p. 238. 
 
 2 L. E. 6 Q., B. 377— Cleasby, Pigott, " (1876) 2 Q. B. D. 85 ; 46 L. J. Q. B. 
 
 Channell, and Bramwell, BB., being for 50; 35 L. T. N. S. S35 ; 25 W. R 418. 
 
 affirming, Keating and Willes, JJ., and "Wharton i'. Lancashire and Yorkshire 
 
 Kelly, C.B., for reversing, th% decision of Eailway, (C. A.) 5 Times L. E. 142 — 
 
 the Court of Queen's Bench. evidence of platform being "too far below 
 
 ' FoUock, B., Denman, Brett, and Keat- the first step of the carrii^e." 
 ing, JJ., and KeUy, C.B, . 
 
PART I.] COMMON CAERlERS. 67,3 
 
 small one, the platform short, and the station-master the only- 
 servant kept there. On the arrival of the train in which the 
 plaintiff was a passenger, the carriage in which she was riding was 
 carried past the platform. When the train stopped, the plaintiff 
 rose, opened the door, and stepped on the iron step. Then she 
 looked to see whether there were any railway servants aboiit ; 
 saw the station-master taking luggage out of the van, but did not 
 see the guard ; then, getting frightened that the train would 
 move away, she tried to alight by getting on the foot-board, but 
 her foot slipped and she fell by the side of the carriage and thus 
 sustained the injury for which the action was brought. The 
 Court of Appeal was of opinion that she could recover, and dis- 
 tinguished the case from Siner's case, since there the plaintiff,, 
 without looking for assistance, elected to face the apparent cir- 
 cumstances, and to alight as oest she could ; while in the present 
 case she waited for assistance, till, afraid of the train moving on, 
 she ventured to alight. The question for the jury, then, would;^be 
 whether the acts which induced such a state of mind as led to the 
 consequences was a failure of duty on the part of the defendants.^ 
 
 Eose V. North-Eastem Railway Company^ was said to be " more Rose v. 
 than covered "' by Eobson's case. Nevertheless the Court of Ez- Ea?wly*^'''™ 
 chequer was of opinion that there should be a nonsuit ; but the Company, 
 decision was overruled in the Court of Appeal, and a verdict entered 
 for the plaintiff. The facts proved shewed that the portion of the 
 train in which the plaintiff was cari'ied overshot the platform ; a 
 clerk and porter attending to the train called out to the passengers 
 to keep their seats ; the plaintiff and those in the carriage with 
 her did not hear the call, and, after waiting for some little time, 
 the plaintiff, seeing the passengers in the other carriages getting 
 out, got out of the carriage, and in so doing fell to the ground 
 and was injured. The plaintiff lived near the station, and 
 admitted that on previous occasions, when some of the carriages 
 had overshot the platform, the train had been backed to allow 
 passengers to alight. The opinion of Kelly, O.B., was that the 
 " fair inference on the whole case is, that unless the passengers in 
 the foremost part of the train had all got out without -waiting for 
 the train to back, it would have been put back in order that they 
 might alight in safety," and that to have left the case to the jury 
 upon the question of negligence " would have been greatly strain- 
 ing the principles of justice as applicable to cases of this nature." 
 
 1 The fudgment of Brett, J.A., appen-s is to be found a more accurate summary ; 
 to be very incorrectly given in the Law Eu- so also of Lord Coleridge's judgment, 
 ports, especially the sentence, " The House ^ JJ Ex D 248 ; 46 L. J. Ex. 374 ; 35 
 
 of Lords held," &c. In the Law Jownal L. T. N. S. 693 ; 25 W. B. 205. 
 report, 46 L. J. Q. B. 50, at p, 52, there ^ Per Amphlett, J.A., at p. 252. 
 
 U U 
 
674 THE tAW OF NEGLIGENCE. [book ii. 
 
 Cleasby, B., who concurred with Kelly, O.B., in the Court of 
 Exchequer, distinguished Robson's case, as in the present case 
 "there was a calling out by the porters that the passengers were 
 to keep their seats, and that on other occasions the train when it 
 had overshot the platform had been put back." In the Coini; of 
 Appeal, Cockburn, O.J., was of opinion that it was " the clearest 
 of all possible cases." "It is not enough that the train has come 
 to a standstill, and the porters call out ' Keep your seats!' unless 
 the train is afterwards backed, or something is done." It would 
 thus appear that the view of Cockburn, C.J., was that the evidence 
 of negligence of the railway company was the fact that the train 
 was not backed at aU, and thus had she kept her seat she might 
 have been carried on.' 
 Cases com- The result of this examination shews that though the list of 
 
 oonsfdered. oases we havc been considering undoubtedly reveals divergencies 
 of judicial opinion, there is yet no absolute conflict of authority. 
 The dividing line between some of the cases may be fine, and 
 the judicial tendency in the later certainly differs considerably 
 from that shewn in the earlier cases, still it cannot be said that 
 the eflfect of the later is to overrule the earlier decisions. For 
 example, to compare Harrold v. Great Western Railway Company" 
 with Rose v. North-Eastern Railway Company' there is little 
 doubt that the tendency of the judges in the earlier case was 
 lenient towards the railway' company, while that of the judges in 
 the later case was strongly favourable to the plaintiff; yet the 
 ground of the earlier decision was that the plaintiff, without an 
 invitation to alight, and without waiting to see whether the train 
 would be backed, chose to get out, while the decision in the later 
 case was that though the plaintiff waited, yet the company's men 
 did nothing to obviate inconvenience and danger. The result is 
 the same of any other of the cases we may choose to compare. 
 Thus it would seem that the cases most in favour of the companies 
 and those most in favour of plaintiffs are yet decided on principles 
 which, when closely compared, are reconcilable and consistent. 
 
 The case that of all these cases has been submitted to the 
 most searching criticism (Siner v. Great Western Railway Com- 
 pany*) may perhaps be most unassailably rested on the second 
 ground that Montague Smith, J.,* based his judgment on — that 
 of oontributoiy negligence. The rule that then became applicable 
 is stated by Lord Hatherley in Dublin, Wicklow, and Wexford 
 
 ■ 1 There is an elaborate judgment of See also Terre Haute and Indianapolis Bail- 
 Bradley, J., examining the A.mencan cases road Company v. Buck, 49 Am, R. 168. 
 on the law of the duty of a railway com- ^ 14 L. T. N. S. 440. 
 pany to provide means for its passengers ^ 2 Ex. 1). 248. 
 safely alighting, in Ostrau v. New York * L. B. 4 Ex. 117. 
 Central Railroad Company, 35 Hun. 590. ° At p. 124. 
 
PARTI.] COMMON CARRIERS. 675 
 
 Railway Company v. Slattery' : "If such contributory negligence 
 be admitted by the plaintiff or be proved by the plaintiff's witnesses 
 while establishing negligence against the defendants, I do not 
 think there is anything left for the jury to decide, there being 
 no contest of fact ; " and this is approved by Lord Watson in 
 Wakelin v. London and South- Western Railway Company. ° 
 
 The legal principles involved in the constitution and proof of Special 
 contributory negligence have been already examined, and need be o^Iontorbutory 
 only referred to here ; but there are some special developments "^^v^T^^t*^ 
 that require to be treated arising out of the exceptional position railway oom- 
 and dangers of railway passengers. Fordham v. London, Brighton, fordiiam 
 and South Coast Railway Company" and Richardson v. Metropolitan Bi^'So™'and 
 Railway Company'' were both cases where the plaintiffs respectively South Coast 
 were getting into railway carariages, and took hold of the edge of oompany, 
 the door to assist them to enter, when the guard forcibly closed son^^Meto- 
 the door, and in each case crushed the plaintiff's hand between the ppiitan 
 door and the doorpost. In the latter case, however, it was proved Company. 
 that before closing the door the porter called out, "Take your 
 seats ! Take your seats ! " and the plaintiff admitted that he had 
 his hand on the door for half a minute after he had entered the 
 carriage ; while in the earlier case " the guard shut the door pre- 
 maturely before the plaintiff had got completely in." It was on this 
 'difference in the facts that a distinction was drawn in the de- 
 cisions. In Fordham's case the majority of the Court of Common 
 Pleas, and the Exchequer Chamber' unanimously, were in favour 
 of the plaintiff; while in Richardson's, in which there was no 
 appeal, the Court imanimously nonsuited the plaintiff, holding 
 that the porter had merely closed the door in the ordinary and 
 proper execution of his duty, and that the accident was solely 
 attributable to the plaintiff's own want of caution. The act 
 done by the passenger in these cases was a lawful act if done 
 properly. In the one case it was held to have been done properly, 
 in the other not properly. But in the next case, Adams v. Lan- Adams «. 
 cashire and Yorkshire Railway Company,'' the way of doing the and Yorkshire 
 
 Eailway 
 ' 3 App. Cas. IISS, at p. 1169. Com- ment, the porter, who " was coming along Company. 
 pare Nohmi). Brooklyn Baflroad Company, and could see her," slammed the door. 
 41 Am. E. 345, and note at p. 347. It was held there was evidence for the jury, ■ 
 2 12 App. Cas. 41, at p. 48. leave to appeal being refused. In Catherall 
 ' (i868)L. K. 3 c'. P. 368;37L.J.C.P. v. Mersey Eailway Company, 3 Times 
 I »5_ L. E. 508, where the question was whether 
 * Eeported in the Law Eeports in a note the plaintiff had put his hand in an un- 
 to Fordham's case, at p. 374 ; 37 L' J- f- P- reasonable place, the Court said : " It 
 
 300. 
 
 See too Maddox v. London, Chat- could not be unreasonable for the pla 
 nrl f)nw'r Railwav. ^8 L. T. 4.i;8. to put his hand where he did if he 
 
 ham', and Dover Eailway, 38 L. T. 458. to put his hand where he did if he had 
 
 ' L E 4C. P. 619. In Atkins w. South- no reason to expect the porter would act 
 
 Eastern Railway Company, 2 Times L.E. as he did." o t t r. r. 
 
 94, while the plaintiff was in the act of sit- « L. E. 4 C. P. 739 ; 38 L. J. C. P. 
 
 tingdown,herthumbwasinthehingeofthe 277; 20 L. T. N. S. 850; 17 W. E. 
 
 door, and,according to the plaint! ff's state- 884. 
 
676 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Brett, J.,'s 
 subsequent 
 expression 
 of opinion 
 in Gee v. 
 Metropolitan 
 Railway 
 Company. 
 
 act was not questioned, but the railway authorities contended 
 that it should not have been done at all ; and in the result the 
 Court of OoDimon Pleas came to this conclusion — a conclusion 
 that was afterwards repented of by one of the judges deciding it.' 
 The door of a carriage in which the plaintiff was being carried 
 as a passenger on the defendants' railway flew open several times 
 through the lock of the door being defective. There was room 
 in the carriage for the plaintiff to sit away from the door, and 
 the train would have stopped at a station in three minutes. 
 Nevertheless he shut the door three times. The fourth time 
 the door opened the plaintiff endeavoured to shut it, but fell out 
 in making the attempt, and was hurt. The negligence of the 
 defendants was undoubted. The jury found for the plaintiff, 
 but leave was given to the defendants to move to enter a nonsuit 
 on the ground that there was no evidence that the accident was 
 caused by their negligence, and the Court of Common Pleas 
 ultimately did make a rule absolute for a nonsuit on that ground. 
 The principle on which the case was argued for the plaintiff was 
 that laid down by Lord Ellenborough in Jones v. Boyce,^ that if 
 a person be placed by the misconduct of another person in such a 
 situation that he has to adopt one or other course of a perilous 
 alternative, the person whose misconduct occasions the risk is 
 responsible for the consequences of the course that the person so 
 imperilled takes. The Court, however, considered it within an 
 exception that where a pei-son in a position of entire safety 
 vpluntarily undertakes an act dangerous in itself in order to 
 obviate a slight inconvenience from which he suffers, any injury he 
 may sustain is not to be attributed to those whose act occasioned 
 the slight inconvenience. As to this, Brett, J., in the Exchequer 
 Chamber, in Gee i;. Metropolitan Railway Company,' says : "I 
 think that if that case were to come into a court of error, I 
 should be prepared now to say that although the rule laid down 
 was right, yet its application to the circumstances was wrong." 
 The case as it stands seems to rest on an assumption that the 
 plaintiff " was obviously doiag what was dangerous." Something 
 more, then, than shutting a carriage door from the inside while a 
 train is in motion must have been involved, for the Court could 
 never have decided that merely to do this was dangerous ; and, 
 when it became a question of the manner of doing it, it would 
 
 ' Per Brett, J., Gee v. Metropolitan 
 Eailway Company, L. E. 8 Q. B. i6l, at 
 p. 176; 42 L. J. Q. B. 105 ; 28 L. T. 
 N. S. 282 ; 21 W. E. 504. 
 
 2 I Stark. 493, p. 495. 
 
 3 L. E. 8 Q. B. 161, at p. .177. War- 
 burton V. Midland Eailway Company, 21 
 
 L. T. N. S. 83s, and Eichards v. Great 
 Eastern Railway Company, 28 L. T. N. S. 
 7 1 1 , are cases of imperfectlif fastened doors. 
 As to fall of a window into its socket, 
 Murray v. Metropolitan District Eailway 
 Company, 27 L. T. N. S. 762. 
 
PART I.J COMMON OAKKIEES. 
 
 677 
 
 appear to be a question not lightly to remove from a jury. But, 
 however that may be, Adams v. Lancashire and Yorkshire Railway 
 Company' was very greatly discredited in the Exchequer Chamber oeav. 
 in Gee r. Metropolitan Railway Company .= The facts there shewed Ran^P';"**"' 
 that the plaintiff was a passenger on the Metropolitan Railway, and Company, 
 in the course of the journey got up from his seat, put his hand on 
 a bar that passed across the window of the carriage, and leant 
 forward to look out of the window, when the door flew open 
 through the pressure, and the plaintiff fell out and was injured. 
 The plaintiff obtained a verdict at the trial, and a rule nisi to enter 
 a nonsuit was discharged by the Court of Queen's Bench, whose 
 decision was affirmed by the Exchequer Chamber. The principle is 
 well put by Kelly, C.B.'' : "I am of opinion that any passenger Judgment of 
 in a railway carriage who rises for the purpose either of looking ■^®"^' ^'^' 
 out of the window or of dealing with and touching and bringing 
 his body in contact with the door for any lawful purpose what- 
 soever, has a right to assume, and justified in assuming, that 
 the door is properly fastened, and if, by reason of its not being 
 properly fastened, his lawful act causes the door to fly open, the 
 accident is caused by the defendants' negligence."" 
 
 The apparently simple question of whether a passenger is disen- Passenger 
 titled to recover by reason of contributory negligence for an injury yg^^^out 
 received through sitting with his arm out of window has been »* window, 
 the occasion for great divergence in American decisions. 
 
 On the one hand, it has been held in Pennsylvania' that th& 
 carrier is responsible for injuries received by a passenger in such 
 circumstances, where the road is so narrow as to endanger pro- 
 jecting limbs, unless the windows of the cars are so barricaded 
 with bars as to render it impossible for the passenger to put his 
 limbs outside the window. 
 
 On the other hand, in Massachusetts" the rule is that if a 
 passenger's elbow extends through the open window beyond the 
 place where the sash would have been if the window had been 
 shut, the passenger's conduct would indicate such carelessness 
 as to disentitle him from recovering. 
 
 The point has not arisen in England, but there is no reason to 
 
 ' L. E. 4 C. P. 739. one of the boys, to avoid a blow, jumped 
 
 ° (1873) L. E. 8 Q. B. 161 ; Earner v. up against the carriage door, which flew 
 
 Cambrian Eailway Company, 2 Times open, so that he fell out. Compare the 
 
 L. B. 508. American case of Peverly v. City of 
 
 ^ At p. 171. Boston, 136 Mass. 366. 
 
 * In Dodman «. North London Eailway ' New Jersey Eailroad v. Eennard, 21 
 
 Company, 2 Times L. E. 365, the Court Penn* St. 203. 
 
 of Appeal held that there was evidence to ^ Todd v. Eailroad Company, 89 Mass. 
 
 go to a jury of negligence in a railway 2q7. See Dan v. Seaboard Eailroad Com- 
 company, where two boys were playing pany, 49 Am. E. 388, a Vermont case 
 in a railway carriage, when the plaintiff, strongly to the same effect. 
 
678 THE LAW OF NEGLIGENCE. [bookii. 
 
 doubt that, should it do so, the Massachusetts rule would be in 
 
 substance adopted. 
 Eaiiway Notice should here be taken of a dictv/m of the Lord Chan- 
 
 bound to"°' cellor (Cairns) in Metropolitan Eaiiway Company v. Jackson, the 
 prevent ia,gt Q-f ^^g class of cases it will be here necessary to notice': 
 
 intending n •^ 
 
 passengers "The officials" — i.e., of a railway company — " cannot, in my 
 ^rriage doors Opinion, be held bound to prevent intending passengers on the 
 to see if there pjaftforni opening a carriage door with a view to looking or get- 
 ting into the carriage." 
 Passenger A passenger is not negligent in not foreseeing movements 
 
 Tn notfore^" which are not common in the business as ordinarily carried on, 
 movemeZ™^^ though with the particular carrier they may be habitual. Thus, 
 in Gordon v. Grand Street Eailroad Company,^ plaintiff, seeing 
 a car coming towards her at the terminus of a tram company, 
 went to enter it, when the car, being transferred from one line 
 to another by means of a movable slide, her foot was caught 
 and she was bodily injured. It was there held that, as no one 
 without previous knowledge could be expected to provide against 
 the contingency of this sidelong movement, a duty of greater 
 care and circumspection was thereby imposed on the company 
 resorting to such a method. " Care," says the learned judge 
 who delivered the judgment of the Court, " in avoiding danger 
 implies that there is, or would be with all prudent persons, a 
 sense, or something to create a sense, of danger ; for, if the cir- 
 cumstances are not such as would put a prudent and cautious 
 person upon his guard, the omission to exercise more than 
 ordinary attention is not the negligence which contributes to an 
 accident." 
 Alighting Alighting from or getting on a vehicle while in motion is in 
 
 on a veWole itself an act of neutral complexion. The circumstances may shew 
 it to be either negligent or careful. Thus if, as appears to be 
 the case in some parts of America,^ there is ' a practice for the 
 drivers of horse-oars not to come to a full stop to take up or put 
 down male passengers, the act of getting on a car while in motion 
 would not be such contributory negligence as would disentitle the 
 intending passenger to recover ; neither, on the other hand, would 
 the failure to stop and the fall of the passenger be evidence of 
 such negligence as would enable him to recover.'' Again, if the 
 
 ^ 3App.GSis. 193, at p. 198. Compare ' Shearman and Eedfield, Law of Neg- 
 
 Camden Eailroad Company v. Hoosey, ligence, 4th edit., § 519, citing Evansville, 
 
 99 Penn. St. 492. See also two cases, &o., Eailroad Company ». Duncan, 28 Ind. 
 
 Hogan V. South-EasternEailwayCompany, 441 ; and Phillips v. Eonsselaer, &o., Eail- 
 
 28 L. T. N. S. 271 ; Cannon v. Midland road Company, 49 N. Y. 177, 182 ; but the 
 
 Great Western Eaiiway Company, 6 L. E. contrary was held, Grinnon v. Harlem 
 
 Ir. C. L. 199, where accidents happened Eailroad Company, 3 Eobertson, 25. 
 
 through unusual crowding on platform^ * This wis held by the Queen's Benoli 
 
 - 40 Barb. 546. Division in Baird v. South London Tram- 
 
 while in 
 motion, 
 
PARTI.] COMMON CAREIERS. 679 
 
 conductor directed or advised a passenger to get on or off a car 
 while moving at a moderate pace, and the passenger, acting on 
 the advice, fell and was injured, the passenger would not be dis- 
 entitled by reason of his act.' And so in other cases that may 
 be put ; the mere act may be indifferent, but the complexion is 
 put upon it by the circumstances. In travelling on a tramcar 
 it is the duty of the passenger to place himself in a safe position 
 in that portion of the car set apart for passengers. It is no 
 excuse for him placing himself in an unsafe or unusual position 
 that the driver or the conductor does not dislodge him therefrom 
 when the unsafeness is known to the passenger. Thus riding on 
 the footboard of a car is not a proper place for passengers, and 
 obviously less safe than a seat inside. If the passenger makes 
 reasonable efforts to get inside the car, and fails to do so, and is 
 in these circumstances permitted to ride on the platform, he is 
 not unlawfully there ; as where the conductor takes his fare in 
 that position when it is impossible for him to get another place ; 
 then in the event of injury he could recover,^ but probably not 
 before payment of his fare and having taken his place without 
 the knowledge of the conductor. A tram company will be held 
 liable for injury resulting from a drunken man being allowed on 
 the car by the conductor.' 
 
 Passerigers' Luggage. 
 
 There remains for consideration the liability of common carriers 
 of passengers for the luggage of their passengers. The law on 
 this subject seems to have undergone a complete revolution. . In 
 the earliest cases it was twice held by Holt, O.J., that carriers of Early law. 
 passengers were not liable for luggage unless a distinct price was passengers 
 paid for if These decisions were probably due to the require- J^abfe^for 
 ments of the mode of carriage in use in the time of Holt, C.J. luggage- 
 But in Robinson •;;. Dunmore,* Ohambre, J., laid down the law View of the 
 that "if a man travel in a stage-coach and take his portmanteau Eobinson j-. 
 with him, though he has his eye upon the portmanteau, yet the l*"°'"°''e- 
 carrier is not absolved from his responsibility, but will be liable if 
 
 way Company, 2 Times L. E. 756, on Murphy, i Duer. 233 ; Keith v. Pinkham, 
 
 the ground that merely callini; out the 43 Me. 501 ; Bradle v. Hestonville, 112 
 
 name of the place where the car was Penn. St. 551. 
 
 going to stop was no invitation to the ' Murgatroyd v. Blackburn and Over 
 
 passenger to alight. Darwen Tram Company, 3 Times L. E. 
 
 ' Shearman and EedSeld, La'w of Negli- 451. As to what is an "impending 
 
 gence, 4th edit., § 520 ; Filer 17. New. York danger" from a tram-engine, Downing 
 
 Central Bailroad Company, 49 K. Y. 471 ; ii. Birmingham and Midland Trams' Com- 
 
 59 N. Y. 352 ; 68 N. Y. 124 : Bun-ows »;. pany, 5 Times L. E. 40. 
 Erie Kailroad Company, 63 N. Y. 556. * Middleton v. Kowler, i Salk. 282 ; 
 
 ^ Clark V. Eighth Avenue Eaih-oad Upsbare v. Aidee, i Comyns 25. 
 Company, 36 N. Y, 135 ; Caldwell v. ° 2 B, & P. at p. 419. 
 
68a 
 
 THE LAW or NEGLIGENCE. 
 
 [book n. 
 
 Maorow v. 
 Great Western 
 Bail way 
 Company. 
 
 What is 
 personal 
 luggage ? 
 
 Hudston v 
 
 Midland 
 
 Eailway. 
 
 Ordinary 
 luggage. 
 
 the portmanteau is lost," which, says Willes, J., inTalley v. Great 
 Western Eailway Company/ " has been considered by eminent 
 authorities equally applicable to railway carriages." In that case, 
 however, there was a special contract to "carry safely." Besides 
 this, the fact that a passenger sees his luggage by no means argues 
 that he has undertaken to look after it. Indeed, from certain places 
 in coach travelling it would be impossible to avoid seeing luggage 
 entirely in the charge of the carrier.^ And in Macrow v. Great 
 Western Railway Company,' Cockburn, 0. J., declares : " The law, 
 however, is now too firmly settled to admit of being shaken, that 
 the liability of common carriers in respect of articles carried as pas- 
 sengers' luggage is that of carriers of goods as distinguished from 
 that of carriers of passengers;"'' and in Cohen v. South-Eastem 
 Eailway Company* the Court of Appeal decided that a passengers 
 luggage is "articles, goods, or things" within the Eailway and 
 Canal Traffic Act." But it is obvious that this liability for personal 
 luggage must be limited by some ascertainable bounds. Nearly 
 all the railway companies in their Acts have provisions limiting 
 the weight and the bulk of the luggage that they are compelled 
 to carry. But within the extreme limit thereby marked out there 
 have often occurred occasions of controversy. These are cited in 
 the argument in Hudston v. Midland Eailway Company,' where 
 the inquiry was what was "ordinary luggage'' — the words of 
 the company's private Act — of a first-class passenger who was, 
 by the regulations of the company, varying the wording of the 
 company's private Act, allowed to carry " 112 lb. of personal 
 luggage '' free of charge. The Court appeared to find great 
 difficulty in defining what was to be allowed. " The statute," 
 says Lush, J., " speaks of ' ordinary luggage'; it must have been 
 intended that the passenger should be allowed to carry something 
 more than that which he requires for his own personal con- 
 venience. The only definition I can think of, and one which is 
 sufficient for this case, is, that the words of the statute describe a 
 class of articles which are ordinarily or usually carried by travellers 
 as their luggage. That definition must also be taken to apply to 
 the company's regulations, because, when the company were fixing 
 the description of goods for which they would consider the pas- 
 senger had paid the carriage when he paid for his ticket, they 
 
 ' L. E. 6 C. P. 44, at p. 51. 
 
 2 Compare Hannibal Railroad v. Swift, 
 12 "Wall. 262. 
 
 3 L. R. 6 Q. B. 612, at p. 618; 40 
 L. J. Q. B. 300 ; 24 L. T. N. S. 618 ; 19 
 W. R. 873. 
 
 . ^ See Munster 1). South-Eastem Rail- 
 ■waj Company, 4 C. B, N. S. 676 ; Williams 
 
 V. Great Western Railway Company, 10 
 Ex. 15. 
 
 ' 2 Ex. D. 253 : 46 L. J. Ex. 417 ; 36 
 L. T. 130 ; 25 \V. E. 475, overniling 
 Stewart «. London and Nortli-Westcrn 
 Railway Company, 3 H. & C. 135. 
 
 ^ Section 7. 
 
 ' L. E. 4 Q. B. 366; 38 L. J. Q. B. 213; 
 30 L. T. N. S. 526 ; -17 W: R.-70S- ■ 
 
PART I. j COMMON CARRIEES. 081 
 
 must have had regard to the usual habits of mankind, and to 
 that description of goods which is usually carried by passengers 
 travelling.'" 
 
 The change of the mode of travelling from coach to railway Pnssengers' 
 has carried with it an extension of the rights of the traveller in [endld'by tim 
 relation to baggage proportioned to the increase of space and doveiopm™t 
 power that becomes available. Parliament, as has just been said, travelling, 
 has fixed the minimum limit of luggage that is to be allowed in 
 the case of railway carriers, but there is no such statutory limit with 
 regard to stage-coaches ; however, the less room there is on those 
 conveyances for luggage would necessarily lessen the amount the 
 carrier would be compelled to carry for each individual passenger. 
 Still, the test applicable in the case of luggage loaded on a stage- 
 coach need not, and probably does not, differ from that which is 
 applied in the case of a railway passenger — regard must be had 
 to the usual habits of mankind, and to the description of goods 
 which is usually taken by passengers travelling, and in that 
 way ; and, in addition, regard must be had to the capacity of the 
 conveyance, and the number of persons who might reasonably 
 be expected to avail themselves of its convenience for luggage. 
 There being no statutory obligation on the part of a stage-coach 
 proprietor to carry luggage, the terms of his profession may 
 possibly be such that he declines to carry any. Whatever these 
 terms may be, assuming that they are sufficiently communicated 
 to intending passengers, they will be binding.^ 
 
 The mius of proving that the goods carried are ordinary and onus of 
 personal luggage is on the plaintiff.' ^ Sbiutyof 
 
 Ordinary or personal luggage, then, when in the custody of the goods on the 
 carrier, is to be regarded in the same light as goods entrusted to when in the 
 a common carrier. But, first, the passenger may exercise control [iJe'carnei 
 over the luggage during the time of its conveyance ; secondly, the inggige 
 luggage claimed to be conveyed may be of a different character in the amount 
 from ordinary or personal luggage as it has just been defined ; demand's timn 
 and, thirdly, the luggage may not come into or pass from the ordmary 
 
 merchandise. 
 
 ^ In Cahill v. London and North West- qnilts, in Maorow v. Great Western Rail- 
 em Railway Company, 13 C.B. N. S. 8i8, way, L. R. 6 Q. B. 612; and pencil 
 31 L. J. C. P. 271, 10 W. E. 321 ; and Bel- sketches of an artist, in Mytton 11. Midland 
 fast Railway Company y. Keys, 9 H. L. C. Railway Company, 28 L. .T. Ex, 385, 4 
 556, 4 L. T. N. S. 841 ; 9 W. E. 793, mer- H. & N. 615 ; a reasonable quantity of 
 chandise for sale has been held not "per- tools for a working watchmaker, Kansas 
 aonal luggasre ; " so in Phelps v. London Railroad Company v. Morrison, 55 Am. R. 
 and North-Western Railway Company, 19 252. See also Bmtv r. Grand Trunk Rail- 
 C. B. N. R. 321 ; 34 L. J. C. P. 259 ; way Company, 31 Upper Canada I!. 66. 
 12 L. T. N. S. 496 ; 13 W. R. 782, were " Hannibal Railroad v. Swift, 12 Wall, 
 deeds and money of a client carried by a 262. 
 
 solicitor; in Hudston v. Midland Railway ' Elwell v. Grand .Junction Canal Com- 
 
 Company, L. R. 4 Q. B. 366, a spring- pany, 2 M. & W. 669. 
 horse ; a quantity of sheets, blanket?, and 
 
682 THE LAW OF NEGLIGENCE. [book ii. 
 
 custody of the carrier in his capacity of carrier so that the 
 circumstances of its possession may infer different rights from, 
 those that attach to it if in the possession of the carrier as 
 carrier. 
 Three cases Theso three headings we shall now consider in their order, 
 
 fromfte'rnie. ^^^^^^ '■ 1'^® passenger may exercise control over the luggage 
 I. Where the during the time of its conveyance. 
 
 exercises In Le Conteur V. London and South-Western Railway Oom- 
 
 LTcon'teur P^ny' this state of things was considered. The plaintiff, who had 
 andSotth J"^* landed at Southampton from the Jersey boat, and who was to 
 Western be Carried to London, went with a chronometer in his hand to a 
 ai way. railway carriage going to London and gave the chronometer to a 
 porter of the defendants, who then, in the presence of the plaintiff, 
 placed it on the seat of the carriage. Both the porter and the 
 plaintiff immediately after this left the platform together, the 
 porter to attend to his other work and the plaintiff to see after 
 the rest of his luggage. When the plaintiff returned in a few 
 minutes the chronometer had gone, and was not recovered. 
 ■Tndgment of Cockbum, 0. J., in giving judgment, first assumed the duty of the 
 Oookburn, C.J. company to convey the passenger's luggage with the liability of 
 common carriers, and considered the limitation of this duty in 
 the two aspects of a joint charge by the passenger and the com- 
 pany and an assumption of exclusive charge by the passenger. 
 "It is not," said he, " because the article that is part of the pas- 
 senger's luggage to be conveyed with him is by the joint consent 
 of the passenger and the company, placed in a carriage with him 
 that the company are necessarily released froih their obligation to 
 carry safely. Nothing could be more inconvenient than that the 
 practice of placing small articles which it is convenient to the 
 passenger to have with him in the carriage in which he is about 
 to ride should be discontinued ; and if the company were, from the 
 mere fact of articles of this description being placed in a carriage 
 with a passenger, to be at once relieved from the obligation of 
 safely carrying such articles, it would follow that no one who has 
 occasion to leave the carriage temporarily would be able to have 
 them with him with any degree of .safety. I cannot think, there- 
 fore, we ought to come to any conclusion which would relieve the 
 company under such circumstances from the obligation, as carriers, 
 to carry the luggage safely which, for general convenience, ought 
 certainly to attach to them. I cannot help thinking, therefore, we 
 ought to require very special circumstances indeed, and circum- 
 stances leading irresistibly to the conclusion that the passenger 
 
 ^ L. R. I Q. B. S4 ; 35 L- J- Q. B. 40 ; v. Sonth-EaBtem Railway Company, 34 
 13 L. T. N. S. 325 ; 14 W. R. 80. Leaoli L. T. N. S. 134. 
 
PARTI.] COMMON CAEEIERS. C83 
 
 takes such personal control and charge of his luggage as to alto- 
 gether give up all hold upon the company, before we can say that 
 the company, as common carriers, would not be liable in the event 
 of loss." The expressions here made use of are very strong, but 
 it must be borne in mind that they proceed on an assumption of 
 fact that the passenger has not so acted as wholly to release the 
 railway company, and that the railway company has been guilty 
 of negligence while still owing a duty to the plaintiff in respect 
 of the supervision and care, as contradistinguished from the con- 
 veyance, of his luggage. On these assumptions of fact the law is 
 unquestionable, and the rule that Oockburn, G.J., lays down, that 
 the 011 us of proving a discharge from the duty as common carriers 
 should lie strongly upon the carrier, is founded in sound sense 
 and right principle. AYhether the facts to which the principle was Considered, 
 applied in this case were facts which warranted the inference is 
 another and more doubtful matter ; but it must be remembered, 
 in criticizing the case, that the postulate for the right under- 
 standing of it, as involving a legal principle as distinguished from 
 a correct adjudication on the facts disclosed, is that the porter 
 had been guUty of a negligent act, which, in the circumstances 
 supposed — of the passenger still holding the company to a portion 
 at least of their duty of supervision — fixed them with liability. 
 
 Talley v. Great Western Railway' presented very similar facts, Taileyu. 
 with the omission of the one fact of want of due diligence on the itaiiway. 
 part of the defendants or their servants, and the additional finding 
 of negligence on the part of the plaintiff, which, as explained by 
 Willea, J.,* could not accurately be called contributory negligence, 
 " since all the negligence flowed from one source — viz., the con- 
 duct of the passenger." The plaintiff, a passenger by the de- 
 fendants' railway, had his portmanteau put into the same carriage 
 with him. At a suitable point in his journey he left the carriage 
 for refreshments. Upon returning to the train he failed to find 
 his carriage, and completed his journey in another. He subse- 
 quently obtained his portmanteau, but found that a portion of its 
 contents had been stolen. Willes, J., in delivering the judgment willes, J.,'a 
 of the Court of Common Pleas, did not appear to think the com- i"'3s""'"*- 
 plexion of the facts where luggage is jDlaced in a carriage with a 
 passenger warranted the inference that Cockburn, C.J., drew from 
 them in Le Conteur's case. " It is obvious at least that with 
 respect to articles," says he, " which are not put in the usual 
 luggage van, and of which the entire control is not given to the 
 carrier, but which are placed in the carriage in which the pas- 
 
 1 L. R. 6 C. P. 44 ; 40 L. J. C. P. 9 ; 23 L. T. N. S. 413 ; 19 W. R. 514- 
 
 2 At p. 52. 
 
684 THE LAW OF NEGLIGENCE. [book ii. 
 
 senger travels, so thai he, and not the company's servants, has de 
 facto the entire control of them whilst the carriage is moving, the 
 amount of care and diligence reasonably necessary for their safe 
 conveyance is, in fact, considerably modified by the circumstance 
 of their being, during that part of the journey in which the pas- 
 senger might under ordinary circumstances be expected to be in 
 the carriage intended by both parties to be under his personal 
 Disonseed. inspection and care." The terms in which this is expressed seem 
 chosen with reference to Le Oonteur's case, and in order to cover 
 the expressions there used while taking a view not perfectly 
 coiucident with the' view there taken. In Le Oonteur's case it was 
 involved in the decision that there was a duty on the part of the 
 company to protect the property till the passenger was in actual 
 < charge of the goods in the place where he had chosen to put them. 
 
 Willes, J., is content to assume that this is so ; though why it 
 should be so may be (apart from a decision to be noted presently) 
 a difficult matter to explain. The distinction he takes is that ia 
 Talley's case, if the passenger kept the portmanteau to go with 
 him, he was not excused (there beiag no negligence on the rail- 
 way's part) if he did not go with it. And having occupied his 
 seat for a part of the journey, there was no negligence in the 
 circumstances on the company's part that interfered with his 
 occupying it for the rest. Since, then, by his own act, he had 
 removed his goods from the protection they would have received 
 under the sole charge of the company as common carriers, and, 
 after having placed them in a situation he himself had chosen, 
 had unreasonably left them, there must be shewn some act of 
 negligence on the part of the company in order to make them 
 liable (admitting a still existent duty on their part in conjunction 
 with the owner), instead of which there was only negligence on 
 the plaintiff's part. 
 Bergheiiin-. In Bergheim v. Great Eastern Eailway Company' the principle 
 
 Eaiiway. applicable again underwent examination by Cotton, L.J., in a con- 
 sidered judgment. It was in that case urged upon the Court that, 
 in the case of luggage taken into a carriage with a passenger during 
 the time the owner may reasonably be absent from the carriage 
 at stations during the journey, the company must be liable on 
 their contract ; which must be regarded as a contract of insurance, 
 with an exception that while the train is in motion and the 
 owner in the carriage with some charge of the goods there should 
 Jniigment of be a different liability. But the judgment of the Lord Justice 
 Cotton, L.J. refused assent to this, and stated the view of the law of the 
 Court of Appeal to be : " The company undertake to carry the 
 1 3 C. P. D. 221 ; 47 L. J. C. P. 318 ; 38 L. T. 160 ; 26 AV. E. 301- 
 
EAKTi.] COMMON CARRIERS. 685 
 
 passenger ; they equally undertake to carry his luggage and goods, 
 which, with their consent, are placed with him in the carriage in 
 which he is ; and they are not gratuitous bailees of these goods, 
 as they receive them into their carriages in consideration of the 
 passenger paying his fare. The company therefore must, accord- 
 ing to ordinary principles, be held liable in respect of these 
 goods as bailees for hire and contractors to carry, and therefore 
 liable for loss or injuiy caused by negligence, but not otherwise ; • , 
 the company have, in fact, the same liability with respect to 
 the carriage of these goods as they have with respect to the 
 carriage of the passenger himself."' The facts in this case were 
 similar to the facts in Le Conteur's case, the finding of the jury, 
 however, exonerating both plaintiff and defendant from negligence. 
 This case was the subject qf discussion in Great Western Railway Great Western 
 Company v. Bunch,^ and though the decision there in no way company «. 
 necessarily involved the considering of the point decided in Bunch. 
 Bergheim v. Great Eastern Railway' (the question in the one 
 case being whether there was any evidence upon which it might 
 be found that luggage was in the custody of a company for the 
 pm-poses of present and not for further transit ; the question in 
 the other case being in what capacity a railway company is 
 responsible for luggage placed by direction of the passenger in 
 the same compartment in which he intends to travel), yet the 
 expressions of the Lord Chancellor and Lords Watson, Herschell, 
 and Macnaghten will certainly be taken as efifectually overruling 
 that case. 
 
 In Bergheim v. Great Eastern Railway Company^ the Court of Beigbeim c. 
 Appeal decided that where a passenger takes luggage into a rail- E^nway*^ 
 way carriage to be conveyed with him, he thereby releases the rail- Oo^pany _^ 
 way company from their position of insurers as common carriers, Great Westeru 
 and renders them liable in respect of the luggage so conveyed uompauy v. 
 to the same extent as they are liable to the passenger himself B""<=h. 
 for his own safe conveyance — that is, they are not liable except 
 in respect of negligence. 
 
 In Great Western Railway Company v. Bunch' the principle laid 
 down is that, where a passenger takes luggage into a railway car- 
 riage to be conveyed with him, the contract of the railway com- 
 pany with him as common carriers in regard to its conveyance is 
 modified only to the extent that, if loss happens by reason of want 
 of care of the passenger himself, who has taken within his own 
 
 1 Compare per Pollock, C.B., Stewart ». London and North- Western Eailway Com- 
 pany, 3 H. & C. I3S, at p. 139. 
 
 2 13 App. Cas. 31 ; 57 L. J. Q. B. 361 ; 58 L. T. 128 ; 36 W. E. 785. 
 
 " 3 C. P. D. 221. •* 3 C, P. D. 221. 5 13 App. Cas. 31. 
 
686 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Difference 
 between the 
 views taken 
 in the two 
 cases. 
 
 Examined, 
 
 immediate control the goods which are lost, the contract of the 
 railway company as insurers does not apply to that loss. 
 
 The difference between these views is — the Court of Appeal 
 charges the railway company in those circumstances only where 
 they have been guilty of negligence ; the House of Lords extends 
 the obligation to all cases where the passenger has not been 
 guilty of negligence. 
 
 For this doctrine the Lord Chancellor and Lord Macnaghten 
 vouch the authority of Willes, J., delivering the considered judg- 
 ment of the Court of Common Pleas in Talley v. Great Western Rail- 
 way Company. ' " I prefer," says Lord Macnaghten,^ " the view 
 expressed by Willes, J., in Talley v. Great. Western Railway Com- 
 pany." "In Talley v. Great Western Railway Company,'' says 
 the Lord Chancellor (Halsbury), "that judgment expressly assumes 
 the general liability of the company as common carriers, but that 
 the general liability was modified by the implied condition that 
 the passenger should use reasonable care." It will be observed 
 that this statement of the effect of Talley's case by no means 
 supports the propositioh for which it is vouched. The propo- 
 sition for which it is vouched is " that a railway company, in 
 accepting a passenger's luggage for carriage in a passenger train 
 and in the carriage with the passenger himself, do enter into a 
 contract as common carriers, modified only to the extent that, if 
 loss happens by reason of want of care of the passenger,'" the 
 company is to be liable. That is, the company is liable except ia 
 one event — the negligence of the passenger. The proof is " the 
 general liability of the company as common carriers .... was 
 modified by the implied condition that the passenger should use 
 reasonable care." That is, the company is generally liable ; but 
 one — not necessarily the only — condition that exonerated them 
 was, &c. So much, then, for the reasoning from what Willes, J., 
 is assumed to say. But Willes, J., does not leave the matter in 
 doubt. He actually deals with it in his judgment.* After stating 
 various circumstances in which the negligence of the passenger 
 would discharge the railway company, he^says^: "There is great 
 force in the argument that where articles are placed, with the 
 assent of the passenger, in the same carriage with him, and so in 
 fact remain in his own control and possession, the wide liability of 
 the common carrier, which is founded on the bailment of the 
 goods to him and his being entrusted with the entire possessiou 
 of them, should not attach, because the reasons which are the 
 foundation of the liability do not exist. In such cases the oUigatwn, 
 
 1 L. B. 6 C. P. 44. 2 13 A.pp. Caa. at p. 57. ' At p. 42. 
 
 * At p. SI. » At p. 52. 
 
PARTI.] COMMON CARRIERS. 687 
 
 to take rcnsonahlr care acems imturally to arise, so that ■when, loss 
 occurred it icoidd fall on the comjyany onlji in the case of necjligenee 
 in some part of the clutjj that pertained to thou.'" The iudgment 
 in which this passage occurred was a written one. It is some- 
 what hard on Willes, J., that, when his only expression of opinion 
 is that where goods are not in the ' ' entire possession " of the 
 railway company loss " would fall on the company only in the 
 case of negligence " on their part, he should be cited as the 
 authority for a doctrine that the company is liable in any event 
 unless the passenger is guilty of negligence.' 
 
 Lord Watson and Lord Herschell take different ground. The Lord Watsou 
 former, after quoting the passage from the judgment of Cotton, Herecheii's 
 L.J., already cited, and commenting on it, says: " However i""^?™®"'^- 
 that may be, I prefer the principle which appears to me to have Adopt the 
 been adopted in Richards r. London, Brighton, and South Coast luXards ^v. 
 Railway Company^ and Butcher r. London and South-Western J™'J™' , 
 
 '' r J ^ Brighton, and 
 
 Railway Company.^ I think the contract ought to be regarded South Coast 
 as one of common carriage, subject to this modification, that, in company, and 
 respect of his interference with their exclusive control of his ^q^^q^ .^q^ 
 luggage, the company are not liable for any loss or injury South-Western 
 occurring during its transit to which the act or default of the Company, 
 passenger has been contributory."'' And Lord Herschell is 
 " disposed to agree with my noble and learned friends in jJre- 
 ferring the view of this duty to be derived " from the cases cited 
 by Lord Watson. 
 
 The first of these cases is Richards ■;;. London, Brighton, and inquiry into 
 South Coast Railway.^ The facts there were that the plaintiff's adopted in 
 wife became a passenger on the defendants' railway, taking ' "E^cbS 
 with her in the carriage various articles of luggage, amongst ^ London, 
 others a dressing-case, that was put under the seat. On arrival South (Jo'ast 
 at the terminus, the maid was about to remove them to the *'^^^" 
 coach, when some porters of the company desired her not to 
 trouble herself, as they would see to the luggage. The dressing- 
 case was lost, for which the company were held liable. Wilde, Judgment of 
 C.J., said: " On the part of the defendants it is contended that "' ' ' 
 the goods were carried. The allegation is that they (the goods) 
 were received by the company to be carried and conveyed and 
 delivered at the terminus in London, and they were not delivered. 
 I think it was clearly established that the dressing-case was 
 delivered to the company." At the end of his judgment he 
 
 ' The Lord Chancellor's judgment fol- law as laid down by the Court of Appeal 
 
 lows almost verbally the head-note of the in Bergheim's case, 
 report in the Law Reports. The head- = 7 C. B. 839 ; 18 L. J. C. P. 251. 
 
 note in the Law Journal Report is abso- ' 16 C. B. 13 24 L. J. C. P. 137. 
 
 lately inoonsisteut, and in accord with the * At p. 48. ^ 7 C. B. 839. 
 
case. 
 
 088 THE LAW OF NEGLIGENCE. [book ii. 
 
 says : " Tho fact of the dressing-case having been placed under 
 the seat of the carriage, and so under the more immediate 
 control and inspection of the passenger, in my opinion makes 
 no difference." That is, the duty of the company was not only 
 to carry the goods, but to deliver them. The fact that the 
 passenger had the goods with him during the carriage did not 
 render the duty to deliver any the less. As was said by Cress- 
 well, J. : " They [the company] could not be said to have 
 fulfilled their contract without delivery ; and if it was the usual 
 course to deliver the luggage of passengers at a particulai- part 
 of the platform, that was the sort of delivery the defendants 
 Effect of the took upon themselves to make." No expression in the case goes 
 further than to affirm that, assuming the passenger to have taken 
 upon himself responsibility in the carriage, the obligation of the 
 company was resumed — whether by the act of the porters or 
 because it was unaffected by the mode of carriage is immaterial — 
 when the period came for performance of that portion of the 
 contract that related to delivery. But in any event there was 
 default on the part of the company.' 
 2. Butcher i: The other case is Butcher v. London and South- Western 
 South-Western Railway Company.'^ The facts in this case were only distin- 
 Company! guishable from Richards v. London, Brighton, and South Coast 
 Railway in this, that here the plaintiff had retained a carpet-bag 
 in his own possession, and alighted from the carriage with the 
 bag in his hand ; whereas, in that case, Mrs. Richards had never 
 personally interfered with the missing article. The bag was 
 subsequently taken from his hand by a person wearing the 
 ordinary dress of a porter, and lost. Jervis, O.J., in giving 
 judgment for the plaintiff in the Court of Common Pleas, said : 
 " The case of Richards v. London, Brighton, and South Coast 
 Railway Company establishes that, though not in express terms 
 engrafted into it, it is a part of the contract of a railway company, 
 with its passengers that their luggage shall be delivered at the 
 end of the journey by the porters or servants of the company into 
 the carriage or other means of conveyance of the passengers 
 from the station. Parties may, however, if they choose, agree to 
 accept a delivery short of such ordinary delivery ; and it is possible 
 the facts here might have warranted the inference of a delivery 
 short of that which I have referred to. But that would be a 
 question for the jury." The judgments of the other judges of 
 the Court — Cresswell, Williams, and Crowder, JJ. — went on the 
 ground that the duty of the company was "to convey it [the 
 
 ' See per Wilde, C.J., at p. 858 ; per Cresswell, J., at p. 860 ; per Williams, J., at 
 p. 861. " 16 C. B. 13. 
 
PABTi.] COMMON CARRIERS. Gg9 , 
 
 luggage] from the railway carriage to a cab, if required, to do 
 so;'" that they were required to do so, failed, and so were, 
 rendered liable. 
 
 In both these cases it is to be observed that there was default in Consideration ' 
 the company ; while in both the goods lost were eyypressly left to the °' *^ °''°°"' 
 company to carry out a duty which the law held to be that of a 
 common carrier, and which was not identical with that of transit 
 merely, but was a duty of delivery. It seems a somewhat unusual 
 stretch of reasoning to argue from cases of negligence to one 
 where there is no negligence ; from cases of actual remissness in 
 duty to a case of implied remissness ; from the assertion of the 
 principle that where there is positive evidence that a passenger 
 entrusts his goods to a railway company, in whose actual charge 
 they are when the loss occurs, the liability is that of a common 
 carrier, to the assertion of a principle that where there is 
 positive evidence that the passenger has taken goods under his 
 own care, the liability of the company is that of a common 
 carrier, even when no act has been done notifying the company 
 of a change of intention, or even when there has been no change 
 of intention, unless and until they can affix the imputation of 
 negligence on the passenger. 
 
 The results of our examination, then, shew that the decision Eesuit. 
 in Bergheim v. Great Eastern Eailway Company is not in con- 
 flict with the previous decisions, or with the dicta of the judges 
 giving those decisions, and cited by the law lords in the House 
 of Lords in Great Western Eailway Company v. Bunch. But 
 the decision of Bergheim v. Great Eastern Railway Company is 
 certainly inconsistent with the expressions used in the judg- 
 ments in Le Conteur v. London and South-Western Railway 
 Company," which, strangely enough, was neither cited in argument 
 nor in the judgments in Great Western Railway Company v. 
 Bunch. The expression of opinion against the rule laid down in 
 Bergheim v. Great Eastern Railway Company by the majority in 
 the House of Lords in Great Western Railway Company v. Bunch 
 was so distinct that the rule there indicated will probably be fol- 
 lowed by all Courts other than the House of Lords itself. But 
 as the rule indicated was not necessary for the actual decision of 
 Great Western Railway Company v. Bunch, the House of Lords 
 is not thereby foreclosed from considering the question of principle 
 it raised in some future case carried to the House.' 
 
 ^ At pp. 23 and 25. Clark v. Bums, 118 Mass. 275. In Loiiis- 
 
 ' L. E. I Q. 15. 54. ville Railway Company v. Katzenberger 
 
 ^ In America the case of Berglieim v. (Tenn,), 57 Am. R. 232, it is sairl to be 
 
 Great Eastern Railway Company is fol- " well settled, and in accord with tho 
 
 lowed in- Kinsley D. Lake Shore and Michi- nature of the contract, that all reasonable 
 
 gan Railway Company, 125 Mass. 54 ; see liberality ia allowed to the passenger in^ 
 
 X X 
 
690 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 II. Where 
 the luggage is 
 uot ordinary 
 or pergonal 
 luggage. 
 
 Point raised 
 by the cases. 
 
 Great 
 Northern 
 Bail way 
 Company v. 
 Shepherd. 
 
 Duty of the 
 company as 
 laid down by 
 Parke, B. 
 
 Secondly: The luggage claimed to be conveyed may be of 
 a different character from ordinary or personal luggage. 
 
 In these cases the law, as fixed by the carrier's private Act 
 of Parliament — if the carrier is a railway company, as most fre- 
 quently happens — is tbat the passenger is allowed to take with 
 him a certain specified amount of luggage free. If there is more 
 than the specified amount, a payment is to be made, which is 
 fixed by scale. The cases have gone mainly on the point of the 
 passenger seeking to recover for lost goods as personal luggage 
 which do not come within that designation. In the cases, 
 then, the subject of discussion has been what are the liabilities 
 of the carrier when goods have been lost that have been carried 
 for passengers in pursuance of the obligation to carry a si^ecified 
 amount of luggage free, but which have, in fact, not been 
 personal luggage ? 
 
 The rule was first laid down in Great Northern Railway Com- 
 pany V. Shepherd,' an appeal from a county court heard before 
 Parke and Piatt, BB. The plaintiff and his wife were third- 
 class passengers on the defendants' railway, and brought with 
 them, along with other luggage, two paper parcels which contained 
 merchandise. The porters of the company did not interfere in 
 any way. The plaintiff and his wife themselves deposited the 
 parcels in the carriage and took charge of them. A collision 
 occurring during the journey, the plaintiff and his wife were both 
 much hurt, and, upon being assisted into another train to continue 
 their journey, the plaintiff asked one of the porters about the 
 luggage, who told him not to make himself uneasy, it would be 
 all right. The merchandise, however, was lost. The Court gave 
 judgment for the company. " In this case," said Parke, B., 
 " there being no special contract, the defendants were bound to 
 
 cnntrol of his lupgage for the purpose of 
 its tisB upon the journey without releasing 
 the carrier from his obligation to see to its 
 safety. Especially would this be true as 
 to the character of luggage involved in 
 this case, a valise containing clothing for 
 use on the journey." But there the plain- 
 tiff, so (iiv from taking charge of his lug- 
 gage, " gave his satchel or valise to the 
 porter of the sleeper on entering the car." 
 And this is the ground on which the case 
 is declared by Thayer, J., in Bevis v. 
 Baltimore Railroad Company, 56 Am. R. 
 850, n., "not to be in conflict" with a 
 whole list of cases which he cites. The 
 law in America is laid down in Illinois 
 Railroad Company v. Handy, 56 Am. R. 
 846, as follows : — " If a passenger on a 
 sleeping-car leaves his money in the car 
 on having the car without the knowledge 
 
 of the company, and it is stolen by some 
 one not employed by the company, if the 
 company has kept a reasonable guard it is 
 not liable." And this not upon the grannd 
 of the negligence of the passenger, but of 
 the absence of negligence in the company. 
 The law in Ainfirica appears to be differ- 
 ently laid down from what it is in Bunch's 
 case on this point, in 13 Alb. Law Journ. 
 p. 221 ; in Thompson, Law of Carriers of 
 Passengers, p. 531 ; Hutchinson, Law of 
 Carriers, § 60, note 2. These citations 
 are, however, open to the remark, whatever 
 it may be worth, that they are concerned 
 with " sleeping-oiir " companies. See an 
 article on Bunch's case in the Court of 
 Appeal in 2 Law Qnart. Rev. p. 469, with 
 a note on the foreign law. 
 1 (1852) 8 Ex. 30; 21 L. J. Ex, 286. 
 
PART I.] COMMON CARRIERS. G91 
 
 carry the plaintiff and Hs luggage, which term, aocording to the 
 true modem doctrine on the subject, comprises clothing and such 
 articles as a traveller usually carries with him for his personal 
 convenience; perhaps even a small present or a book for the 
 
 journey might be included in the term Now, if the 
 
 plaintiff had carried these articles exposed, or had packed them 
 in the shape of merchandise, so that the company might have 
 known what they were, and they had chosen to treat them as 
 personal luggage and carry them without demanding any extra 
 retouneration, they would have been responsible for the loss. 
 .... If, indeed, they had notice, or might have suspected from 
 the mode in which the parcels were packed, that they did not 
 contain personal luggage, then they ought to have objected to 
 carry them, but the case finds that they had no notice of what 
 the packages contained. Whether this was done for any fraudu- 
 lent purpose it is not necessary to inquire, because, even if there 
 was no fraudulent intent, the plaintiff has so conducted himself 
 that the company were not aware that he was not carrying lug- 
 gage, and therefore the loss must be borne by him." 
 
 What was the effect of the rule as thus laid down was a subject Keys ®. ' 
 much considered in the Irish case of Keys v. Belfast Eailway Eaiiway 
 Company.' The case was very much hampered by what the Lord fJo^P^^y- 
 Chancellor (Westbury) described as a " mass of matter, which by 
 courtesy we must denominate pleadings." The material facts, 
 however, were quite simple. The plaintiff, with knowledge that 
 no merchandise must be carried as luggage without being paid 
 for, took a box of merchandise in the carriage with him when 
 travelling by the defendants' line. During the journey a guard 
 demanded and took it to carry in the luggage van. It was stolen 
 by one of the company's servants. The Irish Court of Common 
 Pleas gave judgment for the plaintiff. The Exchequer Chamber 
 was equally divided. On the one hand, the case of Great 
 Northern Eailway Company v. Shepherd was considered in point ; 
 on the other hand, it was distinguished, because the decision of 
 Parke, B., was not on the ground that the company had no 
 notice, but was on the ground that the plaintiff had so conducted 
 himself that the company was not aware of the nature of the 
 articles, while in the case before the Court the nature of the 
 article was patent, fraud and concealment on the part of the 
 plaintiff was negatived, and the avoidance of the contract was 
 pressed, not merely to the extent of the liability for the mode of , 
 performing it, but in toto, and to the extent of transferring property.^ 
 
 ' 8 Ir. C. L. 167 ; 11 Ir. C. L. 14S ; in the House of Lords under name Belfast 
 Railway Company v. Keys, 9 H. L. C. 556- 
 2 Per Ktzgerald, B., 11 Ir. 0. L, 145; a* P' ^57- 
 
692 
 
 THE LAW OF NEGLIGENCE, 
 
 [book II. 
 
 opinion of the 
 1.01'd Chan- 
 cellor (Wost- 
 bury). 
 
 Cahill V. 
 London and 
 North- 
 Western 
 liailvray. 
 Contention 
 advanced in 
 ord<^r to take 
 the case out 
 of Great 
 northern 
 Hallway 
 Company v. 
 Shepherd, 
 
 Met by 
 Willes, J. 
 
 Affirmed in 
 the Exchequer 
 Chamber. 
 The law as 
 now settled. 
 
 In the House of Lords, the judges being consulted, judgment 
 was unanimously given for the defendant, the plaintiff in error, 
 the Lord Chancellor (Westbury) summing up his remarks on this 
 point as follows': — "In substance, therefore, it comes to this, 
 that the plaintiff intended to have the goods carried in the carriage 
 with him and escape the obligation of the paying for their 
 carriage as merchandise, and, under those circumstances, there 
 could not exist in law or in reason any contract whatever between 
 the plaintiff and the company touching those goods, upon the 
 breach or in default of the performance of which contract the 
 plaintiff could have a right against the company; and I think- 
 that any man of ordinary understanding would have had no difiR- 
 culty whatever in disposing of the case if the plaintiff had appeared 
 in court to urge his claim, and the Court had addressed to him the 
 question, ' For what do you claim against the company ?' 'I claim 
 for certain goods I took witli me as passenger in the railway 
 carriage.' Had the question been put to him, ' Did you know 
 the rule of the company ?' he would have been obliged to answer, 
 ' I did know that rule.' ' Is it possible, then,' the judge would 
 answer, ' that you can claim against a company for goods which 
 you took into the carriage in violation of the rule which you knew 
 they had established, and which their servants were bound to 
 observe ?' " 
 
 While Keys v. Belfast Eailway Company was going through tlie 
 courts, Cahill v. London and North-Western Railway Company" 
 came before the Court of Common Pleas, and was decided on the 
 authority of Great Northern Railway Company v. Shepherd.^ TLe 
 present case was sought to be differentiated from the earlier one, 
 since it was contended a contract for hire other and beyond what 
 was paid for the conveyance of the plaintiff and his personal luggage 
 must have been implied from the fact that the porter in the em- 
 ploy of the company must have seen, from the external appearance 
 of the package, which had the word " Glass " painted on the lid 
 of the box, that the package contained goods other than personal 
 luggage. To this argument Willes, J., replied : " It is impossible 
 to infer' that the porter did or could make any such contract so as to 
 bind the company. I think that would be pushing to an absurdity 
 the rule that a principal is bound by the acts of his agent within 
 the scope of his ordinary employment." The decision of the Court 
 of Common Pleas was affirmed by the Exchequer Chamber," and 
 the law may now be considered settled on the basis that if a 
 
 ' Tliis quotation ia fponi the Law Times report, 4 L. T. N. S. S41, at p. Sd4. 
 
 2 (1861) 10 C. B. N. S. 154 ; 30 L. J. C. P. 289 ; 4 h. T. N. S. 246 ; 9 W. R. 321. 
 
 3 8 Ex. 30. 
 
 * 13 C. B. N. S. 818 ; 31 L. J. C. P. 271 ; 10 W. E, 321. 
 
PARTI.] COMMON CAHHIERS. ~ 693 
 
 passenger wJio knows, or ought to know, that he is only entitled 
 to take his ordinary personal luggage free of charge chooses to 
 cai-ry with him merchandise for which the company are entitled to 
 make a charge, the company are not liable to compensate him in 
 respect of loss or injury when he has a,bstained from giving notice 
 of the contents ; but if the company choose to take merchandise 
 as ordinary luggage when they know that it is merchandise, it is 
 not competent to them, in the event of a loss, to claim exemption 
 from liability on the ground that the loss is of merchandise and 
 not of ordinary luggage ; that, to constitute notice by which the 
 railway company's rights would be waived, notice to a porter 
 would not be sufficient,' but the circumstances must be such as 
 shew notice to some one in sufficient authority to affect the course 
 of the company's business. 
 
 This last point has been more considered in the American than Question of 
 in the English cases. Thus in Hannibal Eailroad v. Swift' the con^9idered*in 
 rule laid down was : " Where a railroad company receives for trans- *" -A-'o^""™ 
 
 ■*■ ** Cfl 868( 
 
 portation in cars which accompany its passenger trains property Hannibal 
 of this character [statuary, pictures, &c.] in relation to which no Swift. 
 fraud or concealment is practised or attempted upon the employees, 
 it must be considered to assume with reference to it the liability 
 of common carriers of merchandise." " If property offered with 
 the passenger is not represented to be baggage, and it is not so 
 packed as to assume that appearance, and it is received for trans- 
 portation on the passenger train, there is no reason why the 
 carrier should not be held equally responsible for its safe convey- 
 ance as if it were placed on the freight train, as undoubtedly he 
 can make the same charge for its carriage." 
 
 The question of what was notice was raised in Sloman v. Great Slotnan r. 
 Western Eailway Company,' where, after the jury had found there EaUway "^ "" 
 was notice, on appeal the Court of Appeals held there was evidence Co'npa°J'- 
 that would warrant the finding where a lad of eighteen had two 
 large trunks filled with samples, different from ordinary travelling 
 trunks, and had a valise for his personal baggage. He delivered 
 the trunks to a baggage-master, and, when asked where he wanted 
 them checked to, replied that he did not then know, as he had sent 
 a despatch to a customer at F. to know if he wanted any goods ; 
 if not, he wanted them to go to E., where he expected to meet 
 some customers. Soon after, he had them checked to E., paying 
 two dollars, and receiving a receipt ticket for them, headed, 
 " Eeceipt ticket for extra baggage." They were not weighed, and 
 no evidence was given as to any regulation of the company in 
 
 » Per ■Willof, J., 10 C. B, N. S. at p. 175. > iz Wall. 262, at p. 274. 
 
 ' 67 N. Y, 208. 
 
694' 
 
 THE LAW OF NEGLIGENCE, 
 
 [book u. 
 
 Distinctive 
 features of 
 the case. 
 
 Blumantle v. 
 Fitchburg 
 Bailroad 
 Company. 
 
 reference to charging extra compensation for passengers' luggage. 
 The conjunction of facts here existing has never been found in 
 an English case. These are^ first, the delivery to a " baggage- 
 master " — most probably the officer authorized to make all proper 
 arrangements ; secondly, the appearance of the packages ; thirdly, 
 a distinct statement of the purpose for which they were being 
 carried ; fourthly, an extra charge made not referable to excess 
 of luggage. 
 
 In a Massachusetts case — Blumantle v. Fitchburg Eailroad 
 Company' — the plaintiff offered and delivered certain bundles as 
 his personal luggage, which the " baggage-master " knew and 
 spoke about at the time as containing merchandise, yet gave him 
 checks for them, as he was bound to do for personal baggage of 
 passengers. The Court, following the English decisions, held the 
 plaintiff could not recover for the loss, since " evidence tending to 
 shew that the baggage-master knew or supposed the bundles to 
 contain merchandise, or that other passengers had similar bundles, 
 would not warrant the jury in finding that the defendant agreed 
 to transport the plaintiff's merchandise, or became liable therefor 
 as common carriers." This decision would seem to warrant the 
 inference that, in America at least, knowledge and acquiescence 
 by the responsible oflScer would not be sufficient to warrant the 
 presumption of a contract, apart from contractual words or a 
 payment or arrangement, from which a contract could more pro- 
 bably be implied than not." 
 III. Where the Thirdly : The luggage may not come into or pass from the 
 custody of the carrier in his capacity, of carrier, so that the cir- 
 cumstances of its possession may infer difEerent rights from those 
 that would attach to it if the possession of the carrier was in 
 his character of carrier. 
 
 The distinction between the class of cases where a railway 
 
 company holds luggage as warehouseman, and where it holds 
 
 a™d a'hoidSg" ^'^SS^S® ™ ^^^ transit to or from the train and preparatory to 
 
 as carrier. delivery to the passenger, is plain, and has already been pointed 
 
 out in the cases haying reference to conditions of delivery.^ But 
 
 there are questions of difficulty on the border-line between 
 
 Great ■Western the two classes of cases. For example, in Great Western Eail- 
 
 Company ». "^^7 Company v. Goodman,' where the facts shewed a delivery to 
 
 Goodman. ^jjg company's servants of luggage, but no booking of the luggage 
 
 under a bye-law providing " that every first-class passenger will 
 
 be allowed 112 lb., and every second-class passenger 561b., of 
 
 ^ 127 Mass. 322. 
 
 ' Harris v. Great Western Eailway Company, i Q. B. D. 515 ; Parker v, Soutli- 
 Eastem Eailway Company, 2 0. P. D. 416. 
 3 12 C. B. 313 ; 21 L. J. C. P. 197. 
 
 possession is 
 in another 
 character 
 than that of 
 carrier. 
 
 Distinction 
 between a 
 holding ELS 
 
PAiiTi.] COMMON OAEHIERS. 605 
 
 luggage free of charge ; but the company will not be responsible 
 for the cai'e of the same unless booked and paid for accordingly ;" 
 in the absence of evidence of arrangements for booking, the 
 defendants were held liable for the loss as carriers, and without 
 proof of negligence. So, in the cases we have already noticed, 
 Richards v. London, Brighton, and South Coast Eailway Com- Eichards v. 
 pany' and Butcher v. London and South-Westem Railway BWghtoL, ard 
 Company,'' the company were in each case held liable, because S°V,''*' ^o*^' 
 
 ,1 . , Bauway 
 
 tneir contract was not merely to carry, but to deliver, and after Company, 
 the goods were in the hands of their porters in course of delivery io^o„ "• 
 the goods were lost. The unsuccessful contention in the first of ^^ f°""i- 
 
 , Western 
 
 these cases was that the company were only liable as carrier Baiiway 
 during the transit ; in the second, that the man who received the ""P^^^' 
 bag was not at all authorized by them ; but the conclusion from 
 those cases is that the liability of the company, however it may 
 be broken by interference by the passenger in assuming the care 
 or supervision of his own goods, is a liability capable of reviving 
 from the time of the reception of the goods for the purpose of 
 accompanying the passenger as his luggage to the time they are 
 delivered over for the further prosecution of his journey. 
 
 The leading case is Great Western Railway Company v. Bunch Great Westem 
 and Wife.' The facts as set out in the head-note of the report in y^^^J^^Zb. 
 the House of Lords shew that the female respondent arrived at 
 the Paddington Station of the appellants' railway at 4.20 p.m. on 
 Christmas Eve, with a bag and two other articles of luggage, in 
 order to travel by the 5 p.m. train. A porter labelled the two 
 articles, and took all the luggage to the platform, the train not 
 then being at the platform. The female respondent told the 
 porter she wished the bag to be put into a carriage with her, and 
 asked if it would be safe to leave it with him. He replied that 
 it would be quite safe, and that he would take care of the luggage 
 and put it into the train. She then went to meet her husband 
 a;nd get her ticket. Ten minutes after she had left the luggage, 
 she and her husband returned together to the platform, and found 
 that the two labelled articles had been put into the van of the 
 train, but that the porter and the bag had disappeared. In an 
 
 ' 7 C. B. 839. Agrell v. London and North-Western Rail. 
 
 * 16 C. B. 13. way Company, (Exchsquer Chamber) 34 
 
 ' 13 App. Cas. 31 ; 57 L. J. Q. B. 361 ; L. T. N. S. 134, n., isdistinguishable as 
 
 58 L. T. 128; 36W. E. 785. In the Court the case of luggage given to the porter 
 
 of Appeal, Lovell v. London, Chatham, and not for the purposes of the journey, ont for 
 
 Dover Railway Company, 45 L. J. Q. B. 476, the convenience of the passenger. Hiofcox 
 
 was cited, which seems precisely in point, v. Nangatuck Eailfoad Company, 31 Conn, 
 
 and in which the teat was adopted of inqnir- 281, shews the American Courts to have 
 
 ing whether the acts done by the porters arrived at a similar decision five and twenty 
 
 were done with a view to put the luggage years earlier, 
 in the train for the purposes of the journey. 
 
THU LAW OF NEGLIGENCE. 
 
 [book 11, 
 
 Contention of 
 the railway 
 company. 
 
 Principle of 
 the decision 
 as exp 
 liy Lord 
 Watson, 
 
 Effect of the 
 decision. 
 
 action, in a coilnty court, the plaintiff recovered _;^i8. In the 
 Divisional Court, Day, J., gave judgment for the defendants, 
 A. L. Smith, J., who was of opinion that the defendants were 
 liable, withdrawing his judgment. In the Court of Appeal, Lord 
 Esher, M.E., and Lindley, L.J., reversed the judgment of the 
 Queen's Bench Division, Lopes, L.J., dissenting; and their 
 decision was upheld by the House of Lords, Lord Bramwell 
 dissenting. 
 
 The railway company contended, first, that the bag was 
 handed to the porter, not for transit, but to take charge of; 
 secondly, that if it were received for transit the company were 
 only liable for negligence, and were not insurers. The principle of 
 the decision of the majority is thus expressed by Lord Watson : — 
 ' ' Whether passengers' luggage delivered to a railway porter is in 
 his possession for present or merelywith a view to future transit is 
 necessarily a question of degree depending upon the circumstances of 
 the case. Railway companies, as a matter of fact, frequently provide 
 for the travelling public, not only booking-offices, but refreshment- 
 rooms and other conveniences ; and passengers who merely avail 
 themselves of such accommodation as incidental to their use of 
 the railway cannot be held to have temporarily ceased to prose- 
 cute their journey. lb is impossible to fix any precise limit of 
 time prior to the starting of a particular, train within which the 
 company are to be liable for passengers' luggage delivered to their 
 servants for conveyance by it, and beyond which they are not to 
 be liable. In my opinion, the compaUy are responsible for luggage 
 delivered to, and in the custody of, their servants for the purpose 
 of transit, whenever it can be reasonably predicated of the 
 passenger to whom it belongs that he is actually prosecuting his 
 jburney by rail, and is not merely waiting in order to begin its 
 prosecution at some future time."' Further, the House was 
 unanimous in holding that when luggage is so received by the 
 servants of a railway company, and continues in their possession 
 for the purpose of being conveyed to the train or retained while 
 the passenger is taking his ticket, the liability of the company is 
 that of a common carrier. The view of Lord Bramwell was that 
 it was not part of the employment of a porter to take charge of 
 luggage except during the transit from the cab to the train ; and 
 that the interval between the arrival of the passenger and the 
 starting of the train — forty minutes — was much too long a period 
 to warrant the inference that this was the purpose the porter had 
 in view. The effect of the dfecision is to leave to the jury the 
 determination in each case of what is a reasonable time prior to 
 
 ' See also per Lord Herscliell at p. 53. 
 
.PARTI.] COMMON CARRIEE,S. 657 
 
 the starting of a train within which, if luggage is delivered to 
 the company's porters, the company are fixed with the liabilities 
 of common carriers as holding the luggage for the purpose of 
 transit and not of storage.' 
 
 The test of " a reasonable time" had before been laid down Test of reason- 
 in Patscheider v. Great Western Eailway Company,^ where a parsoiefder v. 
 lady's maid, having seen her box taken from the luggage-van ^'■?''' W'estem 
 and placed on the platform with other luggage of her mistress, Compauy. 
 went for the porter of the hotel to take the luggage to the 
 hotel, but on her return with him could not find her box. 
 The plaintiff was held entitled to recover ; and the rule laid 
 down in Redfield on Carriers' was cited with approbation. It 
 is the duty of a railway company, in regard to the baggage 
 of a passenger which has reached its destination, to have the 
 baggage ready for delivery upon the platform, at the usiial place 
 of delivery, until the owner, in the exercise of due diligence, 
 can call and receive it, and it is the owner's duty to call for and 
 remove it within a reasonable time. 
 
 Great Western Railway Company v. Bunch and Patscheider v.. Whatcon- 
 
 . . stitutes 
 
 Great Western Railway practically exhaust the subject. The one rieiivery. 
 points out the rule for the reception, the othev for the delivery 
 of luggage. The case of Hodkinson v. London and North- Western Hodkinson v. 
 Railway Company* is the necessary pendant to Patscheider ■;;. North- 
 Great Western Railway Company, whichj while indicating the ^®j[^™ 
 rule applicable, leaves untouched the question of what constitutes Oompany. 
 deHvery. Hodkinson v. . London and North-Western Railway 
 Oompany is an authority for the proposition that actual removal 
 from the railway's premises, or even actual corporal possession, is 
 not necessary to constitute a deliveiy that will relieve the railway 
 of its carriers' liability ; but it is enough if there is a dealing 
 with it inconsistent with the continuance of the transit. This 
 was hinted at by .Tarvis, C.J., in Butcher ■;;. London and South- 
 western Railway Company,* in circumstances where the action 
 of the porter was susceptible of either view, and which were 
 therefore to be left to the jury. In the present case the circum- 
 stances were wholly unequivocal. On the arrival of the plaintiff's 
 
 1 Cutler r. Norlli London Railway Com- taken charge of the goods when lost when 
 
 pany, 19 Q. B. D. 64; 56 L. J. Q. B. not in the exclusive possession of the com- 
 
 648 ; 56 L.T. 639 ; 35 W. B. 575, suggested pany and in their place of deposit was, as 
 
 the question of what liability there was in a we have already seen, discussed, though not 
 
 railway company where luggage is carried directly raised in the case for decision, 
 
 on after the passenger had left the train ^ 3 Ex. D. 153. 
 
 short of his destination. The point was not ^ At p. 61. 
 
 decided. Bunch's case would, however, * 14 Q. B. D. 228 ; Stallard v. Great 
 
 require the application of the test whether Western Eailway Company, 2 B. & S. 
 
 the passenger was negligent. The principle 419. 
 
 that is to govern where the passenger had ' 16 C. B. 13, at p. 22. 
 
698 THE LAW OF NEGLIGENCE. [book n. 
 
 train at the station, the porter asked if he should engage a cab 
 for her and her luggage — two boxes — which was taken from the 
 ' luggage-van. She said she would walk to her destination, and 
 would leave her boxes at the station for a short time and send 
 for them. The porter said, " All right ; I'll put them on one 
 side and take care of them." Some hour or two after, the 
 plaintiff claimed her boxes, one of which had been delivered by 
 mistake to a woman who had asked for it. The Court was of 
 opinion that by leaving the boxes " in the custody of the porter," 
 who had ceased to be acting as the company's agent, the plaintiff 
 had received delivery, and exonerated the company from their 
 common law liability. The correctness of this decision is un- 
 questionable. The porter was not the agent of the company for 
 custody, and there was no transit in which the company could 
 have any concern for which he could be agent. In Bunch's case 
 the decision went on the ground that there was evidence of a 
 delivery to the porter as ancillary to the transit. In the present 
 case the delivery to the porter was subsequent to delivery on the 
 completion of the transit ; and that delivery marks the termination 
 of the carrier's contract.' The only possible method of arguing 
 the case successfully seems to be to have contended that delivery 
 was not made ; but then the luggage could not have been placed 
 by the plaintiff in the custody of the porter. 
 Transfer from An earlier case than these, Midland Railway Company v. 
 another.'™ Bromley,^ deals with the transfer of luggage from one station to 
 Kaiiwa'* another. The plaintiff was a passenger by the Midland Eailway to 
 
 Company v. Bristol, and his portmanteau was placed in the luggage-van. On the 
 arrival of his train at Bristol the plaintiff told one of the porters 
 of the company that he wished to go on by the Bristol and 
 Exeter Railway. The porter obtained the plaintiff's portmanteau, 
 and placed it with other luggage on a truck for the purpose of 
 taking it across to the Bristol and Exeter station. The plaintiff 
 on the trial stated that he saw the porter with the truck on 
 which the portmanteau had been put enter the Bristol and 
 Exeter station, pass down a decline and then cross the station, but 
 he did not see the portmanteau after he saw it on the Midland 
 platform. A county court judge held on this evidence that there 
 was no delivery of the plaintiff's portmanteau ; but the Court of 
 Common Pleas reversed this decision, holding there was no case 
 to go to a jury. " It is quite clear," said Jarvis, O.J., " that the 
 plaintiff thought the portmanteau was on the truck when he saw 
 it pass from the one railway to the other, or he would have made 
 
 ' Eichards v. London, Brighton, and South Coast Eailway Company, 7 C. B, 8391 
 2 17C.B. 372; 25 L. J. C. P. 94. 
 
 Bromley. 
 
f^B.11.] COMMON CARRIERS. C99 
 
 more particular inquiry after it. It being equally probable that 
 the loss occurred on the Bristol and Exeter Railway as that it 
 took place on the Midland Railway, and the omis of shewing a 
 breach of the contract resting upon the plaintiff, I think he has 
 failed to shew that he was entitled to recover." 
 
 With this must be considered Kent-y. Midland Railway Company.' Kuut «. 
 The facts there shewed that the Midland Railway Company had the ^f/way 
 use of the London and North-Western's station at Birmingham, to Company, 
 which they conveyed the plaintiff, with his luggage, in prosecution 
 of a portion of a journey which he was to complete on the London 
 and North-Western's line. The plaintiffs luggage was removed 
 by one of the porters from the Midland train across the station 
 in the direction of t^e line of the London and North- Western, 
 whence the train in which the plaintiff purposed to pursue his 
 journey was to start. There was nothing to shew that the 
 luggage was ever delivered into the custody of the London and 
 North- Western Railway. It was, however, lost to the plaintiff, 
 who brought an action against the Midland Railway. They set 
 up a condition by which they stipulated that they should not be 
 liable for any loss arising off their own lines. A verdict was 
 given for the plaintiff, with leave for the defendant to move, but 
 the Court refused a rule. Cockburn, O.J., held " it was the 
 defendants' duty to carry it [the luggage] from one platform to 
 the other, for it must be taken that by their contract they were 
 bound to take the luggage from their own train to that of the 
 North- Western train ; and they were entitled to the services of 
 the porters at the station ; consequently the porter, while he was 
 taking the luggage from one platform to the other, was acting as 
 the defendants' agent or servant." Blackburn, J., took a some- 
 what different ground. " I think," he said, " ' off the line ' must 
 be understood as out of their custody and in the custody of some 
 other company. If the plaintiff had sued the London and North- 
 western Company (assuming that company could have been liable 
 to the plaintiff}, they would have said : ' We did not take the 
 plaintiffs luggage ; it never was in our custody, but was still in 
 the control of the Midland Company, and under their orders when 
 last seen, and it was never shewn to have been delivered to us.' 
 I cannot put such a construction as to make nobody liable at all, 
 and I think that unless it be shewn to be on the line of another 
 company, it must be held not to be ' off the line ' of the 
 defendants. 
 
 This case was decided on the point of the plaintiff not 
 discharging the oniis that was upon him ; but in similar cases 
 
 ' L. E. 10 Q. B. I ; 44 L- J- Q- B. i8; 31 L. T. N. S. 430 ; 23 "W. E. 25. 
 
700 THE LAW OF NEGLIGENCE. [book ii. 
 
 it might frequently be contended that the company's undertaking 
 
 is to deliver on their platform or to cabs within their station, and 
 
 that when a transfer is required this must be effected by means 
 
 of special porters, whose receipt of goods is a delivery by the 
 
 railway with whom the journey is terminated to the railway by 
 
 which the journey is to be prosecuted. 
 
 Distiuotion The points of distinction between these two cases should be 
 
 knd liTiiway noted in view of the differen-ceof the decisions. 
 
 Compuny v. First, in Bromley's case the ioumey for which he' took his 
 
 Kromley, and •' ... "' , , . . 
 
 Kent I'. Mid- ticket had ended. When his luggage was lost he was begmnmg 
 oimpany."^^ a ucw joumey, and gave his luggage a new destination. In 
 Kent's case, on the other hand, the loss occurred in the prosecu- 
 tion of a journey for the whole of which he had taken a ticket 
 from the defendants, and where his contract implied a deliveiy 
 of the luggage to the other company. 
 
 Secondly, in Bromley's case the truck on which plaintifE's 
 luggage was seen by him to be placed was also seen by him to 
 enter the station of the company on whose line he was about to 
 travel. In Kent's case there was nothing to shew that the 
 luggage was ever delivered into the custody of the London and 
 North- Western Eailway at all ; consequently the defendants' 
 contract was unperformed. 
 Cases con- Bromley's case might be distinguished from Kent's, and the 
 
 decision maintained, on the ground that the plaintiff had himself 
 given sufficient evidence of delivery to put himself out of court 
 by shewing circumstances from which delivery, in accordance with 
 his instructions, might be inferred, and it therefore became incum- 
 bent on him to shew circumstances pointing to negligence. But 
 this is clearly not the ground of the decision, which is " that the 
 omis of shewing a breach of the contract rested on the plaintiff." 
 But a railway company is a common carrier of passengers' 
 luggage,' and the rule is that, if goods entrusted to a common 
 carrier be lost or damaged, the law will conclusively presume that 
 the carrier has been guilty of negligence unless he can bring him- 
 self within the exceptions. So the loss or damage of luggage 
 will raise a prinid facie inference of want of care, which in the 
 absence of evidence to the contrary will render him liable to an 
 action.- Bromley's case, then, as far as it lays down that there 
 is an onus on the plaintiff to shew a breach of contract beyond 
 the mere fact of the loss previous to delivery, cannot be treated as 
 
 ' Mncrow v. Great Western Pailway 890; Coggs v. Bernard, 2 Ld. Paym. 
 
 Company, L. E. 6 Q. B. at p. 618. lied- 918 ; I Sm. Lead. Cas. gtli edit. p. 237 ; 
 
 field, Carriers, § 71. - Harris v. Costar, i C. & P. 637 ; Great 
 
 2 I Taylor, Evidence, Sth edit. pp. Northern Eailway Company v. Shepherd| 
 
 205 and 206, citing Eoss v. Hill, 2 G. B. 8 Ex. 30, 
 
 bidered. 
 
PAKTi.] COMMON CARRIERS. 
 
 law ; and the proposition in Kent's case — that when luggage is 
 shewn to have been delivered to a railway company the onus lies 
 on them to shew that they have delivered it, failing in which 
 they remain liable — is not only a subsequent decision, but is, in- 
 dependently of that, wholly in accord both with the authority and 
 with the principle governing in this branch of law, which regards 
 the carrier as an insurer, and his liability, therefore, as independent 
 of default of any kind. 
 
 There appears a manifest distinction between the cases where 
 luggage is to be conveyed over in prosecution of a journey 
 already begun, as in Kent's case ; and the mere transfer to 
 another station after the completed journey, as in Bromley's 
 case, for the purpose of starting on a new one. In the former 
 case the contract would mest usually be to deliver over to the 
 company with whom the passenger was continuing his journey 
 the luggage which the company with whom he had completed 
 his journey held with a common carrier's liability, and till that 
 was completely done the company would not be discharged. In 
 the other case the transfer to the second company's line might bo 
 in very various circumstances. But all would have this circum- 
 stance in common, that to enable the luggage to be conveyed to 
 the other company s station a new destination would have to be 
 designated by the owner. This might be tantamount to the 
 delivery into a cab or carnage, or it might be effected by delivery 
 to " transfer porters" — a special class of men whose intervention 
 might be as agents of the receiving company, or possibly as 
 agents of the passenger. The tendency of the decisions, however, 
 seems rather to regard delivery as incomplete until the luggage is 
 unequivocally transferred from the control of the carrier ; it is not, 
 however, to every train that the passenger's right to carry luggage 
 attaches. Eumsey v. North-Eastem Railway Company' decided Rumseyi 
 
 roi 
 
 Mnrth-Kastern 
 
 way 
 
 that there was nothing in the company's Act which enacted that ^^ 
 " every passenger travelling upon the said railways may take with Compaiij-. 
 him his ordinary luggage," nor any principle of public policy which 
 prevented a passenger from consenting to give up his right to carry 
 luggage with him free of charge in consideration of a reduction in 
 the fare. It was accordingly held that a passenger by an excursion 
 train, for which the fare was 5 s. as against the ordinary fare of 
 gs., and which was run subject to a condition that the company 
 would not carry luggage for those availing themselves of it, was 
 bound to pay the ordinary goods rate (if demanded) for the carriage 
 of luggage which he had procured to be carried in the excursion 
 train in contravention of the conditions of the journey. "It is 
 
 1 14 C. B, N, S. 641 ; 32 L, J. C. p. 244; 8 L, T. N. &. 666 ; 11 W. E. 911. 
 
ro2 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Becher v. 
 Great Eastern 
 Hailway 
 Company. 
 
 Martin v. 
 Great Indian 
 Peninsular 
 Itailway 
 Company. 
 
 undoubtedly," said Erie, O.J., " competent to any man to renounce 
 a privilege wMch is given to him by a "Statute.' The plaintiff is, 
 as it seems to me, in the same situation as he would have been 
 in if, having got a gs. ticket, he had gone back to the clerk 
 and got him to exchange it for a 5 s, excursion ticket on his 
 agreeing to go without luggage, and had then, without the know- 
 ledge of the company's servants, put his portmanteau into the van 
 again. 
 
 The proposition that the • carrier by reason of his contract is 
 only liable to those with whom his contract was made would 
 primd facie seem a proposition so indisputable, and according 
 to general principles of law, as to need no authority. It was, 
 however, in terms laid down in Becher v. Great Eastern Eailway 
 Company,^ where a servant, having his master's portmanteau with 
 him, took a ticket to travel on the defendants' line. In the 
 course of the journey the portmanteau was lost. The master sued 
 the defendants, but was held not entitled to recover, as there was 
 nothing to impose any duty beyond the existence of the con- 
 tractual relation by which the company had agreed to take the 
 servant and his personal luggage free of charge. "If," said 
 Lush, J., "they had been informed that the portmanteau was 
 not his luggage, they would not have been bound to take it, and 
 in all probability they would not have taken it." In Martin v. 
 Great Indian Peninsular Eailway Company' there was a count in 
 tort, and though the contract was not made with the plaintiif, but 
 with the Indian Government, of which he was an officer, it was 
 held on demurrer that he could recover for a wrong done by 
 which he was affected in his property, and for which, indepen- 
 dently of contract, he had a right to obtain redress. Kelly, C.B., 
 however, was disposed to think that the breach of duty charged 
 was only a breach of duty constituted by contract, and that the 
 contract being made with other people than the plaintiff was not 
 available for him.'' 
 
 II. Common Oakrieks by Sea. 
 
 L Of Goods. 
 Two theories THERE are two theories with regard to common, carriers by sea. 
 toconraon One, as stated by Brett, J., in Nugent v. Smith,' is that "every 
 r'rh™ o?^**" shipowner or master who carries goods on board his vessel for 
 
 Brett, J. 
 
 1 Markham v. Stanford, 14 C. B. N. S. 
 376. 
 
 2 L. E. S Q. B. 241 ; 39 L. J. Q. B. 
 122 ; 22 L. T. N. S. 299 ; 18 W. R. 627 ; 
 Winterbotham v. Wright, 10 M. & "W. 
 109. 
 
 3 L. R. 3 Ex. 9 ; 37 L. J. Ex. 27 ; 17 
 L. T. N. S. 349. 
 
 '* Compare Alton v. Midland Railway 
 Company, 19 C. B. N. S. 213; 34 L. J. 
 C. P. 292 ; 13 W. E. 918. 
 
 = iC. P. D. 19, at p. 33. 
 
PAKTI.J COMMON CAERIEES. 703 
 
 hire is, in the absence of express stipulation to the contrary, 
 subject by implication, by the common law of England, adopting 
 the law of Rome, by reason of the acceptance of the goods to be 
 carried, to the liability of an insurer, except as against the act of 
 God or the Queen's enemies. It is not only such shipowners as 
 have made themselves in all senses common carriers who are so 
 liable, but all shipowners who carry goods for hire, whether 
 inland, coastwise, or abroad, outward or inwai'd. They are all 
 within the exception to the general law of bailments, which (as 
 before observed) was adopted into the common law from the 
 Eoman law." 
 
 The other, as expressed by Parsons in his " Law of Shipping '" : ii. That stated 
 " The true rule undoubtedly is, that one who carries by water in iliaw oT ^ 
 the same way and on the same terms as a common carrier by ShippiDg." 
 land is also a common carrifer ; or, in other words, it is not the 
 land or the water which determines whether a carrier of goods 
 is a common carrier, but other considerations, which are the same 
 in both cases." What these considerations constitutive of a 
 common carrier are we have already seen. 
 
 The rule as laid down by Parsons has received the adhesion of This latter 
 Cockburn, C.J., in the Court of Appeal in Nugent v. Smith.^ proved by 
 But, as in that case, the defendant was confessedly a common Cockburu, c.J. 
 carrier, the necessity for deciding the question did not arise; 
 and, as the other members of the Court refrained from giving 
 any indication of their opinion, the view there taken by the 
 Chief Justice does not in itself, apart from the reasoning and 
 learning by which it is supported, supply authority. 
 
 Brett, J., supported his view by the following considerations : — Arguments in 
 First, that " no one who has read the treatise of Mr. Justice Story B^trj^s 
 on Bailments, the essay of Sir William Jones, and the judgment of theory: 
 Lord Holt, in Coggs v. Bernard, can doubt that the common law English law of 
 of England as to bailments is founded upon, though it has not fouS*ou\ho 
 actually adopted, the Roman law."^ Eoman law; 
 
 Secondly, that all ships were included in the Prastor's edict : 2. The Pristor's 
 
 •' „ edict oompre- 
 
 Ait Prcetor, Nautce caupcmes, &c. hended all 
 
 Thirdly, that the English cases recognized an universal, and ^"^^'^,0 tjjg 
 not a mere partial, inclusion. jSngUsh oases; 
 
 Fourthly, that where, as in Elliot v. Rossell,^ ambiguous 4- Ambiguous 
 phrases, such as, "It must be regarded as a settled point . in ^° ended 
 English law that masters and owners of vessels are liable, in [j;eh^™othe*sisi 
 port, and at sea and abroad, to the whole extent of inland 
 carriers," &c. Certainly, these are terms which seem to shew 
 
 1 At p. 245. ' I C. P. D. at p. 28. 
 
 ^ I C. P. V. i.2V * 10 Johns. I. 
 
704- 
 
 THE LAW OF NEGLIGENCE. 
 
 [book u. 
 
 5. Impossible, 
 on other 
 p^rouQds, to 
 account for 
 the use of bills 
 of lading, &o. 
 
 First 
 proposition. 
 
 Second 
 proposition. 
 
 Third 
 proposition. 
 
 that in tlie mind of the Chief Justice^ " all masters of all sea- 
 going vessels were so liable." 
 
 Fifthly, that "it seems impossible to account for the almost 
 universal use of bills of lading by all sea-going ships, if a great 
 number of them — viz., all who were not common carriers, would 
 only be answerable for negligence for which they were answer- 
 able, notwithstanding the billof lading." 
 
 A detailed examination of the mass of authority vouched by 
 Brett, J. , for his first proposition is impossible here from its vague- 
 ness, if not from its volume.^ In the Court of Appeal', however, 
 Cockburn, C.J., denied this proposition, and that from two points 
 of view. " In the first place," he says, " it is a misapprehen- 
 sion to suppose that the law of England relating to-the liability 
 of common carriers was derived from the Boman law ; for the laW' 
 relating to it was first established by our courts with reference to 
 carriers by land, on whom the Eoman law, as is well known, 
 imposed no liability in respect of loss beyond that of other 
 bailees for reward."" Brett, J.,'s position is also denied, though 
 from another point, of view, with an a£B.uence of learning and re- 
 search, in Mr. Holmes's book, " The Common Law," in illustration 
 of the position that our law* of bailment is of home origin. 
 
 Secondly, as a matter of fact, the recognized law of England 
 differs from the Roman law in that the Roman law afforded 
 exemption to the carrier in all cases of unforeseen and unavoid- 
 able accident, while the English law held him liable except in 
 the case of the miich narrower ground of exemption known as 
 act of God ; and the argument is from incompatibility in one 
 main position to inconclusiveness in all reasoning on analogies in 
 the two systems of law. It may also be pointed out that though 
 the law were founded on the Roman liaw, Brett, J.,'s conclusion, 
 whatever it may be in fact, is not in logic a necessary one. It is 
 perfectly possible that systems may have the same base, but be 
 very distinct in the way they work out their development — e.g., 
 the Indo-European group of languages, starting from the same 
 fundamental principles, have in their growth features of greater 
 divergence. The second consideration of Brett, J., assuming the 
 validity of Cockburn, O.J.,'s contradictory contention thereupon, 
 becomes immaterial. 
 
 As to the third, the Chief Justice carefully examines the 
 
 cases, and shews that the conclusion drawji by Brett, J., does 
 
 not necessarily follow from them. In Liver Alkali Company v. 
 
 Johnson' it should be noted the defendant was held to incur the 
 
 1 I.e., Kent, C.J. = Ante, p. 703, and i C. P. I), at p. 28. 
 
 ^ This statement is supported by a reference to the early law. •' 
 
 ■• Pp. 17s, 199 ; 2 Kent, Comm. (12th edit.), p. 598; see ante, p, 452. 
 
 " L. B. 7 Ex. 267, 9 Ex. 338. /' t- j:- ' ' I tJ 
 
PARTI.] COMMON CAEEIERS. 70,5 
 
 liability of a common carrier because he " was waiting for bire 
 by any one." The argument, however, was, that to make him 
 liable, he should ply between two particular places ; or that, 
 because the course of his business was to carry the whole lading 
 of his ship for one person, his liability should be less than the 
 liability of one who carries the lading in different parcels for 
 different people. It is plain from this that the point as to 
 whether all ships were common carriers was not raised, though 
 there is a dictum of Blackburn, J., that the decision in Morse v. 
 Slue " has always been understood to apply equally to all ships 
 employed in commerce and sailing from England." But to this 
 it might be said that a ship employed in commerce would priTud 
 fade be a common carrier, and that nothing is said as to the 
 possibility of repelling the inference, which is the material point. 
 
 J^ourthly : In Elliot v. RosselP the point was whether the fact Fourth 
 of defendants being carriers to a foreign port made any difference P"^"?""'^""^- 
 in their liability. The nature of the case caused the admission 
 to be made that if they were within the jurisdiction they would 
 be carriers. Consequently, the ambiguous words used by Kent, 
 C.J., can be no further extended than to mean masters and 
 owners of vessels are liable as common carriers on the high seas 
 as well as in port — i.e., if they are carriers in one place, they are 
 in the other. But nothing is said whether all masters of ships 
 are common carriers. 
 
 The fifth consideration in favour of his suggested rule, Brett, J., Fifth 
 draws from the almost universal use of bills of lading, which he p'°p°'' '°"' 
 asserts as a fact and uses as an argument. Admitted, however, 
 the existence of the fact, the argument from it is at the best of 
 no particular cogency. What there is a practice universally to 
 do, is done most frequently ; and because it is generally done, and 
 without curious inquiry into the need to do it, or even as to its 
 advisability. The growth of the practice to universality may be 
 a somewhat stronger argument than the fact of universality ; even 
 this may easily receive explanation from the desire of people gene- 
 rally to avoid a possible source of litigation than from want of a 
 good cause of litigation. But to press the argument back. How 
 came bills of lading to be universally used ? Because those 
 shipowners who were not common carriers would be an incon- 
 siderable proportion of the whole, and the further back the 
 practice of having bills of lading could be traced, the larger 
 would be the proportion of trading vessels to the whole.^ In 
 
 ^ 10 Johns. I. i^B property is vested in the assignee " : 
 
 ' Perhaps the conclusive answer to Caldwell v. Ball, i T. E. 205, at p. 216. 
 
 Brett, J., IS, that " a bill of lading is as- The day after the above was written, the 
 
 signable in its nature, and by indorsement writer happened to be in court whpn » 
 
 Y Y 
 
706 THE LAW OF NEGHGENCE. [bpqk ii. 
 
 old days, tjia,*, is, vessels were either war vessels, whick never 
 
 had bills of lading, or trading ve^ssels vs^hicli always had^ %liQ9< 
 
 no inference of authority could be d:;awn whien a, tjhjird clasa of 
 
 vesselsi were introduced from their conforming to, what had 
 
 heretofore been the universal praqtipe of trading vessela. when 
 
 they occasionally trenched on their province. 
 
 Parsons' con. Parsons, however, in the Law of Shipping, contends that all 
 
 ^"general* general ships^ would be excluded from the liability of common 
 
 ships would bo carriers bv the terms of his rule.' And this conclusion he 
 
 excluded from 
 
 the liability arrives at, starting from the definition of the contract made 
 carriOT"°° ^J *^s master or owner of a general ship,, as given ia Ab- 
 bott's Law of Merchant Shipping'' — ^viz., that by which, the 
 master and owners of a ship destined on a particular voyage 
 eng^ige separately with various merchants, unconnected with 
 each other to convey their respective goods to the place of 
 the ship's destinatipn." The point of view of Dr. Parsofts seems 
 to be attained by looking upon this definition of the contract 
 for the conveyance of merchandise in a general ship as assum- 
 ing an altogether unaccustomed voyage, not merely in direction, 
 but in character.. But there is another view, wjiich, while re- 
 cognizing the speciality of the particular voyage, involves, an 
 assumption that the particular voyage is one voyage, with its 
 own distinctive marks, in a- series of voyages, all of which are 
 , concerned with the common purpose of carrying goods. Now in 
 either view the definition is. imperfect, as it leaves the possible 
 ambiguity not indicated., If the former meaning is that wMchi 
 alone is to be imposed, the proposition is true, but insignificant.. 
 The man who carries a few kegs of spirits for several friends in 
 his yacht would seem no more thereby to constitute his vessel a, 
 general ship than the person who packs up knick-knacks fqr 
 his friends in his travelling carriage would thereby constitut^j 
 himself a common carrier. If the latter ig the meaning,, 
 
 case involving a Staffordshire custom rsjr/it only existed apart from writing, they- 
 
 as to what was called " boosey pasture " required writing for their own satisfaction, 
 
 was tried. Many of the largest land-, Brett, L.J.,'s, inference would equally es- 
 
 agents of the district were called to give tablish that the Declaration of Eights of 
 
 evidence for defendant. The plaintiff en- 1689, which was " for. vindipi^ting and asr 
 
 deavoured to explain the evidence by prov- sorting the ancient rights and liberties of 
 
 ing that the instances cited of the preva- the sabject^" was an assertion of new 
 
 lence of the custom were referable to. rights, or a declaratory Act of Parliament, 
 
 special written agreement. But on re- a ground for arguing the necessity of an 
 
 examination^ it was brought out that the enacting one. Compare i Maudft and-.Pol- 
 
 cusfom"was incorporated in the agreement lock, Merchant Shippin.ff, 5th ,edit. p, 338 ; 
 
 because it was the custom — that is, that Phillips v. Edwards, 28 L. J. Ex. 52 ; Peel' 
 
 though it was well understood that the. v. Prise, 4 Carapb. 243. 
 farmer was entitled to the benefit of the * Parsons, Law of Shipping, vol. i. p. 
 
 custom, it was still redaoed to writing- 248. See the whole of septtoni wii., Of 
 
 because the farmers preferred their rights Ships as Common Carriers, 
 in blapji; and whjteto their merely, tra- ' At p. 319, I2th edit, by Prentice,^ 
 
 ditioflary establishment ; that t)iqughthe 254. 
 
PART I.] COMMON CARRIERS. 707 
 
 then the conclusion that would seem to be indicated does not 
 follow — ^thatis, that shippers so engaged are not common carriers. 
 
 The ground of such an opinion would seem to be that the Ground of 
 course of business of a shipowner so engaged with a general ship opinim. 
 is not the performance of a qtcasi public duty, but the contracting 
 of an engagement whose terms are not concluded by law inde- 
 pendently of the act of the parties^ But to constitute' the employ- Examined, 
 ment of a common carrier, iu England at least, this is not 
 necessary. We have seen' that the discriminating mark of the 
 common carrier is that he should " carry for all persons indiiferently 
 and not for a particular person."^ Now, in the more obvious mean- 
 ing of the terms we are considering, that is precisely what happena 
 with regard to a general ship. The shipper does not hold himself 
 out to make a particular ba^ain with a particular person, but 
 rather a particular bargain with any person of, may be, a par- 
 ticular class. This, however, Dr. Parsons denies, as matter of 
 fact, ever to happen. He says, " it is by no means unusual for 
 the master or owner of a general ship to re&se to take the goods 
 of all who offer." But the common carrier is only bound to take 
 goods for carriage according to his profession. As Parke, B., 
 points out in the case of innkeepers, an innkeeper may keep an 
 inn only for those who come in their carriages.' By parity, the 
 same may be the case with a general shipper. If it is asserted 
 that a general shipper refuses not usually to take the goods 
 of all who offer when the offer is within the limits of his profes- 
 sion, when he has room, and the goods are suitable, and the price 
 to be paid secured, the proposition would be proved by evidence 
 that bears out the assertion. If anything short of this is set up, 
 the proof would be irrelevant ; and as it stands the so-called 
 proof is a mere petitio principii. He is not carrier in law, 
 because he is not in fact ; while of this no .evidence is even 
 tendered. However the matter may be in general reasoning, in In England 
 this country it is settled by authority. Thus, in Laveroni ■«. settkid by 
 Druiy," Pollock, O.B., says : " By the law of England the master La*ve°roJ^'». 
 and owner of a general ship are common carriers for hire, and Drury. 
 responsible as such." And is directly involved in Liver Alkali Liver Alkali 
 Company v. Johnson,* where a barge-owner let out vessels for the joSonf "' 
 conveyance of the goods of any customer' who applied to him, 
 and where the fact that he only took the goods of one person in 
 one vessel was held not to make any difference. True, in this 
 
 1 Ante, p. 563. pany, 4 Ex. 367, at p. 371 ; ante, p. 
 
 ' Ingate v. Christie, 3 C. & K. 61 ; S4S- 
 
 oited, with approval, in Liver Alkali Com- * 8 Ex. 166 ; 22 L. J. Ex. z. 
 
 pany v. Johnson, L. E. 9 Ex. 338. " L. R. 9 Ex. 338 ; 43 L. J. Ex. 216 ; 
 
 ' Johnson v. Midland Eailway Com- 31 L. T. N. S. 95. 
 
708 
 
 THE. LAW OF NEGLIGENCE. 
 
 [book II 
 
 Jury to find 
 whutber the 
 Lblding out 
 in that of a 
 common 
 carrier. 
 
 Liability most 
 largely 
 determined 
 by special 
 contracts. 
 
 Jettison, 
 
 case, the decision only goes that the " defendant has the liability 
 of a common carrier," without deciding that he was one ; and the 
 point that would arise out of Dr. Parsons' assertion of fact, that 
 it was by no means unusual for the master or owner of a general 
 ship to refuse to take the goods of all who offer, as a ground 
 of liability was left undetermined. But the course of the case 
 shews this to be rather a test than the test. Further, the whole 
 difficulty seems dependent on the accuracy of the definition in 
 Abbott's Law of Merchant Shipping, which, in so far as it affixes 
 the former of the meanings we have considered to the term general 
 ship, is certainly inconsistent with other and as high authorities, 
 and therefore not improbably incorrect.' 
 
 But the finding of facts from which the conclusion whether 
 the carrier has held himself out as a common carrier, or whether 
 the agreement between the parties constitutes the relation in the 
 particular case, is for the jury.° 
 
 But the liability of shipowners and masters is largely limited 
 by the use of bills of lading as registers of the terms on which 
 goods are contracted to be conveyed. Under bills of lading 
 precisely the same obligations attach to the owners and the 
 master in regard to shippers, whether general or common carriers, 
 or simply carriers pro hoc vice ; since bills of lading ascertain and 
 fix and control the liability, and the exceptions therein contained 
 cover the usual risks not taken by the owners.' Of the pro- 
 visions most usual in these — presently. 
 
 Before considering them there is, however, one state of things 
 peculiar to the maritime law, on the occurrence of which the 
 shipowner is not liable for damage to the shippers — that is, where 
 goods have been intentionally thrown overboard during the course 
 of a voyage in order to save the ship and the remainder of the 
 cargo from a danger common to the whole adventure. But where 
 this happens, the owner whose goods are sacrificed has a right to 
 contribution towards his loss from those whose property is saved. 
 "This principle," says Abbott, "is known to be derived from 
 
 It 
 
 ^ See Story, BailmentB, § 501 ; Allen 
 V. Sewall, per Savage, C.J., 6 Wend. 335, 
 at p. 343 ; Gage v. Tirrell, 91 Mass, zgij, 
 ler Bigelow, C.J. ; per Cookburn, C.J., 
 Nugent V. Smith, i C. P. D. 423, at p. 
 430.- "Where a shi|) is not chartered 
 wholly to one person, but the owners offer 
 her generallr to carry the goods of any 
 merchants who may choose to emplpy her, 
 or where one merchant to whom she is 
 chartered offers her to several sub- 
 freighters for the conveyance of their 
 foods, she is. called a general ship " : i 
 laude and Pollock, Merchant Shipping, 
 5th edit. p. 338. 
 
 » Tamvaco v. Timothy, I C. & E. i ; 
 Tate V. Hyslop, 15 Q. B. D. 368; 54 
 L. J. Q. B. 592 ; S3 L. T. 581. But in 
 Admiralty there is no absolute right to a 
 jury in cases where there was no right 
 hefore the passing of the Judicature Act, 
 but the judge has a discretionary right : 
 The Temple Bar, 1 1 P. D. 6. The Orwell, 
 13 P. D. 80, was a case where the plain- 
 tiff was allowed a. jury in an nction under 
 Lord Campbell's Act under Rules of the 
 Supreme Court, 1883, Order xxvii. r. 4. 
 
 ^ Pope V. Nickersnn, 3 Story 473 ; The 
 Commander-in-Chief, i Wall. 43. 
 
PABTi.] COMMON CARRIEES. 709 
 
 the ancient law of Rhodes, being adopted into the Digest of 
 Justinian with an express recognition of its true origin."' 
 
 But to justify the application of the rule as to contribution the In jettison 
 sacrifice must be made in conformity to certain conditions — must^oSom 
 
 First, the danger must not have been produced "by the thing *? *^^ <"'"'''- 
 sacrificed.' 
 
 Second, the danger must have threatened not a part merely, 
 but the whole adventure.^ 
 
 Third, the danger must be apparently inevitable if the sacrifice 
 is not made.^ 
 
 Fourth, the danger must have caused the casting away, and it 
 is not sufficient if the casting away was of something that could 
 not be saved at the time it was cast away.' 
 
 Fifth, the mind and agency of man must be employed." 
 
 But if the goods are. on the deck, which is not generally the 
 proper place for the stowage of cargo, this does not entitle their 
 owner to contribution.' 
 
 Mouse's case' has been cited as the earliest statement of the TUe earliest 
 law as to jettison. There a casket was cast into the river in the law of 
 order to lighten a ferry boat caught by a great storm and tempest, ^j^ouwJs'oase 
 whereby the passengers' safety was jeopardized. And it was held 
 that, " if a tempest arise in the sea levaTidi rutvis causa, and for 
 salvation of the lives of men, it may be lawful for passengers to 
 
 1 Fifth edit. p. 352. Lege Bliodid cave- 7 Ex. 39 ; 41 L. J. Ex. 36 ; 25 L. T. N. S. 
 
 twr ut, si hvajidiB navis gratid jactus 944 ; 40 W. K. 385 ; Lawrence t). Min- 
 
 mercium foetus sit omnium contributione turn, 17 How. (U. S.) 100. 
 
 tareiatur quod pro omnibus datum est. " ' Shepherd v. Kottgen, 2 C. P. D. 578, 
 
 Dig. 14, 2, I. This title of the Digests at p. 585 ; 47 L. J. C. P. 67 ; 37 L. T. 
 
 De Lege Bhodia De Jactu — ^may be here N. S. 618 ; 26 W. E. 120. It rauet be 
 
 general!; referred to as containing the "a voluntary and intentional sacrifice 
 
 doctrines of the civil law on the subject under the pressure of immiiirnt 
 
 The first mention of contribution towards danger, and for the benefit, and with a vitw 
 
 jettison in the English law, and that only to secure the safety, of the whole adven- 
 
 incidentally, is in Mouse's case, 12 Be^.63. ture " : Stewart v. West India and Pacific 
 
 See, for the history of the law, Pine v. Steamship Company, L. E. 8 Q. B. 88. 
 
 Middle Dock Company, 44 L. T. 426, at ° Abbott, 5th edit. p. 345. 
 
 p. 428. ' Gould V. Oliver, 4 Bing. N. C. 134. 
 
 "' Schloss V. Heriot, 14 C. B. N. S. 59 ; Milward v. Hibbert, 3 Q. B. 120: as to 
 
 32 L. J. C. P. 211 ; 8 L. T. N. S. 246; a custom to carry deck cargo. Wright v. 
 
 Johnson v. Chapman, 16 C. B. N. S. 563 ; Marwood, 7 Q. B. D. 62 ; 50 L. J. Q. B, 
 
 35 L. .T. C. P. 23 ; 15 L. T. N. S. 70; 14 643 ; 45 L. T. 297 ; 29 W. E. 673 ; 
 
 ^. 
 
 . B. 264 ; Pirie v. Middle Dock Com- Burton v. English, 10 Q. B. D. 426 ; 12 
 
 pany, 44 L. T. 426. See, too, Wright v. Q. B. D. 218 ; 53 L. J. Q. B. 133 ; 49 
 
 Marwnod, 7 Q. B. D. 62 ; 50 L. J. Q. B. L. T. 768 ; 32 W. E. 655 ; Eoyal Ex- 
 
 643 ; 45 L. T. 297 ; 29 W. E. 673, where change Shipping Company ». Dixon, 12 
 
 Johnson Ti. Chapman is considered. App. Cas. 11; 56 L. J. Q. B. 266; 56 
 
 ' Nesbitt ». Lushington, 4 T. E. 783'; L. T. 206; 3S W. E. 461; Lowndes, 
 
 Walthew V. Mavrojani, L. E. 5 Ex. 116 ; Law of In8urance,'p. 145. In Eoyal Mail 
 
 39 L. J. Ex. 81 ; 22 L. T. N. S. 310. Steam Packet Company v. English Bank 
 
 ."There must be a dangei-, actual or im- of Eio de. Janeiro, 19 Q. B. D. 362, cargo 
 
 pending, common to both ship and crew " : discharged before the commencement of 
 
 Whitecrass Wire Company v. Savill, 8 extraordinaiy measures for getting off a 
 
 Q. B. D. 653; 51 L. J. Q. B. 426, 42 stranded ship was held not liable to con- 
 
 L. T. 643 ; 30 W. R. 588. tribute to expenses. 
 
 * Hai-rison v. Bank of Aubtralasia, L. K. * 12 Eep. 63. 
 
710 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Absence of 
 negligence. 
 
 Warranty 
 ship is fit for 
 the purpose 
 to which it is 
 applied. 
 
 cast over the merchandises," &c. Here the act was done by the 
 interference of a passenger, and not by the master, by whom tie 
 act is more usually determined on, and who is responsible for what 
 is done.' 
 
 But there raust be no negligence on the part of the responsible 
 person, either in the act of jettison or in guarding against its 
 consequences.' This absence of negligence is, however, presupposed 
 not merely in this instance but in all cases where there is an ex- 
 ception to the ordinary carrier's liability, whether on land or sea.* 
 
 We have seen that the law regards carriers of goods as insurers.* 
 From this it results that there is a warranty that the Ship shall 
 be fit for the pui'pose for which it is used.' This principle is best 
 stated by Lord Blackburn in Steel v. State Line Steamship Com- 
 pany.' He holds it " to be quite clear, both in England and in 
 Scotland, that, where there is a contract to carry goods in a ship, 
 whether that contract is in the shape of a bill of lading, or any 
 other form, there is a duty on the part of the person who fur- 
 nishes or supplies that ship, or that ship's room, unless something 
 be stipulated which should prevent it, that the ship shall be fit for 
 its purpose. That is generally expressed by saying that it shall 
 be seaworthy. And I think, also, in marine contracts, contracts 
 for sea carriage, that is, what is properly called a warranty, not 
 merely that they should do their best to maJse the ship fit, bat 
 that the ship should be reasonably fit.'' And farther on, in the 
 course of the same judgment,' Lord Blackburn intimates his clear 
 opinion that a stipulation excepting the shipowner from liability 
 for his own negligence is not invalid as against public policy or 
 for any other cause. 
 
 With this exception, then — the exception where a shipowner 
 has contracted himself out of his liability for his own or his ser- 
 vants' negligence — ^the shipowner undertakes responsibility for all 
 defects, even those undiscoverable by the closest and most careful 
 scrutiny.' 
 
 * The Gtratitudine, 3 Chr. Eob. 240, at 
 p. 258. Price V. Noble, 4 Taunt 123, 
 where the question of whether goods can 
 be jettisoned by other than the master, 
 was distinctly raised and decided. See 
 Butler V. Wildmanj^ 3 B. & Aid. 398, as 
 to the extent to which the right is recog- 
 nized. Notara v. Henderson, L. -R. 7 
 Q. B. 22s, at p. 236 ; 41 L. J. Q. B. 158 ; 
 26 L. T. N. S. 442 ; 20 W. R. 443. 
 WhiteorosB Wire Company v. Savill, 8 
 Q. B. D. 653 ! ji L. J. Q. B. 426 ; 46 
 ,L. T. 643; 3o'W:r. s88. 
 
 3 Siordet v. Hall, 4 Bing. 607 ; The 
 Freedom, L. R. 3 P. C. 594 ; 24 L. T. 
 N. S. 452 ; Notara v. Henderson, L. R. 
 7 Q. B. 225. 
 
 ' Ante, p. S77- 
 
 * Scavamanga v. Stamp, 4 C. P. D. 
 316, S C. P. D. 29s ; 49 L. J. C. P. 674 ; 
 42 L. T. 840 ; 28 W. R. 691 ; Davis v. 
 Garrett, 6 Bing. 716. 
 
 " " The law presumes a promise to that 
 effect without any actual proof, and ever^ 
 reason of sound policy and public conveni- 
 ence requires it should be so " : per Lord 
 Ellenborough in Lyon v. Mells, 5 East 
 428, at p. 437. 
 
 " 3 App. Gas. 72, at p. 86 ; 37 L. T. 
 
 ' At p. 88. 
 
 The G-lenfrnin, 10 P. D. 103 ; 54 
 L. J. P. 49 ; 52 L. T. 769 ; 33 W. R. 826 ; 
 Backhouse v. Snuad, I Murpn. 173 ; cited 
 
PARTI.] COMMON CARRIERS. 711 
 
 The condition of the ship must be suitable with regard to the "Suitable" 
 particular purpose to which it is to be put,' and not only struc- OTiTstrac- 
 turally fit, but with a competent crew, oflBcers, and general t^.^Hy fi'. i»>t 
 arrangements.^ Thus in Kopitoff v. Wilson' the plaintiff sought petent crew, 
 to recover damages for the loss of a large number of iron armour- genera? *° 
 plates, which were lost by reason of one of the plates breaking ^"ingnnents. 
 loose after the ship had been out at sea for some hours, causing Wilson, 
 the loss of the ship and the plates. The plaintiffs contended that 
 the breaking loose of the plates was caused by improper stowage ; 
 the defendants, that it was a direct consequence of the roughness 
 of the sea, which was a peril excepted in the bill of lading. But 
 the Queen's Bench Division held, that the merchant, by his con- 
 tract with the shipowner, having become entitled to have a ship 
 to carry his goods warranted fit for the purpose, and to meet and 
 struggle against the perils of the sea, is by his contract of 
 assurance protected against the damage arising from such perils 
 acting upon a seaworthy ship. But the shipowner is not bound 
 to provide a perfect vessel — one that is the best and fittest for 
 the purpose for which it has to serve — but, to adopt the defini- 
 tion given by Erie, J.,* in the House of Lords in Gibson v. Small, Erie, J.,'s 
 one that before setting out "is fit in the degree which a prudent efficiency, 
 owner uninsured would requii-e to meet the perils " of such a 
 voyage as it is reasonable to anticipate for it. Now it is manifest 
 this power must be constantly rising as the arts of naval con- 
 struction improve, and this to such an extent that what in one 
 age would be looked on as the act of God, and loss arising 
 therefrom excused as within the exception, might, in a succeeding 
 age, be a loss brought about by an unfitness to encounter the 
 perils which it would be usual and prudent and of course to require 
 to be provided against at the commencement of a voyage, when 
 the standard of seaworthiness had risen.* The seaworthiness of 
 the ship is, it seems, to be determined at the time the goods 
 were received on board,^ as well as at the time of sailing with 
 the cargo. So that, if in the interval between the reception of the 
 goods and the commencement of the voyage the ship becomes 
 
 Parsons, Law of Shipping, vol. i. p. 285. 34 L. T. N. S. 677 ; 24 AV. E. 706. 
 Ae to the law where there is a bill of lading * 16 Q. 13. 128 ; in Exchequer Chamber 
 
 with a clause "warranted seaworthy only at p. 141 ; in H. of L. 4 H. L. C. 353. 
 80 far as ordinary care can provide ' : Ex ° Burgess v. Wickham, 3 B. & S. 669 ; 
 
 cargo Laertes, 12 D. P. 187 ; s6L. J. P. Compare Eeadhead «. Midland Eailway 
 
 108; 57 L. T. 502; 36 W. E. III. Company, L. E. 2 Q. B. 412, at p. 440. As 
 
 ' Stanton v. Eicliardson, L. E. 7 C. P. to seaworthiness with regard to deck cargo, 
 
 421, L. E. 9 C. P. 370, affirmed in the see Daniels v. Harris, L. E. 10 0. P. i ; 
 
 House of Lords (see per Field, J., I 44 I-. J. C. P. i ; 31 L. T. N. S. 408 ; 
 
 Q. B. D. 381) ; 45 L. J. C. P. 78 ; 33 23 W. E. 86 ; Lawrence v. Minturn, 17 
 
 L. T. N. S. 193 ; 24 "W. E. 324. How. U. S. 100. 
 
 " Clifford V. Hunter, M. & W. 103 ; ^ Tattersall v. National Steamship Com- 
 
 Forshaw v. Chabert, 3 B. & B. 158. pany, 12 Q. B. D. 297 ; 53 L. J. Q. B. 332 ; 
 
 2 I Q. B. D. 377 ; 45 L. J. Q. B. 436; 50 L. T. 299 ; 32 W. E. 566. 
 
Oxley. 
 
 tii 'Me law of ifEGLIGENCE. [book li. 
 
 unfit, tiie liability attaches.' But not if the unseaworthiness is 
 posterior to the commencement of the voyage.^ 
 Goods must If the shipper of goods in a general ship sustains loss from 
 
 as noUo cause damage done to his goods by other goods stowed in the hold, he 
 ^*^*seto has an action against the shipowner without proof of negligence;' 
 and there is an obligation implied on the shipowner to place goods 
 in a position where they are not harmful to the rest of the cargo, 
 even if the goods doing the injury are placed on board in a con- 
 dition to do mischief, and by the shippers of the damaged goods/ 
 Damage to Though there appears to be an obligation to put cargo in a 
 ground for Suitable place,^ and to take requisite measures to preserve it° 
 freight ^ ^"^ ^* commou law, the consignee was not entitled to resist payment 
 of freight on the ground that goods were damaged, if he had not 
 specially contracted for the right to do so. The negligence of the 
 master in this respect was only matter for a cross action. The 
 Dakin v. leading case for this proposition is Dakin v. Oxley,' where Willes, 
 J., in a considered judgment, examines the foreign law on the 
 subject, and concludes that a plea setting up that through the fault 
 of the shipowner goods shipped had become worthless, and were 
 abandoned by the owner, who was thereby discharged from the 
 payment of the freight, was bad. WiUes, J., citing, in his judg- 
 ment, " Professor Parsons in his learned work upon Maritime Law, 
 vol. i. p. 172," states the law in America to be, "if the cargo 
 arrives in specie, notwithstanding that it is damaged, whether 
 fortuitously or culpably, so as to be worthless, the freight is 
 earned, although in case of culpable damage set off is allowed." 
 But the contrary is distinctly held in Snow v. Carruth,' in which 
 the decision of Story, J., in Willard v. Dorr,' is cited as an 
 authority, and that decision has been followed in not a few 
 cases." 
 
 1 Cohn V. Davidson, 2 Q. B. D. 455 ; Culliford, 3 C. P. D. 410, 4 C. P. D. 
 46 L. J. Q. B. 305; 36 L. T. 244 ; 25 411. 
 
 W. E. 369 ; Steel v. State Line Steam- ^ Notara v. Henderson, L. R. S Q. B. 
 
 ship, 3 App. Gas. 72 ; 37 L. T. 333. 346, L. E. 7 Q. B. 225, at p. 235 ; Tron- 
 
 But though the owner is not bound to son v. Dent, 8 Moo. P. C. C. 419 ; Aus- 
 
 repair during the voyage, if he eleot,to do tralasian Steam Navigation Company v. 
 
 so he ought not to proceed with the vessel Morse, L. E. 4 P. C. 222 ; De Cuadra ti. 
 
 in the unseaworthy condition, Worms v. Swann, 16 C. B. N. S. 772 ; Hingstonv. 
 
 Storey, 11 Ex. 427 ; 25 L. J. Ex. i. Wendt, i Q. B. D. 367 ; 45 L. J. Q. B. 
 
 2 The Eona, 51 L. T. 28. As to dun- 440 ; 34 L. T. N. S. 181 ; 24 W. B. 664. 
 nage, it is sufficient if the master provides '(1864) IJ C. B. N. S. 646; 33 
 the kind of dunnage ordinarily used at the L. J. C. P. 115 ; 10 L. T. N. S. 268 ; 12 
 port of shipment for goods of the kind W. E. 557. 
 
 1 : The Ville de I'Orient, 2 L. T. « 1 Sprague 324. 
 
 N. S. 62. _ 8 3 Mason 161, at p. 171. 
 
 ' Gillespie v. Thompson, 6 B. & B. " See the whole controversy summarized 
 
 477, n. ; The Bark Colonel Ledyard, i in a note 2, p. 206, i Parsons, Law of 
 
 Sprague 530. Merchant Shipping, which is in fact a new 
 
 * Alston V. Hen-ing, 11 Ex. 822; 25 edition of "the work on maritime law," 
 L. J. Ex. 177. cited by Willes, .T. It is Strang that 
 
 * The 0(iuendo, 38 L. T. 151 ; Hajn 1). though the Law ofMerobant Shipping was 
 
But though the English law on the point remains unaltered, Judicature 
 its effect is neutralized by the provisions of the Judicature Acts, punter-'''* 
 1873, 187s, by which (and the rules made under them') a°i^»™*<'*« 
 defendant may set up a counter-claim to an action, A claim 
 for freight may therefore be met by a coimter-claim for damage 
 to the cargo. 
 
 As to the time for loading, if this is not the subject of special Time for 
 contract, as it very frequently is, the implication of law is that "^ "'^' 
 each party shall use reasonable diligence" in performing his part, 
 and a failure by either from which loss results creates a right of 
 action in the other party f but where the performance of the 
 contract is prevented by a cause over which neither party has any 
 control, as by a threatened bombardment of the port of loading or 
 dehvery, an action is notjnaintainable.'' 
 
 The master is the general agent of the owner for the purpose Master' s 
 of the voyage, and for the exercise of that agency is entrusted "'^' 
 with powers to be used at his discretion, to which the owner who 
 selects him is satisfied to confide ; if therefore the master exercises 
 a power which circumstances might justiiy, so that did the cir- 
 cumstances in fact exist, the act would be within the general 
 scope of his functions, but it turns out that the facts did not 
 warrant its exercise in the particular case, as, for instance, if he 
 unnecessarily throw goods overboard in a panic or sell goods 
 without justifying need, the owners are held liable.' 
 
 The master is personally liable for all acts of negligence or 
 misfeasance of his crew causing injury to cargo or property/" 
 But he is not liable for their wilful torts nor for acts beyond the 
 scope of their employment causing injury to other vessels.' 
 
 The captain of a Queen's ship is, as we have seen, not liable 
 for acts that he has not directly been concerned in.' 
 
 As the master is liable for the tortious acts of the crew, so Owners liable 
 
 {or tortious 
 acts of master. 
 
 not published till 1869, there is no notice 544 (Exchequer Chamber) ; 39 L. J. Q. B. 
 
 of the decision of Dakin v. Oxley, though 188 ; 23 L. T. N. S. 165; 18W.E. 1169. 
 
 that was reported in 1864, and the Eng- ' Notara v. Henderson, L. E. 7 Q. B. 
 
 lish cases are largely drawn upon in the 225 ; Ewbank v. Nutting, 7 C. B. 797. 
 
 note referred to. * Molloy, B. 2, c. 3, s. 13 ; thus, an infant 
 
 ' See Bules of the Supreme Court, 1883, has been held liable in Admiralty : i Boll. 
 
 Order xix. r. 3. Abridg. 530 ; and an owner has been con- 
 
 " Jackson v. Union Marine Insurance victed under 54 Geo. III. c. 159, s. 11, 
 
 Company, L. R. 10 C. P. 125; 44 where not even on board: Michell v. 
 
 L. JT C. P. 27 ; 31 L. T. _N. S. 789 ; 23 Brown, 28 li. J. M. C. 53. As to the mas- 
 
 W. E. 169 ; Foussard 11. Spiers, i Q. B. D., ter's autliority to sell, and what constitutes 
 
 at p. 414, per Blackburn, J.; compare, necessity: Australasian Steam Navigation 
 
 however, Hurst v. Usbome, 18 C. B. 144 ; Company v. Morse, L. E. 4 P. C. 222. 
 
 Tully V. Houting, 2 Q. B. D. 182 ; 46 ' Bowcher v. Noidstrom, i Taunt. 568. 
 
 L. J. Q. B. 388 ; 36 L. T. 163 ; 25 See The Druid and the cases there cited : 
 
 W. E. 290. 1 W. Bob. 391 ; 6 Jur, 441. ' 
 
 ' Fowler e. Knoop, 4 Q. B. D. 299. ' Nicholson t. Mouncey, I J East 384, 
 
 * Ford V. Cuteawurtb, L. E. 5 Q. B. Ante, p. 262. 
 
714 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 Otrners liable 
 for pilot. 
 
 If not com- 
 pulsory. 
 
 the owu&ts «ir6 liable for the tortious acts of the ■mastfer,' even 
 where the vessel is ssdling under a chstfter'-pajriy, amd is under the 
 direction of anagelit of the charterers — if, that is, the master 
 is appointed by the owners.'' This liability is, of course, 'subjetjt 
 to the usual limitations. The act for which the owaers are sought 
 to be charged must be neither wilful nor outside the scope of 
 authoBity.' 
 
 At common law, too, the owners would be liable for all the 
 tortious ov negligent acts of the pilot under the same linsiitations 
 we have j'list ierpi?eesed. But tJhe mastef, being an intermediary, 
 *rould not be liable.'' 
 
 We shall presetttly tiote the statutory provision with regard to 
 compulsory pilotage; but independently of that the English 
 courts have uniformly held thsit where a pilot was employed 
 under statutory sanctieai the owners and master were Qot liable 
 for iiajuries 'ari'sitig from his a©fes.' The law of America has not, 
 howeveir, been so complaisant to the owners, who have in some 
 cases been held liable though the employmeHt of the pilot was 
 compulsory upon them.' 
 
 There are some statutory limitations to liability tttidh must be 
 
 here noticed. 
 
 Provisions of By the Merchant Shipping Act, 1854,' Part IX., s. 503, "No 
 
 swpping Act, owner of any sea-going 'ship,* or share therein, shall be liable to 
 
 '^54- make good any loss or damage that may happen, without his 
 
 actual fault or privity,' of or to any of the following things, (that 
 
 is to say) : 
 
 (i) Of or to goods, merchandise, or other things whatsoever 
 taken in or put on board any such ship, by reason 
 of any fire'° happening on board such ship ; 
 
 ' T'he Excebior, L. B. 2 A. & E. 269 ; 
 37 L. J. Adm. 54 ; 19 L. T. 87 ; Davis 
 V. Garrett, 6 Bing. 716; Scaramanga v. 
 Staovp, 5 C. P. D. 29s ; 49 L. J. C. P. 
 674; 42 L. T. S40; 28 W. R. 691 ; 
 Se«rall V. Bciyftl Excliange Steamship 
 Company, 33 W. R. 342, 868. 
 
 8 Fletclier », Bradaiok, 2 N. R. 182 ; 
 Fenton v. Dublin 'Steam Packet Company, 
 8 Ad. & El. 835. 
 
 ' The Druid, i \V. Rob. 391 ; The Ida, 
 I Lu^. 6. Compare Ewbank v. Nutting, 
 7 C. B. 797; Scluister v. M'Kellar, 7 
 B. & B. 704. 
 
 * Aldricb v. Simmons, 1 Stark. 214; 
 Bowchert). Noidstcom, i Tannt. 568. In 
 3 Kent's Commentaries, 12111 edit. p. 176, 
 there is an inetmctive note on tbe subject 
 of pilotage, its duties and responEibilities, 
 
 " Carruthers ». Sydebotham, 4 M. & S; 
 77 r Bennpt v. Moita, 7 Taunt. 258 ; The 
 Maiia, i W. Rob. 95 ; The Atiuapolis, 
 
 Lush. 295 ; "^^^ Hibernian, L. R. 4 P. C. 
 511. As to master obeying the order of 
 dock-master, The Belgic, 2 P. D. 57 ; 
 The Cynthia, 2 P. D. 52 ; where he refuses 
 to obey, see The Excelsior, L. R. 2 A. & 
 E. 269 ; where pilotage is not compulsory 
 the employmeilt of a pilot does not relieve 
 a shipowner of his responsibility. The 
 Sutherland, 10 P. D. 154 ; Courtney v. 
 Cole, 19 Q. B. D. 447. 
 
 ^ Story, Agency, § 456, note a. 
 
 ' 17 & 18 Vict. 0. 31. 
 
 ' For definition see section 2. Ex parte 
 Ferguson, L. R. 6 Q. B. 280 ; The C. S. 
 Butler, L. R. 4 A. & E. 238 : The Mac, 
 7 P. D. 126. 
 
 » The Obey, L. R. i A. & E. 102. 
 
 i» Morewood v. Pollok, i E. & B. 743 ; 
 22 L. J. Q. B. 250 ; Schmidt v. T!he 
 Royal Mail Steamship Cnmpnny, 4K L. J. 
 646. The scope of limitaiion actKms is 
 discussed in The Karo, 13 P. D. 24. 
 
PARTI.] COMMON OAERIERS. 715 
 
 (2) Of or to any gold, silver, diamonds, watches, jewels, 
 or precious stones, taken in or put on board any 
 such ship, by reason of any robbery, embezzlement, 
 making away with or secreting thereof, unless 
 the owner or shipper thereof has, at the time of 
 shipping the same, inserted in his bills of lading 
 or otherwise declared in writing to the master or 
 owner of such ship the true nature and value' of 
 such articles, to any extent whatever." 
 By section 516, "Nothing in the ninth part of this Act 
 contained shall be construed — 
 
 To lessen or take away any liability to which any master or 
 seaman being also owner or part owner of the ship to 
 which he belongs is subject in his capacity of master or 
 seaman ; or 
 To extend to any British ship not being a recognized British 
 ship within the meaning of this Act."^ 
 By the Merchant Shipping Act, 1862;' s. 54,^ the " owners* The Merchant 
 of any ship, whether British or foreign, ° shall not in cases where iggj.^'"^ " ' 
 all or any of the following events offer without their actual fault 
 or privity,' (that is to say) : 
 
 (1) Where any loss of life or personal injury is caused to 
 
 any person being carried in such ship. 
 
 (2) Where any damage or loss is caused to any goods, 
 
 merchandise, or other things whatsoever, on board 
 any such ship:" 
 
 (3) Where any loss of life or personal injury is by reason 
 
 of the improper navigation of such ship as afore- 
 said caused to any person carried in any other ship 
 or boat ; 
 
 (4) Where any loss or damage is by reason of the improper 
 
 navigation,' of such ship as aforesaid, caused to any 
 other ship or boat, or to any goods, merchandise, 
 or other things whatsoever on board any other ship 
 or boat; 
 be answerable in damages in respect of loss of life or personal 
 injury either alone or together, with loss or damage to ships, 
 
 ' Williams v. African Steamship Com- The Obey, i A. & E. I02 ; The Spirit ti( 
 
 pany, 26 L. J. Ex. 69 ; Gibbs v. Potter, the Ocean, 12 L. T. 239. 
 
 1 1 L. J. Ex. 376. * Glaholm v. Barker, L. R. 2 Eq. 598, 
 
 2 See sections 18 and 19. L. R. i CIi. 223. 
 
 3 25 & 26 Vict. c. 16. ' The Warltworth, 9 P. D. 20, 145 ; 
 •Nixon V. Roberts, 30 L. J. Ch. 844 ; Good v. London Steamship Owners' Asso- 
 
 4 L. T. S. S. 679 ; 9 W. K. 890. ciation, L. R. 6 C. P. 563 ; Wahlberg v. 
 
 5 The Amalia, 32 L. J. Ad. 191. Young, 45 L.J.Ch.783 ; Canada Shipping 
 
 * Spirit of tlie Ocean, Br. & L. 336. Company v. British Shipoyrners' MutUEd 
 
 Wilson?). Dickson, 2 B. & AW. 2; Protecting Association, 22 Q.B.D. 729. 
 
716 THE LAW OF NEGLIGENCE. [book u. 
 
 boats, goods, merchandise, or other things, to an aggregate 
 amount exceeding £ 1 5 for each ton of their ships' tonnage, nor 
 in respect of loss or damage to ships, goods, merchandise or 
 other things, whether there be in addition loss of life or personal 
 injury or not to an aggregate amount exceeding £8 for each ton' 
 of the ships' tonnage, such tonnage to be the registered tonnage 
 in the case of sailing ships, and in the case of steam ships the 
 gross tonnage without deduction on account of engine room."^ 
 
 Although the journey may be partly by land these provisions 
 have been held to apply.' 
 
 Another statutory limitation to the ^ability of the shipowner 
 is where the ship, at the time of the damage done to goods, is in 
 charge of a pilot whom he is compelled to employ. 
 Compulsory By the Merchant Shipping Act, 1854, s. 388, no owner or 
 
 p> o ««»■ master of any ship shall be answerable to any person whatever 
 for any loss or damage occasioned by the fault or incapacity of 
 any qualified pilot acting in charge of such ship within any 
 district where the employment of such pilot is compulsory by law.'' 
 We have already noticed the liability with regard to a pilot at 
 common law. Of course the protection of the section is given 
 only where the shipowner or the master is free from blame, for 
 the presence of the pilot is not the exoneration of the crew. The 
 proposition ought father to be stated — the intervention of the 
 pilot is not the augmentation of the responsibilities of the owner 
 or the master." If, then, it be proved that a qualified pilot was 
 acting in charge of a ship : secondly, that the charge was com- 
 pulsory : thirdly, that the damage happened through his fault." 
 
 ^ Cbapman -o. Royal Netherlands Carver, On Carriage of Goods by Sea, p. 
 
 Steam Company, 4 P. D. 159; 48 L, J. 30. It is only necessary that the vessel 
 
 Ad. 449; 40 li. T. 433; 27 W. R. 554. should still be in the charge of a pilot who 
 
 ' As to measurement, see the conclusiim has been compolsorily taken on boai-d, even 
 
 of the section, and the Merchant Shipping although the ship at the time of the 
 
 Act, 1854, ss. 20 el teq. ; the Merchant matter forming the cause of action arising, 
 
 Shipping Act, 1867, s. 9; The Franconia, was outside the district of compulsion. 
 
 3 P. D. 164; The Palermo, 10 P. D. 182. General Steam NavigMtion Company ». 
 
 As to procedure, the Merchant Shipping British and Colonial Steam Navigation 
 
 Act, 1854, s. S14. Company, L. B. 3 Ex. 330, 4 Ex. 238, 
 
 ' London and South-Western Railway L. R. 2 P. C. 531. In The Stettin v. 
 
 Company v. Jaines, L. R. 7 Ch. 241 ; The Lion, 31 L. J. P. .VI. & A. 208, the 
 
 42 L. J. Ch. 337 ; 28 L. T. N. S. 48 ; pilot was taken on board where there was 
 
 21 AV. R. 151. Compare Fianciani v. no compulsion, and therefore the rule did 
 
 London and South-Westem Railway Com- not there apply. See The Earl of Auok- 
 
 pany, L. R. i Q. B. 54 ; Le Contour v. land, Lush. 164, p. 387 ; Carruthers m 
 
 London and South-Western Bail way Com- Sydebotham, 4 M. & S. 77 ; Attorney- 
 
 pany, L. R. 4 Q. B. 244. See 34 & 35 General v. Case, 3 Price 302. Compare 
 
 Vict. c. 78, B. 12; Doolan v. Midland under 6 Geo. IV. c. 125, s. 55: Lucy ?». 
 
 Railway Company, 2 App. Cas. 772. Ingram, 6 M. & W. 302 ; Beilby v. Scott, 
 
 *, This is a question the solution of which 7 M. & W. 93 ; Beilby v. Shepherd, 3 
 
 depends on the Merchant Shipping Act, Ex. 40 ; 18 L. J. Ex. 73 ; The Fama, 2 
 
 1854, or the local statutes governing in W. Bob. 184. 
 
 the place where the act is done or negli- " Clyde Navigation Company D-BnTclay, 
 
 fence permitted, from which the proceed- I App. Cas. 790 ; 36 L. T. 379. 
 
 ings arise. For a collection of cases, see ° It must be exclusively his fault : The 
 
PARTI.] Common carriers. 717 
 
 Then it lies upon the plaintiff to shew, if he can, that other 
 causes existed for which the owner of the ship was responsible. 
 Having done this, it lies upon the defendant to explain the circum- 
 stances so alleged, and to shew that the primd facie conclusions 
 from them is not correct.' Of course, the pilot is personally liable Pilot per- 
 for his own negligence.^ But there is a duty to him from the '""""^ ""''''' 
 master of uberrivia fides to disclose all particulars about the ship 
 affecting her efficiency, failing which the master is liable.' The Towage, 
 case of towage may involve some complications. The law on this 
 subject, as between the towing and towed vessel, is succinctly 
 stated by Lord Kingsdown, in delivering the judgment of the Privy 
 Council in The Julia'': "When such a contract," i.e., of towage, 
 " is made the law would imply an engagement that each vessel 
 would perform its duty in completing it ; that proper skill and 
 diligence should be used on board of each, and that neither 
 vessel, by neglect or misconduct, would create unnecessary risk 
 to the other, or increase any risk which would be incidental to 
 the service undertaken. If, in the course of the performance of 
 the contract, any inevitable accident happened to the one, without 
 any default on the part of the other, no cause of action would 
 arise ; such an accident would be one of the necessary risks of 
 the engagement to which each party was subject, and create no 
 liability on the part of the other. If, on the other hand, the 
 wrongful act of either occasioned any damage to the other, such 
 wrongful act would create a responsibility on the party committing 
 it, if the sufferer had not by any misconduct or unskilfulness on 
 her part contributed to the accident."' 
 
 The rule of law was illustrated in Spaight v. Tedcastle," where Spaight v. 
 
 ^ ° Tedfftstle. 
 
 lona, L. E. i P. C. 426 ; 16 L. T. N. S. 451 ; The Kigborgs Minde, 8 P. D. 132 ; 
 
 158 ; The Velasquez, L. E. I P. C. 492 ; The Eipon, 10 P. D. 65. 
 
 36 L. J. Adm. 19 ; 4 Moo. P. C. C. N. S. » The Meteor, Ir. E. 9 Eq. 567. 
 
 426. * 14 Moo. P. C. C. 210. See the law 
 
 ' Per Lord Selborne, Clyde Navigation laid down in very similar terms : Sturgisu. 
 
 Company v. Barclay, I App. Cas. 790, at Boyer, 24 How. (TJ. S.) no; Smith «. St. 
 
 p. 796. As to the circumstances in which Lawi'ence Tow-Boat Company, L. E. 5 P. 0. 
 
 the master may be called on to interfere 308 ; 28 L. T. N. S. 885 ; 21 W. E. 569. 
 
 with the pilot, The Lochlibo, 3 W. Eob. * The tu^ must be seaworthy : The 
 
 310, at p. 321, per Dr. Lushington ; The United Sei-vice, 8 P. D. 56, 9 P. D. 3. If 
 
 Oakfleld, 1 1 P. D. 34. the tug supplies the tow rope, it must be 
 
 ^ Stone V. Cartwright, 6 T. E. 411. suflSoient : The EobertDixon, 4P. D. 121, 
 
 As to the duties of a pilot, see The Guy 5 P. D. 54. In The Undaunted, 1 1 
 
 Mannering, 7 P. D. 132, at p. 134 ; The P. 1). 46, it was held that the implied 
 
 Calabar, L. E. 2 P. C. 238 ; ibr his duties obligation that the tug shall be efficient 
 
 generally, see The lona, L. E. I P. C. 426 ; is not set aside by a proviso against negli- 
 
 when the ship is at anchor, The City of gcnce of the master. 
 
 Cambridge, L. E. 5 P. C. 451 ; 43 L. J. « 6 App. Cas. 217 ; 44 L. T. 589; 29 
 
 Adm. II; as to the distinction between W. E. 764. The legal effect of a con- 
 
 salviige and pilotage, Akerblonm v. Price, tract to tow, and of misconduct or negli- 
 
 7 Q. B. D. 129 ; 50 L. J. Q. B. 629. As gence of the tug occasioning danger, are 
 
 to the pilot's relation with the master, treated at length by Lord Kingsdown in 
 
 The Diana, 1 W. Bob. 131, at p. 136; The Minnehaha, Lush. 335 ; 30 L.J. Adm. 
 
 The City of Cambridge, L. E. 5 P. C. 211 ; 4 L. T. N. S. 810 ; 9 W. E. 925. 
 
71S THE L(AW OF NEGLIGENCE. [book ii. 
 
 tha plaintiff's diip was in tte- charge of a licensed pilot, under 
 whose recommendations a tmg was engaged. While- being towed 
 the plaintiff's ship took the ground and sustained serious damage. 
 It was found that th^ accident arose fcomj the. misconduct of the 
 tug, but that the^ ship, by misconduct on her part, contributed to, the 
 accident. The, House of Lords,, reversing the Irish Courts, held- 
 that the- plaintiff could recover, and overruled the contentions of 
 thei respondents, that if those in charge- of the ship had, in, some 
 earlier sta^e of the navigation, taken- a course or exercised a 
 control, over the course taken by the tug,, which they did not 
 actually take or exercise, a different situation would have resulted, 
 in which the same^ danger might not have- occurred. The imme- 
 diate cause of the accident was the negligently starboarding her- 
 helm., The negligence alleged on the part of the ship was lihat 
 the compulsory pilot was negligent, and that the captain of theN 
 plaintiff's ship was to blame in quitting the deck. Assuming 
 that to be so, the ground of the- judgment is stated by Lord 
 Ground of the Blackburn : "But no negligence which was over before the tug- 
 the^uae'ot negligently stauboaa-ded her helm could be contributory negUgence 
 by Lord*'^^ ™ *^® Sense which is required to relieve the tug from the con- 
 Biackbum. sequences of that negligence. But if there was negligence in thfr 
 ship,, and those for whom the ship was responsible, in letting her 
 get so dangerously near theibanfc beforetthe helm was ported, as 
 complete as the negligence of those who, in Davies v. Mann,' left 
 the fettered donkey dangeiiously rolling in lihe' road, it forms no 
 defence to an action against the persons who, by want of proper 
 care, have injured the ship. To make a defence on this, ground it 
 must be shewn that the injured party, or those with whom for 
 this purpose he is identified, might, by proper care subsequently, 
 exerted, have avoided the consequences of the defendant's want of 
 proper care."^ 
 Doctrine of The case raised', tha point whether the shipowner is identified' 
 
 with the pilot, whom he did not select and for whose misconduct 
 he would not have been liable to third persons, where the exercise 
 of proper skill and care on the pilot's part would have avoided 
 the consequences of the tug's misconduct. The Courts, below had 
 decided ^at he was identified ; but the point was not argued in 
 the House ofi Lords, where, however. Lord Blackburn speaks of it 
 as "not a self-evident proposition." Ther " doctrine of identifica- 
 tion " was, however, altogether discredited by the House of Lords 
 
 1 lo M. & w: 546. 
 
 ' Hoffman o; IJnipn Ferry Comp^ttay, 47_ N. Y. 176, is tile case of negligence in the 
 tlig, with negligence in a stranger causing injury to the tow. 
 
PARTI.] COMMON OARE,IERS. 719 
 
 in The B^miiift,' and the cases that proceeded on ita validity can 
 not now be considered law. 
 
 Where the wrongful act done by a person on board by com- KegMgenoo 
 pnlsipn of law is the cause of a collision, we have, seen^ that, both operatL^" 
 at common law and by statute' ther& is. no liability on tiie owner with thatrof 
 who has been constrained to employ, such person. The questioni,, crew. 
 then, arises, what is the effect of his act upon the amount of 
 damage that should be paid byqjnother ship coming into, collision' 
 with the ship employing a compulsory pilot when the injury arisesi 
 from the negligence of the pilot and the master and crew of the 
 other ship co-operating. It would seem that the owners of the^ 
 ship employing the pilot not being in any way to bliame., and the 
 colliding ship being in fault, that ship should pay the wholei of 
 the damages. The rule pf the Admiralty^ adopted by the. Court 
 of Appeal,* is, different, and is that, where-, it is. found that the 
 navigation of one ship was bad through the wrcmgful act of tii©' 
 compulsory pilot, her owners recover only half the damage. 
 
 The question is left, wJbat is the liability of the owners for Liability of 
 injury occasioned by the negligence of someone on board whiles act of some 
 the vessel is in charge of a compulsory pilot, but acting; indepen- J^^e'the '"* 
 dently of him. And it has. been decided that, notwithstanding; ™ssei is in 
 the responsibility of the pilot for the navigation, the owners are)compuiBpry 
 responsible for such negligence or fault;* Neither are the. ownersi P''"'" 
 exempted from liability in a case of joint blame by having a. 
 compulsory pilot on board.° 
 
 And, in summing up to the Trinity Masteus in The Massa>- Divided 
 chusetts,' Dr. Lushington thus expressed his vieW of the law in ""'P**"'''?- 
 the case of a divided culpability: — " If you are of opinion that the 
 accident arose partly from the fault of the pilot an not coming to. 
 an anchor in sufficient tame, and partly from the. defective) weight 
 of the anchor, the legal consequence is that the damagej having 
 arisen from the joint default of the pilot and the ownersj the respon- 
 sibility of the loss must fall upon the owners, of the> ship"-^— that 
 is, if the accident is in any degree to be imputed to the master, 
 his liability is not affected by the immunity the^ statute, confers on 
 him from responsibility for the defaults or neglects of the pilot." 
 • A collision brought about while a ship is going intoi dock under 
 
 ' Subnom. Mills v. ArraBtrong, 13 App. S90 ; 31 W. E. 881. 
 
 Gas. i; 57 L. J. P. 65; sS'E.T. 4.23; " Yates v. Brown, 2? Miss. 22, per 
 
 36W. R. 870. Parker, C.J. 
 
 ^ Ante, p. 714. ' Netherland Steamship Company v. 
 
 " 17 & 18 Vict. e. 104, B. 388 ; 25 & Styles, gMool P. C. G.,2.8.6v. 
 
 26 Vi(!t. 0. 63, 8. 54. ' I W. Rob. 371. 
 
 < The Hector (No. 2), 8 P. D. 221, at ' The Girolamo, 3 Hagg. Adm. 169, 
 
 p. 225 ; 52 L. J'. Adm. 51 ; 48 L. T. 176. 
 
720 
 
 THE LAW OF NEGLIGENCE. 
 
 Tbook It. 
 
 Liability of 
 owner where 
 ship does 
 injury when 
 going into 
 dock under 
 harbour 
 master's 
 direction in 
 pursuance of 
 statutory 
 powers. 
 Collision 
 while in the 
 charge of 
 compulsory 
 pilot. 
 Belation 
 between the 
 towed vessel 
 and any inde- 
 pendent 
 vessel with 
 which it may 
 come into 
 contact. 
 
 The Niobe, 
 
 a ]ia.rbonr-master's directions, and in pursuance of a statute, does 
 not affect the owner with, liability.' 
 
 To release themselves from liability where a collision is the 
 fault of a vessel in charge of a compulsory pilot, the owners have 
 not only to shew that the crew was under the pilot's orders at the 
 time of the order being given which produced the collision, but, 
 further, that the order was such as the pilot was responsible for,* 
 and of this the proof should be strict ;' but, having proved it, the 
 defendants are entitled to costs.^ 
 
 There remains to consider the relation between the towed vessel 
 and any independent vessel with which the towing vessel may come 
 into contact during the operation of towing. 
 
 In The Oleadon' it was laid down that the towing and the 
 towed vessel with regard to strangers may be considered as a 
 single whole,' the motive power being in the steamer and the 
 governing part in the ship towed. And in the case we have just 
 been considering it was stated that the duty of the tug is to carry 
 out the directions "received from the ship.' A distinction was 
 pointed out in The American and The Syria,' where the "govern- 
 ing power " is in the tug, not in the vessel towed. As it is the 
 presence of this power in the towed vessel that establishes the rule 
 of its liability, so, when that power can be shewn to be absent, 
 the liability will cease accordingly. Allowance, too, must be made 
 for the diminished power of manoeuvring consequent on having a 
 ship in tow.' But, if the pilot on the ship is guilty of negligence, 
 the tug is not of necessity thereby discharged, for it then becomes 
 the duty of those on the tug to act on their own responsibility for 
 the avoiding of injury. The decision in The Niobe' is the necessary 
 outcome of these principles.'" There Sir James Hannen held that, 
 where a tug with a vessel in tow came into collision with another 
 vessel, that the towed vessel was liable, since the towed vessel is 
 to exercise control over the tug, and not merely to allow herself 
 to be drawn, or the tug to go in a course which will cause damage 
 to another vessel. To this, again, there is an exemption where 
 the accident is caused by some sudden manoeuvre of the tug 
 
 ' The Bilbao, Lush. 149. As to a plea 
 of custom, The Hand of Providence, Swab. 
 107. 
 
 » The Schwalbe, 14 Moo. P. C. C. 241. 
 
 ' The Carrier Dove, ^ Moo. P. C. C. 
 N. S. 261. 
 
 * The Eoyal Charter, 38 L. J.Adm. 36. 
 
 » 14 Moo. P. C. C. 97 ; The Ticonde- 
 roga, Swab. 215; The Sinquasi, 5 P. D. 
 241 ; The Bianca, 8 P. D. 91 ; 52 L. J. 
 Adm. 56 ; 48 L. T. 440 ; 31 W. E. 954. 
 
 ' Spaight V. Tedcastle, 6 App. Gas. 
 217. 
 
 ' L. E. 6 P. C. 127 ; 43 L. .1. Adm. 
 30 ; 31 L. T. N. S. 42 ; 22 W. E. 927. 
 
 8 The La Plata, Swab. 220, 298 ; The 
 Independence, Lush. 270 ; 4 L. T. N. S. 
 563 ; 9 W. E. 587. 
 
 » 13 P. U. SS; S7 I'- J- P- 33 ; 59 
 L. T. 257 ; 36 W. E. 812. In The Isca, 
 12 P. D. 34, the relative duties of the 
 master of the vosael and the master of the 
 tug are explained. 
 
 »» The Civiltaw. The Eestless, 103 U. S. 
 (13 Otto) 699 ; The Mary, 5 P. D. 14 ; 
 The Jane Bacon, 27 W. E. 35. 
 
PARTI.] COMMON CAREIEES. 721 
 
 which the towed vessel could not control. In the case of The 
 
 Niobe it was further contended that the Niohe was not liable 
 
 because the mischief was not done by contact with her. But t£e 
 
 basis of the whole liability is not physical impact, but a ne_glect 
 
 of that directing and forewarning agency which is a duty raised 
 
 by the position the Niobe had taken up.' If, however, the negli- Question, 
 
 gence is that of the compulsory pilot, though the tow is clearly '^a®'o^\^^°" 
 
 not liable, there has been a question raised whether or not the ""f^"^ t^"™- 
 
 n pulsory 
 
 exoneration extends to the tug." On the analogy of the cases pUotage, the 
 where a pilot, not compulsory, has been put in charge of the tow, extends to 
 it would appear that there is no just ground for this as an*'"'*"S. 
 universal contention, since, in the event of negligence in the 
 pilot, those in charge of the tug are to act on their own respon- 
 sibility in avoiding the accident. In the case of no orders being 
 given, this would seem clearly to be so ;' while, in the case of 
 definite orders being given, very probably it would be otherwise ; 
 since, as Sir James Hannen points out in The Niobe,'' in addition 
 to the presence of the pilot, "the officers of the tow are usually 
 .... of a higher class, and better able to direct the navigation, 
 than those of the tug," and allowing for exceptional cases of pal- 
 pably wrong orders, the liability would seem to be a harsh one. 
 Dr. Lushington, in The Duke of Sussex,'^ followed by The Chris- 
 tina," seems to have been of the opinion that the tug should be 
 as much under the control of the pilot as the tow, and that the 
 owner of the tug should be equally protected. In The Mary,^ 
 Sir Robert Phillimore was of a different opinion, but in that case 
 the tug does not seem to have acted under the orders of the pilot, 
 and to have been guilty of independent negligence.' 
 
 The liability of the owner of a tug for damage done to the tow Liability of 
 by improper navigation of the tow is limited by statute, as in limited by 
 other cases.' =**'"'«• 
 
 Where the towage contract is partially in the nature of salvage where the 
 the towing ship is not the less liable for a collision caused by tract partakes 
 
 of the nature 
 
 ^ Ab to the duty of a tug in charge of " i W. Bob. 270. 
 
 canal boats in America, Arctic Fire In- ^ 3 W. Bob. 27. 
 
 Burance Company v. Austin, 69 N. Y. '5 P. D. 14 ; 48 L. J. Adm. 66 ; 41 
 
 470 ; The Margaret, 94 U. S. (4 Otto) 647 ; L. T. 35 1 ; 28 W. R. 95. 
 
 The Quickstep, 9 Wall. 665. As to the law ' And some of the reasoning of the 
 
 in England -where two or more ships are in judgnient — e.g., the paragraph on f. 16, 
 
 tow of the same tug, Harris v. Anderson, beginning, "The root of the exemption," 
 
 14 C. B. N. S. 499 ; Smith v. St. Law- &c. — is not very exact. As to tbo re- 
 
 rence Tow-Boat Company, L. E. 5 C. P. sponsibilities in employing a tug, see The 
 
 308. Julia, Lush. 224. Where there is a thiclc^ 
 
 2 The Lochlibo, 7 Moo. P. C. C. 427 ; fog, so that the vessel ought not to move 
 approved in The Oakfield, 11 P. 1). 34; at all, the having a compulsory piLrt on 
 Tlie Ocean Wave, L. R. 3 P. 0. 205. board does not release from responsibility : 
 
 3 TheCivilta, 103U. S. (i3 0tto)699; The ~ ' " " 
 'he Sinqnasi, 5 P. D.' 241. " "S 
 
 * 13P. D. 5s,atp. 59. 783- 
 
 ' The Civilta, 103 U. S. (13 Otto) 699 ; The Bornssia, Swab. 94. 
 The Sinqnasi, 5 P. D.' 241. " Wahlberg i'. Young, 45 L. J. C P. 
 
 Z Z 
 
722 
 
 THE LAW OF NEGLIGENCE. 
 
 [book lit 
 
 Chai-ter- 
 parties or 
 Dills of lading. 
 Definition of 
 a cliarier- 
 party. 
 
 Of a bill of 
 lading. 
 
 negligence,' thougli the Courts incline to regard error or negli- 
 gence in the salvor more leniently than in ordinary cases.' 0£ 
 course the salvor can recover if he is not guilty of negligence.' 
 There is no common employment between the servants of the tug 
 and of the tow.'' 
 
 So far the common law or statutory aspect of the shipowner's 
 or master's liability has been considered. This, however, is most 
 frequently varied by the terms of the charter-party or of the bill 
 of lading. 
 
 A charter-party is an agreement in writing by which a ship- 
 owner agrees to let an entire ship or part thereof to a merchant 
 for the carriage of goods on a specified voyage or during a speci- 
 fied period for a sum of money which the merchant agrees to pay 
 as freight for their carriage.* 
 
 " A bill of lading," says BuUer, J.,° " is an acknowledgment under 
 the hand of the captain that he has received (such) goods, which 
 he undertakes to deliver to the person named in that bill of 
 lading. It is assignable in its nature, and by indorsement the 
 property is vested in the assignee." 
 
 In Glyn, Mills, & Co. v. East and West India Dock Com- 
 
 Glyn, Mills, & 
 
 andWeat V^^^ji' Lord Sclbome says: "The primary office and purpose 
 
 India Dock 
 Company. 
 
 Words in 
 common use. 
 
 Act of God. 
 
 of a bill of lading, although by mercantile law and usage it is a 
 symbol of the rights of property in the goods, is to express 
 the terms of the contract between the shipper and the ship- 
 owner. The dangers of the sea are usually excepted in these 
 bills ; under these words, as was said in an American case, 
 "the perils of the sea and of the river are so nearly allied that 
 they may be considered the same, except in the few instances in 
 which the reason difiers."' 
 
 Since the case of Smith v. Shepherd ' (in which, however, there 
 does not seem to have been any bill of lading), the words of the 
 exception in common use in this country are, " the act of God, the 
 King's enemies, fire, and all and every other dangers and accidents 
 of the seas, rivers, and navigation, of whatever nature and kind 
 soever, excepted."'" 
 
 We have already considered what are the constituents of an act 
 
 1 The Thetis, L. E. 2 A. & B. 365. 
 
 •■' The C. S. Butler, L. E. 4 A. & E. 
 178. 
 
 3 The Mnd-Hopper, 40 L. T. N. S. 462. 
 
 * The Julia, Lush. 224. 
 
 ^ Wharton's Law Lexicon, aub nom. 
 The construction of a charter-party should 
 be liberal to effectuate the intention of the 
 parties : Dimeoh v. Corlett, 12 Moo. 
 P. C. C. 179. 
 
 « Caldwellf. Ball, i T. E. 205, at p. 216. 
 
 ' 7 App. Cas. 591 ; 52 L. J. Adm. 146 ; 
 
 47 L. T. 309 ; 31 W. E. 201. See 18 & 
 19 Vict. 0. Ill ; Frasero. Telegraph Con- 
 struction Company, L. E. 7 Q. B. 566, at 
 p. 571 ; Sewell v. Burdick, 10 App. Cas. 
 74 ; 54 L. J. Q. B. 156 ; 52 L. T. 445. 
 
 ' Jones V. Pitcher, 3 Stew. & Por. 135, 
 at p. T7S. 
 
 ° Abbott, Merchant Shipping, 12th 
 edit. pp. 258, 328. 
 
 " This has been further extended. See 
 Scrntton, Contract of Affi-eightment, p. 
 150- 
 
PART I.] COMMON CAREIEES. 723 
 
 of God.' In some American cases there has been an identity- 
 assumed between an " act of God " and " dangers of the seas," 
 as, for example, in Crosby v. Pitch,^ where the Court says : " The 
 act of God, inevitable accident, dangers of the sea, &c., are 
 expressions of very similar legal import, and excuse a loss, 
 whether they are repeated in a bill of lading or not : 3 Kent's 
 Comm. p. 171 ; Williams v. Grant, i Conn. Rep. 492." This, n ot oo-exteu- 
 however, is not correct. An " act of God " is undoubtedly a -peril ?'™ ^^'^ 
 
 n.i 1, -ii-i .1 -I r ins-ntabla 
 
 01 the seas, but a peril 01 the sea is by no means an act of God. accident or 
 For example, a man rolled a rock into the channel of a river the sels.°* 
 whereon the first vessel that came along struck ; this was held a 
 " danger of the river," though certainly not the " act of God."^ 
 
 The importance of the distinction is seen in this, that where importance of 
 loss occurs through the act* of God it is immaterial whether there "^e "iistinotion 
 be a bill of lading or not, since the shipowner is excused in either 
 event, and by the common law ; but if a loss occur through a 
 peril of the sea the shipowner is liable if he does not shew some 
 special contract of carriage, of which the most usual evidence is a 
 bill of lading. 
 
 Foundering at sea is the most obvious instance of loss by a ponndering. 
 peril of the sea,* and proof of a ship having sailed from a given 
 port, and having never arrived at the announced port of her 
 destination, with the existence of a rumour at the port of 
 departure that she has so foundered, has been held sufficient 
 primd facie evidence of the f act.* 
 
 Shipwreck is also a case of loss by perils of the sea, and so are shipwreck. 
 the losses consequential upon it.° So are stranding,' pirates,' a 
 sunken rock, an iceberg, a swordfish,' wreckers," dangers re- 
 ceived in docking it in the course of the voyage," but not 
 otherwise.'^ 
 
 The definition of Lopes, L.J., has been approved — "a sea Definition by 
 damage occurring at sea, and nobody's fault.'"' of'dan'g^^'or 
 
 The case in which this was said — Hamilton v. Pandorf " — is accident of 
 valuable as settling the often litigated point whether damage done Hamilton ». 
 
 Pandorf. 
 
 1 Ante, p. 572. 49 L. J. Q. B. 458 ; 28 W. E. 789. 
 
 ' 12 Conn. 410. See, too, Fish v. ' Pickering v. Barkley, Style 132; 2 
 
 Chapman, 2 Kelly 349, at p. 356. EolKAbr. 248. Mutinous seizure by pas- 
 
 ' Chonteaux v. Leech, 18 Penn. St. 224. sengers has been held piracy : Palmer v. ' 
 
 See per Cockburn, C. J., Nugent v. Smith, Naylor, 10 Ex. 382. 
 
 I C. P. D. 423. ' Arguendo in Hamilton v. Pandorf, 12 
 
 * Compare Pothier, d'Assurance, No. App. Cas. 518, at p. 522. 
 
 ng, 122. ^'' Bondrett?). Hentigg, Holt 149. 
 
 ' Koster v. Beed, 6 B. & Cr. 19. " Laurie v. Douglas, 15 M. & "W. 746. 
 
 " Dent V. Smith, L. E. 4 Q. B. 414 ; ^^ Phillips v. Barber, 5 B. & A. i6l. 
 
 The Norway, in the Privy Council, Brown '' 16 Q. B. D. at p. 635. 
 
 & L, 404. " In the House of Lords, 12 App. Cas. 
 
 7 Fletcher v. Inglis, 2 B. & Aid. 315. 51S ; 57 L. J. Q. B. 24; 57 L. T. 726 ; 
 
 Compare Magnus v. Buttemer, 11 C. B. 36 W. E. 369. 
 876 ; Letchford v. Oldham, 5 Q. B. D. 538 ; 
 
724 THE LAW OF NEGLIGENCE. [book n. 
 
 by rats on shipboard constituted a peril of the sea. In the earlier 
 cases, like Laveroni v. Drury^ and Kay v. Wheeler,'' it was held 
 that damage done by rats to cargo did not constitute a peril of 
 the sea for which, under a bill of lading, the shipowner was 
 excused. But in Hamilton v. Pandorf rats gnawed a hole in a 
 pipe on board ship whereby sea-water damaged a cargo of rice 
 without neglect or default on the part of the shipowners or their 
 servants. In the House of Lords, reversing the Court of Appeal, 
 this was held to be a danger of the sea for which the shipowner 
 was not liable. The distinction between this and the earlier cases 
 was pointed out to be that in them the damage was done to the 
 cargo by rats in a manner that would be indistinguishable 
 whether in a warehouse or by sea, while in the present case the 
 damage would not have happened but at sea, so as to bring it 
 within the definition of Lopes, L.J. : "In a seaworthy ship 
 damage to goods caused by the action of the sea during transit, 
 not attributable to the fault of anybody, is, in my opinion, a 
 danger or accident of the seas, intended to come within the 
 exception, and exonerating the shipowner." With this must 
 Thames and be noticed the case of Thames and Mersey Marine Insurance 
 Insurance"""^ Company V. Hamilton,' also in the House of Lords, and in which 
 Company i>. j adgment there was delivered on the same day as in the preceding 
 case. A donkey-engine was being used for the purpose of pump- 
 ing water into the main boilers of a steamer, when, through a 
 valve which should have let the water into the boiler being 
 stopped, a part of the pump was burst. On the one side it was 
 contended that this loss was a loss from a peril of the sea, since 
 it was necessary to fill the boiler to enable the ship to prosecute 
 her voyage. On the other side it was contended that the accident 
 had nothing to do with the sea, but might have happened any- 
 where. This latter view was the view adopted by the House of 
 Lords. " Sea perils or the like," said the Lord Chancellor, 
 " become enlarged into perils whose only connection with the 
 sea is that they arise from machinery which gives motive power 
 to ships."* The loss was held not to arise from a peril of the 
 sea, nor yet under the general words " all other perils, losses, 
 and misfortunes that have or shall come to the hurt, detriment, 
 or damage of the aforesaid subject-matter." The canon of con- 
 struction of these words is thus stated by the Lord Chancellor' : 
 " I think the subject-matter — marine risks — limits the meaning 
 
 ^ 8 Ex. l6o. Company «. Home and Colonial Marine 
 
 2 L. E. 2 C. P. 302 ; 22 L. J. Ex. 2. Insurance Company, 6 Q. B. D. 51 ; 50 
 
 ' 12 App. Cas. 484 ; 56 L. J. Q. B. L. J. Q. B. 41 ; 43 L. T. 420 ; 29 W. E. 
 
 626 ; 57 L. T. 695 ; 36 W. E. 337. 92, was overruled. 
 ■• West India and Panama Telegraph ' At p. 491. 
 
PART I.J COMMON CARillEES. -725 
 
 of the general words. I think the genus ' perils of the sea ' limits 
 the meaning.'"' 
 
 There has been considerable controversy whether a loss by Question, 
 collision is a '-peril of the sea" within the exception in a bill of ^y eouision"'" 
 lading that excuses the shipowner. is a peril ot 
 
 The law, as stated by Parsons," is as follows : — " When the 
 cargo is lost or damaged by a collision between the carrier vessel 
 and another, the liability of the carrier depends upon the nature 
 of the collision, and also upon the obligation he has assumed. A 
 collision may be caused by the fault of neither ship, that is, by 
 inevitable accident ; by the fault of the carrier ship ; by the 
 fault of the other shiij ; and by the fault of both. If neither ship 
 is in fault, the collision is clearly a peril of the sea, and under 
 some circumstances may clearly be an act of God. If the carrier 
 ship is in fault, she is clearly liable. If the other vessel is 
 entirely in fault, the loss is not an act of God, but a peril of the 
 sea, and the liability of the carrier depends in such a case upon 
 the obligation he has assumed."' 
 
 Of the cases put, those where there is no negligence, and 
 where there is negligence of the carrying ship, are undisputed. 
 With regard to the third — where there is fault or negligence in Fault or 
 the other vessel — Brett, L.J., in Chartered Mercantile Bank not in™ o^ 
 of India v. Netherlands India Steam Navigation Company,'' took Jyj"!""/^^.'^' 
 a view different from that of Parsons in the passage iust set out, other vessel. 
 
 . Chartered 
 
 and considered that if a collision was caused without any fault on Mercantile 
 the part of the cari-ying ship, but by reason of the negligence on f^^^ °^ 
 the part of those responsible for the other ship, that was not an Netherlands 
 accident of the sea, and consequently the shipowner would not be Navigation 
 protected. The judgment in which this view was stated was a j°"g^^°ni ^f 
 considered and written judgment ; but the point raised was not Brett, L.J. 
 necessary for the decision ; since, in the case in which the opinion 
 was expressed, both ships were in fault ; while, further, there 
 
 ^ The following have been held to he Western Railway Company, L. R. 9 Q. B. 
 
 not losses hy "peril of the seas" : — Injuries 546. As to loss by "improper navigation," 
 
 by worms, Eohl v. Parr, i Esp. 445 ; by where damage was done to cargo by water 
 
 a vessel firing on anoiher by mistake, coming into the hold through a port negli- 
 
 CuUen V. Butler, 5 M. & S. 461 (as tothis, gently left open, though the navigation of 
 
 however, Lord Herschell says, "1 think the ship was not injured thereby, Car- 
 
 this expression of opinion stands alone, michael v. Liverpool Shipowners' Avso- 
 
 and has not been sanctioned by subsequent ciation, 19 Q. B. 1"). 242 ; Canada Shipping 
 
 cases": TheXantho, 12 App. Cas. 503, at Company u. British Shipowners' Mutual 
 
 p. 509) ; by damage from war. The Patria, Protecting Association, 22 Q. B. D. 727. 
 
 L. R. 3 A. & K. 436 ; by damage from want ' i Law of Shipping, p. 259. 
 
 of ventilation arising from the necessity of ' Hayes w. Kennedy, 41 Penn. St. 378 ; 
 
 keeping the hatches closed in bad weather, The Steamboat New Jersey, Olcott Adm. 
 
 The Freedom, L. 1!. 3 P. C. 594 ; by bar- R. 444, 448. 
 
 ratry, The Chesca, L. R. 4 A. & E. As to ^ 10 Q. B. ]). 521, at p. 530; 52 
 
 the exception of" robbers," see Rothschild L. J. Q. 13. 220 ; 48 L. T. 546 ; 31 \V. It, 
 
 ». Royal Mail Company, 7 Ex. 734 ; of 445. 
 " thieves," Taylor v. Liverpool and tireat 
 
726 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Woodley v. 
 Mitchell. 
 Brett, L.J., 
 reiterates the 
 opinion ex- 
 pressed in the 
 former case; 
 
 which is 
 adopted by 
 the rest of 
 the Com-t, 
 and re-affirmed 
 in The 
 Xantho. 
 
 The Xantho 
 reversed in 
 the House of 
 Lords. 
 
 lord 
 
 Hersohell's 
 opinion in 
 the House of 
 Lords. 
 
 was a stipulation that these shipovmers should be exempted from 
 liability for any consequences of neglect or default of the master 
 or crew in the navigation of the vessel. Thus, if there were 
 negligence on the part of the . carrying crew, the point of what 
 would happen in the event of there being no negligence would 
 not arise. Besides this, there was a definite contract that over- 
 rode what would be implied in a case where there was none. 
 The decision on the part of the case we are now considering 
 turned upon the effect of the contract thus madej which was 
 held valid ; and the defendants were exonerated, because they 
 had contracted to be exonerated ia the event that happened, so 
 that the expression of opinion by Brett, L.J., was strictly im- 
 material. In the subsequent case of Woodley v. Mitchell,' how- 
 ever, it became material, and Brett, L.J., there enforced his view, 
 that " although a collision when brought about without any 
 negligence of either vessel is or may be a peril of the sea, a 
 collision brought about by the negligence of .either of the vessels, 
 so that without negligence it could not have happened, is not a 
 peril of the sea within the terms of that exception in a bUl of 
 lading." The rest of the Court ^ concurred, and the Court of 
 Appeal' re-aflSrmed its decision in The Xantho," where Brett, L.J., 
 formulated the rule laid down in Woodley v. Mitchell,* " that if 
 the cause of the loss was the negligence of the crew of either 
 vessel without the winds or waves or any extraordinary diflSculty 
 of navigation contributing to the accident, such a loss, the cause 
 being negligence, did not fall within the exceptions in the bill of 
 lading. Woodley v. Mitchell was distinguished in the Court of 
 Appeal in The Sailing Ship " Garston " Company v. Hickie.' There 
 the words of a charter-party were " dangers and accidents of naviga- 
 tion," which were held to have a wider meaning than "dangers of the 
 sea," and a loss caused by the negligence of the colliding vessel was 
 held to be covered by them. The Xantho was carried to the House 
 of Lords' as an appeal against Woodley v. Mitchell ; and the 
 decision -of the Court of Appeal in both cases was overruled. 
 The ratio decidendi of the House of Lords is thus expressed by 
 Lord Herschell : — " I am unable to concur in the view that a 
 disaster which happens from the fault of somebody can never be 
 an accident or peril of the sea, and I think it would give rise to 
 distinctions resting on no sound basis, if it were to be held that 
 the exception of perils of the seas in a bill of lading was always 
 
 1 II Q. B. D. 47. 
 
 ^ Cotton, L.J., and Bowen, L.J. 
 
 ' Fry, L.J. , was sitting in place of Cot- 
 ton, L.J. 
 
 * II P. D. 176; SS L. J. P. 6s; 55 
 L.T. 203; 3SW. E. 23. 
 
 5 II Q. B. D. 47. 
 
 « 18 Q. B. D. 17 ; 56 L. J. Q. B. 38 ; 
 35 W. E. 33. 
 
 ' 12 App. Cas. 503 ; 56 L. J. P. 116 ; 
 imder the name of- "Wilson, Sons, & Co. v. 
 Owners of Cargo per the Xantho 
 
PARTI.] COMMON CAEKIERS. 727 
 
 excluded when the inroad of the sea which occasioned the loss 
 was induced by some intervention of human agency." By this statement of 
 decision the English law has been brought again into conformity settied'by 
 with the American law, as laid down by Parsons, and sanctioned *8 decision 
 by decisions ; and the law may now be stated to be, that if a Xaatho. 
 collision is in no way the default of defendants, they are entitled 
 to judgment whether there be fault in third parties, or there be 
 no fault anywhere. The rule seems to work out as follows : — 
 In an action by cargo-owners, the plaintijBfs would have to prove 
 the non-delivery of goods at the end of the voyage. The defend- 
 ants would then be put to shew that they were prevented from 
 delivering the goods by some exception in the bill of lading. 
 They would shew, for example, that the loss was from a collision. 
 This, however, would not^be enough, since loss by collision would 
 be perfectly consistent with a loss by their negligence, from 
 which, as the onus would be on them, they would have to clear 
 themselves. As soon, however, as they shew that the collision 
 was without negligence on the part of their vessel, a conclusive 
 defence is proved ; since it is immaterial whether there was 
 no negligence or negligence by a third person over whom they 
 had no control ; as in either event they have brought themselves 
 within an excepted peril of the sea.' 
 
 But an important possible limitation was stated in Chartered limitation in 
 Mercantile Bank of India v. Netherlands India Steam Navigation Meroantiis 
 Company." This case has already been noticed with regard to 5^^°^ °^ 
 one portion of the decision ; but its special feature — viz., that Hetheriands 
 both the vessels colliding were the property of the defendants — has Navigation 
 not yet been noticed. The action was by the owners of cargo. As Company, 
 we have seen, they were held disentitled to recover on the con- 
 tract of carriage, as a term of the bill of lading under which the 
 goods were carried excepted the negligence of master or crew ; 
 and the jury found that the loss was partly due to such negligence. 
 But they also sued the defendants in tort, as the owners of the 
 other ship, for the negligence of , their servants, the master and 
 crew of that vessel, whereby the collision was mainly occasioned. 
 In the Queen's Bench Division the question of the shipowner's 
 liability by reason of the ownership of the other ship, not the 
 one in which the goods were carried, was not decided ; and there 
 the decision was given in favour of the plaintifEs, because the 
 defendants had not shewn that the loss was occasioned wholly by 
 the neglect or default of their servants on the carrying ship. 
 But this was held erroneous in the Court of Appeal, as we have 
 
 ^ See per Lord Bramwell, 12 App. Caa. ^ lo Q. B. D. 521; 52 L. J. Q. P. 
 
 at p. 513. 220 ; 48 L. T. 546.; 31 W. R. 445. 
 
^28 THEl LAW OE' NEGLIGENCE. [book li. 
 
 seen, and it then became necessary to consider the other point. 
 The fact that both ships were the property of the same owner was 
 decided not to affect the ordinary rule of law that a shipowner is 
 liable for the negligence of the master and crew of his ship^ (the 
 provisions in the bill of lading had reference only to the carrying 
 ship, and not generally to all ships and crews of the defendants), 
 and the law applicable to cases of collision on the high seas is the 
 maritime law administered in England, and not the law of the 
 flags.^ Thus, whether the collision were within the realm or with- 
 out the realm on the high seas, the defendants were equally 
 liable. But the bill of lading of the carrying ship provided that 
 the defendants were not to be liable for negligence of the master 
 or crew of that ship, which was held to be a valid stipulation. 
 Therefore they were relieved from that portion of the loss attri- 
 butable to the carrying vessel, by virtue of the exception. But 
 by the rule of the Admiralty Court,' where both ships are in fault, 
 each ship becomes liable for half of the joint loss ; in the present 
 case, then, for the half that was referable to the negligence of the 
 carrying ship the owners were excused by virtue of the exception in 
 the bill of lading. There remained, then, the half attributed to the 
 other ship ; for which judgment was given for the plaintiffs. Thus, 
 to the rule that where there is no negligence by the carrying ship 
 in the event of a collision, when the ship is sailing with a bill of 
 lading excepting perils of the sea, there is a limitation that when 
 both ships, the carrying ship and the colliding ship, are the pro- 
 perty of the same owners, the owners are liable for the colliding 
 ship, irrespectively of the question of negligence or no negligence 
 on the part of the carrying ship. If there be no negligence on 
 the part of the carrying ship, then the common owners would be 
 liable to the owner of the cargo to the full extent, by virtue of 
 their ownership of the negligent ship ; but where both ships are 
 negligent, the owner's liability by virtue of the Admiralty rule is 
 limited to one-half, if there is an exception in the bill of lading 
 of the negligence of the master and crew of the carrying ship. 
 Since the case of The Bernina in the House of Lords,* the cargo 
 owner could recover at common law the whole loss that he may 
 have sustained from either the ship in which his cargo was carried, 
 or the ship that collided against it. But the effect of the pro- 
 vision of the Judicature Act just cited is, that the rule of 
 Admiralty is to govern, and by that the innocent owner of cargo 
 proceeding against one only of two delinquent ships shall recover 
 
 1 The Milan, I Lush. 388 ; 31 L. J. Private International Law, pp. 398-403. 
 
 Adm. lOS ; The Leon, 6 P. D. 148. s ^ee Supreme Court of Judicature 
 
 = Tlie Jnhann Friedrich, i Wm. Rob. Act, 1873, s. 25, Bub-s. 9. 
 
 35 ; The Leon, 6 P. D. 148 j Foote, * Mills v. ArmBtrong, 10 App. Cas. 1. 
 
fARTi.] COMMON CAEHIERS. 729 
 
 only half the damage, and will be left with i-espect to the other 
 half to the remedy against the other delinquent vessel. This has 
 consistently been the Admiralty rule, even during the period that 
 Thorogood v. Bryan^ was followed in the common law courts, as 
 Dr. Lushington refused to be bound by it, " because it is a single 
 case ; because I know, upon inquiry, that it has been doubted by 
 high authority ; because it appears to me not reconcilable with 
 other principles laid down at common law ; and, lastly, because it 
 is directly against Hay v. Le Neve, and the ordinary practice of 
 the Court of Admiralty."' 
 
 Another exception incorporated into special contracts relating Loss by fire. 
 to the conveyance of goods by sea is against liability for loss by 
 fire. A fire caused by lightning would, of course, bring no 
 liability, since it would be referable to the act of God. In in- 
 surance cases it was for a long time contested whether a fire 
 occasioned by the negligence of the master or crew discharged 
 the insurers. The liability has now been decided to attach both 
 here and in America, though the decisions are not uniform.^ 
 But, in a bill of lading or a charter-party, this exception will 
 only protect where the damage is not attributable to negligence 
 for which the shipowner is responsible, though, if the case set up 
 is that there has been such negligence, the burthen of proof will 
 be on the shipper."* 
 
 Notice may here be taken of a distinction which has often Distinction 
 been urged as the basis of argument between the interpretation i^'^teJ!pr",atiou 
 of the exceptions in a policv of insurance and in a bill of lading, of tUo excup- 
 
 tions in a 
 
 The former is an absolute contract to indemnify for loss by peril poUcy of 
 of the sea ; the latter is to carry with reasonable care, unless pre- ^"^^ju^abiii 
 vented by excepted perils. In an action on the former, then, °^ iiiiiing. 
 "it is only necessary to see whether the loss comes within the 
 terms of the contract, and is caused by perils of the sea ; " but in 
 an action on the latter, " if the goods are not carried with reason- 
 able care, and are consequently lost by perils of the sea, it 
 becomes necessary to reconcile the two parts of the instrument, 
 and this is done by holding that, if the loss through perils of the 
 sea is caused by the previous default of the shipowner, he is liable 
 for this breach of his covenant.'" In Woodley v. MichelP the 
 Court of Appeal acted on the view that, where perils of the sea 
 
 ' 8 C. B. 129. * Czech v. General Steam Navigation 
 
 2 The Milan, Lush. 388 ; Hay v. Le Company, L. R. 3 C. P. 14 ; 37 L. J. C. P. 
 
 Neve, 2 Shaw's Scotch App. 405. 3 ; 17 L. T. N. S. 246 ; 16 AV. R. 130. 
 
 ' Busk V. Royal Exchange Assurance ^ PerWilles, J., Grill v. General Iron 
 
 Company, 2 B. & Aid. 73 ; per Parke, B., Screw Collier Company, L. R. i C. P. 
 
 Dixon V. Sadler, 5 M. & W. 414 ; per 600, at p. 611 ; 35 L. J. C. P. 321 ; 14 
 
 Tindal, C.J., S.C. 8 M. & W. 898. The W. R. 893. 
 
 American cases are fonnd in 3 Kent Comm. " 1 1 Q. B. D. 47. 
 
 I2th edit, pp. 303 and 304. 
 
730 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Opinion 
 of Lord 
 Herschell in 
 The Xautho. 
 
 Arrests or 
 t* restraints of 
 princes, &c. 
 
 Exception 
 only exempts 
 the shipowner 
 from the 
 liability of a 
 common 
 carrier, and 
 not from want 
 of diligence. 
 
 occurred in a bill of lading the Court were to go behind the cavsa 
 proxima- and look at what was the real or efficient cause, and 
 wei'e consequently of opinion that, negligence being involved, the 
 plaintiffs were entitled to recover, but, in The Xantho, , Lord 
 Herschell states his view as follows': — " If that which immediately 
 caused the loss was a peril of the seas, it matters not how it was 
 induced [that is, in the case of a marine policy], even if it were 
 by the negligence of those navigating the vessel. It is equally 
 clear that in the case of a bill of lading you may sometimes look 
 behind the immediate cause, and the shipowner is not protected 
 by the exception of perils of the sea in every case in which he 
 would be entitled to recover on his policy on the ground that 
 there has been a loss by such perils. But I do not think that 
 this difference arises from the words ' perils of the sea ' having a 
 different meaning in the two instruments, but from the context or 
 general scope and purpose of the contract of carriage, excluding 
 in certain cases the operation of the exception. It would, in my 
 opinion, be very objectionable unless well-settled authority com- 
 pelled it to give a different meaning to the same words occurring 
 in two maritime instruments." 
 
 Arrests or restraints of princes, rulers, and peoples are terms 
 of limitation often added. 
 
 This class of exceptions has reference to embargoes' or block- 
 ades,^ or to the decrees of prize courts,^ or other processes resulting 
 in the detention of the cargo, as, for instance, the German invest- 
 ment of Paris.^ But it does not include ordinary civil process," 
 nor the act of tumultuous mobs, since "peoples" means "the 
 governing power of the country."^ 
 
 It is now thoroughly settled that the exception in a bill of 
 lading only exempts the shipowner from the liability of a common 
 carrier, bat not from the want of reasonable skill, diligence, and 
 care. " This," says Willes, J.,' " is settled, so far as the repairs 
 
 1 12 App. Cas. 510 ; 56 L. J. P. 116. 
 
 ' Eotoh V. Edie, 6 T. R. 413 ; Aubert 
 V. Gray, 3 B. & S. 163. 
 
 ' Geipel v. Smith, L. R. 7 Q. B. 404 ; 
 41 L. J. Q. B. 153 ; 26 L. T. S. S. 361 ; 
 20 W. E. 332. 
 
 * Stringer v. English and Scottish 
 Marine Insurance Company, L. R. 5 Q. B. 
 599 ; 39 L. J. Q. B. 214 ; 22 L. T. N. S. 
 802; 18 W. R. 1201. 
 
 5 Eodoconachi v. Elliot, L. R. 9 0. P 
 518 ; 43 L. J. C. P. 25s ; 31 h. T. N. S. 
 
 239- 
 
 8 Findlay v. Liverpool and Great West- 
 ern Company, 23 L. T. N. S. 251. 
 
 ' Nesbitt ». Lushington, 4 T. R. 783. 
 See, however, Johnston v. Hogg, 10 
 Q. B. D. 432 ; 52 L. J. Q. B. 343 ; 48 
 
 L. T. 435 ; 31 W. R. 768. But the 
 restraints must be. actual, not merely 
 anticipated, though the anticipatiun is 
 reasonable : Atkinson «. Ritchie, 10 East 
 530. In Tlie Teutonia, the master was 
 informed by the pilot, though incoiTectly, 
 that war had been actually declared two 
 days before ; it was held that he was 
 entitled to pause and take a reasonahU 
 time to make lurtber inquiries : L. E. 4 
 P. C. 171, at p. 179. In Atkinson w. 
 Rilchie, 10 East 536, the master on a 
 general inquiry sailed away without cargo. 
 The exception does not apply to vessels 
 arrested on civilprocess : W. N. 1887, 161. 
 8 Notara v. Henderson, L. E. 7 Q. B. 
 225, at p. 236. 
 
PARTI.] COMMON CAREIERS. 
 
 7S1 
 
 of the ship are concerned, by the judgment of Lord Wensleydale 
 in Worms v. Storey;' as to her navigation, by a series of authori- 
 ties collected in Grill v. General Iron Screw Collier Company;^ 
 and as to her management, as far as affects the case of the cargo 
 itself, in Laurie v. Douglas,^ where the Court (in a judgment un- 
 fortunately not reported at large) upheld a ruling of Pollock, C.B., 
 that the shipowner was only bound to take the same care of the 
 goods as a person would of his own goods — viz., ' ordinary and 
 reasonable care.' These authorities and the reasoning upon which 
 they are founded are conclusive to shew that the exemption is 
 from liability for loss which could not have been avoided by 
 reasonable care, skUl, and diligenqe, and that it is inapplicable to 
 the case of a loss arising from the want of such care, and the 
 sacrifice of the cargo by reason thereof." 
 
 We have already seen that a condition that the shipowner shalL condition that 
 not be liable for negligence of the master-mariners and other ser- ^^t liTbie'for 
 vants of the shipowner when clearly introduced into a contract is negligence 
 valid,'' but the tendency of the Courts is to construe an exception 
 of this character strongly against the shipowner.' So that to 
 exempt the shipowner from his liability for a breach of his war- 
 ranty of seaworthiness the most clear knd unambiguous words are 
 necessary." , 
 
 The law we have been considering may be thus summarized : Law sum- 
 — If goods are lost or damaged while being carried by sea with "^"^"^ • 
 the common law liability of a common carrier, the common carrier 
 is liable in any event, unless, that is, he brings himself within the 
 common law exceptions of the act of God, &c. If the contract of 
 carriage is regulated by a bill of lading, the shipowner by proving 
 that the loss is within one of the excepted perils will be discharged, 
 but not absolutely, since it is within the rights of the plaintifi' to 
 prove that the shipowner was negligent. Thus, the attribution 
 of loss to an excepted peril will only exonerate from liability where 
 
 ' II Ex. at p. 430. contained express stipulations exempting 
 
 ' L. R. I C. P. 600 ; L. K. 3 C. P. the company from liability caused by the 
 
 476. negligence of the master and crew. The 
 
 ' 15 M. & W. 746. cattle were shipped at Boston, and bills of 
 
 * Ante, p. 710 ; Steel v. State Line lading were given there in conformity 
 
 Steam Sliip Company, 3 App. Cas. 72, at with the charter-par y. The Court of 
 
 p. 88. In America, however, a stipulation Appeal, affirming Chitty, J. {58 L. T. 
 
 to this effect has been held invalid as 377), held that the conti act was governed 
 
 contrary to public policy. In Missouri by English law. 
 
 Steamship Company, Limited, Monroe's " Lyon u. Mells, 5 East 428; Hayn u. 
 
 claim, 5 Times L. R. 438, tho effect of Culliford, 3 C. P. D. 410, 4 0. P. D. 411. 
 
 this was discussed in the English Court of Exemption from negligence of " captain, 
 
 Appeal in a claim made by an American officers, and crew " does not extend to tho 
 
 citizen, in the winding up ot a British default of a stevedore. 
 
 steamship company, for damages for the ' The Dijero, L. R. 2 A. & E. 393 ; 
 
 loss of his cattle arising through the negli- Heyde v. Swan, 6 N. S. Wales E. C. L. 
 
 gence of the master and crew. The ship 33. 
 
 was a British ship, and the charter-party 
 
732 THE LAW OF NEGLIGENCE. [book ii. 
 
 there has been no negligence, or, if there has been negligence, then 
 there must be a clear exception to that effect to excuse, while in 
 cases outside the exceptions the shipowner is liable independently 
 of negligence.^ 
 
 The general rule of law prevails in this branch of law also — it 
 is for the judge to say whether any facts hare been established by 
 evidence from which negligence may be reasonably inferred, but 
 it is for the jury to say whether from these facts negligence 
 ought to be inferred." 
 Delivery. As to delivery, the rules of delivery after sea carriage are 
 
 mainly identical with those relating to delivery after land car- 
 riage, so that there is little here to be added. Delivery must 
 be according to the practice and custom usually observed iu 
 any port or place of delivery.^ The master, must allow a 
 reasonable time for the consignee to receive goods, and is not 
 justified in putting them on the quay as soon as he arrives, and 
 the duty to make proper provision for the discharge of cargo 
 is on the consignee,* but he is bound to give up the goods to the 
 holder of the bill of lading if he presents it (for it is in the 
 nature of a title deed *) at a reasonable time ; " and is justified in 
 delivering the goods to the first person who presents a bill of 
 lading (though three have been signed) if it is produced to him 
 in good faith, and he is not to embarrass himself by considering 
 what has become of the others.' But if he has any such notice 
 or knowledge he must interplead, or deliver to the one who he 
 thinks has the better right, at his peril if he is wrong.' 
 
 If the consignee or the holder of the bill of lading does not 
 
 ' Davis V. Garrett, 6 Bing. 716 ; Scara- I will only add that the law so laid down 
 
 manga 7;. Stamp, 5 C. P. D. 295. In The by our Courts is consistent with the views 
 
 Norway, 3 Moo. P. C. C. N. S. 245, at p. of modern jurists, and will be found in 
 
 263, it was assumed that, had the pilot many of the maritime codes of Europe " 
 
 been negligent, the owner would he liable ; (at p. 19). 
 
 but the decision was, that the facts did ^ Metropolitan Eailway Company v. 
 
 not indisputably point to that conclusion. Jackson, 3 App. Cas. 193, at p. 197. 
 
 It is, says Lord Watson, "a settled and ^ See as to conditions, &c., ante, p. 585. 
 
 salutaiy principle of inercantile law that " Per Tindal, C. J., (Jatlifie v Bourne, 
 
 the mere employment of a broker at a 4 Bing. N. C. 329. 
 
 ibreigu port to find a cargo for a ship, ^ Postlethwaite v. Freeland, 5 App. Cas. 
 
 and to adjust the terms upon which it 599 ; Bourne v. Gatliffe, 11 CI. & F. 45 ; 
 
 is to be carried, does not give him im- Ford v. Cotesworth, L. E. 4 Q. B. 127, 
 
 plied power to relieve the master, who L. E. 5 Q. B. 544 ; 39 L. J. Q. B. 188 ; 
 
 Hgns bills of lading, of his legal duty to Cunningham v. Dunn, 3 C. P. D. 443 ; 
 
 the shipowner": Stumore, Weston, & Co. 48 L. il. C. P. 62; Fowler v. Knoop, 4 
 
 V. Breen, 12 App. Cas. 698, at p. 704. As Q. B. D. 299 ; 48 L. J. Q. B. 333. 
 
 to the duties of masters in signing bills of ^ Erichsen v. Barkworth, 3 H. & N. 
 
 lading, see Cox v. Bruce, 18 Q. B. D. 147. 601. 
 
 Czech V. General Steam Navigation Com- ^ Per Earl Caii-ns, Glyn, Mills, & Co. 
 
 paiiy, L. E. 3 C. P. 14, per Willes, J. : r- East and West India Docks, 7 App. 
 
 " The liability of the defendants for their Cas. 591, at p. 598 ; Barbera. Meyeistein, 
 
 •siegligence, notwithstanding the general L. E. 4 H. of L. 317, per Lord Weetbury, 
 
 .wuidsof the exception in the bill of lading, at p. 336. 
 
 has been fully gone into in many cases ^Fer Lord Blackburn, L. R, 7 App. 
 
 which have been referred to by my lord, and Cas. at p. 613. 
 
PARTI.] COMMON CARRIERS. 733 
 
 claim delivery within a reasonable time, the master may land and Master may 
 warehouse the goods in a statutable warehouse' at the expense of ^g"*® q"^!" 
 the owner.* And if through the delay or default of the con- ™ certain 
 signee there is loss, the consignee is liable for the same ; ' and "''" '°^^° 
 where goods could neither be landed nor remain where they 
 were, it seems to be a legitimate extension of the implied agency 
 of the master to hold that, in the absence of all advices, he has 
 authority to carry or send them on to such other place as, in his 
 judgment, prudently exercised, appears to be most convenient for 
 their owner, and to charge the expenses properly incurred in 
 doing so on him.* 
 
 2 . Carriers of Passengers hy Sea. 
 
 " Passengers," said M'CuUoch,' " are individuals conveyed for Defluition. 
 hire from one place to another on board ship." This definition 
 is, however, varied by some of the Acts of Parliament passed to 
 regulate emigration, which Acts need here be only generally 
 referred to." 
 
 The position of the master of a ship involving such arduous Authority of 
 responsibilities, the authority he is empowered to exercise over ™^^ ^^' 
 passengers in his ship is of an altogether exceptional kind ; and 
 the duty of confbrmity to his directions is most especially in- 
 cumbent upon them.' , He has absolute control in all that is 
 necessary for the safe and proper conduct of the ship,' and may 
 use force if the safety of the ship or those on board would justify 
 it." As to his responsibility, Story, J., in Chamberlain v. Chandler,'" story, J., in 
 is reported : "I do not say that every slight aberration from ». ohaudier. 
 propriety or duty, or that every act of unkindness or passionate 
 folly, is to be visited with punishment ; but if the whole course 
 of conduct be oppressive and malicious, if habitual immodesty is 
 accompanied by habitual cruelty, it would be a reproach to the 
 law if it could not award some recompense." Thus, if a master 
 
 1 See tlie Mercliant Shipping Act, Conipanv, L. E. i C. P. 6l ; The Energie, 
 
 1862 (25 & 26 Vict. u. 63), S8. 67, 68 ; L. R. 6 P. C. 306. 
 
 ■where there is no such warehouse, see ° Dictionary of Commerce, sub nom. 
 
 Mors le Blanch v. Wilson, L. E. 8 C. P. * 18 & 19 Vict. c. 119, s. 3 ; a6 & 27 
 
 227 ; 42 L. J. C. P. 70; 28 L. T. N. S. Vict. c. 51, bp. 3 and 4 ; 35 & 36 Vict. c. 
 
 415. 73 ; 36 & 37 Vict. c. 85 ; 38 & 39 Vict. 
 
 ^ Howard v. Shepherd, 9 C. B. at p. c. 51 ; 39 & 40 Vict. c. 80. 
 
 321 ; Erichsen v. Barkworth, 3 H. & N. ' Dana, Seaman's Manual, chap. iii. 
 
 601. ' King w. Franklin, i P. & P. 360 ; 
 
 '■' Shirwell D.Shaplock, 2 Chitt. 397. Noden v. Johnson, 16 Q. B. 218 ; 20 L. J. 
 
 4 Carpo ex Argos, L. E. 5 P. C. 134, Q. B. 95. 
 
 at p. 165 ; 28 L. T. N. S. 74S ; 21 W. E. » Aldworth v. Stewart, 14 L. T. N. S. 
 
 707. As to whei-e goods had been par- 862; 4 P. & P. 957; Boyce >. Bayliffe, i 
 
 tiftUy landed under a bill of lading and Campb. 59, citing Molloy, book ii. chap, 
 
 the consignee claimed delivery to him of iii. ; 4 Black. Comm. 36 ; 4 Inst. 134. 
 
 other goods not landed, but was refused, ^o 3 Mason 242, at p. 274. 
 see Wilson v. London, &o.. Navigation 
 
734: 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Duty of 
 
 passengers. 
 
 Duty of 
 ehipowner. 
 
 Luggage of 
 
 passengers. 
 
 were sued for not furnishing good and fresh provisions, to prove 
 some trifling inconvenience would not be enough ; it would be 
 necessary to shew a real grievance.' But if the master, without 
 adequate justification, causes the passenger to be disembarked, 
 and uses contemptuous and insulting language to him, an action 
 would be maintainable.^ 
 
 The passengers, on their part, must render assistance if it 
 becomes necessary, and they are called upon in cases of peril, 
 whether from the sea or from enemies,' and they are not entitled 
 to claim salvage for services rendered unless their services are 
 exceptional, as navigating the ship after the master and crew, or 
 some of them, have left her in peril,* or by rescuing the ship 
 after capture by an enemy.^ 
 
 Where there is an express contract ° the rights of the pas- 
 senger will of course be determined by it. But whether express 
 or not, it is to be construed with reference to usage.' 
 
 There is a duty on the shipowner to provide reasonable accom- 
 modation for his passengers, and a shipowner has been held 
 liable where an accident happened to a passenger through want 
 of means to descend from a berth.' 
 
 The law with regard to the luggage of passengers by sea does 
 not appear to differ from that we have already considered as to 
 the luggage of passengers by land.' In America it has been 
 decided that though steamboat proprietors who are common 
 carriers of passengers for hire are liable for the baggage of pas- 
 sengers, they are only liable for such things as are usually carried 
 by travellers for necessity or personal convenience." This decision, 
 which was arrived at on the ground " that a reasonable amount of 
 baggage by common usage was deemed to be included in the fare 
 of the passenger," is identical with what has been decided under 
 the provisions about luggage in the English railway Acts." 
 
 1 Young V. Fewson, 8 C. & P. 53 ; 
 Prendcrgast v. Compton, 8 C. & P. 454 ; 
 Jencks v. Coleman, 2 Sumn. 221. 
 
 ^ Coppin V. Braithwaite, 8 Jur. 875. 
 
 ' Boyoe v. Bayliffe, i Campb. 59 ; 
 Newman v. Walters, 3 B. & P. 615. 
 
 ■• The Vrede, Lush. 322. 
 
 ■> The Two Friends, i Bob. 271. 
 
 " Such a contract is a personal contract, 
 and not cognizable in Admiralty : Brackett 
 w. Brig Hercules, Gilpin 184; Adderley 
 V. Cookson, 2 Campb. 15 ; Giilan v. Simp- 
 kin, 4 Campb. 241 ; Leeman v. Gordon, 8 
 C. &P. 392; "i:ates V. Duff, 5 C. & P. 
 569 ; Siordet v. Brodie, 3 Campb. 253. 
 
 ' Hutton V. WaiTen, i M. & W. 374. 
 
 * Andrews v. Little, 3 Times L. R. 
 
 S44. 
 
 ' Wilton V. Atlantic Mail Steam Navi- 
 gation Company, 10 C. B. N. S. 453 ; 
 
 Taubman v. Pacific Steam Navigation 
 Company, 26 L. T. N. S. 704, which would 
 very probably not be followed in an English 
 Court (Le Blanche v. London and North- 
 western Eailway Company, i C. P. D. 
 286), and certainly not in an American 
 (Lockwoodi). Railroad Company, 17 Wall. 
 357)1 is noteworthy for an expression of 
 opinion by Bramwell, B., that the Railway 
 and Canal Traffic Act " has been already 
 [1872] the cause of more dishonest trans- 
 actions than any Act of Parliament.'' 
 
 ^^ Pardu V. Drew, 25 Wend. 459. Com- 
 pare Hawkins v. Hoffman, 6 Hill 586, at 
 p. 589 ; Dibble v. Brown, 12 Ga. 217, per 
 Nisbett, J. 
 
 " Macrow v. Great Western Railway 
 Company, L. R. 6 Q. B. 612; 40 L. J. 
 Q. B. 300 ; 24 L. T. N. S. 618 ; 19 W. E. 
 873- 
 
PARTI.] COMMON CAERIERS. 735 
 
 Th.e master of the ship has a lien on the luggage of the Master has lien 
 passenger for his passage-money, but not for the clothes he is of pas^senforf^ 
 wearing when about to leave the ship.' 
 
 The most important regulations with regard to emigrants are Emigrants. 
 statutory, and reference must be accordingly made to the various 
 statutes to ascertain their rights and liabilities. But by sec- 
 tion 58 of 26& 27 Vict. c. 5 I, nothing in that Act shall take 
 away or abridge any right of action which may accrue to any 
 passenger in any ship or to any other person in respect of the 
 breach or non-performance of any contract made or entered into 
 between or on behalf of any such passenger or other person and 
 the master, charterer, or owner of any such ship, or his or their 
 agent, or any passenger broker. 
 
 ' Woolf «. Summers, 2 Canipb. 631. 
 
CHAPTER III. 
 
 TELEGKAPHS AND TELEPHONES. 
 
 Exceptions 
 from the 
 Postmaster- 
 General's 
 privileges. 
 
 The duties of telegraph and teleplione companies may con- 
 veniently he treated here in close connection with the duty of 
 carriers, though the relations arisina; out of them are not to be 
 considered as a portion of the law of bailments, 
 statutory law. The law in England relating to telegraphs is regulated by the 
 Telegraph Act, 1868,' consolidated with the Telegraph Act, 
 1869.^ By virtue of these Acts the Postmaster-General has the 
 exclusive privilege of sending telegrams within the United King- 
 dom of Great Britain and Ireland, with the exception of — 
 
 1. Telegrams transmitted by a telegraph maintained or used 
 solely for private use for the business of the owner. 
 
 2. Telegrams transmitted by a telegraph maintained for pri- 
 vate use, and in respect of which no money or valuable considera- 
 tion passes ; that is, apparently, telegrams relating to the owner's 
 friends sent gratuitously. 
 
 3. Telegrams licensed by the Postmaster-General. 
 
 4. Telegrams transmitted to or from any place out of the 
 United Kingdom of Great Britain' and Ireland. 
 
 Attorney-General v. Edison's Telephone Company' decided that 
 a telephone is a telegraph within the meaning of these Acts, 
 and in the judgment in that case Professor Stokes is quoted as 
 saying : " If a single word is to be used to include both a telephone 
 and a telegraph, it must, in my opinion, be wide enough to cover 
 every instrument which may ever be invented which employs 
 electricity transmitted by a wire as a means for conveying infor- 
 mation," 
 
 An effect of the Telegraph Acts vesting telegraphs in the 
 Postmaster-General is that no Hability for negligence exists except 
 against the person actually in default.'' 
 
 Effect of tlie 
 Telegraph 
 Acts with 
 regard to 
 liability for 
 negligence. 
 
 ^ 31 & 32 Vict. c. 110. 
 
 2 32 & 33 Vict. 0. 73. 
 
 ' Section 5 of 32 & 33 Vict. t. 73. 
 
 * 6 Q. B. D. 244. 
 ^ See p. 270. 
 
PAETI.J TELEGRAPHS AND TELEPHONES. 737 
 
 The exceptions from the provisions of the Act, especially that 
 which allows the Postmaster-G-eneral to license the transmission 
 of messages, a privilege that, in the case of telephones, has been 
 most generally exercised, and that which excludes telegrams 
 iiransmitted to or from any place out of the United Kingdom, 
 require that the liabilities of telegraph companies, as they exist 
 apart from the Act, should be treated of. 
 
 The law in England and in America on the subject of tele- Divergence of 
 graphs has very widely diverged. In England it has been clearly and AmeJ-kan 
 established that the liability of telegraph companies arises entirely ^"^• 
 out of the contract between the company and the sender^^ while 
 in America it has been equally clearly decided that the liability 
 of a telegraph company depends on some principle much wider 
 than the contract entered ip.to with the sender.^ As to what that 
 principle is there is considerable indistinctness. " Since," says 
 one learned writer,' " a telegraphic company, wielding a power 
 for good or evil only transcended by railway corporations, is 
 eminently within the scope of the rule sic utere hw ut non alienum 
 Icedas," therefore a telegraph company should be liable apart 
 from contract. But the maxim vouched is, after all, not of 
 universal application, and there seems a very maf&ed difference 
 between those acts in the management of my property which, 
 when done by me, work harm to my neighbour (and even these 
 are not universally actionable, as, for instance, interfering with his 
 prospect), and those acts which, as done by me, are innocuous, 
 but which may become injurious if my neighbour pleases to make 
 them so. 
 
 Again, they are said to be liable as common carriers. " We 
 entertain no doubt," say the authors of a weighty recent American 
 treatise on the subject,'' " that they [telegraph companies] are 
 common carriers of messages, subject to all the rules which, in their 
 nature and by fair analogy, are applicable to all cases of common 
 carriers." But they premise this with the statement, " of course 
 they are not subject to the stringent liability of goods carriers as 
 insurers." Their position would accordingly seem more readily 
 referable to a wider principle, which extended through all the more 
 
 ^ Dickson v. Eeuter's Telegraph Com- ' Wharton, Law of Negligence, § 758. 
 
 pany, 3 C. P. D. i ; 47 L. J. C. P. i ; 37 ' Messrs. Shearman and EedBeld, Law 
 
 L. T. 370 ; 26 W. K. 23, afSnning 2 of Negligence, 4th edit. 8 535. This view 
 
 C. P. D. 62 ; Playford v. United Kingdom is powerfully refuted by Hunt, J., in 
 
 Electric Telegraph Company, L. K. 4 Leonard v. New York Telegraph Company, 
 
 Q. B. 706 ; 38 L. J. Q. B.-249 ; 21 L. T. 41 N. Y. 544, 571. See Breese v. United 
 
 N. S. 21 ; 17 W. E. 968. States Telegraph Company, 45 Barb. 274, 
 
 ^ Shearman and Eedfield, Law of Negli- at p. 292 ; also Western Telegraph Com- 
 gence, 4th edit. §§ 528 ei se?. Wharton, pany w. Carew, 15 Mich. 525, at p. 532; 
 Law of Negligence, §§ 750 et sea. ; Eed Grinnell v. Western Union Telegraph Corn- 
 field, Law of Carriers, &c., Part iV. Tele- pany, 113 Mass. 303. 
 graph Companies, p. 397. 
 
 3^ 
 
738 THE LAW OF NEGLIGENCE. [book n. 
 
 common and useful employments, which is thus stated by Holt, 
 O.J.' : '' If a man takes upon him a public employment, he is 
 bound to serve the public as far as the employment extends, 
 and for refusal an action lies, as against a farrier refusing to shoe 
 a horse, against an innkeeper refusing a guest when he has 
 room, against a carrier refusing to carry goods when he has 
 convenience, his waggon not being full .... so an action will 
 lie against a sheriff for refusing to execute process ; " and is not 
 to be set down to their inclusion in the class of common car- 
 riers, with an exemption (apparently quite arbitrary) from some 
 of the most onerous incidents of the position. The objection of 
 the Queen's Bench to considering telegraph companies as common 
 carriers, that there is no analogy between a consignment of goods 
 through a carrier and the transmission of a telegram, also seems 
 of weight, apart from authority. " We cannot see," say the 
 Court, " how the person to whom a telegraph message is sent can 
 be said to have a property in the message any more than he could 
 have if it had been sent orally by the servant of the sender."^ 
 
 Once more, they are said to be bailees, and the receipt of mes- 
 sages is a bailment f but a bailment implies the delivery of pro- 
 perty, and that which the company receives is never delivered. 
 They are also said to make themselves the agents of both the sender 
 and the receiver of messages by a profession " to transmit for hire 
 messages for individuals, and to deliver faithfully to others such 
 messages as are entrusted to them."* But this view is refuted in 
 Bigelow's Oases on Torts.* The learned author of that work favours 
 two other hypotheses for fixing the position of telegraph companies : 
 Dr. Bigelow's " Their liability for negligent mistakes (and perhaps delays) arises 
 suggestions, g^^jjgj. q^ ^]^q ground of a misrepresentation of agency or on the 
 broad principle that a person must so conduct his business as not 
 to injure others." But, as to the first of these, in England at 
 least, it is clear that no action is maintainable for a mere state- 
 ment, although untrue, and although acted on to the damage of 
 the person to whom it is made, unless that statement is false to 
 the knowledge of the person making it.° As to the second, in the 
 unlimited way in which it is expressed, there is no such principle ;' 
 
 ^ Lane v. Cotton, i Ld. Eaym. 646, * La Grange v. Sontli-Westem Tele- 
 
 654. If this be BO, a considerable amount graph Company, 25 La. An. 363; New 
 
 of rhetoric in Shearman and Eedfield, Law York, &o., Telegraph Company v. Dry- 
 
 of Negligence, § 535, becomes purely orna- burgh, 35 Penn. St. 298. 
 
 mental. _ ^ At pp. 623 et seq. 
 
 ^ Playford v. United Kingdom Tele- " Pasley v. Freeman, 2 Sm. Lead. Cas. 
 
 graphic Company, L. E. 4 Q. B. 714. gth edit. p. 74. 
 
 See, too, per Bigelow, C.J., in Ellis v. ' At least by the law of England, Alton 
 
 American Telegraph Company, 95 Mass. v. Midland Eailway Company, 19 0. B. 
 
 2z6, atp. 231. _ N. S. 213; 34L. J. C. P. 292; 13W. E. 
 
 * Scott and Jarnagin, Law of Telegraphs, 918. 
 §95- 
 
PAST I.] TELEGRAPHS AND TELEPHONES. 739 
 
 and the act of the company is not injurious without an interven- 
 ing act of another to give it force and effect.^ 
 
 From this elementary difference in the estimate of the position Engiieii rule 
 of, telegraph companies flows a variety of consequences that greatly between'the''* 
 differentiates the law in the two countries. In England, the company and 
 liability of telegraph companies being based upon contract alone, same as 
 they fall under the rule prevailing in cases where a person under- "^®"'"'"' 
 takes the performance of work requiring skill, and who owes a 
 duty to the person employing them, but not to third persons, though 
 the whole reason and benefit of the employment may be on their 
 account.^ They are not bound to wart-ant the correct transmission 
 of the messages they undertake to send. The nature of their 
 business, dependent upon delicate apparatus liable to disarrange- 
 ment by atmospheric or electrical conditions and disturbances, 
 would render the exaction of such a liability impossible with any 
 wide distribution of telegi'aphic agencies.^ But they are bound 
 to fidehty and care in the exercise of the business they undertake, 
 and are liable for the consequences of carelessness or negligence 
 in the conduct of it to those with whom they have contracted.'' 
 The standard applicable is that of the due and reasonable care 
 that persons of average skill in the business that they have under- 
 taken, and in similar circumstances, would use in their ordinary 
 affairs.' 
 
 In the assessment of damages the rule in Hadley v. Baxendale' Assessment of 
 appUes, and those damages may be recovered, and only those ^"'"^^ ' 
 which could reasonably have been supposed to have been in the 
 contemplation of both parties at the time they made the contract 
 as the probable result of the breach of it.' So far there is no 
 divergence between the American and the English law. 
 
 When, however, we come to consider the position of the receiver JlngKsh law 
 of a telegram a very great divergence becomes apparent. In Play- tion between 
 ford V. United Kingdom Telegraph Company' the Court of Queen's *^'d"th7='°^' 
 
 receiver. 
 
 ' Dr. Bigelow reasons as follo-ws : — ^ Per Denraan, J., Dickson v. Renter's 
 
 " Now the telegraph is resorted to only in Telegraph Company, 2 C. P. D. 62, at 
 
 cases of importance and urgency ; so that p. 69. 
 
 the very fact of presenting a message for ^ Kinghorne v. Montreal Telegraph 
 transmission indicates that it concerns a Company, 18 Canada Q. B. 60. 
 matter of importance. The Company * Playi'ord v. United Kingdom Electric 
 cannot, therefore, fail to know that a mis- Telegraph Company, L. E. 4 Q. B. 706 ; 
 take in transmission will be likely to pro- Ellis v. American Telegraph Company, 
 duce damage to the receiver by causing 95 Mass. 226, at p. 234. 
 him to do that which otherwise he would ^ 9 Ex. 341. The American law of 
 not do. Knowing, then, the probably evil damages is treated, Western Union Tele- 
 consequences of transmitting an eiToneous graph Company?;. Hall, 124 U. S. (17 
 message, they owe a duty to the receiver Davis) 445; Western tJnion Telegraph 
 of refraining from such an act," &o. In Company v. Hyer, i Am. St. E. 222. 
 England probably the major premiss of ' Sanders v. Stuart, i C. P. D. 326. 
 this reasoning would be emphatically ^ L. R. 4 Q. B. 706 ; 38 L. J, Q; B. 
 called in question. 249 ; 21 L. T. N. S. 21 ; 17 W. E. 968 ; 
 
 " Robertson v, Fleming, 4 Macq. 177. followed in Canada, Feaver v. Montreal 
 
740 THE LAW OF NEGLIGENCE. [book ii. 
 
 Bench were of opinion that if the special Acts affecting telegraph 
 companies contain nothing affecting the relation that would exist 
 between telegraph companies and the receivers of messages at 
 common law (and this seems to he the case under the English 
 Acts), the position of the receiver of a telegraphic message is not 
 legally to be distinguished from that of a person receiving a 
 message orally from the servant of the sender, against whom he 
 would have no right of action in the absence of fraud ; and this 
 rule was adhered to by the Court of Appeal in Dickson v. Eeuter's 
 Telegraph Company.' If, however, the receiver is the real prin- 
 cipal and the sender is his agent, it has been decided in Canada 
 that the company would be liable. " It would be a startling 
 doctrine to persons engaged in commercial transactions, " says the 
 learned judge who delivered the judgment of the Court in the case 
 referred to,^ " to be told that no action can be maintained against 
 a telegraph company for negligence, except the person injured was 
 himself the party who actually took the message to the company's 
 of&ce." The case is then put of a merchant instructing his clerk 
 at a distance to telegraph the state of the market to him, and 
 through the negligence of the telegraph company erroneous infor- 
 mation being transmitted whereby the merchant sustained loss. 
 If, it is argued, the principle contended for is not good, then the 
 clerk could maintain no action, because he suffers no loss ; nor the 
 ' merchant, because the contract is with the clerk. It was there- 
 fore resolved that an action lay. The decision in this case seems 
 in. accord with Playford v. United Kingdom Telegraph Company,' 
 where the case of agents is expressly excluded from the decision, 
 which states the relation of the parties there to be "that of 
 sellers and buyers, and not that of principal and agents." 
 American law. In America the receiver has an action against the telegraph 
 company if it is negligent in the transmission of the message 
 and loss results. This is stated to be on the principle that where 
 two persons make a contract expressly for the benefit of a third, 
 such third person may sue upon it.^ The validity of any such 
 reason seems extremely doubtful, even admitting the soundness 
 of the legal proposition on which it is based,^ since it must be of 
 frequent occurrence that the sender of a telegram not only does 
 not expressly make a contract for the benefit of a third person. 
 
 Telegraph Company, 23 Canada Com. PI. = In Pollock, Law of Contracts, 4tli edit. 
 
 I50- p. 201, it is said that " the rale is now dis- 
 
 1 3 C. P. D. i; 47 L. J. C. P. i; 37 tinctlyestahlished that a third person can- 
 L. T. 370 ; 26 W. R. 23. not sue on a contract made hy others for 
 
 2 Peaver v. Montreal Telegraph Com- his henefit, even if the contracting parties 
 pany, 24 Canada Com. PI. 258. have agreed that he may." Tweddle «. 
 
 ' L. E. 4 Q. B. 706. Atkinson, i B. & S. 393 ; Price v. Easton, 
 
 ^ Messrs. Shearman and Redfleld, Neg- 4 B. & Ad. 403. 
 ligence, 4th edit. § 543. 
 
PARTI.] TELEGBAPHS AISTD TELEPHONES. 741 
 
 but in sending his telegram does not consider the probability of 
 benefit accruing. A better ground seems to be that which is 
 alleged by Woodward, J., in the leading case of New York and 
 Washington Printing Telegraph Company «. Dryburg.^ " The Woodward, j., ' 
 wrong," he says, " of which the plaintiff complains consisted in Lnd'w'ashiag. 
 sending him a different message from that which they had con- ton Printiug 
 tracted with Le Eoy to send. That it was a wrong is as certain Company v. 
 as that it was their duty to transmit the message for which they '^ "'^^' 
 were paid. Though telegraphic companies are not, like carriers, 
 insurers for the safe delivery of what is entrusted to them, their 
 obUgations, as far as they reach, spring from the same sources, 
 the public nature of their employment and the contract under 
 which the particular duty is assumed." And the best of all, if 
 true in fact, is that advanced in argument in Playford v. United 
 Kingdom Telegraph Company,^ that liability to third parties is 
 imposed by the terms of the American statutes.' Whatever the 
 reason for the conclusion, the American law seems to be settled, 
 that in case of negligence or wrong the company is liable to the 
 addressee where a message is delayed,* or is delivered in an 
 altered form, and where it is not delivered at all, and also when 
 it sends a forged message without proper inquiry.' 
 
 The conditions on which telegraph companies send their Conditions 
 messages have also been the subject of conflicting decisions in telegrams 
 England and America. "" '"''*■ 
 
 The English law is expressed in MacAndrew v. Electric MacAndrew 
 Telegraph Company." The defendants' private Act provided for Telegraph 
 the sending and receiving of messages for all persons alike, """P^y- 
 without favour or preference; subject, amongst other things, " to 
 such reasonable regulations as may be from time to time made or 
 entered into by the company." The plaintiff sent a message to 
 the defendants' office, which was received by the defendants 
 subject to a condition that they would not " be responsible for 
 mistakes in the transmission «f unrepeated messages from what- 
 ever cause they may arise." In sending the message the word 
 " Southampton " was by mistake substituted for "Hull." The 
 plaintiff, who was the sender, and who did not have the message 
 repeated, sued for damages caused by the mistake. The question 
 was whether the regulation was a reasonable one. It was pointed 
 out by the Court that it was perfectly immaterial whether the 
 
 1 35 Penn. St. 298. " Blwood v. Western Union Telegraph 
 
 ' L. E. 4 Q. B. at p. 712. Company, 45 N. Y. 549. Shearman and 
 
 ' This was said with reference to the Eedfield, Law of Negligence, 4th edit. § 
 
 States of New York, Pennsylvania, and S43- _ 
 
 Michigan. " (1855) 17 C. B. 3; 25 I/. J. C. P. 
 
 * Gfulf, &o.,Eailway Company v. Levy, 26. 
 46 Am. B, 269, 278. 
 
742 
 
 THE LAW OS* liTEGLlGENCE. 
 
 [book II. 
 
 Jadgmeut of 
 Jervis, O.J., 
 
 and of 
 Willes, J. 
 
 regulation were under the powers of the Act, or whether it was a 
 condition limiting liability under the common law, since in either 
 event the only question would be as to its reasonableness. As to 
 this, " I see no reason," said Jervis, O.J., " why the company 
 should not be allowed to avail themselves of the same sort of 
 protection that other persons in a similar position are by law 
 entitled to do, by limiting their liability by fair and reasonable 
 conditions, notice of which is duly brought home to the parties 
 contracting with them," And Willes, J., adds : "The repetition 
 of a message necessarily imposes more labour upon the party 
 sending it, and therefore it is but reasonable that that extra 
 labour should be paid for. And it is also reasonable that the 
 company should be paid more for taking upon themselves the 
 risk of insuring the transmission against those accidents which 
 are necessarily incident to a business of this sort. I think it is 
 obviously reasonable that a man who requires the company to take 
 upon themselves either a greater amount of labour or a greater 
 amount of risk should pay them accordingly." The analogy 
 suggested by the Chief Justice is obviously between the conditions 
 which are reasonable in the case of common carriers. These have 
 been already discussed at length,' and the conclusions arrived at 
 will hold good in the discussion of similar questions relating to 
 telegraphs. 
 American law. In America the law as to carriers, as we have already seen, 
 differs in several respects from the law in this country ; and in 
 the case just cited, apart from the construction of the Act of 
 Parliament, the decision of the American Courts would have 
 been different from the actual decision in the case ; since those 
 Courts forbid the limitation of a carrier's liability in any other 
 way than by special contract for valuable consideration,' and 
 even then subject to restrictions that are not imposed in 
 England.' 
 
 In Massachusetts, however,* the decisions allow, the prescribing 
 reasonable rules and regulations for the management of business 
 or establishing special stipulations for the performance of service, 
 which, if made known to those with whom they deal, and directly 
 or by implication assented to by them, will operate to abridge 
 their general responsibility at common law, and to protect them 
 
 Law in 
 MasBachueettS. 
 
 1 Ante, p. 585. 
 
 2 :E.g., Smith ». New Jovk Central 
 Kailroad Company, 24 N. Y. 222. 
 
 " Cde V. Goodwin, 19 Wend. 251 ; Eail- 
 road Company t). Lookwood, 17 Wall. 357 ; 
 .M'Kinney v. Jewett, 24 Hun. 19. There 
 is an exception to this in Kentucky: 
 Caup i\ Western Union Telegraph Com- 
 
 pany, I Meto. [Ky.] 164. 
 
 *' The state of the American authoritiGB 
 is shewn in Hart v. Western Union Tele> 
 graph Company, 56 Am. B. 119, and note 
 p. 124 ; also Aiken v. Western Union 
 Telegraph Company, 58 Am. K. 210; 
 Ayer v. Western Union Telegraph Com- 
 pany, 79 Me. 493, I Am. St. H. 353. 
 
PAET1.J TElBGRAPPtS AN'D a^BLEPHONES. Ui 
 
 from being responsible for unusual hazards incident to particular 
 kinds of business. They nevertheless except the liability for fraud 
 or " gross negligence" of the principal or his servants and agents.* 
 Thus, where the plaintiff sent a signed message on a form of 
 the defendants' which had printed on it certain conditions that 
 limited their liability, he was held to be bound by the conditions, 
 although he had not in fact read them ;^ and in a subsequent 
 case in the same State, where the condition was "it is agreed 
 between the sender of the following message and this company 
 that the said company shall not be liable for mistakes or delays 
 in the transmission or delivery or for non-delivery of any unre- 
 peated message, whether happening by negligence of its servants 
 or otherwise, beyond the amount received for sending the same," 
 and a message was detained and ultimately brought back unde- 
 livered by the messenger, the Court held that there was no 
 principle of public policy which should prevent the company 
 from stipulating that it will not be responsible for such negli* 
 gence beyond a fixed amount unless it receives a reasonable 
 compensation for assuming further responsibility. 
 
 It will be gathered from what has gone before that in this 
 case the plaintiff had the alternative of paying the additional fee 
 of half the price of the telegram, which was not disputed to be 
 not more than a reasonable price for the services rendered, and 
 having the message repeated with the safeguard of an insurer's 
 liability attaching to the company, or to pay the lesser sum 
 which he actually paid on the more onerous terms, and that he 
 chose the latter alternative, to which the effect of the Court's 
 decision was to hold him bound. This apparently eminently 
 reasonable decision is commented on as follows in an American 
 text-book of authority^ : " This case stands alone, and we think 
 it would be difficult to support it by any sound reasoning. Bat 
 Massachusetts has always enjoyed a 'bad pre-eminence' in 
 matters of judicial decisions affecting the interests of corporations 
 and employers."* 
 
 Questions sometimes arise as to the liability of several con- Messages 
 
 nectmg companies m respect or a message received by one to be ^yer various 
 
 iinas. 
 
 1 Ellis V, American Telegraph Com- well, at pp. 716 etsgj. Wliat the character 
 
 pany, 95 Mass. 226, at p. 234. of the " pre-eminence " of the Courts of 
 
 ^ Grinnell v. Western Union Telegraph Massachusetts is need not occupy us here. 
 
 Company, 113 Mass. 299; Breese v. At least, no such decisions as Thompson «. 
 
 United States Telegl'aph Company, 48 Western Union Telegraph Company, 54 
 
 N. y. 132. Am. E. 644, or Stuart v. Western Union 
 
 ' Shearman and Eedfleld, Lawof Negli- Telegraph Company, 59 Am. E. 623, are 
 
 gence,' 4th edit. § 555, note 3. to be looked for there. As to what is a 
 
 ^ For " sound reasoning " reference may reasonable condition, see Western Uuii'u 
 
 •be had to Manchester, ShefBeld, and Liu- Telegraph Company v. M'Guire, 54 Am.R. 
 
 colnshire Eailway Company «. Brown, 8 296. 
 App. Cas. 703, especially per Lord Biam- 
 
iii 
 
 fHfe LAW Of NE&LIGENOE. 
 
 [book II. 
 
 American 
 authority for 
 the proposition 
 that the person 
 who selects 
 the telegraph 
 must bear loss, 
 as between 
 him and the 
 receiver, 
 arising from 
 errors in 
 transmission. 
 
 transmitted over the connected line. Here, again, the law as 
 developed in the case, of common carriers is applicable, and has 
 been already considered.^ In America the rule seems to be that 
 the company actually in fault is liable to the injured party, 
 whether sender or receiver, although he has no direct dealings 
 with it, while the presumption is against the liability of the 
 telegraph company first receiving the message for the negligence 
 of connecting lines. But if the company first receiving the 
 message agrees to transmit the message to its destination, it is 
 liable for the negligence of all connecting lines.^ 
 
 There is an American authority^ for the proposition that as 
 between sender and receiver of telegrams the person who selects 
 the telegraph as a means of communication must bear any loss 
 occasioned by errors in transmission on the part of the telegraph 
 company. This proposition is supported by the assumption that 
 "if an agent receive instructions by telegraph from his principal, 
 and in good faith act upon them as expressed in the message 
 delivered him by the company, it would seem he ought to be 
 held justified, though there were an error in the transmission," 
 But assuming a telegraph company to stand in the position of an 
 intermediary merely — a messenger — as it has been held it does in 
 England* (or even of an agent who misconstrues his authority) 
 and the message to the ultimate agent has been misdelivered, 
 the principal would not be liable for an act that he did not 
 authorize, though done in assumed obedience to his instructions.' 
 On the other hand, if the telegraph company occupies any 
 position peculiar to itself, first the position should be defined, 
 and then the consequences flowing from it should be deduced, 
 not assumed. 
 
 But setting this analogy aside, the principle enunciated is as fol- 
 lows : " It it is evident that in case of an error in the transmission 
 of a telegram, either the sender or receiver must often suffer loss. 
 As between the two, upon whom should the loss finally fall ? 
 We think the safer and more equitable rule, and the rule the 
 public can most easily adapt itself to, is, that as between sender 
 and receiver the party who selects the telegraph as the means of 
 
 877 ; and Western Union Telegraph Com- 
 pany V. Hyer, i Am. St. B. 222. 
 
 ' Hyer v. Western Union Telegraph 
 
 Company, 79 Me. 493 ; 1 Am. St. E. 353. 
 
 Per liush, J.,* in Playford v. United 
 
 ^ Ante, p. 606. 
 
 ^ Shearman and Eedfleld, Law of Negli- 
 gence, 4th edit. § S44; La Grange ». South- 
 western Telegraph Companjr, 25 La. An. 
 383 ; Leonard v. Telegraph Company, 41 
 N. Y. 544; Baldwin v. United States 
 Telegraph Company, 45 N. Y. 744. The 
 American law as to cipher despatches is 
 discussed at length in Daughtery v. 
 .American Union Telegraph Company, 51 
 Am. R. 435. See also Western Union 
 Telegraph Cunipany v. Fatman, 54 Am. E. 
 
 Kingdom Telegraph Company. L. E. 4 
 Q. B. at p. 714. 
 
 ^ Smoutw. Ilbery, 10 M. & W. i ; Story, 
 Agency, 9th edit. § 264 and note ; Thom- 
 son V. Uayenport, and notes, 2 Sm, Lead. 
 Cas. 9th edit. p. 395. 
 
PART I.J TELEGRAPHS AJSfD TELEPHONES. 745 
 
 communication shall bear the loss caused by the errors of the 
 telegraph. The first proposer can select one of many modes of 
 communication, both for the proposal and the answer. The 
 receiver has no such choice, except as to his answer. If he 
 cannot safely act upon the message he receives through the 
 agency selected by the proposer, business must be seriously 
 hampered and delayed. The use of the telegraph has become so 
 general, and so many transactions are based on the words of the 
 telegram received, any other rule would now bo impracticable." 
 
 It is difficult to believe that this doctrine will find acceptance 
 in any other State than that of its nativity. In England it is 
 manifestly inapplicable ; since, if the, telegraph company owes 
 no duty to the receiver to perform rightly what it has confided 
 to it, an action against the sender of the telegram, because the 
 telegraph company performed the duty he entrusted to it imper- , 
 fectly, would not be more promising. The Maine Court, how- 
 ever, imposed two limitations on their rule : first, the receiver 
 must have acted in good faith ; and second, the message must be 
 actually sent, not forged.^ 
 
 1 As to liability on a forged meBsage, Bee Elwood i). Weatern Union Telegraph 
 Company, 45 N. Y. 549. 
 
PART 11. 
 
 MINISTERIAL OFFICERS. 
 
 CHAPTER I. 
 
 NOTAEIES PUBLIC, SHEEIFFS, ETC, 
 
 I. NoTAKiEs Public. 
 
 Definition. A NOTAEY, says Bum,^ was anciently a scribe, that only took 
 notes or minutes, and made short dranghts of writings and other 
 instruments, both public and private. But at this day we call 
 him a notary public who confirms and attests the truth of any 
 deeds or writings in order to render the same authentic.^ He 
 is the officer of some known Government, and entitled as such to 
 recognition in the commercial world.' Notaries in England 
 are still appointed by the Court of Pacdties, which is " a Court, 
 -although it holdeth no plea of controversie." ' To practise as a 
 notary in London, and within ten miles, a person must have 
 
 Qualifications, served for seven years under articles of clerkship, duly authenti- 
 cated by a qualified notary in actual practice, and if within three 
 miles of London he must also be a member of the Scriveners' 
 Company ;° but to practise at a greater distance from London 
 
 Mode of 
 appointment, 
 
 1 EocleBiastioal Law, gth edit., article 
 Notary Public, referring to Brooke's Trea- 
 tise on the Office and Practice of a Notary. 
 There is an excellent article on the office 
 and duty of a notary public in 25 Am. 
 Jur. 343. 
 
 2 In England notaries were known be- 
 fore the Koman Conquest : Brooke, p. 3. 
 Notaries are mentioned in the Statute of 
 Provisors, 27 Edw. 111. stat. i, c. i, and in 
 the Statute of Prasmunire, 16 Eich. II. 0. 5. 
 The principal Acts of Parliament regulat- 
 ing the office and duties of notaries are : 
 41 Geo. III. c. 79 ; 6 Geo. IV. c. 46 ; 
 6 Geo. IV. li. 87, s. 20 (Consuls) ; 3 & 4 
 Will. IV. c. 70 ; 6 & 7 Vict. 0. 90 ; 7 & 
 8 Vict. c. 85, 6. 4 ; 18 & 19 Vict. c. 42, 
 
 which extends the provisions of 6 Geo. IV, 
 u. 87, s. 20, and empowers consuls-general 
 and consuls to do notarial acts in the 
 foreign places to which they are appointed ; 
 33 & 34 Vict. c. 97, ss. 3, 63, 64 (Stamps). 
 These Acts refer only to England, so that 
 out of England a person may be appointed 
 as notary without serving any apprentice- 
 ship. 
 
 ^ MuBson V. Lake, 4 How. (U. S.) 262, 
 27s. 
 
 * 4 Inst. 337. Byles, Bills, I4lh edit, 
 p. 212. 
 
 ^ As to what is required to consti- 
 tute apprenticeship, see The King 0. 
 Scriveners' Company, 10 B. & C. 511, at 
 p. 519- 
 
PART 11.] NOTARIES PUBLIC, SHERIFFS, ETC. 747 
 
 a person may be admitted upon the production of a certificate of 
 clerkship of five years to a notary or an attorney and notary.^ 
 
 In The King v. Scriveners' Company,^ Lord Tenterden, O.J., Duties. 
 said, in answer to a suggestion, that " the whole business of a denf aj°'fn" 
 notary is the presenting of bills of exchange and drawing up ^'^? ^'°s ». 
 protests," that " a notary in the City of London has many more Company. 
 duties. All the charter parties are prepared by notaries." " The 
 ship's broker prepares the minutes of the contract ; it is after- 
 wards put into form by a notary. There is another part of the 
 duty of notaries, and that is, to receive the affidavits of mariners 
 and masters of ships, and then to draw up their protests, which 
 is a matter which requires care, attention, and diligence. " Besides 
 that, many documents pass before notaries under their notarial 
 seal, which gives effect to them, and renders them evidence in 
 foreign courts, though certainly not in our court of common law.' 
 There is a great deal therefore to be done by a notary, perfectly 
 independent of and distinct from this mere matter of presenting 
 bills and drawing up protests."* 
 
 A notary is not a mere ministerial officer, obliged, whether he NoUrynoU 
 likes it or not, to execute the duties of his office when called on teriai officer. 
 to do so, but he is free to decline to act if so disposed ; were this 
 not so, " they might often be innocently the cause of assisting 
 in fraudulent or improper measures, or might be much incon- 
 venienced by appKcations at improper times or places."* " Great," 
 says Brooke," " is the confidence attached to notaries, and very 
 onerous are their duties, and thence the necessity of their being 
 distingiushed for extensive knowledge, probity, discretion, and 
 zeal."' 
 
 They should take care to distinguish in the acts they have Duties. 
 opportunity of performing between those with whose forms they are 
 familiar, and those that require for their performance exceptional 
 skill, " for although it is the business of the parties themselves 
 to take good advice, yet it is prudent for notaries not to under- 
 take a thing that is beyond their capacity, and at least to acquaint 
 the parties of the difficulties which they are not able to under- 
 stand."^ 
 
 They should preserve carefully and in good order all acts 
 which are deposited with them, and it is their duty to grant 
 
 1 6 & 7 Vict. 0. 00 ; as to appointment ^ Brooke, Office of a Notary, 3rd edit, 
 of solicitor, 3 & 4 Will. IV. 0. 70. pp. 17, 18. 
 
 2 10 B. & C. 511, at p. 518. ' Office of a Notary, 3rd edit, p. 19. 
 
 " Chesmer v. Noyes, 4 Gampb. 122 ; ' As to the duty and office of a notary, 
 
 but see Cole v. Sherard, 11 Ex. 482 ; In see Bellemire 1}, Bank of United States, 
 .re Goff, 14 L. T. N. S. 727. . 5 Wbart. 105. 
 
 * See Anon, case 592, 12 Mod. 345. " Domat, PutUo Law, book ii, tit. 5, 
 
 s. 5. § 3' 
 
748 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Iiiability to 
 action. 
 
 Beasonable 
 BkiU. 
 
 Ordinary 
 diligence. 
 
 Liable on the 
 contract. 
 
 exemplifications of them when demanded to the parties who have 
 a right to demand the'm.' 
 
 They must keep secrecy, not only of what passes at the time 
 of the signing of acts, but also as to the acts themselves, and 
 generally are expected to observe entire fidelity." 
 
 Notaries must use a legible seal in order to give effect to 
 certificates of protest or notice, for where the seal is illegible 
 the act purporting to be authenticated is invalid.^ 
 
 They are amenable, either to. the jurisdiction of the Court of 
 Faculties, or are liable to an action for negligence. 
 
 As to the jurisdiction of the Court of Faculties, on a complaint 
 made in a summary way to the Master of Faculties, and sup- 
 ported by affidavit or other proof, a notary who has improperly 
 performed the duties of his office will be liable to be struck off 
 the Roll of Faculties — e.g., for permitting his name to be used 
 by an unqualified person, or for practising out of his allotted 
 district, or probably for negligence of a grave character.* 
 
 As to their liability to action. 
 
 A notary who receives a bill of exchange for the purpose of 
 presenting it, and in case of non-acceptance or non-payment to 
 protest it ; or, indeed, to perform any of the duties of a notary, 
 such as those enumerated by Lord Tenterden, C.J., in the extract 
 given above ; from his judgment, is bound to use reasonable skill 
 and ordinary diligence, and he is consequently liable for injuries 
 to his employer occasioned by want of reasonable skill, and also 
 for ordiaary diligence.^ 
 
 By reasonable skill must be understood such as is, and no more 
 than is, ordinarily possessed and employed by persons of common 
 capacity engaged in the same employment.^ By ordinary dili- 
 gence is to be understood that degree of diligence which persons 
 of common prudence are accustomed to use about their own 
 business or affairs.' 
 
 He is only liable to the person who employs Mm, or to the 
 person, if any, with relation to whom a duty is constituted by the 
 employment ; and is not liable to any one whom his negligence 
 may collaterally injure.' Otherwise, where by not presenting a 
 bill, so that his employer is imable to pay a creditor who is him- 
 self unable to pay his creditor, and thereby becomes bankrupt, a 
 
 1 Domat, Public Law, book ii. tit. 5, 
 
 B. 5> § 4- 
 
 » lUd. SB. §§ S, 6. 
 
 3 Story, Bills, § 277 ; i Parsons, Notes 
 and Bills, p. 634. 
 
 * 41 Geo. III. 0. •j^, B. 10 i 4 "Will. IV. 
 c. 70, s. 4. 
 
 5 Story, Agency, § 183. 
 
 " Story, Bailments, §§ 431, 434 ; DeneW 
 
 u. Daverell, 3 Campb. 451. 
 
 ' As to insurance brokers : Chapman v. 
 Walton, 10 Bing. S7 ; Park v. Hammond, 
 6 Taunt. 495 ; Mallough v. Barber, 4 
 Campb. 150. As to surgeons: Scare ». 
 Prentice, 8 East 348. As to attorneys : 
 Gilbert D. Williams, 8 Mass, 51. 
 
 " Story, Agency, 9tli edit. §§ 217 b, 
 221. 
 
PAETii.] NOTARIES PUBLIC, SHERIFFS, ETC. 749 
 
 liability woul^ attach ; this, however, would be in violation of the 
 maxim of law, In jure, non remota causa sed proxima spectatur} 
 
 A notary having undertaken to perform a notarial act cannot Notary may 
 depute another to do it, even though that other is himself ahfsduty'^ 
 notary ; for it is a general rule that a personal trust or power 
 conferred in reliance on the personal qualifications of an individual 
 is not to be delegated, and that an authority is exclusively personal 
 unless from the express language used, or from the fair presump- 
 tions growing out of the particular transaction, or the usage in 
 trade, a greater liberty is conceded.^ 
 
 It has been held negligence in a notary to protest a bill for Negligence to 
 non-payment before its maturity, or to delay to demand payment For non-pay- 
 until after its maturity, or to negligently omit to notify the™™^'j.M°™ 
 proper parties of the dishonour of a bill whereby the holder 
 loses his remedy against any such parties.' 
 
 A question has been mooted, whether a banker employing a a banker em- 
 notary is responsible for his negligence. This has two aspects, noto^^not 
 The notary may be employed in some mattpr for which the p?f™^'^%- 
 appointment of a public officer was not necessary, such as the negligence, 
 giving of notices of non-acceptance or non-payment, which might 
 equally well be done by an ordinary clerk. In this case it seems 
 clear that the banker's liability would not be affected by the fact 
 that he has chosen to conduct his business through a notary 
 rather than through an ordinary clerk. But the negligence may 
 be in the performance of a strictly oflScial function in which the 
 banker is bound to employ him. The act of the office is conse- 
 quently an independent act, which the banker himself could in no 
 circumstances do, performed by an independent public officer, not 
 in virtue of his agency, but of his public position, in which he 
 himself is responsible, either to the Court of Faculty or to the 
 person injured by his act.'' The duty of the banker, then, would if he had used 
 appear to be confined to the selection of a competent and trust- to°Bdectacom- 
 worthy notary.^ But it is perfectly possible, having reference to fr„g°^orthy 
 the provisions of 3 & 4 Will. IV. c. 70, with respect to the one. 
 inability of notaries to act out of their districts that there would 
 be no freedom of choice for the banker, when his position would 
 appear strongly analogous to that of the employer of a compulsory 
 pilot." The law in the United States on the subject appears 
 plain, but there is a dearth of direct English authority.' 
 
 1 Bao. Max. reg. i ; Broom's Legal * Whitfield v. Lord Le Dospenoer, 
 Maxims, 6th edit. p. 211. Oowper 754, at p. 765. 
 
 2 Cookran v. Irlam, 2 M. & S. 301 ; ° Bellemire v. Bank [Tuitod States, 4 
 Ess V. Trusoott, 2 M. & W. 385. Whart. 105. 
 
 Broom's Legal Maxims, 6th edit. p. 74 ; ^ Warren Bank v. Suffolk Bank, 64 
 
 Story, Agency, 9th edit. § 14. Mass. 582 ; Agricultural Bank v. Com- 
 
 * See cases cited, Shearman and Red- mercial Bank, 7 Smedes & M. 592. 
 field, Law of Negligence, 4th edit. § 427, ' Shearman and Kedfield, Law of Neg- 
 
 ligence, 4th edit. § 243. 
 
750 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 American case, 
 Eeed v. Dar- 
 lingtoa. 
 
 In an American case, Eeed v. Darlington,' it has been held that 
 where a notary has been guilty of negligence and is sued for it, 
 he is placed in the position of the person who but for his negli- 
 gence would have been charged, and if that person had a defence 
 it would be competent to the notary to prove it, but with as 
 much particularity and completeness as would have been required 
 from that person in an action against him.^ 
 
 Derivation of 
 the name. 
 Office and 
 authority. 
 
 Under-sheriff. 
 
 II. Tee Shekipf. 
 
 The name sherifE is derived from two Saxon words — seyre, that 
 is, a shire ; and reve, keeper, bailiff, or guardian. The sheriff has 
 all the authority for the administration and execution of justice 
 which the earl or comes had,' unless where statutory enactment has 
 effected an alteration.^ The appointment o£ sheriff is during her 
 Majesty's pleasure,' so that till the appointment of a new sheriff 
 the office is not determined." On a demise of the Crown he 
 holds his office for six months longer, imless displaced by another.'' 
 In the event of his death his under-sheriff continues in office in 
 the name of the deceased until another sheriff is appointed and 
 sworn, and is answerable in all respects as the deceased sheriff 
 would have been had he lived.' 
 
 The office of high sheriff is an office of great trust and confi- 
 dence, and therefore he cannot make any deputy in such things 
 as concern his judicial power. But as far as he is an officer or 
 minister only he " may make a deputy concerning his office ; scil, 
 he may make a precept to another to arrest the party, or he may 
 serve a capias or other process by his bailiff or servant ;"° and, by 
 50 & 51 Vict. c. 55, s. 23, sub-s. I, he is bound to make such 
 appointment within one month after notification of his own 
 appointment. 
 
 The under-sheriff so appointed has not any estate or interest in 
 the office itself, neither may he do anything in his own name, 
 but only in the name of the high sheriff, who is answerable for 
 him," so that an action for a false return does not lie against the 
 
 1 1 9 Iowa 345. 
 
 2 In this it is analogous to the rule in 
 actions on covenant of warranty : Hamil- 
 ton V. Catts, 4 Mass. 350 ; Greenvault v. 
 Davis, 4 Hill N. Y. 646. Compare Davis 
 V. Garrett, 6 Bing. 716. 
 
 ' Co. Litt. 168 ; 9 Eep. 49 ; Dalton 2 ; 
 I Bl. Com. 339. "Oomites," says Dnl- 
 ton, " iwmen aceeperunt a comitando 
 quia prineipem comitarentur ad bella 
 puhUieaque negotia ejus lateri semper 
 hcerentes" 
 
 « See so & SI Vict. c. it,, The Sheiiffs 
 Act, 1887, and the second schedule. 
 
 ^ Schedule I. 50 & <e,i Vict. c. SS- 
 Proof that a person has acted as sheriff is 
 prinid faeie evidence that he is sheriff 
 without proof of his appointment : Bun- 
 buiy V. Mathews, i C. & K. 380. 
 
 ' Atkinson, Sheriffs, 6tli edit. p. 19. 
 
 ' I Anne, st. i, c. 8. 
 
 8 SO & 51 Vict. c. i^, s. 25, sul-s. I. 
 
 " Dalton, cap. i, ■?. 
 
pahtilJ NOTAEIES PUBLIC, SHEEIPFS, ETC. 751 
 
 Tinder-sheriff, for the Mgh sheriff only is chargeable ;' and for 
 every default of the under-sheriff the high sheriff shall be amerced, 
 though he shall not be imprisoned for the act of the under-sheriff, 
 nor indicted for any misdemeanour committed by him.^ The reason 
 of the extended liability of the sheriff is that he is supposed to 
 execute his duty in person, as he is bound in. the first instance to 
 do. The impossibility of so doing authorizes him to delegate that 
 authority to another, and he puts his delegate in his place ; and for 
 whatever he does, not only when done virtuti mandati, but colore 
 maThdati, the sheriff is responsible.' The principle is that the 
 sheriff has a power of delegating his authority to another, and 
 that, having conferred that authority upon another party, he is 
 responsible for everything that party does ; so that if he commits 
 a wrong yet the sheriff is.liable.'' 
 
 The under-sheriff is in the nature of a general bailiff, and being incidenta and 
 in effect but the sheriff's deputy, he is removable as an attorney offloe^ ° 
 is, and, even though professedly made irrevocable, still the high- 
 sheriff may remove him. But he may not abridge him any part 
 of his power during the currency of his appointment, though he 
 may determine the appointment.' 
 
 In the case of the death of the sheriff during his term of office Death of 
 the 3 Geo. I. c. 15, s. 8, provided for the continuance in office 
 for the residue of the sheriff's term of the under-sheriff, and 
 enacted that the under-sheriff should be answerable for the execu- 
 tion of the office in all respects as the deceased sheriff would have 
 been had he been living. Where, then, an under-sheriff, acting 
 as sheriff during a vacancy, wrongfully retained the proceeds of 
 an execution, and subsequently died, it was held that an action 
 was maintainable against his executors by the execution creditor 
 to recover the sum so wrongfully retaiaed.^ 
 
 The provision of 3 Geo. I. c. 15, s. 8, is substantially re- 
 enacted by section 25 of the Sheriffs Act, 1887 (50 & 51 Vict. 
 
 c. 55)- 
 
 The high sheriff may take bonds and covenants from the under- High sheriff 
 
 sheriff and from bailiffs and gaolers indemnifying him from their J^^^'J;^,"^''"'^' 
 
 neglects and defaults in the execution of the offices he entrusts to officers. 
 
 them.' 
 
 ^ Cameron v. Reynolds, Cowp. 403. M. & G. 558; nor yet for what is done by 
 
 2 Laicock's case, Latch. 187. the authority of the execution creditor : 
 
 ' Parrot v. Mnmford, 2 Esp. N. P. C.585. Crowder v. Long, 8 B. & C. 598. 
 
 * Gregory v. Cotterell, S E. & B. 571 ; ^ Norton v. Sims, Hob. 12, at p. 13. 
 
 Smart ■;;. Hntton, 8 A, & E. 568, n. But " Gloucestershire Banking Company, 
 
 not for what is done irrespective of the Limited, v. Edwards, 20 Q. B. D. 107 ; S7 
 
 process, unless it is subsequently ratified : L. J. Q. B. 51 ; 58 L. T. 463 ; 36 "W. E. 
 
 Underbill v. Wilson, 6 Bing. 697 ; nor for 1 16. 
 
 what is done after the termination of the ' Dalton, Sheriff; p. 445 ; 2 Kel. 352 ; 
 
 bailiff's authority : Brown v. Copley, 7 Hob. 12, 13. 
 
752 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Bailiffs. 
 
 I. Bound 
 bailiffs. 
 
 2. Special 
 bailiffs. 
 
 3. Bailiffs of 
 Uberties. 
 
 Sheriff 
 responsible. 
 
 It follows from the delegation by the sheriff to the under-sheriff 
 being that of the whole of his powers within the limits of the 
 appointment, that the under-sheriff has power to make bailiffs and 
 to issue precepts.^ 
 
 Bailiffs are of three kinds : 
 
 1. Bound bailiffs. 
 
 2. Special bailiffs. 
 
 3. Bailiffs of liberties. 
 
 1. Bound bailiffs are the ordinary officers of the sheriff, and 
 are bound in an oWigation, with sureties, for the faithful dis- 
 charge of the duties which they are appointed to perform.^ 
 
 Unlike the under-sheriff, the bailiff is appointed by warrant to 
 act on each occasion of executing process, so that he becomes the 
 special officer of the sheriff for that occasion, and no more.^ 
 
 2. Special bailiffs are appointed by the sheriff at the instance 
 of the plaintiff or his solicitor, who, further, must give such 
 personal directions as to constitute them agents of the creditor.* 
 Whether the special agency has been constituted is rather a 
 question of fact than of law.' While the special commission 
 exists the sheriff cannot in general be ruled to return the writ," 
 and the sheriff is freed from liability to action.' After its deter- 
 mination he becomes liable as in an ordinary case.^ 
 
 3. Bailiffs of liberties are officers appointed within franchises 
 by those exercising the same to execute process therein as the 
 bound bailiff does within the county.' But the bailiff of the 
 liberty is alone liable, and not the sheriff, in the case of a writ 
 entrusted for execution within his liberty. 
 
 The sheriff is responsible for all acts of the bailiff done in the 
 execution of writs ^'' directed to the sheriff in his ministerial capa- 
 city." His civil responsibility is not confined to the improper 
 manner of executing what is commanded by his warrant, but 
 extends to all acts, however wrongful, provided they are done 
 under cover of the writ,'^ even though they are against the 
 
 1 Parker v. Kett, i Salk. 96. ^ Anderson v. Davenport, 13 M. & W. 
 
 2 Watson, The Office of Sheriff, 37 ; ' ' " ~ 
 Taylor v. Eichardsou, 8 T. R. 505. 
 
 3 Crowder v. Long, 8 B. & C. 598; 
 Drake v. Sykes, 7 T. E. 113; Brown v. 
 Copley, 2 D. & L. 332 ; Snowball v. Good- 
 ricke, 4 B. & Ad. 541. 
 
 ^ Alderson v. Davenport, 13 M. & W. 
 42 ; Ford v. Leohe, 6 A. & B. 6p9 ; 
 Porter «. Viner, note to The King against 
 the late Sheriff of London in a cause of 
 Kustin against Hatiield, i Chitty 613 ; 
 Botten V. Tomlinson, 16 L. J. C. P. 138. 
 A mere request that a particniar officer 
 should be employed is not enough : Corbet 
 V. Brown, 6 Dowl. P. C. 794 ; Seal a. 
 Hudson, 4 D. & L. 760. 
 
 46 ; Wright v. Child, L. E. i Ex. 358 ; 
 35 L. J. Ex. 209 ; IS L. T. N. S. 141. 
 
 ^ De Moranda v. Dunkin, 4 T. E. 119 ; 
 Cook «. Palmer, 6 B. & C. 742. 
 
 ' Pallister v. Pallister, i Chitty 614. 
 
 8 Taylor w. Eichardson, 8 T. E. 505. 
 
 " Dalt. c. 117, p. 459 ; 50 & 51 Vict, 
 c. 55, s. 34. See Eitson, The Office of 
 Bailiff of a Liberty ; also 51 & 52 Vict. 
 0. 4i> s. 59. 
 
 " SeeBoothman v. Earl of Surrey, 2 
 T. E. 5. ^' 
 
 " SaundersoD v. Baker, 2 Wm. Bl. 832. 
 
 " See Tunno v. Morris, 2 C. M. & E. 
 298, a case where the sheriff was held 
 to have been acting under the direction 
 
PART 11.] NOTARIES PUBLIC, SHERIFFS, ETC. 753 
 
 express instructions o£ the sheriff,' and go the length of fraud.* 
 But the plaintiff for whose benefit the writ is issued is not 
 responsible for the misconduct of officers of the sheriff unless he 
 has personally intervened in the execution of the writ.' If he 
 has done no more that set the Court in motion, it is the act of 
 the Court, not his, from which the complaint arises.'' And the 
 same holds good with regard to a solicitor, even where he per- 
 ceives that the officer is going to do wrong and does not set him 
 right." 
 
 By the common law the sheriff had the custody of the common Gaolers. 
 gaol of the county. He appointed the gaoler, and could have 
 removed him at pleasure." But by the Prisons Act, 1865,^ the 
 appoiatment was given to the justices in session assembled ; and 
 by the Prisons Act, 1877,^ it is provided that the sheriff shall not 
 be liable for the escape of any prisoner. Nevertheless, the re- 
 sponsibilities of gaoler, as far as it is necessary to mention them, 
 may be conveniently noted here.*" 
 
 At common law the gaoler is said to be the sheriff's servant, Gaoler the 
 whom he may discharge at pleasure.'" His duty is to keep safe vanut common 
 custody of all persons committed to his charge as the sheriff's ^^^■ 
 deputy, and if the gaoler permit a debtor to escape, the sheriff is 
 liable to an action." A gaoler is not responsible for detaining a 
 man under a warrant irregularly issued ; but he is if he detain the 
 wrong man, or the right man on a void warrant.'^ 
 
 Since a gaoler is as an officer relating to the administration of Positiou of the 
 justice, if a person threatens him for keeping a prisoner in safefegai-dtohis 
 custody, he may be indicted, and fined, and imprisoned for it.i^pnsoneis. 
 Again, if a criminal in his endeavour to break the gaol assault 
 his gaoler, he may be lawfully killed by him in the affray." If a 
 prisoner gets out of gaol, and the gaoler in pursuit of him kills 
 him, he is guilty of an escape, though he never lost sight of him,'^ 
 and is Hable in civil process to the party grieved by the escape.'" 
 
 of the suitors of a county court, and there- 47 L. T. 142 ; 31 W. E. 76. 
 
 fore not liable. ° '4 Edw. III. .;. lo. 
 
 1 Cooke V. Palmer, 6 B. & C. 739, m '' 28 & 29 Vict. c. 126, s. 10. 
 ■which case, however, it was held there was ^ 40 & 41 Vict. c. 21, ss. 30, 31, 32. 
 no remedy against the sheriff. * As to details, see Bacon's Abridg. 
 
 2 Eaphael v. Goodman, 8 A. & E. 565. Gaols and Gaolers ; Burn's Justice, tit. 
 As to the responsibility of sheriff for Gaols. 
 
 bailiff, see Lush's Practice, 3rd edit. pp. ^° Bac. Abridg. tit. Sheriff, H 5. 
 
 189-190. '' Brown v. Compton, 8 T. E. 424. See 
 
 * Wilson V. Tummon, 6 M. & G. 236 ; Plummer v. Whitchcott, 2 Lev. 158. 
 
 Walley v. M'Connell, 13 Q. B. 903 ; " oUiet v. Bessey, T. Jones 214. 
 
 Whitmore v. Greene, 13 M. & W. " 2 EoU. Abridg. 76. 
 
 io4. " Hawk. P. C. C. 28, § 13 ; Jenk. 23, 
 
 ■•'Ablev V. Dale, 10 C. B. 62; 20 pi. 42. 
 
 L. J. C. P. 33. '' 2 Hawk. P. C. C. 19, § 6. 
 
 5 Sowell V. Champion, 6 Ad. & B. 417 ; " Bac. Abridg. Gaoler, D. 
 compare Smith v. Keal, 9 Q. B. D. 340 ; 
 
 3 B 
 
r54 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 How fav 
 protected. 
 
 Gaoler's duty 
 to have suffi- 
 cient force. 
 
 Eule discri- 
 minating his 
 duty in judicial 
 from minis- 
 terial functions. 
 
 Ministerial 
 duties. 
 
 I. Duties in the 
 conduct of 
 election of 
 members of 
 Parliament. 
 
 A head gaoler is answerable for the acts of his deputy, civilly, but 
 not criminally.' 
 
 It is clear that a gaoler is protected in obeying a warrant valid 
 on the face of it," but if in regard to the warrant a statutory duty 
 is imposed which he does not observe, an action will lie, though 
 no reference is imade to it on the warrant.^ 
 
 In Brandling v. Kent^ an opinion is expressed by BuUer, J., 
 that a gaoler would not be liable for an irregularity in the arrest 
 of a prisoner committed, to his charge, but that the sheriff only 
 would be answerable, since it was the duty of the gaoler to receive 
 a person tendered to him by the sheriff, whether the arrest was 
 legal or not. On the other hand, it has been ruled by Lord Ellen- 
 borough, O.J., at iVm Prius, that a gaoler is liable to an 
 action of trespass and false imprisonment, even though he acted 
 bond fide, and without the means of ascertaining the identity of 
 the person imprisoned, if, by mistake of the sheriff's officer, the 
 warrant was executed against a wrong person.' 
 
 The gaoler is bound to have sufficient force to prevent breach of 
 prison; even breaking the prison by mobs or rebels is no answer 
 to an action for an escape.' 
 
 As far as the sheriff's duties are judicial, we have already con- 
 sidered the rules applicable to them.' 
 
 The rule discriminating his responsibility in judicial from minis- 
 terial functions may be stated : That for breach of a public duty 
 he is punishable by indictment, but where he acts ministerially, 
 and is bound to render certain services to individuals for a com- 
 pensation in fees or salary, he is liable for acts of misfeasance or 
 nonfeasance to the party who is injured by them.' 
 
 The chief ministerial duties entrusted to him are : I. con- 
 ducting elections of members of Parliament and coroners; II. 
 summoning juries; III. executing process. Of these in their 
 order. 
 
 I. The sheriff's duties and liabilities in conducting the election 
 of members of Parliament." 
 
 1 Huggins's case, 17 St. Tr. 297 ; 2 Ld. 
 Eaym. 1574. 
 
 2 OUiet V. Bessey, T. Jones 214 ; Hen- 
 derson V. Preston, "21 Q. B. D. 362 ; 57 
 L. J. Q. B. 607 ; 36 W. R. 834. 
 
 3 Moons V. Rose, L. R. 4 Q. B. 486 ; 
 38 L. J. Q. B. 236 ; 17 W. E. 729. 
 
 ^ I T. R. 60. Buller, J., cites for his 
 opinion Badkin v. Powell, Cowp. 476, tho 
 marginal note of which is " Trespass vi 
 et armis does not lie against a pound- 
 keeper merely for receiving a distress, 
 though the original taking be tortious. 
 /Secus, if he exceed his duty and assent to 
 the trespass." 
 
 ^ Aaron v. Alexander, 3 Camph. 35 ; 
 White V. Taylor, 4 Bsp. 80. 
 
 8 Elliott V. Duke of Norfolk, 4 T. R. 
 789 ; Southcote's case, 4 Rep. 84 ; Cromp- 
 ton V. Ward, Stra. 429 ; O'Neil v. Marson, 
 5 Burr. 2812. 
 
 ' Ante, p. 252. 
 
 8 South V. Maryland, 18 How. (U. S.) 
 396- 
 
 ^ The sheriff, in holding the connty 
 court for the election of coroner, and tak- 
 ing the poll of valid electors and deter- 
 mining which of the candidates is chosf-n, 
 is exercising functions of a judicial char- 
 acter : The Queen v. Diplock, L. R. 4 
 
PARTii.] NOTAEIES PUBLIC, SHEEIFFS, ETC. 755 
 
 "That the officer is only ministerial in this case, and not a 
 judge, and not acting in a judicial capacity," say Holt, O.J., and 
 the House of Lords, "is most plain."' Yet Abbott, O.J.,' says, 
 " The returning officer is, to a certain degree, a ministerial one, 
 but he is not so to all intents and purposes ; neither is he wholly 
 a judicial officer ; his duties are neither entirely ministerial nor 
 wholly judicial ; they are of a mixed nature. It cannot be con- 
 tended that he is to exercise no judgment, no discretion whatever 
 in the admission or rejection of votes, and he could not discharge 
 his duty without great peril and apprehension if, in consequence 
 of a mistake, he became liable to an action." 
 
 By 3S & 36 Vict. c. 33, s. 8, in any riding or division of a Power to 
 county,' being a distinct constituency, and in which the sheriff deputy! * 
 does not himself act, he may appoint a deputy to do all acts in 
 relation to the election that the sheriff is required at common 
 law to do.'' 
 
 Where there is no special- returning officer appointed to a 
 parliamentary borough not incorporated, the sheriff of the county 
 is, by 48 & 49 Vict. c. 23,3. 11, directed in the month of March 
 in every year to appoint a fit person to be the returning officer." 
 
 By 35 ^ 36 Vict. c. 8, the returning officer's duties are to Duties of 
 provide nomination papers, polling stations,, ballot boxes, ballot 0^™?^ 
 papers, stamping instruments, copies of register of voters, to 
 appoint and pay such officers as are necessary for effectually con- 
 ducting an election in manner provided by the Act. 
 
 By section 1 1 every retui"ning officer, presiding officer, and WUfui mia- 
 clerk who is guilty of any wilful misfeasance, or any wilful act 
 or omission in contravention of the Act, shall be liable to a fine of 
 ;fioo in addition to any other liability which he may have 
 incurred at common law." In connection with this must be taken 
 the 7 & 8 Will. III. c. 7, by which " all false returns wilfully 
 made " are declared against law.' 
 
 In Ashby v. White' it was ultimately resolved in the House of Ashby v. 
 
 •' •' White. 
 
 Q.B.549; 38 L. J. Q. B. 297 ; 21 L. T. ^Qw\\env.Movns,2^iark.S']T,&iy>.Ci?,T. 
 
 N. S. 24; 17 "W. B. 823. ^ As to the retuniiiig officer when a 
 
 ' 6 Cobtett, Parliamentary History, p. parliamentary borough becomes a munici- 
 
 313. The passage continues as follows : — pal borough, 31 & 32 Vict. 0.58,8.33. 
 
 " His business is only to execute the pre- See, too, 2 & 3 Will. IV. c. 45, scheu. 
 
 cept, to assemble the electors to make the C. and D. 
 
 election by receiving their votes, com- * Compare So & 51 Vict. c. 55, s. 25. 
 
 puting their numbers, declaring the eleo- '' 30 & 31 Vict. c. 102, s. 47. 
 
 tion, and returning the persons elected ; ^ See Hackney, 2 O'M. &H. 77 ; Davies 
 
 the sheriff or Other officer of a borough is a. Lord Kensington, L, E. 9 C. P. 720 ; 
 
 put to no difficulty in this case but what 2 Will. IV. c. 45, s. 76 ; Eavnardiston v. 
 
 18 absolutely necessary in all cases. If an Soame, 6 St. Tr. 1063; Broom's Const. Law 
 
 execution he against a man's goods, the 800. 
 
 sheriff must, at his peril, take notice what ' Ld. Eaym. 938; i Sm. Lead. Cas. 
 
 Soods amanhas." Coniyns, Dig. Viscount gth edit. p. 268. 
 
 (C 4). 8 Compare DrewcK.Coulton, I East 563 n. 
 
75G THE LAW OF NEGLIGENCE. [book n. 
 
 Lords, reversing the King's Bench, three judges against Holt, 
 O.J., that if a man has a right to vote at an election for members 
 of Parliament, he may maintain an action against the returning 
 officer for refusing to admit his vote, though the person for whom 
 he offered to vote were elected.' 
 
 If the sheriff in the discharge of his duty in the election of 
 members to serve in Parliament act wilfully and corruptly, it is 
 considered a contempt of the House, for which the House will 
 commit him to custody.' 
 11. Duties in H, The sheriff's duties and liabilities in summoninsr iuries.' 
 
 the summoning , " '' 
 
 of juries. By 25 & 26 Vict. c. 107, s. 4, the clerks of the peace of 
 
 every county are required to issue their precepts to the church- 
 wardens and overseers of their respective paxishes, requiring them 
 to prepare jury lists. 
 
 Ey 33 <^ 34 Vict. c. 77, s. 13, if this work is done negli- 
 gently, so as to insert "the name of any person whose name 
 ought not to have been inserted therein, or omit therefrom the 
 name of any person whose name ought not to have been omitted," 
 the churchwarden or overseer so guilty shall be liable to a fine of 
 forty shillings for each offence."" 
 
 On the principle of Ashby v. White,^ any qualified juror would 
 have an action against the proper officer for maliciously omitting 
 to insert his name." 
 
 When the jury lists are prepared the clerk of the peace is to 
 forward to the sheriff a book called " The Jurors' Book." This is 
 
 1 Pryoe v. Belcher, 3 C. B. 58, 4 C. B. causes stould be tried at Nisi Prim till 
 
 866. the sheriff had returned the names of the 
 
 ^ Liskeard Return, 2 Pect. 328, 329. jurors to the Court. Another change then 
 
 ' As to the qualifications, &c., of jurors, took place in the venire. The part relat- 
 
 6 Geo. IV. c. 50, 33 & 34 Vict. c. 77, 34 ing to Nisi Frim was taken out. The 
 
 Vict. c. 2, B. I ; jury lists, 39 & 40 Vict c. sheriff delayed summoning the jurors who 
 
 61, s. 32. Ori^nally a venire facias was did not attend ; but the sheriff returned 
 
 directed to the sheriff, commanding him to their names on a panel or slip of parchment, 
 
 have twelve good and lawful men from the so that the parties had the opportunity of 
 
 neighbourhood in Court on a specified day, seeking inquiries. In consequence of this 
 
 to try the issue between the parties. When seeming neglect of the sheriff, a writ, called 
 
 the Court of Common Pleas became sta- a distringas, or, in the Common Pleas, 
 
 tionary at Westminster, this course was habeas corpora jwratorurii, was issued, 
 
 inconvenient : the 13 Edw. T. i;. 30J was which commanded him peremptorily to 
 
 the result, whereby an alteration was have the bodies of the jurors in Court, 
 
 made in the venire, and instead of the This is the process at the present day. 
 
 sheriff being simply ordered to bring the * See Bray v. Somer, 2 B. & S. 374; 
 
 jurors to the Courts at Westminster, the 31 L. J. M. C. 135 ; 6 L. T. N. S. 49. 
 
 sheriff was now required to bring them ' 2 Ld. Raym. 938 ; I Sm. Lead. Cas. 
 
 there on a certain day Nisi Prim; that is, 9th edit. p. 268 ; compare Tozer v. Child, 
 
 unless before that day the justices of assize 7 E. & B. 377. 
 
 came into the county. The sheriff, how- * In Wolverhampton Waterworks Com- 
 
 ever, was not obliged to retum the venire pany v. Hawkesford, 28 L. J. C. P. 242, 
 
 until the day he brought the jurors into Willes, J., lays down rules with reference 
 
 Court where the justices were sitting, so to the construction of statutory liability, 
 
 that the parties were unable to say where there is no liability imposed at com- 
 
 whether they had just cause of exception mon law. Vallance a. Ealle, 13 Q. B. D. 
 
 to them. This led (0 the passing of 42 109 ; 53 L. J. Q. B. 459 ; 51 L. T. 158; 
 
 Ed-v. III. u. II, which provided that no 32 W. R. 769. See onfe, p. 220. 
 
PARTII.J ISrOTAUlES PUBLIC, SHERIFFS, feTC. 757 
 
 to remain, in use for one year only, beginning on the ist of 
 January. 
 
 Within ten days of the receipt of the book the names of 
 all men qualified therein as special jurors must be taken out by 
 tlie sheriff and put in a separate list,^ and an omission to do this 
 subjects the sheriff to penalties.^ 
 
 By IS & 16 Vict. c. "J 6^ the judges of assize by precept 
 may direct the sheriff to summon jurors for the trial of all issues, 
 civil or criminal, within certaiu limits therein specified.* If, 
 however, the name of any person who is not qualified or liable to 
 serve on juries is inserted in the jury-book, the sheriff is indem- 
 nified for returning or impanelling him.* The only remedy would 
 be against the churchwardens and overseers. 
 
 III. The sheriff's duty in the execution of process. IW- Duties in 
 
 When a writ is dehvered to the sheriff he is strictly bound" to of process. 
 execute it within his county, and there only,^ according to the 
 exigency of it, without inquiring into the regularity of the pro- 
 ceedings on which the writ is based,' " both from the danger there 
 is of fraud and collusion with defendants, and also because it is a 
 disgrace to the Crown and the administration of justice if the 
 King's writs remain unexecuted." The party should shew that 
 he has a judgment in his favour, or was entitled to an order to 
 arrest under 32 and 33 Vict. c. 62. If the sheriff executes the 
 process of a Court not having jurisdiction ia the matter in which 
 it professes to act, he will be liable,' but not if the Court has 
 jurisdiction, though its order is erroneous." This is illustrated 
 by Dalton" : " If the justices of peace arraign a person of treason Quotation 
 iu their sessions who is convicted and executed, this is felony as "^ ™ 
 well in the justices as in the sheriffs or oflBcers who executed 
 the sentence ; but if he had been indicted of a trespass, found 
 guilty and hanged, though this had been felony in the justices, 
 yet it would not be so in the sheriff, because a matter in which 
 the justices had jurisdiction, and which they only were to blame 
 in exceeding their authority." ^^ A writ may therefoi'e be at once 
 
 ' 6 Geo. JY. c. 50, s. 46 ; Williams «. Howden v. Standisb, 6 C. B. 504, at p. 
 
 Thomas, 4 Ex. 479. 520. 
 
 3 33 & 34 Vict. c. 77, s. 15. ' Sowell v. Champion, 6 A. & E. 407. 
 
 ^ Amended by 33 & 34 Vict, c 77. See ^ The Marshalsea case, 10 Eep. 68 b : 
 
 6 Geo. IV. c. 50. Thomas v. Hudson, 14 M. & W. 353, 16 
 
 * Sections 105, 106, 107. M. & W. 885. 
 
 ^ 6 G«o. IV. 0. 50, s. 39. ' Warmoll v. Young, 5 B. & C. 660 ; 
 
 ^ Statute of We.stminstei- the Second, Imra.y ». Magnay, 11 M. & W. 267. 
 
 c. 39 ; Dalton, Sherift) p.493 : " The sheriff " Briltain v. Kinnaivd, i B. & B. 432 ; 
 
 ought to execute the King's writ at his Thojnas o. Hudson, 14 M. & W. 353, 16 
 
 peril, although resistance be made, other- M. & W. 885. 
 
 •wise he shall be grievously amerced ; " Dalton, Sheriff, p. 197. 
 
 besides, the party shall have his action ^^ The Marshalsea case, 10 Eep, 68 b, 
 
 against him if the writ be not executed " ; at p. 76 a. 
 
758 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 11- 
 
 Sheriff may 
 not set up that 
 the writ is 
 erroneously 
 awarded if it 
 shews juris- 
 diotiou on the 
 
 Sheriff may 
 break open 
 doors at the 
 suit of the King, 
 but not of pri- 
 vate persons. 
 
 good and bad — good as to the sheriff and those acting under him, 
 but bad as to the persons suing it out." 
 
 If the writ is, in fact, erroneously awarded, but shows jurisdiction 
 on the face, the sheriff is not allowed to set up the defect. The 
 authority for this proposition is Gold v. Strode," where in an 
 action against the sheriff for an escape it was moved in arrest of 
 judgment that the letters of administration on which the pro- 
 ceedings were based were void, and that therefore all the depen- 
 dencies on it were void also. But the Court was of opiaion that 
 if it were so, the sheriff might not question the judgment of 
 the Court, for it was not a void but an erroneous judgment; 
 " and when a person is in execution upon such a judgment, and 
 escapes, and then an action is brought against the gaoler or 
 sheriff, and judgment and execution thereon, though the first 
 judgment upon which the party was in execution should be after- 
 wards reversed, yet the judgment against the gaoler being upon a 
 collateral thing executed, shall still remain in force."' If, how- 
 ever, the party himSelf takes out an exeexition, that will not lie 
 without an award of the Court; such execution will give no 
 authority to hold the defendant, and therefore there will be no 
 escape to let him go. But if the Court have issued it, though 
 erroneously, it is good till set aside by a writ of error.^ And no 
 one can be sued for exercising his legal right to issue execution on 
 a judgment unless he act maliciously and without reasonable and 
 probable cause.* 
 
 In the execution of writs at the suit of the King the sheriff 
 may break open the outer door of a house wherein the defendant 
 or his goods are, but must first signify the cause of his coming, 
 and demand admission." He may also break the door of a house 
 in executing a capias utlagatum, writs of seisin, habere facias pos- 
 sessionem, and attachment.^ But he may not break open the 
 outer door of any man's house in the execution of process 
 
 ^ Parke, B., Jones v. Williams, 9 Dowl. 
 yo2, at p. 710 ; 8 M. & W. 349, at p. 356. 
 
 = 3 Mod. 324 ; Shirley v. Wright, Uro. 
 Jac. 775 ; Bull. N. P. 66 : in this work 
 there is a very valuable chapter on the sub- 
 ject, 0. vi. pp. 64-74, " Of Case for Mis- 
 behaviour in an Office, Trust, or Duty." 
 
 ^ In America it has often been decided 
 that the sheriff cannot refuse to execute 
 voidable process since it depends on the 
 defendant alone whether it is rendered 
 void : Bacon v. Cropsey, 7 N. Y. 195 ; 
 Ames V. Webbers, 8 Wend. 545. 
 
 <■ Grilbert, Law of Executions, p. 82. A 
 writ delivered to the sheriff to be executed, 
 when returned is matter of record, and 
 may bo proved by an examined copy : 
 Kiiiusliothnmv. Buckhurst, 2 M. & S. 565 ; 
 
 2 Wms. Saunders (edit. l87l)''2i6. 
 
 " De Medina «. Grove, 10 Q. B. 152; 
 IS L. J. Q. B. 287 ; Roret v. Lewis, 5 D. 
 &L. 371. 
 
 ^ Semayne's case, 5 Eep. 91 a ; Cro. 
 Eliz. 909 ; Burdett v. Abbott, 14 East i, 
 at pp. 157, 163 ; Launock v. Brov^Dj 2 B. 
 & Aid. 592, where it is said, " Even in the 
 execution of criminal process, you must 
 demand admittance before you can justify 
 breaking open the outer door," " for if no 
 previous demand is made, how is it pos- 
 sible for a party to know what the object 
 of the person breaking open the door may 
 be ? " Compare Ratcliffe v. Burton, 3 B. 
 & P. 223. 
 
 ' Harvey v. Harvey, 26 Ch.D. 644 ; 51 
 L. T. 508 ; 32 W. R. 761. 
 
PART II.] NOTARIES PIJBLIC, SPIERIf'FS ETC'. ?59 
 
 bsfcweeu subjects, for the maxim of law is, eyery man's house is 
 his castle : Djinus sua cuiqua est tatissimum rcficgium} When 
 once in the house he may break open inner doors in order to 
 take under a Ji. fa. goods which are within the house.^ 
 
 The sherifE is only justified in entering the house of a stranger 
 to arrest or seize if he finds the execution debtor or his goods in 
 the house.' If the execution debtor is not in the house, or has 
 no property there, the sherifi" is a trespasser/ unless the entry was 
 in hot pursuit of an escaped prisoner ; but he must give notice of 
 his intention and purpose/ as in the case of the execution of Crown 
 process. 
 
 If, however, the sherifi", in making his entry to arrest, " has Distinction 
 been guilty either of a breach of a positive statute, or of an offence la^v^with re- 
 against the common law, such violation of the law in making the ^f^^^\° '^^^l^' 
 entry causes the possession thereby obtained to be illegal ;"° and andanan-est 
 if advantage be taken of the unlawful act to cause a person to be where au 
 arrested, the Court will order his discharge.' There is, however, oJourrediiT^ 
 a distinction where the sheriff obtains possession of the debtor's some of the 
 
 1 1 -11 1 i> 1 1 ■ 1 1 • i ciroumstaucea. 
 
 person by the illegal act or some one else to which he is not a party. 
 This is the law as it applies to writs of ca. sa., which were for- 
 merly of greatly more frequent acquaintance than now, and in the 
 execution of which the greatest strictness is observed in favour of 
 the liberty of the subject.' 
 
 But the rule is otherwise in the case . of a _^. fa., where goods 
 only are to be seized. In that case, when the goods are once in 
 the hands of the sheriff, the fact that they were obtained posses- 
 sion of by an illegality is not sufficient to warrant an order for 
 their return.' 
 
 In the case of the execution of a writ in a liberty the sheriff fixeeution of 
 should in the first instance make out his mandate to the bailiff ; liberty, 
 when this has been done, the bailiff", and not the sheriff, is 
 answerable.'" If process is directed to the bailiff it is generally 
 void, and the baihff executing it is guilty of a trespass against 
 the party whose goods are taken in execution, for he is not the 
 officer of the Court, but of the sheriff." 
 
 Should the writ contain what is commonly called a noil omittas Where Diere 
 
 is a unit omittas 
 
 ' Semayne's case, 5 Eep. gi a ; I Sm. ^ Tindal, C.J., Newton u. Harland, I M. clause. 
 
 Lead. Cas. 9th edit, iij ; Broom's Legal & G. 65S. 
 
 Maxims, p. 404. ' Hodgson v. Towning, 5 Dowl. 410. . 
 
 - Hutchinson v. Birch, 4 Taunt. 620 ; ^ Hooper v. Lane, 6 H. L. C. 535 ; 27 
 
 •and when the sheriffis lawl'ully in a house L. J. Q. B. 75 ; Humphrey v. Mitchell, 2 
 
 he may break down the outer door to get Bing. N. C. 619. 
 
 out ; Pugh V. Cfriffiths, 7 A. & ii. 827. » Hooper v. Lane, 6 H. L. C. 535 ; 27 
 
 3 Morrish v. Murray, 13 M. & W. 52, L. J. Q. B. 75 ; Percival r. Stamp, 9 Ex. 
 
 at p. 57. 167- 
 
 ■> Ratcliffe v. Burton, 3 B. & B. 229. '» Boothman?'. Earlof Surrey, 2T. K. 5. 
 
 Johnson V. Leigh, 6 Taunt. 245. " Grant r. Baggc, 3 Ea'st 12S. 
 
 ' .Vnon., LoH't 390. 
 
7G0 
 
 ME LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Shorifi must 
 find this person 
 or property 
 named in the 
 writ. 
 
 Statutorj- 
 provisions. 
 
 Foi'iuerly the 
 sheriff might 
 defer exeeu- 
 tion. 
 
 clause, the privilege o£ the franchise is thereby swept away, and 
 the sherifE or his ofEcer may enter the liberty and there execute 
 the writ.' Now, however, in practice it is not unusual to issue 
 a non omittas writ in the first instance, without default being 
 made by the baihff of the liberty." Where, however, there is no 
 non omittas clause, the sheriff is liable to an action at the suit of 
 the owner of the franchise for executing the writ — yet the exe- 
 cution is not invalidated ; ^ so that if the sheriff arrest a man 
 within a franchise, and afterwards let him escape, though he 
 renders himself liable to an action by the owner for an infringe- 
 ment of the franchise, he is also Kable to an action for the 
 escape, as the arrest is good notwithstanding.^ The law is similar 
 with regard to an arrest in a royal palace." 
 
 It is the duty of the sheriff, by himself or his officers, to adopt 
 the proper measures for finding the person named in the writ, 
 and if he does not he must abide the consequences ;" and he 
 must receive all kinds o? writs at whatever time and wherever 
 within the country they shall be delivered to him.' 
 
 The 29 Car. II. c. 7, s. 6, prohibits the service of civil process 
 on Sunday,' and 24& 25 Vict. c. 100, s. 36, makes it a misde- 
 meanour to arrest a clergyman on civil process while performing, 
 or travelling to or from the performance of, divine service. 
 
 At common law the sheriff might defer execution till the 
 return day, which was fifteen days after the teste, of the writ. 
 But writs are now not returnable for any certain time, but 
 ' ' immediately after the execution thereof." ° And though in 
 strictness the sheriff always ought to have returned every writ 
 when executed, a practice grew up of not doing so ; unless he was 
 ruled or ordered to do so by the plaintiff, in order to prevent 
 improper conduct in the officer, or to found an action against the 
 sheriff, where by the sheriff's negligence the plaintiff's right to re- 
 cover on his judgment had been defeated.'" There is an exception 
 
 ' Adams v. OsbaMeston, 3 B. & Ad. 
 489. 
 
 2 Cari'ett «. Smallpage, 9 East 330. 
 
 ' Sparks v. Spink, 7 Taunt. 311; 
 Fitzpatriok v. Kelly, 3 T. E. 740 ; Eex v. 
 Mead, 2 Stark. 205. 
 
 * Piggott V. Wilkes, 3 Bar. & Aid. 502. 
 ^ See Attorney-General v. Dakin, L. R. 
 
 4 H. of L. 338 ; 39 L. .T. Ex. 113 ; 23 
 L. T. N. S. I ;_ 18 W. K. nil, for the law 
 of sheriffs' levies in a royal palace, and 
 the distinction between a royal palace and 
 i\ royal palace which is also a royal resi- 
 dence. 
 
 * Dean, &o., of Hereford v. Macnamara, 
 
 5 D. & R. 95. 
 
 ' Brackenbury «. Laurie, 3 Dowl. 180, 
 is cited for this in Atkinscn, Sheriffs, 6th 
 
 edit. p. 175, but that case only goes to 
 the neglect of a sheriff in failing to have a 
 " sufficient deputy " under 3 & 4 Will. IV. 
 c. 42, s. 20. The other reference is Dal- 
 toD, Sheriffs, c. 20. 
 
 ^ Egginton's case, 2 El. & Bl. 717 ; 
 23 L. J. M. C. 41 ; Percival u. Stamp, 9 
 Ex. 167 ; 23 L. J. Ex. 25. 
 
 ' " Formerly the return day was fixed 
 in the writ itself, now it is fixed either by 
 the fact of. its being executed, or by an 
 order of the judge, or by lapse of four 
 months : " per Lord Denman, C.J., Ran- 
 dell V. Wheble, 10 Ad. & E. 719. 
 
 ^'' Daniels v. Gonjpertz, 3 Q. B. 322 ; 
 Harding v. Holden, 2 M. & G. 914 ; Brad- 
 ley V. Carr, 3 M. & G. 221 ; Richardson 
 V. Trundle, 8 C. B. N. S. 474 ; 29 L. J. 
 
PAETii.] NOTARIES PUBLIC, SHERIFFS, ETC. 
 
 r61 
 
 to this, however, in the case of an elegit, where the elegit and 
 inquisition must be returned and filed in order to complete the 
 execution.* 
 
 The duty of the sheriff is now to execute the writ on the first Duty of siici-iff 
 opportunity he can get, and if he does not so he is guilty of ^e wri^or"'" 
 negligence, and will be liable for any damage that may result.^ tiie first oppor- 
 It was contended in Jacobs v. Humphrey" that in the case of a 
 fi. fa. the reasonable time allowed to the sheriff was not exhausted 
 till a writ of venditioni exponas"^ had been sued out against him. 
 But Bayley, B., answered : " The sheriff ought to act without a 
 renelitioni exponas, and that writ is only to give him alacrity." 
 Yet " extraordinary exertion " is not to be required from him ; 
 all he is bound to shew is " due and reasonable diligence under 
 all the circumstances."^ 
 
 In the case of a Ji. fa. an action is not maintainable against a On//a., action 
 sheriff for not levying unless actual pecuniary damage is shewn." abie"imiess™" 
 If damage is shewn, then primd facie the measure of it is the actual pecu- 
 
 - - in -I 1 • n niavy damage 
 
 value of the goods which might have been, and were not, levied ; is shewu. 
 but the jury will have to say whether the whole loss was the 
 result of the sheriff's neglect.' And the sheriff is not estopped 
 by his return from proving that the goods seized did not belong 
 to the debtor.^ 
 
 C. P. 310. See j^ost, p. 772, and Rules 
 of Supreme Court, 1883, Order lii. r. 11. 
 As to time of return where the sheriff has 
 interpleaded, Angell v. Baddeley, 2 Ex. D. 
 
 49- 
 
 1 Underhill v. Devereux, 2 Wms. Saund. 
 edit. 1871, 197. 
 
 2 Brown v. Jarvis, i M. & W. 704 ; 
 Tucker v. Bradley, 15 Conu. 46; Carlile 
 i,-. Parkins, 3 Stark. 163. 
 
 ' 2 C. &M. 413. The same case is an 
 authority for the proposition that declara- 
 tions made hy an ofEoer whilst in posses- 
 mion of goods after the return of the_^. fa. 
 are evidence against the .sheriff. But in 
 an action against the sheriff, admissions by 
 the under-sheriff are not evidence unless 
 they accompany some ofiicial act of the 
 latter or tend to charge himself: Snow- 
 ball V. Goodricke, 4 B. & Ad. 541. 
 
 ■* This is a branch of a .^. fa., and not 
 an independent process. Hughes u.Eees, 
 7 D. P. C. 56 ; Cameron r. Reynolds, 
 Oowp. 406. Under this it is the sheriff's 
 duty to sell at all events for the best price 
 that can be got : Keightley ". Birch, 3 
 Campb. 520. (Compare, however, Leader v. 
 Danvers, i B. & P. 359-) This he can do 
 though out of office: Doe d. Stevens v. 
 Donston, I B. & Aid. 230 ; but he may 
 take a reasonable time to make inqui- 
 ries : Ayshford v. Murray, 23 L. T. N. S. 
 470. The Bale also must take place in a 
 
 reasonable time : Carlile 0. Parkins, 3 
 Stark. 163 ; and before the return to the 
 venditioni exponas : Bates v. Wingfield, 
 2 N..& M. 831. If through the sheriff's 
 negligence the goods sell for an imdervalue, 
 he will be liable to both debtor and credi- 
 tor : Mullet V. Challis, 16 Q. B. 239 ; 
 Phillips V. Bacon, 9 East 298. The sale 
 need not be by auction : Phillips u. Vis- 
 count Canterbury, 11 M. & W. 619 ; but 
 the scale of fees framed under 7 Will. IV. 
 1 & Vict. c. 55 applied to " sales by auction 
 only." Since the proper mode of compel- 
 ling a sale by the sheriff is by writ ofven- 
 ditioni eeponas, the sheriff is not com. 
 pellable to execute a bill of sale to the 
 plaintiff's nominee, though ho has promised 
 to do so : Cameron v. Reynolds, Cowp. 
 
 403- 
 
 ^ Hodgson V. Lynch, Ir. R. S C. L. 357. 
 
 ^ Stimson v. Farnham, L. R. 7 Q. B. 
 175 ; 41 L. J. Q. B. 52 ; 25 L. T. N. S. 
 
 747- 
 
 ' Hobson V. Thelluson, L. R. 2 Q. B. 
 642 ; 36 L. J. Q. B. 302 ; 15 W. R. 1037. 
 
 " Stimson v. Earnham, L. It. 7 Q. B. 
 175. Where the declaration disclosed a 
 state of facts from which the law would 
 presume damage under the old rules of 
 pleading, the defendant was at liberty to 
 plead that in fact no damage was sus- 
 tained : Wylie v. Birch, 4 Q. B. 566 ; 13 
 L. J. Q. B. 260. 
 
762 
 
 THE LAW 0^ l^EGLIGtEHCE. 
 
 [booS It 
 
 Damages 
 obtainable 
 against the 
 sheriff. 
 
 Sheriff respoii' 
 sible for the 
 execution of 
 the writ. 
 
 Sheriff's duty 
 where there 
 are Tarious 
 writs in his 
 hands. 
 
 The case of Mason v. Paynter' illustrates what sort of damages 
 can be obtained against the sheriff. There, was an action against 
 the sheriff for not executing a writ of hah.fa.poss. in proper time. 
 The plaintiff had gone down with the writ and warrant, and some 
 persons to assist in putting it in force, and deUvered it to the 
 officer, desiring that it might be executed immediately. The 
 officer refused, being told by the defendant's landlord that he 
 should set aside the judgment; and subsequently it was set aside. 
 The Master, in taxing costs, disallowed the expenses of the plaintiff 
 in trying to have the writ executed, upon the very ground that the 
 writ had not been executed ; but the Court was of opinion that 
 the sheriff was not excused in refusing to execute a writ " when 
 he has the opportunity, is required to do so, and nothing occurs 
 to prevent him;" and allowed the costs. 
 
 The sheriff is responsible for the execution of the writ, and 
 ought, if necessary, to take the power of the county — what number 
 of persons, that is, he shall think good — to aid him. This is pro- 
 vided for by the Statute of Westminster the Second, c. 39 : " That 
 the sheriff, as soon as his bailiffs do testifie that they found such 
 resistance, forthwith all things set apart (taking with him the 
 power of the shire), he shall go in proper person to do execution." 
 This only applies to writs of execution, and therefore, in executing 
 mesne process,^ although the sheriff may, yet he is not compelled 
 to raise the posse comitatus.^ But the sheriff should not raise the 
 posse comitatus unless resistance is shewn.'' There does not, how- 
 ever, seem any means of reimbursing the sheriff the expenses 
 he incurs in calling out the posse comitatus.^ 
 
 If the sheriff has various writs of fi. fa. in his hands against 
 the same debtor, he is bound to execute them all, giving priority 
 to each in the order in which they came into his hands, so that 
 anyone who places a writ in the hands of the sheriff is entitled 
 to have it executed as far as possible in his interest and on his 
 behalf. As soon, then, as damage arises, the creditor has a com- 
 plete right of action against the sheriff.* Where the writs to be 
 
 1 I Q. B. 974. 
 
 = By the Baftkruptcy Act, 18S3 (46 & 
 47 Vict. 0, 52), s. 25, no person can be 
 arrested on mesne process in any action ; 
 but where a plaintiff can shew a good 
 cause of action above £y>, and that the 
 defendant is about to quit England, a j udge 
 may order the defendant to be arrested 
 till he gives security (32 & 33 Vict. 0. 62, 
 s. 6) ; or a debtor may be arrested where 
 he is about to abscond, or to remove his 
 goods ; or if he fails to attend his exami- 
 nation. As to terras of discharge under 
 the Debtors Act, 1869, see seutioo 5. 
 
 ' Noy 40 ; 1 Stra. 432 ; Cro. Jac. 419. 
 
 * 2 Inst. 454 ; Dalt. Sheriff, 355, 356. 
 
 " Watson, The Office of Sheriff, p. 74 ; 
 per Parke, B, : "The master is only to allow 
 what the sheriff is entitled to under the 
 statute 29 Eliz. c. 4, and the fees men- 
 tioned in the schedule of fees allowed by 
 the judges under the recent statute " — i.e. , 
 7 Will. IV. & I Vict, li, ss ; Slater v. 
 Hames, 7 M. & W. 413 ; Phillips v. Vis- 
 count Canterbury, 11 M. feW. 619. 
 
 " Dennis v. Whetham, L. E. 9 Q. B. 
 345 ; 43 L. J. Q. B. 129 ; 30 L. T. N. R. 
 514; 32 W, K. 571. 
 
PAETn.] NOTARIES PUBLIC, SHERIFFS, ETC. 763 
 
 executed are to arrest the defendant, the rule is, that when the 
 sheriff lias onca made an arrest valid as regards himself and his 
 own authority, the act operates as an arrest at the suit of all other 
 plaintiffs in all actions in which he holds writs against the party 
 at the time.' But when the act he lias done is one on which he 
 cannot rely, then it cannot operate as a legal arrest under any 
 other writ which he may hold.' In the case of a fi. fa. we have 
 already seen that it is otherwise. But the proceeds must be 
 applied according to the priority of the writs ; if there be more 
 than enough to satisfy the first, the surplus must go to the second, 
 and so on.^ But if the first be invalid by reason of the provisions 
 of the Bankruptcy Law,^ or be void on the ground of fraud,' then 
 the second takes its place, and the sheriff has to hold them, under 
 the later writ. This holds good if the execution of the earlier 
 writ, is suspended." Where the earlier writs and the landlord's 
 rent have exhausted the proceeds the return is nidla honaJ 
 
 The sheriff is bound to seU, even on a writ on a fraudulent sheriff bound 
 judgment, for he is not to revise the process of the court, but to ° ^'^ ' 
 execute it.^ But if the right of a creditor is involved, then the 
 sheriff is responsible for neglecting to seize and sell under such 
 creditor's writ, if he have notice of the fraud, or by reasonable 
 inquiry could have discovered it." 
 
 The sheriff must seize only such a quantity of goods as is reason- Sheriff only 
 ably sufficient to satisfy the execution, and if he sell more he is jg reasonlue. 
 liable in trover in respect of the excess.'" It is a question of fact 
 in each particular case whether he has sold more than under the 
 circumstances is necessary. Prima facie a sheriff's sale is to be 
 considered to be for ready money and immediate delivery, so that 
 the sheriff is not justified, after he has sold so much as apparently 
 satisfies the writ, in going on to sell more upon a sijeculation that 
 it is possible that actual delivery of such goods as he has already 
 sold may be prevented by some loss or accident for which he is 
 not answerable." 
 
 ^ Barratt v. Price, g Bing. 566 ; Eobin- Abbott, 4 Ex. 558. Directions to the bailiiT 
 
 8on«. Yewens, 5 M. & W. 149; Pearson do not necessarily bind the eheri£f ; Barlcer 
 
 V. Yewens, 7 Scott 435. ''■ St. Quintin, i D. & L. 542; Walker w. 
 
 ^ Hooper v. Lane, 6 H. L. C. 443, at p. Hunter, 2 G. B. 324. 
 
 538. '' Wintle II. Freeman, 11 A. &E. 539. 
 
 ^ Drewe v. Lainson, 1 1 A. & E. 529. " Imray v. Magnay, 1 1 M. & W. 267, 
 
 ^ Aldred r. Constable, 6 Q. B. 370 ; at p. 275 ; Christopherson v. Burton, 3 Ex. 
 
 Graham v. AVitherby, 7 Q. B. 491, 46 & 160; 18 L. J. Ex. 60. 
 
 47 Vict. c. 52. " Dennis v. Whetham, L. E. 9 Q. B. 
 
 ° Denr,i,s v. Wbetham, L. R. 9 Q. B. 345. 
 
 345 ; 43 L. J. Q. B. 129 ; 30 L. T. N. S. i" Stead v. Gascoigne, 8 Taunt. 527 ; 
 
 514 ; 22 W. R. 571. Batchelor v. Vyse, 4 M. & Scott 552. 
 
 " Hunt V. Hooper, 12 M. & W. 664; ^^ Aldred v. Constable, 6 Q. B. 370. 
 
 Howard v. Cauty, 2 D. & L. 115 ; 13 Tho party entitled to execution may 
 
 L. J. Q. B. 294. If the sheriff be directed, levy the poundage fees and expenses of 
 
 by plaintiff or iiis solicitor not to execute execution over and above the sum re- 
 
 the writ, he is bound to obey: Levi u. covered, Rules of Supreme Court, 1883, 
 
764 THE LAW OP NEGLIGENCE. [book ii. 
 
 To warrant It IS not enougli that in the careless discharge of his duty to 
 
 thesheifff the ^^^ *^® sheriff's negligence may glance off and indirectly and 
 injury iraat remotelv work an iniury to another. Before a man can brins an 
 
 not be n?eroly . . ° 
 
 consequential, aotion for negligence he must shew a legal duty to himself. 
 Every man who wrongfully subtracts from the substance of 
 another man's debtor, whereby he becomes disabled to pay, does 
 the creditor an injury. But there is no right of action, as the 
 law does not look beyond the proximate mischief resulting to a 
 vested right, and redresses this only at the suit of the person im- 
 mediately injured.' 
 Sale must take The sheriff must sell with reasonable expedition,' and if through 
 reasoimbie liis negligent delay the property is lost or depreciated in value, or 
 expediton. ^jj^g debtor becomes bankrupt and his property thereby becomes 
 diverted, the sheriff is liable.^ And in America it has been 
 decided that where a levy is made and property is advertised 
 for sale, but through the negUgence of the sheriff no sale takes 
 place, the sheriff becomes a trespasser ah initio^ The sheriff is 
 also liable to an execution debtor for negligence in not properly 
 lotting for sale goods seized under a fi. fa.^ 
 Duty of sbeiiff It is the duty of a sheriff, on offering property for sale under 
 sale™ "° ""^ 8,n execution, to state the interest he proposes to sell, and to make 
 known any defect of title within his knowledge ; and if he does 
 not do so, he is responsible if the title turn out defective f but 
 there is no warranty of title at a sheriff's sale, so that where cer- 
 tain articles had been bought at a sale under an execution for 
 ;^I 8, and the bargain was bought for £2^, while the arlicles were 
 afterwards taken under a superior title, it was held that the con- 
 sideration for the purchase of the bargain had not failed, since 
 the true consideration was the assignment of the right that the 
 defendant had acquired by his purchase at the sheriff's sale.' The 
 
 Order xlii. r. 15. The sheriff is entitled v. Gallup, 16 Conn. 536- See The Six 
 
 where there has been no sale : Mortimore Carpenters' Case, i Sm. Lead. Cas. 9th 
 
 V. Oragg, 3 C. P. D. 216 ; but there must edit. 144. 
 
 be actual seizure : Bissicks v. Bath ^ "Wright v. Child, L. E. i Ex. 358 ; 35 
 
 Colliery Company, 3 Ex. D. 174; In re L. J. Ex. 209; 15 L. T. N. S. 141. 
 
 Ludmore, 13 Q. B. D. 417. See 50 & 51 ° Commonwealth v. Dickinson, S B. 
 
 Vict. c. 55, s. 20 ; but the execution Monr. 506. So if the purchaser at a sale 
 
 creditor must be entitled at the time of on an execution lose his title through 
 
 sale, and the sheriff cannot sell for his the neglect of the sheriffs' officer to comply 
 
 costs : Sneary v. Ahdy, i Ex. D. 299. with the requirements of the law, he has 
 
 As to the effect of bankruptcy, In re an aotion against the sheriff: Sexton 
 
 Craycraft, 8 Gh. D. J96 ; Ex parte jj. Nevers, 37 Mass. 451. 
 
 Lithgowj 10 Ch.D. 169 ; Howes «;. Young, ' Chapman «. Speller, 16 Q. B. 621; 
 
 I Ex. D. 146; 45 L. J. Ex. 499; 341.'!. 19 L.J. Q. B. 239. As to the principle 
 
 N. S. 739; 24 W. E. 738. of this decision, see per Erie, C.J ., Eich- 
 
 1 Bank of Eome u. Mott, 17 Wend. 554. holz v. Banister, 17 C. B.N. S. 708; 34 
 
 = Jacobs V. Humphrey, 2 Cr. & M. 413. L. J. C. P. 105 ; 12 L. T. N. S. 76 ; 13 
 
 8 Aireton v. Davis, 9 Bing. 740; Bales W. E. 96. In Benjamin, Sales, 4th edit. 
 
 V. WingBeld, 4 Q. B. 580, n, ; Carlile v. p. 634, the rule is thus expressed: — "A 
 
 Parkins, 3 Stark. 163. sale of personal chattels implies an affirma- 
 
 J Bond V. Wilder, 16 Vt. 393 ; Jordan tion by the vendor that the chattel is 
 
PART 11.] NOTAEIES PUBLIC, SHERIFFS, ETC. 765 
 
 effect of a sheriff's sale is to take the property out of the debtor Effect of 
 and to complete the title of the creditor to the proceeds, unless ^'^""'^'^ ™'°' 
 he has notice of an act of bankruptcy committed previous to 
 seizure,' or the goods are taken for a sum not exceeding ;if20, 
 including legal incidental expenses.^ Where a sheriff is in pos- 
 session under several writs, some for more, some for less, than 
 ^20, and sells, the writs are payable in order of priority, so long 
 as there are funds to pay. If, however, he receives notice of 
 bankruptcy within fourteen days after the sale, only those writs are 
 entitled to be paid which are for less than ;^20, and which would 
 have been paid had not bankruptcy intervened.^ By the same 
 enactment — the Bankruptcy Act, 1883 — where goods to the 
 above-mentioned amount are sold by the sheriff, the sale is to be 
 by auction, unless the Court from which process issues orders 
 otherwise.^ 
 
 When the sheriff has taken possession of the goods of the Goods in tiio 
 debtor he is bound to exercise that degree of care in their pre- of'thTshel-iff. 
 servation that a man of ordinary discretion and judgment might 
 reasonably be expected to exercise in regard to his own property. 
 He does not insure the goods, but is in the position of an ordinary 
 bailee for the purposes of custody and sale. He is very nearly in 
 the case of a factor dd credere — the keeper and seller of goods 
 with an obligation to guarantee the sale, and a lien on the pro- 
 ceeds to secure his compensation — and is, consequently, subject to 
 the same rule of care and liability.^ That is, he is not liable for 
 an accidental fire, nor yet if they are lost by theft, robbery, or 
 other accident, without want of ordinary care on his part." If the 
 sheriff leaves the goods with the debtor on the security of some 
 third person, the sheriff becomes liable if the goods are lost through 
 the fraud or negligence of the debtor, or through the fault of the 
 surety." The fact that the bailee of goods holds them in the 
 capacity of a public oflScer has never been considered as fixing a 
 more rigorous measure of liability upon him than if he held them 
 
 his, and therefore he warrants the title Vict. o. 52, b. 46; Eoscoe's Nisi Priui, 
 
 unless it be shewn by the facta and cir- 15th edit. p. 1034. 
 
 cnmstances of the sale that the vendor did ^ 46 & 47 Vict. c. 52, e. 145. 
 
 not intend to assert ownership, but only to ^ In re Pearce, 14 Q. B. D. 966 : 54 
 
 transfer such interest as he might have in L. J. Q. B. 316 ; 52 L. T. 518 ; 33 W. E. 
 
 the chattel sold." The Avhole of the cases 614. 
 
 are reviewed in the above-cited treatise. * As to the effect of bankruptev on a 
 
 1 Giles V. Grover, 9 Bing. 128, in the writ of execution, see 46 & 47 ^'ict. c. 
 
 House of Lords; in which case the judges 52, ss. 45, 46. Ex parte ~Wa.rrcn, 15 
 
 were summoned to advise whether, where Q. B. D. 48 ; 54 L. J. Q. B. 320 ; 53 L. T. 
 
 the sheriff had taken goods on an exeou- 68 ; 33 W. R. 572. As to who is a sheriff, 
 
 tion issued at the suit of a subject, but be- see section 168. 
 
 fure he had made any disposition of those ^ Browning r. Hanford, 5 Hill 5S8, 
 
 poods an extent came at suit of the Crown, 591 ; Moore v. Westervelt, 27 N. Y. 234. 
 
 the Crown's extent should be preferred, " Bridges v. Perry, 14 Vt. 262. Story 
 
 the majority of the judges and the House Bailments, § 296. 
 
 of Lords held the affinnative ; 46 & 47 ^ Higgins v. Kendrick, 14 Me. &:i. 
 
766 THE LAW OF NEGLIGENCE, [book n. 
 
 as a private person.' Story puts the liability of an oflBcer on 
 the same footing as that of a bailee for hire.^ The sanae liability 
 was assumed as applicable to sheriffs holding goods taken by 
 attachment in the American case of Jenner v. JoliflFe.' It follows 
 from this that the extent of the liability to which the surety may 
 bind himself to the sheriff has nothing to do with the right of 
 the creditor ; and it has further been held that the sheriff cannot 
 take a receipt or make any contract in relation to the property 
 seized which will give him a remedy beyond his own liability to 
 the creditor.'' 
 
 xiegit. The law with regard to the execution of an elegit is mainly 
 
 identical with that we have already considered, and the sheriff's 
 duty is the same. He may not, however, take securities for 
 money under an elegit, they being subject to &Ji. fa. only by the 
 provisions i & 2 Vict. c. no, s. 12, which does not extend to 
 an elegit. And he must not sell under an elegit. '^ Now, by the 
 Bankruptcy Act,- 1883,° the writ of elegit shall not extend to 
 goods ; and no levari facias is to issue in civil proceedings. 
 
 Any neglect by. the sheriff to observe these provisions of course 
 imports an actionable wrong. 
 
 Writ of CO. sa. In the case of a ca. sa.' the person suing out the process is at 
 liberty at any time to direct the discharge of the person arrested, 
 and subsequent detention under the same writ would give the 
 person so detained a right of action against the sheriff ; but 
 failing a direction from the person suing out process, the sheriff 
 is bound to keep his prisoner in custody till the Court grants an 
 order for discharge.^ The sheriff need not release his prisoner on 
 the arrival of the order of discharge ; indeed he might be re- 
 sponsible to some other creditor, who in the meantime had placed 
 a writ with him, if he did. The sheriff is entitled to a reasonable 
 time to search his office to ascertain whether other writs are 
 lodged against his prisoner. Thus, where a sheriff received an 
 order on a Saturday for the discharge of a prisoner, and on the 
 next day a warrant was received for his detainer under a ca. sa. 
 which had issued the day before, the Court held that the sheriff 
 
 1 See as to receivers, Kniglit v. Ply- are principally where the defendant could, 
 mouth, 3 Atk. 480 ; as to a county trea^ hut would not, pay. There is power lo 
 surer, Supervisors of Alhany «. Dow, 25 arrest also hy the Bankruptcy Act, 1883," 
 Wend. 440 ; as to revenue ofBoers, Burke ss. 25, 163, 167 
 
 V. Trevitt, I Mason 96. s 2>g Thompson, 22 W. E. 857, see 
 
 2 Bailments, §§ 130, 620. the Dehtors Act, 1869 ; Jackson r. 
 
 3 6 Johns. 12. _ Mawhy, i Ch. D. 86; 45 L. J. Ch. 53; 
 * Browning v. Hanford, 5 Hill 588. 24 W. E. 92. Where one is arrested 
 ° Co. Litt. 289 b. in one action he is constructively in the 
 " 46 & 47 Vict. c. 52, o. 146. custody of the sheriff in all actions in wliicli 
 ' Since 32 & 33 Vict. f. 62, this writ writs have been delivered to the sheriff; 
 
 has been of infrequent use, as arrest and but if the arrest is illegal, he cannot be 
 imprisonment for debt have been abolished detained without a fresh arrest : Collins 
 thereby, with but a few exceptions, which v. Ewens, 10 A, & E. 570. 
 
PAETii.] NOTARIES PUBLIC, SHERIFFS, ETC. 767 
 
 had done rightly in not at once liberating him, and was bound to 
 detain him under the new writ.^ And where a prisoner, who 
 came into custody lawfully, is detained beyond the time he should 
 be detained, it has been held that the sheriff by detaining him 
 does not become a trespasser ah initio? To charge a sheriff 
 for not arresting a defendant on a writ, it must appear that the 
 sheriff had notice of the party's being in his bailiwick between 
 the delivery and the return of the writ. But the creditor is not 
 bound to find out the defendant in the writ, especially when he 
 can be found by the officer if he use ordinary diligence." An 
 arrest of the debtor after the return day will not excuse the 
 sheriff's neglect, but the creditor is entitled to at least nominal 
 damages.'' 
 
 On mesne process' an action against the sheriff for an Escape. 
 escape could only be maintained in respect of the actual damage 
 sustained thereby ; for example, where the plaintiff had • been 
 delayed or prejudiced in his suit.° But where there is an 
 escape on final process there is a difference, for "if the plain- 
 tiff has taken the prisoner in execution, he has a right to the 
 detention of the body at all times ; and the loss of that advan- 
 tage for an hour is an infringement of the right. That applies 
 to the case where, final process having issued, the sheriff negli- 
 gently omits to arrest. There the plaintiff has a right of action 
 from the very first hour during which the sheriff might arrest, 
 but does not. But the amount of damages is a question for the 
 jury."^ The measure of these was stated in Arden v. Goodacre^ 
 to be the value of the custody of the debtor at the time of the 
 escape ; and in Macrae v. Clarke," where it was shewn that the 
 debtor, though insolvent, was the only son of a man of con- 
 siderable wealth who was more than a hundred years old, the 
 judge directed the jury that they were to give as damages the 
 value of the chance that the debt, or any part of it, would have 
 been extracted by the debtor's remaining in prison. This direc- 
 tion was upheld on the ground that, " in estimating the value of 
 the custody you may give evidence of the position of the debtor, 
 having regard to all his surrounding circumstances so far as they 
 affect that probability." 
 
 If the officer of the sheriff, under a writ of ca. sa., receive the 
 
 1 Samuel v. Bnller, I Ex. 43Q. Williams v. IMostjn, 4 M. & W. 145. 
 
 2 Smith'/- Egprington, 7 A . & E. 167. Damage must be stated: Eandell v. 
 See Magnay ■». Burt, 5 Q. B. 381 ; Ash Wheble, 10 A. & E. 719. As to measure 
 
 V. Dawnay, 8 Ex. 237. ^ »*'l'''\?«SS,S' M.""™ "1 ^"Z'' ^^ H?''- ^■ 
 
 3 Beckibrd v. Montague, 2 Esp. 475. ' Per Coleridge, J., Clifton v. Hooper, 
 Compare Gibbon v. Coggon, 2 Campb. 189. 6 Q. B, 468, at p. 475. 
 
 * Barker v. Green, 2 Bing. 317- ^ t' ^ ^- ^^''-o r t ,. t, 
 
 6 Ante p. 762, note 2. " L- E. i C. P. 403 ; 35 L. J. C. P. 
 
 6 Planck V. Anderson, 5 T. B. 37; 247; 14 W. E. 655. 
 
768 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Writ of capias 
 utlaffatiim. 
 
 Writ of 
 possession. 
 
 money and liberate the debtor, tlie sheriff is liable to an escape ; 
 since it is a neglect of duty on the part of the officer, who " is 
 directed to haye the body of the debtor at the return to satisfy 
 the plaintiff, and not to pay the debt," the sheriff is therefore 
 answerable. But he may receive the money and liberate the 
 goods under a writ of Ji>. fa., since the sheriff is directed to make 
 a sum out of the goods and chattels of the defendant, and himself 
 to have that money at the return."' 
 
 In the case of privilege, though the sheriff is justified in detain- 
 ing the peirson in custody — that is, though no action for false im- 
 prisonment can be maintained against him for so doing ''^ — still he 
 is not bound to do so. Yet if, on a bailable writ in the case of 
 a peer or a member of the House of Commons, the sheriff were to 
 make an arrest, he would be liable to be committed for breach of 
 privilege.' 
 
 The responsible officer of the sheriff must execute the writ, so 
 that an arrest by a bailiff not charged with the execution of the 
 writ was held bad, and the defendant was entitled to his dis- 
 charge ; and where one was shot while trying to arrest on a 
 warrant in which his name had been wrongfully inserted, it was 
 held not murder.'' 
 
 The writ of capias utlagatum is to be executed in the same 
 manner as a ca. sa. ; with this additional power to the sheriff — 
 that he may break open the house of the person outlawed.' 
 
 In executing writs of possession {habere facias possessionem) 
 the sheriff is bound to execute the writ within a reasonable time ;^ 
 and if after a writ is delivered to him, and he has an opportunity 
 to execute it, and refuses or neglects to do so, he is liable to an 
 action, even though the judgment is afterwards set aside by a 
 judge's order in order to let in the landlord to defend.' The 
 
 '' Woods V. Finnis, 7 Ex. 363. 
 
 2 Conntass of Rutland's case, 6 Eep. 52 b ; 
 Duke of Newcastle v. Moms, L. E. 4 H. 
 of L. 661 ; 40 L. J. Bkcy. 4 ; 23 L. T. 
 N. S. 569 ; 19 "W. E. 26 ; Tarlton v. Fister, 
 Doug. 672 ; Crossley v. Shaw, 2 "Wm. Bl. 
 1085 ; Magney v. Burt, 5 Q. B. 381 ; Gil- 
 pin V. Cohen, L. E. 4 Ex. 131 ; 38 L. J. 
 Ex. 50; 19 L. T. N. S. 830; 17 W.E. 
 88s ; Watson v. Carroll, 4 M. & W. 592 ; 
 Philips V. Naylor, 3 H. & N. 14, 4 H. & 
 N. 565 ; In re Anglo-French Co-operative 
 Society, 14 Ch. D. 533 ; 49 L. J. Ch. 388 ; 
 2? W. E. 580 ; see 46 & 47 Vict. c. 52, 
 If. 124. By 7 Anne, u. 12, b. 4, if the 
 sheriff arrests an ambassador or his ser- 
 vant on civil process, he is liable to fine and 
 imprisonment. 
 
 ' Bac. Abridg. Privilege, (C) 6 ; Stock- 
 dale V. Hansard, 11 A. & E. 256. Com- 
 pare Chauvin v. Alexander, 2 B. & S. 
 
 47 ; 31 L. J. Q. B. 79 ; 10 W. E. 248 ; 
 Yearsley v. Heane, 14 M. & W. 334 ; In 
 re Freston, -ii Q. B. D. 545 ; 52 L. J.Q.B. 
 545 ; 49 L- ?■ 290; 31 W. E. 864. 
 When a person arrested under a ca. sa. is 
 discharged on the ground of privilege, the 
 writ is not executed, and he may be re- 
 taken under it when his privilege expires: 
 Eeynolds v. Newton, 5 Q. B. 525. As (0 
 pleading in an action against the sheriff 
 for damage caused toplaintiff from careless- 
 ness, and improperly arresting while privi- 
 lege attached, see Lloyd v. Wood, 5 A. & 
 B. 228. 
 
 * Ehodes v. Hull, 26 L. J. Ex. 265 ; 
 Gregory c: Cotterell, 5 El. & Bl. 571. 
 Per Kenyon, C.J., Honsin v. Barrow, 6 
 T. E. 123. 
 
 » Dalton, Sheriff, p. 524.' 
 
 ^ Gilbert, Executions, p. 76. 
 
 ' Mason V. Paynter, i Q. B. 974. 
 
PART II.] NOTARIES PUBLIC, SHERIFFS, ETC. 769 
 
 sheriff usually has an indemnity given him, and it seems he may 
 demand it.' The plaintiff is bound to point out the land to the 
 sheriff.'- " Also," says Dalton,^ " the sheriff is bound to know or 
 to seek the land demanded ; and therefore except the demandant 
 sheweth it to him, he may make his return accordingly." If the 
 plaintiff shows the sheriff a stranger's land, on which the sheriff 
 accordingly enters, it seems no action lies.'* But he is bound to give 
 actual possession of the premises, so that if persons be left on them 
 the execution is not complete,* for he is required to put the plaintiff 
 into possession. It follows from the nature of the writ that the 
 sheriff may break open either outer or inner doors. ° But the 
 sheriff executes the writ at his peril/ and if he gives possession of 
 land not included in the writ, he renders himself liable to an 
 action.' 
 
 Formerly, besides his liability to an action, the Court would 
 generally grant an alias if the sheriff do not execute the writ ; ' 
 and if the sheriff gave possession only of part, the plaintiff might 
 have a new writ for the rest.'" But the form of granting an alias 
 was abolished by the Common Law Procedure Act, 1852, s. 10, 
 and the present practice is regulated by the Eules of the Supreme 
 Court, 1883." 
 
 It is not essential to the validity of an execution that the 
 sheriff should make a return to the writ. If he do make a 
 return, he may excuse himself on the ground that he was always 
 ready to deliver possession to the plaintiff, and that no person on 
 behalf of the plaintiff came to show the premises to the sheriff.'^ 
 But it is not a good return that the sheriff could not execute 
 the writ, for he should have raised the posse comitahis}^ 
 
 Interpleader^ — ^The granting of an interpleader order is purely Interpleader, 
 discretionary.'^ It is the duty of the sheriff to make inquiry, 
 and to have good ground for supposing the goods seized to be 
 those of the execution debtor before he applies for relief'" The 
 
 ' Watson, The Office of Sheriff, 318. wseA. m ihum, Sicut alias prmcipimus. Si- 
 
 ^ Doe d. Davenport v. Ehodee, 11 M. cut pluries prcecipimnis. 
 
 & W. 608 ; Koe V. Street, 2 A. & E. 329. ' Watson, The Office of Sheriff, p. 320. 
 
 ' Sheriff, c. 63, 257. An alias cannot issue after the writ is exo- 
 
 " Dalton, Sheriff, 257, Keil, 119, 120; cuted: Pate v. Koe, i Taunt. 55. 
 
 Watson has a note to this sed qucere. '" Ihicl. 
 
 = Tidd's Practice, 8th edit. 1081 ; Upton " Order vi. 
 
 V. Wells 1 Leon. 145. -"^ Watson, The Office of Sheriff, p. 322. 
 
 " Semayne's case, 5 Kep. 91 b. i Sm. ^' Ibid. 
 
 Lead. Gas. 9th edit. 115. " By the Statutcj Law Eevision and 
 
 ' Dalt. 256. Civil Procedure Act, 18S3, the statutes rc- 
 
 " Watson, The Office of Sheriff, p. 318. lating to Interpleader are repealed, and 
 
 An alias was a second writ issued after a the law is now regulated by Older Ivii. of 
 
 former one liad proved ineffectual. If the the Puiles of the Supreme Court, 1883. 
 
 alias also failed a third writ might have ^' ^Vright v. Freeman, 48 L. J. 0. P. 
 
 been sued out which was called apluries. 276 ; 40 L. T. 134 and 358. 
 
 These writs were so called from the words i" Bishop v. Hinxman, 2 Dowl. 166. 
 
770 
 
 THE LAW OF NEGLIGENCE. 
 
 [book n. 
 
 Kemedies 
 against the 
 sheriff. 
 
 I. Attachment, 
 
 Provision 
 undor Rules of 
 the Supreme 
 Court. 
 
 For what 
 granted. 
 
 For what not 
 granted. 
 
 goods or money in dispute must be actually in his hands at the 
 time of application to the Court in order to entitle him to relief.' 
 
 The Court wUl protect the sheriff only from the original seizure, 
 and not against subsequent misconduct," or he may be relieved in 
 respect of the conflicting claims while his liability for negligence 
 in respect of the execution of the writ will be left unaffected ; ' 
 and it is immaterial whether an action has been commenced or 
 not as far as the protection afforded goes.^ 
 
 The remedies against a sheriff are of two kinds : first, by 
 attachment ; second, by action. 
 
 First, by attachment. 
 
 Attachment is a criminal process directed to the coroner when 
 it issues against the sheriff, or to the acting sheriff when it issues 
 against his predecessor.^ 
 
 By the Kules of the Supreme Court, 1883, Order lii. r. 11, 
 " No order shall issue for the return of any writ, or to bring in the 
 body of a person ordered to be attached or committed ; but a 
 notice from the person issuing the writ or obtaining the order for 
 attachment or committal (if not represented by a solicitor) or by 
 his solicitor, calling upon the sheriff to return such writ or to 
 bring in the body within a given time, if not complied with, shall 
 entitle such person to apply for an order for the committal of 
 such sheriff."" 
 
 Attachment will be granted for escapes,' extortions, using 
 needless force in making arrests, breaking open doors without 
 valid excuse, wrongfully arresting, ill-treating arrested persons, 
 detaining them in custody unlawfully,^ or making an insufficient 
 return." 
 
 A sheriff is not liable to attachment for not returning a writ 
 which has not been transferred to him by his predecessor, the 
 provisions of 3 & 4 Will. IV. c. 99, s. 7, notwithstanding ;'° nor 
 where there is a disputed state of facts ;" nor where his action is 
 due to some arrangement not made in the course of his duty as 
 officer of the Court.'' 
 
 1 Holton V. Guntress, 3 M. & W. 145. 
 
 2 Lewis V. Jones, 2 M. & W. 203. 
 
 ' Brackenbury v. Laurie, 3 Dowl. 180.' 
 
 * Green v. Brown, 3 Dowl. 337. 
 
 = Tidd's Practice, 8th edit. 314. 
 
 " "Committal was the proper remedy 
 for doing an act prohibited by injunction 
 or the like, whereas attachment was the 
 remedy for neglecting to do some act 
 ordered to bedone :" Harvey v. Harvey, 
 26 Oh. D. 644, at p. 654 ; Callows. Young, 
 S6 L. T. 147. 
 
 ' Arden v. Goodacre, 11 C. B. 367, 
 371; Beffina i>. Sheriff of Leicestershire, 
 I L. M. & P. 414. 
 
 8 Hawk. P. C. bk. 2, c. 22, Of Attach- 
 ment, ss. 2, 3. 
 
 » Hall V. Crawley, 11 W. E. 344. 
 
 1° Thomas ». Newnam, 2 Dowl. N. S. 33. 
 
 " "White V. Chappie, 4 C. B. 628, where 
 the officer of the Palace Court seized goods 
 under the process of that court that had 
 been previously seized by the sheriff, but 
 during the temporary absence of his offi- 
 cer ; the Court will not issue an attach- 
 ment unless the sheriff's conduct amounts 
 to a contempt of court : Collins ». CHIt, 11 
 W. E. 786. 
 
 12 Brown v. Gerard, i C. M. & E. 595. 
 
PAETii.] NOTAEIES PUBLIC, SHEEIFFS, ETC. 771 
 
 Proceedings , for attachment against the sheriff must be taken Must be taken 
 within a reasonable time, else by delay the sheriff may be deprived ^^^I'^^sonabie 
 of his remedy over.' 
 
 So, too, an attachment has been set aside because through 
 delay in issuing it the sheriff has been prevented either recover- 
 ing it, or proving for it in bankruptcy.' 
 
 Where the attachment is regular it may be stayed or set aside 
 by the indulgence of the Court, in order to let in a trial of the 
 merits, or for the benefit of the sheriff, or of the defendant or his 
 bail.^ But where the sheriff has been guilty of a breach of duty 
 in discharging the defendant out of custody without the plaintiff's 
 assent, the courts will not set aside a regular attachment." If 
 the Court will not set the attachment aside, the sheriff is liable 
 to the extent of the sum really due from the defendant to the 
 plaintiff, although it be beyond the sum swore to, and costs in 
 addition," and the courts have made a practice of letting the 
 attachment stand over with liberty to the plaintiff to bring an 
 action against the sheriff when from any cause proof of the 
 injury done the suitor by the neglect of the sheriff is not shewn 
 with sufficient particularity. One reason for doing this was that 
 proceedings on attachment being by affidavit " a mode of adduc- 
 ing evidence which affords no means of extracting the truth from 
 unwilling witnesses, and leaves every one at liberty to state as 
 much or as little of the truth as he pleases," it is frequently 
 necessary to elicit truth that a vivd voce examination of witnesses 
 should be had." 
 
 Second, by action. "• ■A-o"""- 
 
 An action lies only against the high sheriff, and not against 
 the under-sheriff or bailiff, for breach of duty in the office of 
 sheriff, and must be brought as for an act done by him in the 
 office of sheriff. If it proceeds from the default of the under- 
 sheriff or bailiff, that is a matter to be settled between them and 
 the high sheriff.'^ 
 
 ^ Eex V. Perring, 3 Bos. & Pul. 151; son v. CameroD, 8 T. R. 29; Fontos v. 
 The King v. Middlesex, i Dowl. 53. Con- Mackintosh, i H. Bl. 233 ; but see The 
 tra, see The Kingw. Sheriffs of London, i King r. Sheriffs of London, 2 B. & Aid. 
 Taunt. 489 ; where the delay was ten days 192, where it is said the contempt of tho 
 and the sheriff did not shew he was pre- sheriff is purged by placing the plaintiff in 
 judiced by the delay ; in The King v. as good a situation as he could have been 
 Sheriff of Surrey, 9 East 467, where the in had the defendant's body been brought 
 dulay was eighty days, and a bankruptcy into court. As to the present practice in 
 intervened, the attachment was set aside. attachment, see Dan. Pr. 875-891 ; 2 
 
 - Corner, Crown Practice, p. 36. As to Seton, pp. 1566, 1569; Chitt. Arch. pp. 
 setting aside an attachment, Arden u. 941-954 ; Dan- Forms, p. 395, note (</). 
 Goodacre 1 1 C. B. 367. As to the historical law, Hawkins, Pleas 
 
 ' Stride v. Hill, 1 M. & W. 37. of the Crown, book 2, c. 22. 
 
 " Vanderhaden v. Britten, 4 Dowl. & _ " Arden «. Goodacre, 11 C. B. 367 ; Ke- 
 Ey. 155; The King w. Sheriff of Surrey, gina i'. Sheriff of Leicestershire, i L. M. 
 7 T. E. 239 ; The King v. Sheriffs of Lon- & P. 414. 
 don, 2 B. & Aid. 354. ' Cameron v. Eeynolds, Cowp. 403. 
 
 'Heppel V. King, 7 T. E, 370 ; Steven- 
 
772 THE LAW OF NEGLIGENCE. [bookii. 
 
 The principle on whicli an action for negligence is maintaia- 
 
 able against the sheriff is not simply because the plaintiff has 
 
 sued out a writ and delivered it to the sheriff who has not 
 
 executed it, but because he has a cause of action or judgment 
 
 against the defendant which gives him an interest in the writ 
 
 and creates a duty in the sheriff to him.^ 
 
 Actions against Actions against the sheriff may be either at the suit of the 
 
 either a" the person Suing out the writ, or at the suit of the person whose 
 
 suit of the per- person or ffoods the sheriff has taken. 
 
 sou suing out '■ ° 1 • i> 1 
 
 the writ, or at First, actions at the~6Uit of the person suing out the writ, 
 person whose^ If the sheriff ma¥ea false return he will be liable to an action^ 
 P^™°™s°'"l= — *^^*^ iS' i* *°*^^1 damage occurs to the plaintiff.^ But he is not 
 I. Action by liable to an action for not returning a writ.'' 
 '''uh'^" ^T*^ "^ ^^^^® return is one in which material facts are suppressed, as 
 False return. ^^^^ ^^ faots stated which are untrue. A return, true in words if 
 false in the total impression it conveys, is a false return.* But 
 that is not a false return which, while it states the facts truly, 
 draws a wrong inference from them. 
 Sheriff's return As between the parties to it, the sheriff's return is conclusive 
 save in action of its truth, except in an action against the sheriff for a false 
 return*''^ return, in which case the return must of necessity be called in 
 question by the creditor." 
 
 It is no defence to an action for a false return of nulla lona on 
 an execution to shew that the writ to be executed was delivered 
 at a late hour on the day on which it was returnable,' nor yet to 
 shew that the execution debtor was insolvent.' 
 
 If the sheriff return fieri feci, the plaintiff may proceed either 
 on the return for debt,' or for money had and received," or by 
 , rule of Court." 
 
 If no return is made, an action will still lie against the sheriff 
 for the sum levied.'^ So will it if the sheriff returns that he has 
 seized certain goods and chattels of which the value is to him 
 unknown, for he should specify." 
 
 The plea that the sheriff was prevented from paying over 
 money by superior force would in no case be held good." 
 
 ^ Jonesw.Pope, i Williams Saund. 38b, i" Andwithoutany demandofpayment: 
 
 ■which is an action for an escape, where Dale v. Birch, 3 Campb. 347 ; Longdill 
 
 the prisoner was let out with the plaintiff's v. Jones, i Stark. 345. 
 
 consent. u gtockdale v. Hansard, II Ad. & E. 
 
 ^ Corayns, Dig. Eetom (F. 2) ; Pitcher 253. 
 
 V. King, 9 Ad. & E. 288. " Parkinson 5).[GiIford, or against his 
 
 ^ Wylie V. Birch, 4 Q. B. 566. executors, fornon-p^ment of money levied 
 
 ■• 2 Inst. 452. on a fi. fa., Cro. Car. S39 ; Morland v. 
 
 '^ The King v. Lyme Regis, i Doug. 148. Pellatt, 8 B. & 0. 722. 
 
 " Slayton v. Chester, 4 Mass. 478. '^ pg,. Parke, B., sitting alone : Barton 
 
 ' Towne v. Crowder, 2 0. & P. 355. v. Grill, 12 M. & W. 315. 
 
 s Stevens v. Beches, 3 Blackf. 88. » Stockdale v. Hansard, 11 Ad. & E, 
 
 ' Parkinson v, Gilford, Cro. Car. 539. , 253. 
 
PART II.] NOTARIES PUBLIC, SHEEIFI'S, ETC, 773 
 
 In an action for neglecting to seize goods under & fi. fa. and 
 a return of nulla hona, a plea denying that tliere were any goods 
 of the debtor within the sheriff's bailiwick, may be supported 
 by proof that, though there were goods, they were not applicable 
 to the plaintiff's writ.' 
 
 The sheriff is liable if he neglects or refuses to execute any sheriff to 
 wi-it when he has the opportunity and is required to do so." whn'h Ta' 
 
 " Every liberty," says Parsons, O.J.,^ "given to a prisoner not t^ie oppor- 
 authorized by law, is an escape." °' ^" 
 
 The sheriff, then, is liable for an escape if the defendant were Escape. 
 m the sheriff's custody at the return of the writ, but is after- 
 wards allowed to go at large "for ever so short a time"* 
 without the consent of the plaintiff or the order of a court of 
 competent jurisdiction, or if he be rescued from the county gaol.^ 
 There was a difference where the rescue was by the King's 
 enemies of another kingdom, and where it was by traitors 
 and robbers : in the former the sheriff was not, in the latter he 
 was liable ;° or if the prisoner be removed from the county 
 gaol in charge of the gaoler, without due authority, to another 
 place, and then re-conveyed back.'' This also would con- 
 stitute an escape for which the sheriff was liable. The common 
 law rule was that nothing but the act of God or the King's enemies 
 would excuse a sheriff for an escape of a prisoner in his hands. ^ 
 In Howard v. Standish,' however, it is said that the return of " a 
 rescue is good in an exceptional case, being a matter of indulgence 
 to the sheriff, who cannot always have the posse comitatus with 
 him, in consequence of the possibility that he may be taken 
 imawares, and called on to execute the writ when he has no 
 sufficient force ; " but this is only in mesne process, and is an 
 exception not to be extended,'" and now practically obsolete. But 
 ia no case was there an action if the sheriff's act was the result 
 of the plaintiff's misconduct." A prisoner must be actually de- 
 livered over to the new sheriff before he becomes liable for his 
 escape,'^ and the new sheriff is not chargeable with what was done 
 by his predecessor." 
 
 1 Heenan v. Evans, 3 M. & G. 398. ' Williams v. Mostyn, 4 M. & W. 145. 
 
 2 Brown V. Jarvis, i M. & W. 704; Compare 8 & 9 Will. III. c. 27, o. 8. 
 Kaudell v. Wheble, 10 A. & E. 719; Watson, The Office of Sheriff, p. 200. 
 Mason v. Paynter, i Q. B. 974. ^ Alsept /-. Eyies, 2 H. Bl. 108. 
 
 ^ Colby V. Sampson, 5 Mass. 310. " 6 G. B. 504, at p. 522. 
 
 '' Hawkins v. Plomer, 2 W. Bl. 1048. ^" Crompton v. Ward, Stra. 436. See 
 
 In this case the sheriff was held liable for ante, p. 76, note 2, and 32 & 33 Vict, 
 
 the whole debt, as the debtor was seen c. 62. 
 
 at large at noon in the Temple with nobody ^^ Hiscocks u. .lones, I M. & M. 269. 
 
 wilh him. ^" The King v. The late Sheriff of Mid- 
 
 ^ Bao. Abridg. Escape (D.). dlesox, 4 East 604 where the authorities 
 
 ' Southcote's case, 4 Co. 84a. ; Builer's are considered by Lord Ellenboroiigh, C.J. 
 Nisi Prills, 68. '^ Westby's case, 3 Bep. 71. 
 
774 ^ THE LAW OF NEGLIGENCE. [book ii. 
 
 Eemedy at The remedy at common law was by an action on the case ; 
 
 various statutes subsequently gave an action of debt against the 
 
 S &6 Vict. C.98. sheriff. But by 5 & 6 Vict. c. 98, s. 31, the old law was 
 restored by an enactment that the sheriff was only to have 
 damages for an escape, and the measure of these was held to be 
 " the value of the custody of the debtor at the moment of the 
 escape ; "* and this was to be ascertained by taking into account 
 not only his own means, but all reasonable chances founded on 
 his position in life and all surrounding circumstances.^ 
 
 Sureties on a If the sheriff take sureties on a replevin bond, he is bound to 
 
 rep oviu on . gj,gj,Qjgg ^^ ordinary and reasonable discretion, but he is not to 
 be considered to warrant their sufficiency. It has therefore 
 been held that he is justified in accepting one who appears a 
 person of responsibility as surety, without making inquiries.^ But 
 if the sheriff has reason to suspect his solvency or means of satis- 
 fyiug himself, which he neglects to use, and the surety turns 
 out insufficient, the sheriff is liable,* as if it were shown that the 
 sureties were in debt, and, though requested, had not paid, or 
 that the sheriff had knowledge of unsatisfied executions against 
 them.' 
 
 If the sheriff has no knowledge at all of the sureties, it is his 
 duty to inform himself about them, and not to trust implicitly to 
 their own sworn statements." Failing to do this, he is liable, and 
 the penalty of the bond, which is the value of the goods taken, 
 is the limit of the damages.' 
 
 II. At suit of Second, at the suit of the person whose body or goods are taken. 
 
 person or goods If the defendant were styled by a wrong name in a writ of 
 
 Wrongmime '"^^^'"''^ process, now abolished,* either against his goods or his 
 person, the sheriff is liable to an action for trespass' for doing so, 
 unless — 
 
 1. The name is idem sonans}° 
 
 2. The defendant is known by the name equally with 
 
 some other." 
 
 3. The defendant has temporarily adopted it.'"' 
 
 1 Arden v. Goodaore, ii 0. B. 371 ; 20 ' Cole v. Hindson, 6 T. R. 234; Shad- 
 
 L. J. C. P. 184. gett V. Clipson, 8 East, 328. 
 
 ,2 Maorae v. Clarke, L. R. i C. P. 403 ; " Ahitbol v. Beniditto, 2 Taunt. 401, 
 
 35 L. J. C. P. 247 ; 14 L. T. N. S. 408 ; unless the defendanthas acquiesced in the 
 
 14 W. E. 655. use of the wrong name. If the defendant 
 
 " Hindal v. Blades, i Mairsh 27 ; 5 be arrested by a wrong Christian name 
 
 Taunt. 225. the Court would have discharged him on 
 
 . * Scott V. Waithman, 3 Stark. 168; motion, and the sheriff would have been 
 
 Saunders v. Darling, Bull N. P. 60. liable to an action : Wilks v. Lorck, 6 
 
 ^ Gwyllim v. Soholey, 6 Esp. 100. T. B. 399. 
 
 " Jefl'ery w. Bastard, 4 Ad. & El. 823. " Soandover v. Warne, 2 Campb. 270 ; 
 
 Tea V. Lethbridge, 4 T. E. 433 ; Fisher v. Magnay, i D. & L. 40. 
 
 Evans r. Brander, 2 H. Bl. 547. 12 price v. Harwood, 3 Campb. 108 ; 
 
 Crawford v. Satchwell, 2 Str. 1218, but the 
 
PAnTii.J NOTARIES PUBLIC, SHEMFFB, ETC. 775 
 
 But for executing a writ of final process against a defendant 
 wrongly named in the writ no action will lie against the sheriff, 
 if the person upon whose body or goods the writ be executed be 
 in fact the person against whom the writ was issued.' 
 
 If the officer take the goods of the wrong person, the sheriff is Wrong per- 
 liable for the act of his officer^* unless the person was himself ^""'^ ^°°'^''- 
 instrumental by giving false information to the sheriff or other- 
 wise ; but after notice of the real state of facts the sheriff acts at 
 his peril.^ 
 
 If there are two persons of the same name and address, and 
 the sheriff through inadvertence executes the writ against the 
 wrong person, he is liable to an action.'' 
 
 Where there is any abuse in the execution of process an action Abuse of 
 will lie against the sheriff. For example, where the officer arrests P''°°''^^- 
 a person on a.fi.fa!' or arrests" or removes him out of the bailiwick,' 
 unless the arrest is on fresh pursuit after an escape,^ or the 
 removal by habeas corpus,^ or arrests him after the return day of 
 the writ,'" or breaks open an outer door, save in the excepted cases," 
 or executes a writ after a direction from the plaintiff not to do so,'^ 
 or if he remain in possession an unreasonable time," or be guilty 
 of any other excess, even though such excess be committed by the 
 officer contrary to the express instructions of the under-sheriff." 
 
 The sheriff is liable in trover where he has seized goods under 
 a defeasible title, which title has subsequently determined.'^ But 
 there is no right to the restitution of goods sold under aji. fa., 
 though the judgment on which it is based is afterwards reversed.'" 
 
 The sheriff is also liable to the landlord, under 8 Anne c. 1 4, for sheriff's ik- 
 
 not paying over a full year's rent, if the same is due, before satisfy- 3 Amie'o'.'iV 
 
 ing the execution creditor's claim out of goods seized." This action 
 
 sherifiF was not bound to keep one in cus- ' 2 Roll. Eep. 163. 
 
 tody, who he was justified in keeping by ■"• Parrot v. Mumtbrd, 2 Eap. 585. 
 
 reason of his having given a false name. ^^ Lee v. Gansel, Cowp. i. 
 
 Morgan v. Bridge, i B. & Aid. 647. As ^^ Baker v. St. Quintin, 12 M. & W. 441, 
 
 to this case, see Brunskill v. Kobertson, 9 '^ Playfair v. Musgrove, 14 M. & W, 
 
 A. & E. 840. 239. 
 
 '■ Price V. Harwood, 3 Campb. 108 ; " Eatcliffe -o. Burton, 3 B. & P. 223. 
 Walker v. Willoughby, 6 Taunt. 530 ; ^^ Cooper v. Chitty, i Burr. 20 ; Whit- 
 Reeves V, Slater, 7 B. & C. 486 ; Fisher more v. Greene, 13 M. & W. 104. 
 V, Magnay, i D. & L. 40. ■"* Hoe's case, 5 Co. 89 b. The case of 
 
 ^ Ackworth V. Kempe, Doug. 40. goods sold on a capias utlagatum is dis- 
 
 ' Davies v. Jenkins, 1 1 M. & W. 745 ; tinguished, for these on reversal of the 
 
 Dunston v. Paterson, 2 C. B. N. S. 495. outlawry shall be restored. 
 
 ■* Jarmain v. Hooper, i D. & L. 769; " Eiseley «. Ryle, 11 M. &W. 16. Com- 
 
 Feltham v. Terrycet, Cowp. 419. pare (Jreen v. Austin, 3 Campb. 260. An 
 
 ' Smart v. Hutton, 8 Ad. & E. 568 n. action for money had and received cannot 
 
 * Greenshield v. Pritohard, 8 M. & W. be maintained by a landlord to recover 
 
 I48. In this case the Court refused to rent against the sheriff who has sold his 
 
 discharge a person who had been arrested tenant's goods under an exeoution. But 
 
 under a ca. sa. in a wrong county after the the action must be for removing goods 
 
 lapse of a year, but left him to his action. from the premises under the execution be- 
 
 ' Olliet V. Bessey, Sir T. Jones 214. fore the year's rent is paid to the land- 
 
 » Dalt. Sheriff, 23. lord. 
 
M.E. 
 
 776 - TilE LAW OF l^EGLIGEN'CE. [book it. 
 
 lies after the death of the landlord for his executor or adminis- 
 trator.^ The sheriff must have notice of the rent being due whilst 
 the proceeds are in his hands to render him thus liable.^ In the 
 action, however, the landlord may recover whatever is the amount 
 of the actual damage sustained by him through the sheriff's neglect.' 
 It is, however, no ground for reduction of damages for him to say 
 in an action for the wrongful taking of goods, " I have paid the 
 rent," since, being a wrongdoer, he has no right to take upon him- 
 self to apply the proceeds of the sale,'' so that, if the plaintiff re- 
 covers, he is entitled to the full value of the goods. Where the 
 sheriff has seized and sold goods let for hire to the execution 
 debtor, the sheriff is only liable for the actual damage the real 
 owner sustains.^ 
 Lord Ester, In a very late case" Lord Bsher, M.E., states the law uuder the 
 
 statute : " When notice has been given by the landlord to the 
 sheriff that rent is due, it becomes the duty of .the sheriff under 
 the statute not to sell anything upon the demised premises till 
 the rent has been paid. Even if there are goods upon the demised 
 premises of a value many times exceeding the amount of rent due, 
 his duty is the same. He must refuse to sell the smallest part of 
 the goods until the claim of the landlord is satisfied. Now, of 
 course, the sheriff is not bound to find money with which to satisfy 
 the claim of the landlord. He must therefore, before he proceeds 
 with the execution, apply to the execution creditor for the sum 
 which is necessary. If the execution creditor provides it, the 
 sheriff pays the landlord, and proceeds with the execution. If 
 the execution creditor does not provide it, the sheriff cannot be 
 called on to infringe the statute, and may return either nidla 
 bona, and withdraw from possession, or may himself pay the rent, 
 looking to the execution creditor for re-imbursement, and proceed 
 to sell. This is the position of the sheriff under the Act. If he 
 •commits a breach of duty by a wrongful sale — i.e., a sale which 
 takes place before the rent is paid — the statute appears to me to 
 state by implication that he will be liable to compensate- the land- 
 lord by paying him the amoimt of rent which is due. This is the 
 consequence of the enactment which makes the removal without 
 payment of rent illegal. It is only upon payment of the rent that 
 the sheriff is entitled to remove the goods. The cases, however, 
 shew that, though the amount of the rent is primd facie the 
 measure of the damages, it is open to the sheriff, after the landlord 
 
 ' Palgrave v. Windham, Stra. 212. ' Poster v. Hilton, i Dowl. P. C. 35 ; 
 
 " "To some notice heisunqnestionably Calvert v. Joliffe, 2 B. & Ad. 418. 
 entitled, tut as the statute lias not spcci- * White v. Binstead, 13 0. B. 304. 
 
 tied any particular form there can be no • ^ Tancred v. Allgood, 4 H. & N. 438. 
 tlisptite about the terms" :Collyer J). Spear, " Thomas c. Mirehouse, 19 Q. B. D. 
 
 3 Brod. &, Biug. 67. 563 ; 56 L. J. Q. B. 653 ; 36 W. E. 104. 
 
.PART II.] NOTAEIES PUBLIC, SHEEIFFS, ETC. 777 
 
 has proved his case by giving evidence of the tenancy, the amount 
 of rent due, and notice, to shew in mitigation of damages that 
 the value of the goods removed was not sufficient to pay the rent. 
 In such case the loss to the landlord by the removal of the goods, 
 or. in other words, their value to him at the time of the removal, 
 becomes the measure of damages." The sheriff, says Atkinson,' 
 is in no case entitled to notice of action for things done by him 
 in executing the process of the Court. 
 
 III. High Bailiffs of County Courts. 
 
 By the County Courts Act, 1888, 51 & 52 Vict. c. 43, s. 35, TheCoimty 
 the high bailiff of the County Court is made responsible for all ^^ss, repealing 
 the acts and defaults of himself and the bailiffs appointed to assist 9 <» 10 Vict. 
 
 . . *^* 93i ^' 33* 
 
 him, iu like manner as the sheriff in any county in England is 
 responsible for the acts and defaults of himself and officers. 
 
 The high bailiff's liability is co-extensive with that of the 
 sheriff," save where his bailiffs act under colour of some special 
 power or authority of the County Court Acts, and not in the 
 execution of a warrant.^ 
 
 IV. Public Cleeks and Eevenue Officers. 
 
 A word must be given to the position of that large class of 
 public servants, clerks, revenue officers, and the rest, who are 
 charged with the performance of acts which bring them into 
 communication with the community. The rule stated by Lord Rule stated 
 Mansfield, C.J., in Whitfield v. Lord Le Despencer:'' " Whoever seid too broad.' 
 does an act by which another person receives an injury is liable 
 in an action for the injury sustained," is too absolutely expressed, 
 since the idea of duty is absent. There are a multitude of acts 
 which, working injury to others, are yet absolutely remediless. 
 It is the notion of duty which is the determining test. This 
 appears in Robinson v. Gell,'^ where an action was brought for Robinson v. 
 injury sustained for negligently preparing a notice of judgment. 
 The Court of Common Pleas held that as the Act of Parliament 
 which constituted the office the occupant of which was sued for 
 
 ^ Sheriffs, Sih edit. p. 302. For this application of 8 Anne, c. 14, see 19 & 20 
 
 he cites, Copland w. PowolJ, I Bing. 369. Mot. c. 108, s. 75; Beard t). Knight, 8 
 
 The head-note of that case, hovi'ever, is E. & C 865 ; Foulger v. Taylor, 5 H. & 
 
 " a sheriff who levies arrears of taxes under N. 202. As to notice of action: 9 & 10 
 
 48 Geo, in. 0. 141, No. 5, par. 2, is not Vict. 0. 95, s. 138; demand of warrant: 
 
 entitled," &c. 13 & 14 Vict. c. 61, s. 19; staying pro- 
 
 2 Burton v. L; Gros, 34 L. J. Q. B. 91. oeedings: 30 & 31 Vict, c, 142, s. 31. 
 
 3 Smith V. Piitchard, 8 C. B. 565. For * Cowp. 754, at p. 765. 
 liability in executing a wan-ant, see 19 & '^12 C. B. 191 ; 21 L, J. C. P. 
 20 Vict. 0. 108, ss. 55, 60, 75. As to the 
 
778 THE LAW OF NEaLIGENCE. [book n. 
 
 neglect, but did not contemplate his giving notices of the kind in 
 question, there was no duty, and therefore no liability, though 
 there was negligence. Had the Act provided for the issuing of 
 the notice, a duty would have thereby been constituted from the 
 officer to those who were in the position to receive the notice, and 
 negligence would thereupon become actionable. Subject to this 
 Jennerw. being read in, the law seems to be as laid down in Jenner v. 
 Joliffe:' "In every case where an officer is entrusted by the 
 common law or by statute an action lies against him for a neglect 
 of the duty of his office ; so for every fraud or neglect in the 
 execution of his office." 
 
 One more inquiry remains : What amount of want of care con- 
 stitutes negligence in these cases ? It would seem that the 
 assumption of an office implied the possession of qualifications for 
 the efficient performance of its duties. The amount of care 
 required would consequently vary with the greater or less com- 
 plexity of the duties. The rule of law governing would in all 
 cases be the same that the holder would be required to shew that 
 diligence which a conscientious and capable man, versed in the 
 duties of the particular office, would be expected to shew iu the 
 performance of them. The general rule would be laid down by 
 the judge. It would be for the jury to say whether the individual 
 facts shewed the care that would thus be required." 
 
 ' 9 Johns. 381. B. & Aid. 837 ; Jacobsohn v. Blake, 6 M. 
 
 " Wharton, Law of Negligence, §§ 297, & G. gig. Where goods were taken pos- 
 
 785 ; Shearman v. Eedfield, Law of Negli- Bession of by Custom House officers, 
 gence, 4th edit. § 590 ; Jones v. Bird, 5 
 
CHAPTEE II. 
 
 V. SOLICITOES. 
 
 An attorney ' is either public or private. The former is usually Definition of 
 termed an attorfiey-at-law, and is a person who may be employed ^ °^^^- 
 generally by any person *to prosecute and defend actions in courts 
 of law ; the latter is a person appointed for a particular purpose, 
 which is usually done by an instrument in writing called a letter 
 of attorney, in which is expressed the particular act or acts for 
 which he is appointed." With the latter we have here no 
 concern. 
 
 An attorney-at-law, says Blackstone,' answers to the procurator 
 or proctor of the civilians and canonists — using these words as if 
 co-extensive and synonymous. But there appears to have been 
 two kinds, covered by this wide expression, the pragmatici and 
 the procuratores. 
 
 The pragmatici are described as persons who assisted the advo- 
 cates when they were pleading, and instructed them in points of 
 law.'' 
 
 The ^ocwraiores, however, seem to have resembled attorneys' 
 
 ^ "Attorney," says Sir B. Coke, Co. Lit. plain, sir, that here is a material and 
 
 51 b, "is an ancient English word, and traversable fact, and no date to it, sir ;' and 
 
 signifieth one that is set in the turn, so forth. Whereupon he dismissed our poor 
 
 stead, or place of another." For a very summons with costs." Compare Birdoe 
 
 readable account of the duties of Attorney a v. Spittle, I Ex. 175. ♦ 
 
 and Solicitors, see Samuel Warren's book ^ Jac. Law Dictionary, tit. Attorney, 
 
 with that title, in which is the following, ' 3 Bl. Com. 25. 
 
 p^. 194: — "I recollect a case where a * Itagueut amid Chcecosinfimi homines 
 
 cuent of mine had his declaration on a rtiercedma adducti ministros se prcebent 
 
 bill of exchange demurred to, because in- in judiciis oratoribus, ii qui a/pud illos 
 
 stead of the words ' in the year of our irpayfmnKol vocantur (Cic. De Orat. 1. i). 
 
 Lord, 1834,' he had written 'A.D. 1834';! Ani again: lUidisertissimi homines minis- 
 
 attended the late Mr. Justice Liltledale tros hahent in causis juris peritos, cum 
 
 at chambers to endeavour to get the de- ipai sint imperitissimi et qui, ut ante 
 
 murrer set aside as frivolous, or leave to dictum est pragmatici vocantur. In quo 
 
 amend on payment of a shilling ; but nostri omnino melius multo, qvAjd daris- 
 
 that punctilious though very able and simum hominum auctoritate leges etjura 
 
 learned judge refused to do either. ' Your tecta esse voluerunt. Sed tamen non 
 
 client, sir,' said he, 'has committed a fugisset hoc Orcecoa homines, siitanecesse 
 
 blunder, sir, which can be set light only esse arlntrati essent, oratorem ipsum, 
 
 on the usual terms, sir. "a.d.," sir, is erudire in jure civili non et pragmaticem 
 
 neither English nor Latin, sir.^ It may adjutorem dare (Cic. De Orat. 1. I, 59). 
 mean aoytbing or nothing, sir. It is 
 
780 THE LAW OF NEGLIGENCE. [book ii. 
 
 appointed for a particular purpose amongst us.' In the Prencli 
 Roman Law, procurator was the Twmen generalissimum, answering 
 to attorney in English law ; while what Cicero calls pragmatici 
 were designated jjrocfors" — that is, attorneys-at-law with us. The 
 analogy by Blackstone is, therefore, incomplete in likening 
 attorneys-at-law to the procuratores of the ancients, since 'procu- 
 rator is a much wider term, and corresponds with the EngKsh 
 term attorney ; and that description with which we are now to 
 concern ourselves — atfcorneys-at-law — is but a species of the 
 larger class attorney, and answers to the proctor of Domat and 
 the pragmaticus of Cioero!^ 
 
 In courts of equity an attomey-at-law was called a solicitor.'' 
 Judicature Act. By the Judicature Act, 1873,^ s. 87, attorneys-at-law, solici- 
 tors, and proctors are now to be designated as solicitors of the 
 Supreme Court. 
 Purpose of the The purpose of the delegation of duties to these officers is 
 duties to these Said to have been "to remove from tribunals the hberty which 
 officers. parties had to vent their passions, their anger, and to commit 
 
 irreverences and other abuses, which are consequences of the want 
 of the respect that is due to judges."" 
 Duties. Their chief duty is to look upon themselves as having espoused 
 
 the interest of their clients in order to defend them, " as if they 
 themselves were the parties concerned, but free from their 
 passions, and capable of demanding justice with that respect 
 and decency that is due to the tribunal."" Prom this it follows 
 that they should rather abandon the defence of their clients than 
 aid them in unlawful conduct.' 
 Solicitors Solicitors are officers of the Supreme Court, and as such 
 
 Supreme Court amenable to the jurisdiction of the High Court of Justice.* Thus 
 of Justice. |.]^g solicitor is not looked at as the mere agent of his client, but 
 as a responsible officer who may be made liable for disregarding 
 the rights and interests of others." 
 Summary The Courts have always exercised a summary jurisdiction over 
 
 raeroisedover soUcitors as officers of the Court in cases of gross neglect, 
 the CoS'^^ ignorance, or misbehaviour in the conduct of the client's business, 
 whereby the client has sustained a loss, or the solicitor has not 
 
 1 Legitime proawrator dicitm qui Digest, Attorney, and Bacon, Abridg. 
 cdieni negotii aMguid gerit, alieno prce- Attorney, for the historical law. 
 positus negotio pene aominus et mieni ^ Domat, Public Law, book ii. tit. 5, 
 juris vicarins (Cio. pro Csecin. 20). Again ; s. 2. 
 
 Nihil interest utrum per prooaratores ' Id. a. 3. The Queen v. Cox & Rail- 
 
 agas an per teipsum (Cic. ad Attic. 4, 15). ton, 14 Q. B. D. 153 ; 54 L. J. M. C. 41 ; 
 
 2 Domat, Public Law, book ii. tit. 5, s. 2. 52 L. T. 25. 
 
 ' Compare Tomlin, Law Dictionary, sub ' 36 & 37 Vict. 0. 66, s. 87. See the 
 
 nom. Proctor, Procurator. case of Daniel Wood, 2 Cowen 29 ; note 
 
 * Jac. Law Dictionary, sub nom. So- to Seymour v. Ellison, 
 lioitor. ' Ezaii v. Lister, 5 Beav. 585. 
 
 '^ 36 & 37 Vict. 0. 66. See Comyns, 
 
PART II.] SOLICITORS. 78X 
 
 complied with, well-known rules and practices of the Ooiirfc, or 
 acted extortionately or vexatiously^ as solicitor ; ^ for where he is 
 employed in a matter wholly unconnected with his professional 
 character the Oonrt will not interfere in a summary way to compel 
 him to execute faithfully the trust reposed in him ; but where 
 the employment is so connected with his professional character 
 as to afford a presumption that his character formed the ground 
 of his employment, the Court will exercise jurisdiction." But 
 where one professes to be a solicitor, and to practise as such, a 
 client employing him is not bound to ascertain whether he is duly 
 qualified.'' From this it results that proceedings taken by persons 
 so acting are not ineffectual so far as they are taken on behalf of 
 the client.* 
 
 A solicitor is not able to delegate his powers, since they involve Delegation of 
 trust or discretion," but he may do those acts which are in the P"'^™''^- 
 ordinary course of business done by others through his servants 
 or partners/ and for these acts he is liable either to an action or to 
 the summary process of the Court. ° 
 
 This liability, however, does not extend to- liability for auxiliary 
 agents or experts employed by him when they are charged with 
 a special discretion of their own.^ In matters which have to be 
 entrusted to these, the fact of the necessity of such delegation 
 should be communicated to the client, and when this is done, the 
 solicitor is only liable for culpa in cligendo, unless he is jointly 
 negligent. Where the client has not only been consulted, but 
 intelligently approved the appointment of the particular agent, 
 
 ' Menifie]d, Law of Attorniea, p. 77. entered up by an attorney's clerk, using 
 
 ^ De Woolfe v. , 2 Cbit. 68 ; In the name of a regular attorney, -without 
 
 re G. Cliitty, 2 Dow]. P. C. 421. the knowledge or consent of the latter. 
 
 ' In the Matter of Aitkin, 4 B. & Aid. It is not stated in that case whether the 
 
 47. As to the duties of solicitors as ofB- plaintiff were privy to, or ignorant of, the 
 
 cers of the Court, see Merrifield's Law of informality. 
 
 Attornies, p."! 77 ; Cordery, Law of Soli- " Hemming v. Hale, 7 C. B. N. S. 487, 
 
 citors, 2nd edit. p. 135. It is not neces- per Williams, J., at p. 498. 
 sary, however, that the matter should arise ' Ex parte Sutton, 2 Cox Eq. Cas. 84 ; 
 
 in an action : Re Cresswell, I Jur. 755 ; but Eossiter v. Tra.'algar Life Assurance As- 
 
 it is said the Courts will not interfere sum- sociation, 27 Beav. 377. 
 marilv where the matter is as to the dis- ' Floyd v. Nangle, 3 Atk. 568 ; Collins 
 
 connting of bills : Ex parte Schw&Vosrik&r, v. GrifiSn, Barnes 37 ; iJeWard, Simmons 
 
 I Dowl. P. C. 182 ; but see /» re Knight, u. Hose, 31 Beav. i. Astopartrere, each 
 
 I BIng. 91. To found this jurisdiction it individual member of the partnership is 
 
 is imperatively requisite that some part of prima facie liable nnd responsible for any 
 
 the business must be done in the court to misconduct, Norton v. Cooper, 3 Sni. & G. 
 
 which the client applies : He Lord Card- 375. 
 
 ross, 5 M. & W. 545. ' "Watson v. Muirhead, 57 Penn. St. 161. 
 
 '' Hilleary v. Hungate, 3 Dowl. 56. This is on the question of the liability of 
 
 '' Smith V. AVilson, I Dowl. 545 ; Hill- a conveyancer for negligence, in whose 
 
 eary J). Hungate, 3 Dowl. 56; Glynn t\ case the judgments is " the rule of liability 
 
 Hutchinson, 3 Dowl. 529 ; Harding j.. fur errors of judgment as applied to them 
 
 Purkess, 2 Marsh 228. To this last case ought to be the same as in the case of 
 
 there is a note. In Hqpwood v. Adams, gentlemen in the practice of law or 
 
 5 Bur. 2660, the Court of King's Bench medicine." 
 Bet aside a judgment which had been 
 
782 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 May not take 
 advantage of 
 their own 
 ignorance. 
 
 Liability 
 aiises from 
 oontraot. 
 
 Bobertson v. 
 Fleming, 
 
 even this liability is removed. If, however, the solicitor has the 
 sole duty of selecting the agent, then he must exercise adequate 
 diligence and skill in the matter, or failing this, answer for his 
 fault.' 
 
 On grounds of public policy it has been decided that those 
 who are bound to advise, and who ought, therefore, to give sound 
 and sufficient advice, should not be allowed to take advantage 
 of their own ignorance ; and therefore it was decided by the 
 House of Lords^ that where, through the ignorance of an attorney, 
 or through his neglect, property descended upon him that other- 
 wise would have been willed to other persons, he could not be 
 allowed to take any benefit from it, but must be held to be a 
 trustee for the benefit of those who would have been entitled if 
 the attorney had done his duty. It is scarcely necessary to say 
 that an erroneous answer to a mere casual inquiry to one not a 
 client is not actionable." 
 
 Eecent dicta have tended to question the inflexibility of the 
 principle that only the contracting parties could sue each other 
 for breach of a duty arising out of contract," unless (i) there be 
 something like fraud involved;* or (2) the injury complained of 
 is itself a tort independent of contract." 
 
 With regard, then, to the duty of solicitors, it is necessary to 
 bear in mind the important case of Robertson v, Fleming,' 
 where an action was brought by the respondents against the 
 appellant, a law agent, alleging that through his negligence 
 they lost money, for which they were induced to become 
 sureties for a third party named Hamilton, and to secure 
 them Hamilton agreed to give them security over property he 
 had. The appellant was employed by Hamilton in the pre- 
 paration of this document. Through his negligence, however, 
 the security was not completed. Hamilton became bankrupt, and 
 the respondents had to pay up the money for which they were 
 sureties. The defence was a denial of the employment by the 
 sureties, or that any duty was owing to them from the appellants.'^' 
 A verdict was given for the sureties, and after several abortive 
 proceedings, with a view to set it aside, the case came before the 
 House of Lords on what was in substance the question whether 
 in the absence of privity of contract there could be liability. The 
 
 1 Wharton, Acenoy, § 601. 
 
 ' Bnlkley v. Welford, 2 CI. & Fin. 102. 
 
 ' Fisli V. Kelly, 17 C. B. N. S. 194 ; 
 Pasley v. Freeman, 2 Sm. Lead. Cas, gth 
 edit. p. 74. 
 
 * Per Brett, M.E., Heaven v. Pender, 1 1 
 Q. B. D. 503 ; per Hawkins, J., Thrusaell 
 V. Handyside, 20 Q. B. D. 359 ; Cann v. 
 Wilson, per Chitty, J,, 39 Ch. D. 39. 
 
 " Langridge v. Levy, 4 M. & W. 337 ; 
 Gaiitret v. Bgerton, L. R. 2 C. P. 371 ; 
 Gerhard v- Bates, 2 E. & B. 476 ; Peek v. 
 Gumey, L. E. 6 H. L. 377. 
 
 •" Marshall v. York, Newcastle, and Ber- 
 wick Eailway Company, 11 C. B. 655. 
 Foulkes V. Metropolitan District Eailway 
 Company, 4 G. P. D. 277. 
 
 ' 4 Maoqueen 167. 
 
PART II.] SOLIOITOES. 783 
 
 conchision of the House of Lords is thus tersely put by Lord Opinion of 
 Wensleydale : " It is impossible to support by a single case so dale. ^°° ^^' 
 extraordinary a proposition as that persons, who were not by 
 themselves or their agents employers of law agents to do an act, 
 have a remedy against them for the negligent performance of it." 
 And the law of England is stated to be, that " he only who by 
 himself, or another as his agent, employs the attorney to do the 
 particular act in which the alleged neglect has taken place, can 
 sue him for that neglect, and that employment must be affirmed 
 in the declaration in the suit in distinct terms." This is strongly 
 put by the Lord Chancellor : ^ "I never had any doubt of the un- Of the lord 
 soundness of the doctrine that A., employing B., a professional 
 lawyer, to do any act for the benefit of C, A. having to pay B., 
 and there being no intercourse of any sort between B. and 0., if, 
 through the gross negligence or ignorance of B. in transacting the 
 business, C. loses the benefit intended for him by A., 0. may main- 
 tain an action against B. and recover damages for the loss sus- 
 tained. If this were law, a disappointed legatee might sue the 
 solicitor employed by a testator to make a will in favour of a 
 stranger, whom the solicitor never saw or before heard of, if the 
 will were void, for not being properly signed and attested." It 
 was pointed out in the course of the judgments in this case that 
 the authority^ most relied on to sustain a liability apart from 
 contract, was in fact (and apart from an erroneous head-note) no 
 authority at all in the matter ; the simple proposition laid down 
 being that, where a professional person is de facto agent for both 
 lender and borrower, and is guilty of negligence, he is not liable 
 merely to him who pays him, but to the other person for whom 
 he acts as well.' i 
 
 I. As to the Court's dealings with a solicitor as its officer. i. Couyt deal- 
 
 The Court will enforce by its summary jurisdiction all under- soUcitor atits 
 takings by a solicitor given in that character'' — as, for example, °^'^^^- 
 an undertaking to enter an appearance,^ or to pay a debt and 
 costs' — and will regulate its proceedings by considerations of 
 good faith, and not of contract merely.^ But if the solicitor is 
 a party to the cause, the Court will not exercise the summary 
 jurisdiction.' Further, Pearson, J., in one case held that the 
 Court has summary jurisdiction to make a solicitor liable for not 
 properly discharging his duty by neglecting to leave an order 
 
 1 Lord Campbell, at p. 177. ■* In re F. C, W. N. 1888, p. 77. 
 
 ^ Lang V. Struthers, 2 Wils. & Shaw, '' Lorymer u. Hellister, i Str. 693. Rules 
 
 563. of Supreme Court, 1883, Order xii. r. 18. 
 
 i»,,2 4 Macqueen, 167, per Lord Gran- ' Be, Woodfin, 51 L. J. Ch. 427. 
 
 worth, 194. In re The Ipstone Park ' Hilliard's case, 4 J. Q. B. 225. 
 
 Colliery Company, Brough's Claim, 18 W. ' Northfield r. Orton, i Dowl. 415. 
 B. 285. 
 
784 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Court will 
 interfere in 
 case of fraud, 
 
 but not in case 
 of blunder. 
 
 Misconduct 
 in the matter 
 itself sought 
 to be dealt 
 with the most 
 frequent 
 ground of the 
 Court's exer- 
 cise of juris- 
 diction. 
 
 for the payment of purchase-money at the paymaster's office, with 
 a request to make the investment;' but Cotton, L.J., in a 
 subsequent case, pointed out that the solicitor against whom the 
 order was made, was there acting for other persons, and declined 
 to express any opinion as to the general rule of jurisdiction.' 
 
 The Court will interfere summarily where a transaction is 
 tainted with fraud,' or where the solicitor has been expressly paid 
 beforehand for what he has omitted to do.^ But if something in 
 the nature of fraud is not shewn, the Courts will leave the client to 
 his remedy by action ;'" and in Clark v. Girdwood," the Court of 
 Appeal held that it had no jurisdiction to do otherwise where the 
 solicitor's conduct was merely a blunder. " The Court " said 
 James, L. J., " has jurisdiction in cases of fraud, and where a 
 person, against whom no reHef could otherwise be asked, is made 
 a party to a suit on the ground of fraud, it is because the Court 
 has jurisdiction to indemnify the person injured at the expense 
 of all persons, whether solicitors or not, who have been active 
 participators in the fraud, and it can therefore make any party 
 to the fraud pay the costs of the proceedings which may have been 
 rendered necessary by the fraud in which he has taken part. But 
 the Court has no jurisdiction to order a solicitor to pay the costs 
 of a suit because it has been rendered necessary by his having 
 made a blunder." There are a number of early cases inconsistent 
 with this decision, and consequently overruled by it.'' 
 
 The summary jurisdiction most frequently exercised is where 
 solicitors are conducting proceedings in Court, and have been 
 proved guilty of misconduct in the matter itself sought to be dealt 
 with. In other matters the procedure is most usually by peti- 
 tion to suspend or otherwise deal with the solicitor for miscon- 
 duct.' But where a solicitor has been guilty of misconduct in 
 a matter before the Court, the Court may exercise a summary 
 jurisdiction, order him to pay the costs occasioned by his negli- 
 gence or other misconduct ; ° and even where the Court has not 
 
 ^ Batten v. WedgwoSd Coal and Iron disciplinary capacity for mere negligence 
 
 in the conduct of a suit. 7ra re G. Mayor 
 Cooke, 5 Times L. R. 407. Be Ward, 
 Simmons ». Rose, 31 Beav. i, where a 
 country solicitor was held liable for repre- 
 sentations by his London agent. 
 
 6 7 Ch. D. 9. 
 
 '' Fawkes v. Pratt, i Peere Williams, 
 593 ; Mx parte Bennett, 2 Mont. & A. 
 308 ; White v. Hillacre, 3 Y. & C. 27^ ; 
 Courtney v. Stock, 2 Dr. & War. 251 ; 
 Ridley v. Tiplady, 20 Beav. 44 ; Birch v. 
 Williams, 24 W. R. 700. 
 
 8 In re Greggs, t. R. 9 Eq. 137 ; 39 
 L. J. Ch. 107; 23 L. T. N. S. 234; 18 
 W. R. 589. 
 
 ° Rules of t!ie Supreme Court, 1883, 
 
 Company, 31 Ch. 1). 346; 55 L. J. Ch. 
 396 ; 54 L. T. 24s ; 34 W. E. 228. 
 
 2 McDoiigall V. Knight, Weekly Notes, 
 26 Marcli, 1887, p. 68. 
 
 2 Me William Jones, i Chit. 651 ; lie 
 Hill, L. R. 3 Q. B. 543 ; 37 L. J. Q. B. 
 29s ; 18 L. T. N. S. 564 ; 16 W. E. 
 1061. In re Blake, 3 B. & E. 34 ; 30 
 L. J. Q. B. 32 ; 2 L. T. N. S. 429. In 
 re Sparks, 17 C. B. N. S. 727. 
 
 <• Garner v. Lawson, i Barn. (K. B.), 
 loi ; Rex v. Tew, Say. 50. 
 
 5 Barker v. BuUer, 2 Wm. Bl. 780; 
 Fi-ankland v . Lucas, 4 Sim. 586, where 
 it was held that the Court had no juris- 
 diction to make a solicitor liable in its 
 
PART II.] SOLICITORS. 785 
 
 noticed the matter the Taxing-master may disallow costs caused 
 by the solicitor's negligence ; but if the whole action had failed 
 by reason of negligence, that could not be entertained by the 
 Master, but must be the subject of independent proceedings.^ 
 But though the Court will interfere summarily in gross cases of Case of 
 neglect or misconduct to visit solicitors with the costs of their action?'^'^ 
 negligence,^ it will not interfere summarily to compel compensa- 
 tion ; that must be the subject of action.^ The Court will also 
 act summarily where an action is really a solicitor's action — where 
 the plaintiff is a mere puppet, and the real party suing is the 
 solicitor; in such a case the Court will hold the solicitor liable 
 for all the expenses to which he has put the other parties by his 
 conduct." Where a solicitor is personally ordered to pay costs 
 as an ofEcer of the Court, as being guilty of negligence or mis- 
 conduct, there is no need of leave to appeal, since the liability is 
 contingent on negligence or misconduct being established.' 
 
 The Court will also summarily, on petition, and without requiring Solicitor 
 
 , , ... c T bavmg trust 
 
 a separate action to be brought, order a solicitor to pay trust iunds funda in 
 lost through his negligence, though the petitioner who has sustained P°^^^^s'°°- 
 the loss was never in a contractual relation with him. " There is 
 no doubt," said Lord Langdale,'^ " of the principle that if a solicitor, 
 knowing that money which is in Court belongs to one person, 
 presents a petition in the name of another, and obtains payment, 
 he is personally chargeable with the amount. I go further : if he 
 has not the knowledge of the fact, but has knowledge of circum- 
 stances which, if duly considered, would lead to a knowledge of 
 the fact, he must be made personally answerable for that loss 
 which his want of due consideration has occasioned." The rule 
 was also stated by Turner, L.J., in Dixon v. Wilkinson,' and, 
 though there limited to the losses of their clients, was based by 
 the Lord Justice on their duty as ofScers of the Court, who 
 " must generally be responsible to it for the due discharge of the 
 duties which they undertake," and was not limited to misfeasance. 
 
 Order Ixv. n-. ii, 5, Order liv. r. 7; Ue " /w re Jones, L. E. 6 Ch. 497; 40 
 
 Rousigny w. Peale, 3 Taunt. 484 ; Upton L. J. Ch. 113. Compare In re E. S. 
 
 V. Brown, 20 Cu. D. 731 ; 47 L. T. 289 ; (a supposed lunatic), where no costs were 
 
 30 W. R. 817 (unreasonable references to given, 4 Ch. D. 301 ; Cockle v. Whiting, 
 
 the judge) ; Ladywell Company v. Hug- i Euss. & My. 43, as to the non-liability 
 
 gons, 20 W. E. 55 (premature proceed- of a stranger to the record for costs of suit 
 
 ings) ; Martinson v. Clowes, 33 "W. E. in the absence of malice, Earn Coomar 
 
 555. Coondoo V. Chunder Canto Mookeijee, 2 
 
 ^ In re Massey v. Carer, 26 Ch. D. App. Cas. 186. 
 
 459 ; S3 L. J. Ch. 70s ; SI L. T. 390 ; ^ In re Bradford, 15 Q. B. D. 635 ; S3 
 
 32 W. E. 1008. L. J. Q. B. 6s ; 50 L. T. 170 ; 32 W. E. 
 
 2 2ie William Jones, i Chit. 6si, where 238 ; In re Hardwick, 12 Q. B. D. 148 ; 
 
 there is a note of a case before Lord Hard- S3 JJ- J- Q- B. C4 ; 49 L. T. 584; 32 
 
 wicke, Floyd v. Nangle, 3 Atk. 568. W. E. 191. 
 
 ' Dixon V. Wilkinson, 4 Drew 614. " Ezart v. Lister, S Boav. s8s. 
 
 Compare Lydney and Wigpool Iron Ore ' 4 De G. & J. S08. 
 Company v. Bird, 33 Ch. D. at p. 96. 
 
786 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Solicitor may 
 be attucbed " 
 under tbe 
 Debtor's Act, 
 1869. 
 
 II. folioitor's, 
 liability under 
 his retainer. 
 Eule laid dotm 
 by Lord Mans- 
 field. 
 
 Amplified and 
 enforced : 
 Montviou V. 
 Jefferys. 
 
 but held to apply also in cases of " mere neglect." On the 
 authority of these cases, Sterling, J., held. In re Dangar's Trusts,' 
 that a solicitor was liable to make good the deficiency, after first 
 exhausting the estate which had derived the benefit, of a trust 
 fund that had been paid over, through his negligence, to the 
 wrong person, and made a declaration to that effect without 
 requiring a separate action to be brought. 
 
 A solicitor may be attached for misconduct as under the 
 Debtors' Act, 1 869,^ s. 4, sub-sec. 4, when he makes default in 
 payment of costs when ordered to pay costs for misconduct as 
 such, or in payment of a sum of money when ordered to pay 
 the same in his character of oflBcer of the Court making the 
 order."' 
 
 II. The next branch of the subject to consider is the solicitor's 
 liability to his client under his retainer." 
 
 The case most frequently cited on the rule of skill to be used 
 by a solicitor is Pitt v. Yalden,* where Lord Mansfield laid down 
 the principle, that " not only counsel, but judges, may diEfer or 
 doubt or take time to consider : therefore an attorney ought not 
 to be liable in cases of reasonable doubt." An expression some- 
 what amplified and enforced by Abbott, O.J., in Montriou v. 
 Jefferys": "No attorney is bound to know all the law; God 
 forbid that it should be imagined that an attorney or a counsel 
 or even a judge is bound to know all the law, or that an attorney 
 is to lose his fair recompense on account of an error, being such 
 an error as a cautious man might fall into." But the solicitor 
 cannot shift the responsibility from himself by consulting coimsel 
 where the law would presume him to have the knowledge him- 
 self,' though the fact that he has done so is a protection in cases 
 where his own personal action is not presumed. 
 
 Domat^ lays down the rule of the civil law, as applied in 
 
 1 41 Ch. D. 178 ; 58 L. J. Ch. 315 ; 
 60 L. T. 491. 
 
 2 32 & 33 Viot. u. 62. 
 ^ In re Strong, 32 Ch. D. 342; 55 
 
 L. J. Ch. 553 ; 55 L. T. 3 ; 34 W. B. 
 
 614. See Evans v. Bear, L. E. 10 Ch. 76, 
 as affected by the Debtors' Amendment 
 Act, 1878, 41 & 42 Viot. c. 54. s. I ; 
 Harris v. Ingram, 13 Ch. D. 338. As to 
 liability of solicitor for not truly describing 
 the residence of his client, whereby defend- 
 ant did not obtain security for costs ; in 
 the ir.atter of a Solicitor : 5 Times L. E. 
 
 339- 
 
 ^ " It is the duty of a solicitor to obtain 
 n written authority from his client before 
 he commences a suit. If circumstances are 
 urgent ; and he is obliged to commence 
 proceedings without such authority ho 
 should obtain it as soon afterwards as he 
 
 can. An authority may, however, bo im- 
 plied, where the client acquiesces in and 
 adopts the proceedings, but if the solicitor's 
 authority is disputed, it is for him to 
 prove it, and if he has no written authority 
 and there is nothing but assertion against 
 assertion, the Court will treat him as un- 
 authorized, and he must abide by the con- 
 sequences of his neglect : " per Lord Lang- 
 dale, M.E., Allen v. Bone, 4 Beav. 493. 
 Owen V. Ord, 3 C. & P. 349, says it is 
 " cori'ect practice " to take written in- 
 structions. See Bley v. Positive Assur- 
 ance Company, i Ex. D. 20 ; Tomlinson 
 V. am, 6 A. & E. 564. 
 
 « 4 Burr. 2060. 6 2 C. & P. 113. 
 
 ' Godefroy v. Dalton, 6 Bing. 460. The 
 authorities are collected in the argument 
 in Parker v. EoUs, 14 C. B. 691. 
 
 ^ Public Law, book ii. tit. 5, s. 2, § 8. 
 
PARTii.] .SOLICITORS 787 
 
 France, to be, that proctors-officers, equivalent to solicitors, are 
 proMbited from drawing up writings wMch may serve to establish 
 and found the rights of their clients, which business is the pro- 
 vince of advocates ; and though the law in England is not nearly 
 so stringent, still the solicitor is most generally protected where 
 he has referred to counsel questions of law not of purely elemen- 
 tary knowledge,^ the form of the pleadings, the kind of evidence 
 to be brought forward, or any point of grave occurrence or special 
 intricacy.^ 
 
 The province of judge and jury respectively, in questions of Province of 
 solicitor's negligence, has been thus indicated by Lord Den- jury^ °'°^ 
 man, 0. J.' " It was proper to direct the jury positively as to the 
 premises from which they were to draw their conclusions. Thus, 
 it was the province of th^ judge to inform the jury for what 
 species or degree of negligence an attorney was properly answer- 
 able ; but, having done this, it was right to leave to them to say, 
 considering all the circumstances and the evidence of the practi- 
 tioners, whether, in the first place, the attorney had performed 
 his duty, and in the second, in case of non-performance, whether 
 the neglect was of that sort or degree which was venial or cul- 
 pable in the sense of not sustaining, or sustaining, an action."" 
 
 If the facts are undisputed the Court can determine, as matter 
 of law, whether the defendant's conduct was negligent or not, 
 for " the jury is not to inquire as to that which is agreed on by 
 the parties." ' 
 
 That being so, the next point is to ascertain more in detail Amount of 
 the amount of negligence that fixes liability. As to this there °^^ '2™°^- 
 is some obscurity, not through indeterminacy of the law, but 
 through ambiguity in its expression. 
 
 "An attorney," says Lord Bllenborough,^ "is only liable iov Crassa 
 crassa negligentia ;" and it was laid down in the House of Lords in ^umT'^-K. 
 Purves V. LandelF that it is of the " very essence " of an action 
 for negligence against a solicitor " that there should be negligence 
 of the crass description, which we call crassa negligentia — that 
 there should be gross ignorance." This expression is, however, 
 to be taken not siTwpliciter as expressing the absence of ordinary 
 
 ^ Bulmer v. Gilman, 4 M. & Gr. 108 ; where hia liability wag greater, Jones v. 
 
 Kemp V. Burt, 4 I?. & Ad. 424 ; Jacks v. Lewis, 9 Dowl. 143. 
 
 Bell, 3 C. & P. 316. ^ Boll. Abr. 691, Trial E. I, cited by 
 
 ^Manning?). Wilkin, 12 L. T. 249; Lord Blackburn; Dublin, Wicklow, and 
 
 Bracey v. Carter, 12 A. & E. 373 ; Wexford Railway Company v. Slattery, 
 
 Laidlert). Elliott, 3 B. &C. 738. 3 App.Cas. iiSJ.atp. I20l. 
 
 ' Hunter v. Caldwell, 10 Q. B. 69, at " Baikie v. Chandless, 3 Carapb. 17 ; 
 
 p. 82 ; 16 L. J. Q. B. 274. Bulmer v. Gilman, /^ M. feW. 108 ; Gode- 
 
 " See Eeeoe v. Eighy, 4 B. & Aid. 202. froy v. Dalton, 6 Bing. 460. 
 
 As to damages, where plaintiff alleged he ' 12 CI. & Fin. 91. See per Lord 
 
 " was forced to pay " a certain sum, but Campbell, at p. 102. 
 
7SS THE LAW OF NEGLiaENCE. [book ii. 
 
 care, but the absence of that care which should be ordinary in the 
 case of a solicitor. This is manifest, if not plain, from the very 
 nature of the employment, from a consideration of the remarks of 
 
 Oodefroy u. Tindal, O.J., in Godefroy v. Dalton,' where he sums up the cases 
 ^ °°" as establishing that a solicitor is in general "liable for the con- 
 
 sequences of ignorance, or non-observance of the rules of practice 
 of this Court ;'■' for the want of care in the preparation of the 
 cause for trial,' or of attendance thereon* with his witnesses ;° and 
 for the mismanagement of so much of the conduct of a cause as is 
 usually and ordinarily allotted to his department or profession." 
 Whilst, on the other hand, he is not answerable for error in 
 judgment upon points of new occurrence, or of nice or doubt- 
 ful construction,'' or of such as are usually entrusted to men in 
 
 Consideration \^q Hgher branch of the profession of the law." Crassa neqli- 
 
 01 the meaning ° '■ ^ ^ ._,, 
 
 of crassa genha or culpa lata, as understood by Lords Bllenborough and 
 negigenm. Brougham and the numerous other judges who use it in the 
 sense we are now considering, is failure to use such skill as 
 may be reasonably expected from a man's profession; and 
 the levis culpa is the legal expression of: to whom little in 
 the way of skill is given little is required. This is said to differ 
 from the signification of the terms in the Eoman law. There 
 crassa Tiegligmtia is interpreted, not to understand what all men 
 are supposed to understand ; and levis culpa^ is fault the result of 
 unskilfulness in any art by its professor." As soon as this is 
 apparent, all ' real difficulty disappears, by being resolved into a 
 question of consistency of expression. In both cases, both by the 
 civil law and the English law, the skilled labourer spondit peritiam 
 artis. If he does not realize his engagement in both sytems he 
 is liable. That liability is called by the Eoman lawyers culpa 
 levis, by some English judges of the highest authority crassa 
 negligentia or culpa lata, but by both Eoman lawyers and English 
 
 1 6 Bing. 460, at p. 468. from the ordinary modes of practice he 
 
 2 That is, of lany particular court in must he considered as undertaking to do 
 which the solicitor professes to practise what was necessary to render the mode 
 (e.g., Mayor's Court, Cox v. Leech, 1 C. E. which he adopted effectual for its purpose. 
 N. S. 617);, Hunter «7. Caldwell, 10 Q. B. And if, whether from ignorance or in- 
 69 ; Franiland v. Cole, 2 C. & J. 590 ; advertence, he failed to do so, he must be 
 Huntley «. Bulwer, 6 Bing. N. C. in; held responsible for the consequences: 
 Stokes V. Tramper, 2 K. & J. 232; Stevenson f. Eoward, 2 Dow & CI. 104; 
 En.sBel V. Palmer, 2 Wils. 325. Kemp v. Burt, 4 B. & Ad. 424 ; Laidler 
 
 ' Hawkins v. Ilarwood, 4 Ex. 503. v. Elliott, 3 B. & C. 738. 
 
 ' Swannel! v. Ellis, i Bing. 347. * Lat<B culpce finis est rum inteUigere 
 
 ^ Eeece f. Eighy, 4 B. & Aid. 202. id guod omnes inteUigmtt: D. 50, 16, 
 
 " De Eoufigny v. Peale, 3 Taunt, 484 ; 223. 
 
 Allison V. Eayner, 7 B. & C. 441. » Wood's Civil Law, I06. See, as to 
 
 ' Pitt V. Yalden, 4 Burr. 2060; Baikie this : Campbell, Law of Negligence, p. 11 ; 
 
 V. Chandless, 3 Campb. 17. It was held Wharton, Law of Negligence, §§ 45, 46. 
 
 in the House of Lords that a solicitor is ^'' See some excellent remarks by Stone, 
 
 not liable for mistake in a nice and difficult J., in Goodman i-. Walker, 30 Ala. 482, 
 
 point of law, for to such mistakes all cited in Shearman and Eedfield, Law of 
 
 lawyers must be liable ; but if he departs Negligence, 4th edit., § 559, n. 2. 
 
PART n.] gOLIOn!OKS. is^ 
 
 judges is thereby designated unskilfulness in the execution of 
 work undertaken on the assumption of the undertaker being 
 possessed of customary and adequate skill for its performance, 
 and failing in the exercise of it. That there is no difference in 
 the substance of the Eoman and the English law will appear from 
 the remarks of Lord Campbell in the case of Purves v. Landell' Lord Campbell 
 contrasted with the summary of the doctrine of the Eoman law Laadeir^ '' 
 given by Wharton. " Against the attorney, the professional 
 adviser, or the procurator, an action may be maintained. But it 
 is only if he has been guilty of gross negligence, because it would 
 be monstrous to say that he is responsible for even falling into 
 what must be considered a mistake. You can only expect from 
 him that he will be honest and diligent, and if there is no fault 
 to be found either with his integrity or diligence, that is all for 
 which he is answerable. It would be utterly impossible that 
 you could ever have a class of men who would give a guarantee 
 binding themselves in giving legal advice, and conducting suits at 
 law to be always in the right " — that is, the attorney, clothed, as he 
 must be, with a special capacity, must exercise it with average 
 diligence and skill. Wharton^ expresses the sense of the Corpus Dr. wiiarton 
 juris as distinguishing culpa levis, slight or special negligence. Law. 
 the lack of such diligence as a good business man would shew in 
 a transaction relating to his business, from lata culpa, gross or 
 ordinary negligence, the neglecting of the ordinary care that is 
 taken by persons not specialists ; non intelligere quod omnes intel- 
 Ugunt — that is, the specialist is judged by a specialist, but his 
 actionable shortcoming is culpa levis, the non-specialist by another, 
 but whose actionable default is expressed by culpa lata. The 
 English usage has probably grown from contrasting levis with lata 
 culpa in the same class as if they were synonymous with little 
 and much negligence, whereas, if the interpretation of the civilians 
 by Wharton be right, and there is at least the probability arising 
 from its intrinsic plausibility in its favour, the distinction indi- 
 cated by the two phrases is between different classes of negli- 
 gence, and not a mere distinction in the grading of a particular 
 class. The one applicable to men of business in their business 
 transactions, the other to them in matters in which they did not 
 profess skill.' 
 
 If a solicitor acts as solicitor the fact that he is remunerated Bemimei-ation 
 
 - on 1 • f 1 -T. • -ji . 1 • 1 -I does not affect 
 
 or not does not affect his liability ; m either event he is bound liability, 
 to discharge his duties with a care and diligence equal to that 
 
 ^ 12 CI. & Fin. 91, at p, 103. 477, 478 ; Sanders's Justinian, 6th edit. 
 
 ^ Law of Negligence, § 59. See, to the p. 324. 
 same effect, Poste s Gains, 2ud edit. pp. ^ Ante, pp. 16 et seq. 
 
790 
 
 The law oe* negligence. 
 
 [book n. 
 
 General rule. 
 
 Liability both 
 in contract 
 and tort. 
 
 ordinarily required of solictors of competent skill and care ;' and 
 the same holds good whether he is certificated or not, though in 
 the latter event he employs a certificated solicitor in the work.^ 
 
 The general rule may be laid down that whatever is important 
 for the client to know, it is the duty of the solicitor to report to 
 him ; and failure in this respect is a ground for an action of 
 negligence by the client against the solicitor.' 
 * When once a solicitor is engaged he becomes disentitled to 
 accept any business conflicting with that of his client ; * and if he 
 does this, and his client is injured, the client has his remedy either 
 by action or by invoking the summary jurisdiction of the Court. 
 The fact that a solicitor is retained to defend an action being 
 proved, coupled with the fact that he has done nothing and that 
 judgment has been suffered to go by default, throws the onus on 
 the solicitor, to shew that there was no negligence.' 
 
 Though an action for negligence against a solicitor would 
 be an action for breach of contract, where the negligence 
 alleged is breach of a positive contract to do a specific act and 
 therefore sustainable without damage," yet where the breach is of 
 a general duty, if constituted by the retainer, though in its nature 
 not dependent upon it — where, that is, the relation is consti- 
 tuted by contract, but, given the relation, the action does not 
 otherwise arise out of it than because it is subsequent to it, even 
 though it would not have arisen at all if the contract had not 
 been made ' — the action is not on contract but in tort ; since its 
 essence is not the non-performance of a contractual duty but the 
 performance of a negligent act ; and therefore damage has to be 
 shewn.' Further, damage must be shewn to have resulted from 
 the negligent act. This is illustrated by what happened in 
 Hewitt V. Melton," an action for false representations by an 
 attorney. The damage alleged was that in the suit from which 
 it arose the plaintiff's debtor was discharged. But the action 
 
 ' Kg., Fray«. Voules, i E. & E. 839; 
 see per Lord Campbell, C.J. ; Brown y. 
 Boorman, 11 CI. & F. 44 ; per Jerris, 
 C.J. : Oourtenay v. Earle, 10 C. B. 83 ; 
 Howard v. Shepherd, 9 C. B. 319. 
 
 ^ Westaway v. Frost, 17 L. J. Q. B. 
 286 ; Bee Hill v. Finney, 4 F. & F. 634 ; 
 Pontifex v. Midland Railway Company, 3 
 Q. B. D. 23 ; Fleming v. Manchester 
 Railway Company, 4_ Q. B. D. 81. The 
 point is of practical importance also with 
 regard to costs. Rules of Supreme Court, 
 1883, Order Ixvi. 12. 
 
 » I C. M. & R. 232 ; Godefroy v. Jay, 
 7 Bing. 413, was a case where a judgment 
 against a man was held sufficient evidence 
 of damage. 
 
 ^ Donaldson v. Haldane, 7 01. & Fin. 
 762 ; Stevenson v. Rowand, 2 Dow & C. 
 104 ; Lang v. Struthers, 2 Wils. & Sh. 
 
 563- 
 
 a Brown v. ToUey, 31 L. T. N. S. 485. 
 
 3 Foy V. Cooper, 2 Q. B. 937. 
 
 ^ Johnson v. Marriott, 2 0. & M. 183 ; 
 Grissell «. Peto, 9 Bing. i ; The Masons' 
 Hall Tavern Company v. Nokes, 22 
 L. T. N. S. 503 ; as to what acts a solicitor 
 is bound to do when he has a special re- 
 tainer, Dawson v. Lawley, 4 Esp. 65 ; 
 and where he has an unlimited discretion, 
 Anderson v. Watson, 3 0. & P. 214. 
 
 ^ Godefroy B. Jay, 7 Bing. 413 ; Bourne 
 u..Diggle8, 2 Ctit. 311. 
 
 « Marzetti v. Williams, i B. & Ad. 
 415. 
 
PAETii.] SOLICITOES. ^ 791 
 
 was held not maintainable on it appearing that the discharge 
 was not owing to the falsehood but to the informality of the 
 document. 
 
 If an action for negligence at common law can be brought, it where action 
 has been decided that the courts will not give a remedy in equity.' no remedy in^ 
 
 The right of action survives to the personal representative,^ or ^S"-^^- 
 the trustee in bankruptcy,' against the solicitor's representatives,'' action. 
 and if within the scope of partnership, dealings against the 
 representatives of an innocent partner.^ 
 
 The measure of damages is the difference in the position of the Meaenve of 
 client from what it should have been had the solicitor acted '^™*^®' 
 without negligence.^ 
 
 In actions for negligence the Statute of Limitations' begins^to statute of 
 run from the time of the^doing of the injm-ious act. The lead- "^^ ^ '°" ' 
 ing case on the subject is Howell v. Young.' There the defen- 
 dant had been retained in the year 1 8 1 4 to ascertain whether a 
 warrant of attorney and certaia mortgages were a sufficient 
 security for a loan, and at that time he represented they were so. 
 In the year 1820, the interest to that time having been regu- 
 larly paid, it was discovered that the security was not suffi- 
 cient. An action was then brought against the defendant, an 
 attorney, for negligence, and he pleaded the Statute of Limita- 
 tions.' It was held that the cause of action was barred. " I 
 think," said Holroyd, J., " it makes no difference in this respect, 
 whether the plaintiff elects to bring an action of assumpsit 
 founded upon a breach of promise or a special action on the case 
 founded on breach of duty. The breach of promise or of duty 
 took place as soon as the defendant took insufficient security. 
 Whether th6 plaintiff therefore elect to sue in one form of action 
 or another the cause of action which in either form is substan- 
 tially the same accrued at the same moment of time. The breach 
 of duty, therefore, constituting a cause of action, it follows that 
 the Statute of Limitations is a bar to this action unless the special 
 damage alleged in the declaration constitutes a new cause of 
 action,"" This the Court decided it did not do." 
 
 ' British Mutual Investment Company 48 L. T. 756 ; 31 W. E. 838 ; Phillips v, 
 
 V. Cobbold, L. K. 19 Eq. 627 ; 44 L. J . Homfray, 24 Ch. D. 439. 
 
 Ch. 332 ; 32 L. T. N. S. 251 ; 23 W. E. " Whiteman v. Hawkins, 4 C. P. D. 13 ; 
 
 487 ; Brooks v. Day, 2 Dick. 572 ; Mare 39 L. T. 629 ; 27 W. E. 262 ; Godefroy 
 
 V. Lewis, Ir. E. 4 Eq. 219. Compare the v. Jay, 7 Bing. 413. 
 
 Judicature Act, 1873, h. 23, 36 & 37 Vict. ' 21 James I. c. 16. 
 
 c. 66. 8 5 B. & C. 259 ; Smith v. Pox, 6 
 
 2 Knights V. Quarles, 2 B. &. B. Hare 386 ; Dooby v. WatBOn, 39 Ch. D. 
 
 102. 178 ; 57 L. J. Ch. 86s > S8 L. T. 943 ; 36 
 
 ' Crawford v. Cinnamond, IS W. E. W. E. 764. 
 
 996. ' Hony V. Hony, i Sim. & Stn. s68 ; 
 
 '' Wilson V. Tucker, 3 Stark. 154. Whitehead v. Howard, 2 B. & B. 372 ; 
 
 ^ Sawyer v. Goodwin, 36 L. J. Ch. 578 ; Fetter v. Beal, i Salk. 11. 
 
 Young V. Wailingford, 52 L. J. Ch. 590 ; " The Statute of Limitations in cases 
 
792 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 III. Client 
 may raise the 
 question of 
 negligence 
 by resisting 
 the claim of 
 the solicitor 
 for his re- 
 muneration. 
 
 Counterclaim. 
 
 fieads of 
 negligence. 
 
 I. In litiga^ 
 tion. 
 
 III. In addition to Ms remedy by action, the client may raise 
 tlie question of negligence, by resisting the claim of the solicitor 
 for his remuneration on the ground of negligence. But to do this 
 effectually, not only must he shew that he has derived no benefit, 
 but that the failure resulted wholly from the plaintifl's negli- 
 gence, and not partly from accident.^ This, however, is a question 
 for the jury.^ 
 
 "Under the Judicature Acts the defendant can counter claim, 
 and thus, in the event of a failure to establish the worthlessness 
 of the plaintiff's intervention, may secure an abatement from his 
 bill proportioned to the ineflBciency of the service rendered. 
 
 Having considered the general principles, we are now to con- 
 sider in detail the chief heads of solicitor's negligence in respect 
 of his retainer, under the heading of negligence in managing 
 litigation, and negligence iii matters not in litigation. 
 
 I. Negligence in managing litigation. 
 
 A retainer to a solicitor in an action authorizes him to conduct 
 it to final judgment and execution.' It is the duty of a solicitor 
 to take explicit instructions from his client before commencing 
 an action. If it is not possible for the solicitor to have a personal 
 interview with his chent, the need of obtaining definite instruc- 
 tions is most urgent.* This is in accordance with the rule that a 
 special authority must be shewn to institute a suit while a general 
 authority is sufficient to warrant defending one.' If that special 
 authority is wanting, the solicitor taking legal proceedings is 
 liable to the person for whom\ he thus unauthorized professes to 
 act," as well as to any one who is immediately prejudiced thereby.'' 
 
 of tort arising quasi e contractu generally 
 runs, as we have seen, from the date of the 
 tort, and not from the occurrence of actual 
 damage ; but to this there is an exception 
 where the original act itself was no wrong, 
 and only became so by reason of sub- 
 sequent damage — e.g., in the case of an 
 excavation where damages have been re- 
 covered for the injury caused — but where 
 there is a new subsidence proceeding from 
 the original act of the defendant, till the 
 occurrence of which there is no actionable 
 injury, then the statute runs from the new 
 subsidence, Darley Main Colliery Com- 
 pany V. Mitchell, n App. Cas. 127. But 
 ignorance of the facts will be no excuse, 
 nor the success of dilatory tactics: East 
 India Company v. Paul, 7 Moo. P. C. C. 
 85. A right arising from a tort cannot 
 be revived by acknowledgment : Hurst v. 
 Parker, i B. & Aid. 92 ; Tanner v. Smart, 
 6 B. & C. 603. 
 
 ^ Dax V. .Ward, i Stark. 409, and the 
 cases cited in the note ; Pasmore v. Birnie, 
 2 Stark. 59. 
 
 " Braoey v. Carter, iz A. & E. 373. 
 
 " Brackcnburg v. Pell, 12 East 585; 
 Lawrence v. Harrison, Style 426. In 
 America it has been held that an attorney 
 is not bound to move for a new trial upon 
 a point of law, Hastings «. Halleok, 13 Cal. 
 203, nor to institute new collateral suits 
 without instraotiona, Pennington v. Yell, 
 6Eng. (Ark.) 212. 
 
 ■• Gill V. Lougher, i C. & J. 170. 
 
 ^ Wright V. Castle, 3 Meriv. 12. 
 
 ^ Westaway v. Frost, 17 L. J. Q. B. 
 286 ; Hubbart v. Phillips, 13 M. & W. 
 702. The onus of proving authority is on 
 the solicitor, Hoskins v. Phillips, 16 L. J. 
 (Q. B.) 339 ; Dupen v. Keeling, 4 C. & 
 P. 102. In any case a solicitor appearing 
 for another without his assent is precluded 
 from recovering his costs from the party 
 himself. Spurrier b. Allen, 2 C. & K. 210 ; 
 Hall V. Laver, 4 Y. & C. 216 ; or by lien, 
 Abbott V. Rice, 3 Bing. 132. 
 
 ' Andrews v. Hawley, 26 L. J. Ex. 323. 
 A case where a third person instructed 
 the attorney falsely pretending to be the 
 
PART II.J SOLIOITOES. 793 
 
 He is liable for negligence in not representing to his client Soiipitor 
 tlie certainty of failure, where a cause of action is desperate, acqu^nt his 
 before committing the client to actual proceedings, even in the <=^i™' ■*^i"i 
 
 , 111 1 ■ , 1 • , ■ ■ . -, , '^'s prospect 
 
 case where he has the client s positive instructions to proceed/ of fnilure, &c. 
 or for proceeding before the facts have been so far ascertained as 
 to determine whether there be a right of action.^ He is liable 
 for taking proceedings under a wrong section of an Act of Par- 
 liament, even where justices have, in the first instance, actually 
 committed the person charged ; " and where an offer of com- 
 promise is made in pending litigation, he must communicate it 
 to his client, and is not allowed to go on for the purpose of 
 recovering his own costs, and failing this to charge them to his 
 own client. Since it is the solicitor's duty to communicate such 
 an offer, he must be presumed to have done his duty till the 
 contrary is shewn.'' But, says Lord Campbell, C.J., in Pray v. 
 Voules,^ "If an action were brought for a ^loo surety the 
 plaintiff's attorney might accept an offer of £gg los. without 
 previously communicating with his client," and he lays down the jjay oom- 
 rule, " an attorney retained to conduct a cause is entitled, in the promise, 
 exercise of his discretion, to enter into a compromise, if he does 
 so reasonably, skilfully, and iond fide, provided always, that his 
 client has given him no express directions to the contrary ; but 
 when these directions have been given, such a step, though 
 perhaps binding as between him and third parties, is, ulii'a vires, 
 as between him and his client."" This was followed by the Court 
 of Common Pleas in Chown v. Parrott,' and again in Prestwich v. 
 Poley,* and has been repeatedly recognized as established law." 
 But there is no greater immunity in making a compromise than Provided 
 in his other business of a solicitor, so that if the solicitor in exercises 
 making settlements acts in a way inconsistent with the diligence carl inTo™*^ 
 and care which good business men of his class are accustomed to doing, 
 shew in that description of business, he will expose himself to an 
 action for negligence,'" yet the compromise arrived at as against 
 his client will, notwithstanding, hold good unless its features are 
 such as to imply fraud. 
 
 plaintiff's partner. There must (be an ^ Hart v. Frame, 6 CI. & Fin. 193. 
 
 allegation that legal damage has been * Sill v. Thomas, 8 C. & P. 762. 
 
 sustained, Cotterell v. Jones, 11 C. B.713. " I E. & E. S39. 
 
 1 In re Clarke, i D. G. M. & G. 43. " fl'raiglit v. Jolinston, i F. & F. 128. 
 
 See Jacks v. Bell, 3 C. & P. 316 ; per Lord ? 14 C. B. N. S. 74. 
 
 Tenterden, C.J., on the duty of solicitor to ^ jg q_ -q_ jsj- g_ g^g^ 
 
 dissuade his client ; also the same judge as * Strauss v. Francis, L. E. i Q. B. at 
 
 reported 2 Chitly's General Practice, c. i, p. 382 ; Matthews c. Muuster, 20 Q. B. D. 
 
 p. 22, n. ; Ottley v. Gibbs, 14 L, J. Ch. 141 ; 57 L. J. Q. B. 49 ; 57 L. T. 922 ; 
 
 178 ; Lawrence v. Potts, 6 C. &. P. 428. 36 W. E. 178. 
 
 ^ Thwaites v. Mackenzie, 3 C. & P. ^^ Chambers v. Mason, 5 C. B. N. S. 
 
 341 ; Montgomery v. Devereux, 7 Ci. & 359. 
 F. 188. 
 
79i 
 
 THE LAW OP NEGLIGENCE. 
 
 [book 11. 
 
 What pre- 
 liminary 
 investigation 
 the solicitor 
 is required 
 to take. 
 
 Difficult 
 points of law. 
 
 Ordinary 
 procedure in 
 un action. 
 
 In the preliminary investigations required before instituting 
 proceedings the solicitor's duty is specially to consider — 
 
 1 . Whether there is any, and what, right of action ; 
 
 2. Whether it is affected hy the Statute of Limitations ; 
 
 3. Whether any preliminary notice or demand is required ; and 
 
 4. Who are the proper parties against whom the action is to 
 
 be brought.^ 
 
 Palpable negligence in any of these particulars, whether 
 arising from want of acquaintance with law or from defectire 
 apprehension of the facts would constitute a cause of action 
 against the solicitor, for it is deemed essential -that the client 
 should have the benefit of his solicitor's advice and judgment in 
 the conduct of the suit in the management of which the solicitor 
 is also required to be reasonably competent.^ 
 
 Where difficult points of law arise, the solicitor would generally 
 be protected by counsel's opinion, though not, as we have already 
 noted, in a matter of which his own knowledge should be com- 
 petent — ^that is to say, the proper practical proceedings to be 
 taken,' but even here, if it be a matter on which doubt can 
 reasonably be entertained, he will not be held liable,* nor yet if 
 he had carefully drawn a case and obtained an explicit opinion of 
 an experienced counsel and acted strictly within his directions.' 
 
 A solicitor is liable for blunders and mistakes in drawing up 
 an order or rule" ; for bringing an action in a court which has 
 no jurisdiction'; or for suing in a superior court when he should 
 have brought the action in a county court' ; for laying the venue in 
 the wrong county" ; for administering interrogatories for examina- 
 tion in chief, under the old Chancery practice, of an adverse witness 
 already examined on the other side" ; for disobeying the lawful in- 
 structions of his client, though he acted in good faith, and honestly 
 thinking to advance his client's interest" ; for not seeing that a 
 foreign bill sued on complies with the formalities of the foreign law 
 applicable '^ ; for neglecting to deliver briefs to counsel in time for 
 the trial"; for neglecting to furnish counsel with materials adequate 
 
 s Lee V. Dixon, 3 ¥. &.F. 744. The 
 report of this case is confused, the point 
 of the report appearing best in the note of 
 Biamwell, B.,'^ summing up on the second 
 trial. 
 
 ' Kemp V. Burt, 4 B. & Ad. 424 ; Bules 
 of Supreme Court, 1883, Order xxxvi. I. 
 
 1° Stokes V. Trumper, 2 K. & J. 232 ; 
 Rules of Supreme Court, 1883, Order 
 xxxvii. 1. I. 
 
 " Cox V. Livingstone, 2 Watts & S. 103. 
 
 12 Long V. Orsi, 18 C. B. 6lo. 
 
 1' Rex V. Tew, Sayer 50 ; Roufigny v. 
 
 o„u -, fr„„„f .5. . jJoby u. Built, 3 
 
 1 PuUing's Law Relating to Attorneys, 
 3rd edit. 175. 
 
 2 Hopkinson v. Smith, 1 Bing. 13 ; 
 Harvey v. Mount, 8 Beav. 439, at p. 454. 
 
 3 Russel V. Palmir, 2 Wils. 325 ; 
 Swannell v. Ellis, i Bing. 347. 
 
 ^ Laidler v. Elliott, 3 B. & C. 738 ; 
 Baikie v. Chandless, 3 Campb. 17. 
 
 * Kemp V. Burt, 4 B. & Ad. 424, in 
 submitting case to counsel he must have 
 acted iond fide; Andrew v. Hawley, 26 
 L.J. Ex. 323. 
 
 " Be Bolton, 9 Beav. 272. 
 
 7 Williams v. Gibbs, 5 A. & E. 
 B08. 
 
 Peale, 3 Taunt 
 B. & A. 350. 
 
PART II.] SOLICITORS. 795 
 
 for dealing with the case, faiUng which he withdrew the record' ; 
 for not subpcenaing the requisite witnesses' ; for omitting to 
 procure their attendance at the trial'; for not attending at the 
 trial, or before the arbitrator in the case of a reference^ ; for mis- 
 readiag the date of a notice of trial" ; for not taking steps to set 
 aside an irregular order' ; for negligently making an erroneous 
 statement to the Court, so that a wrongful order is procured^ ; 
 for want of diligence in the prosecution of the decree"; for 
 neglecting to compel the receiver to pass accounts '" ; for neglect 
 in complying with an order for passing publication" ; for allowing 
 judgment to go by default ^^; for discharging a defendant from 
 custody without receiving satisfaction^' ; for not charging a prisoner 
 defendant in execution ;" for not duly entering up judgment,'^ and, 
 p'imd facie, issuing execution"; and for neglecting to set aside 
 irregular proceedings." 
 
 Where the negligence alleged is that the plaintiff was convicted where 
 in previous proceedings through the default of the solicitors, the negligence 
 plaintiflF is not bound to prove that the negligence was the coniiuces to 
 
 •^ _ _ -"^ . t"^ conviction 
 
 exclusive reason ; but " if the defendant's negligence largely of his client, 
 contributed to the result they would be answerable for such 
 damages as " might be thought just in all the circumstances.'' 
 
 When a solicitor has been retained to conduct an action he is Solicitor 
 bound to carry it on to its termination,'" unless he give reasonable capriciously 
 notice to the contrary, or the client dies;^ thus it was held, in J^^'^'^g''^™ * 
 Hoby V. Built ^' too late to refuse to deliver briefs four days before imdertakeu. 
 the commission day of the assizes. If, however, due notice is 
 given, the fact that he is not furnished with money entitles him 
 to be relieved of his duty in the action.^-' The giving of reason- 
 able notice is necessary, otherwise the absence of funds would 
 
 not excuse him.^ 
 
 ^ Hawkins v. Harwood, 4 Ex. 33. ^^ Frankland v. Cole, 2 Cr. & J. 590. 
 
 ^ Price V. BuUer, 3 L. J. (K. B.) 39. ^^ Godefroy v. Jay, 7 Bing. 413. 
 
 2 Keece v. Kighy, 4 B. & Aid. 202 ; ^^ Bevins v. Hulme, 15 M. & W. 88. 
 
 Dax V. Ward, i Stark. 409. If it is the " Eussel v. Palmer, 2 Wils. 325. 
 
 party's own act that they are not called ^' Flower v. Bolinghroke, 1 Str. 639. 
 
 he is not to be heard to complain : Wright The proposition is not decided by, but is 
 
 V. Snresby, 2 C. & M. 671. merely an inference from, the case. 
 
 * Nash V. Swinburne, 3 M. & G. 630. " Harrington v. Binns, 3 h\ & P. 942. 
 
 ^ Swannell v. Ellis, I Bing. 347 ; Daunt- Compare Dearborn v. Dearborn. 15 Mass. 
 
 ley V. Hyde, 6 Jur. 163. The solicitor is 310. 
 
 not answerable for neglect of counsel, ^' Godefroy a. Jay, 7 Bing. 413. 
 
 Lowry ». Guilford, 5 C. & P. 234. As ^^ Hatch v. Lewis, 2 F. & P". 467, at 
 
 to solicitor's duty with regard to .«ond- p. 483, per Pollock, C.B, 
 
 ing to a reference, Chapman v. Van Toll, i" Nicholls v. Wilson, 11 M. & W. 106. 
 
 27 L. J. Q. B. I ; also Smith v. Troup, 7 -<> Whitehead u. Lord, 7 Ex, 691. 
 
 C. B. 757 ; Paviell v. Eastern Couiuies ^^ 3 B. c& Ad. 350 ; Wadsworth v. Mar 
 
 Railway (Jompany, 2 Ex. 344. shall, 2 Cr. & J. 665 ; Gleason v. Clark, 
 
 " Nash V. Swinburne, 3 M. & G. 630. 9 Cowen 57. 
 
 ' Frankland v. Cole, 2 Cr. & J. 590. 22 Rowson v. Earle, M. & M. 538 ; Van 
 
 ' In re Spencer, 39 L. J. Ch. 841. Sandau v. Browne, 9 Bing. 402. 
 
 " Ridley v. Tiplady, 20 Beav. 44. 23 NichoUs v. Wilson, 11 M. & W, 
 
 w V. JoUand, 8 Ves. 72. 106. 
 
796 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Advice to 
 discontinue 
 a good case 
 not neces- 
 sarily negli- 
 gent. 
 
 Where 
 solicitor not 
 liable for 
 mistakes. 
 
 II. Negligence 
 in matters not 
 in litigation. 
 I. V^eiidors 
 and par- 
 chasers. 
 
 But a solicitor will not be liable for advising Ms client not to 
 go on with a case, unless it can be shewn not only that he had 
 a good case, but also that the solicitor was, or ought to have been, 
 aware of it.' And it is doubtful whether even this is not too 
 narrow a statement of the law, since it may well be that a man 
 has a good case, of which his solicitor is aware, yet which it is in 
 the highest degree inexpedient to prosecute. Another duty to 
 his client — which is, not to advise merely as to the legal, but as 
 to the practical, aspects of the case^ — would not be performed 
 did he not dissuade him from its prosecution. 
 
 A solicitor is not liable for negligence when the damage arises 
 from the error of the judge in making an order at chambers ; ' 
 nor for pleadings, if drawn by a pleader;* nor for refusing to 
 insert matter in pleadings against his own view at the instance of 
 his client ;* nor for a mistake in evidence if he has taken counsel's 
 opinion ;" nor for the absence of counsel at the trial ;' nor because 
 witnesses whose proofs have been taken are not called on the trial, 
 since this is " entirely for counsel";" nor for anything within the 
 province of coimsel at the trial ; nor for omitting to move for a 
 new trial without instructions to do so ; " nor for refusing to follow 
 his client's instructions to do what is merely designed for delay;" 
 nor for preparing a joint warrant of attorney from two, so as not 
 to guard against the efEects of one of them dying before the judg- 
 ment;" nor for drawing under counsel's advice an agreement bad 
 for champerty, and for suing thereon."* 
 
 II. Negligence in matters not in litigation. 
 
 I . In the course of business between vendors and purchasers." 
 
 The solicitor should inquire whether a thing proposed to be 
 sold may legally be the subject of bargain and sale, that is, that 
 the bargain is not affected by fraud or immorality, or with regard 
 to matters against public policy." He is also to ascertain whether 
 the parties to the proposed contract have contractual capacity," 
 and is bound to take care that his client does not enter into any 
 covenant or stipulation that may expose him to a greater degree 
 
 F. 467, at 
 
 1 HiU V. Finney, 4 F. & F. 616. 
 
 2 Jacks V. Bell, 3 C. & P. 316 ; and 2 
 Uhittv's General Practice, c. I, p. 22, n. 
 
 3 Laidler ». Elliot, 3 B. & C. 738. 
 
 * Manning v. Wilkin, 12 L. T. 249. 
 6 Ibbotson V. Shippey, 23 Sol. Jour. 
 
 388. 
 
 « Andrews v. Hawley, 26 L. J. Ex. 323. 
 
 ' Lowry v. Guilford, S C. & P. 234. 
 In a mayor's court case it was held that 
 a solicitor acting as advocate is liable to 
 his client if he fail to attend : Fergusson v. 
 Lewis, Law Journal for 1870, at p. 700. 
 See Clarke v. Couchman, Law Journal 
 for 188s, at p. 318. 
 
 8 Hatch V. Lewis, 2 F. 
 p. 482. 
 
 » Fray v. Foster, I F. & F. 681. 
 ^'' Johnson I). Alston, I Campb. 176. 
 " Kettle V. Wood, 5 L. J. 0. S. K. B. 
 
 173- 
 
 12 Potts V. Sparrow, 6 C. & P. 749. 
 
 ^2 Pulling, Law Relating to Attorneys^ 
 3rd edit. p. 227. It seems a pity that 
 there is no edition of this careful book 
 later than 1862. 
 
 '■* Fores v, Johnes, 4 Esp. 97 ; Hughes 
 V. Done, i Q. B. 294; Graeme u. Wrough- 
 ton, II Ex. 146. 
 
 1= Pulling, 229, citing Co.Litt. 172 a, 
 
PART n.] SOLICITOES. 797 
 
 of responsibility than is ordinarily attached to the business in 
 hand, or, at least, does not do so till the consequences have been 
 explained to him,' and he must not voluntarily and unnecessarily 
 divulge defects in his client's title. ^ On the other hand, a solicitor 
 will be liable if he allows his client, without calling his attention 
 to the fact, to take a bare possessory title.^ 
 
 Where the necessary investigations are not made in the course Duty of 
 of the negotiations, it is the duty of the vendor's solicitor to reference to '^ 
 deliver a sufficient abstract of title, and of the purchaser's solici- ^ibstract. 
 tor not merely to see that what is abstracted is correctly stated, 
 but to see that all that is material is stated." Thus, it is the 
 duty of a solicitor not to content himself with a particular ex- 
 tract of a will, unless something pass between him and his client 
 which shews that it is unnecessary to consult the original.^ 
 In Bryant v. Bush" there are expressions that would support 
 the narrower dnty, but they were merely ohiter, that case only 
 negativing an alleged duty on the part of a purchaser's solicitor 
 to inform himself of the names of the attesting witnesses to title- 
 deeds, with a view to the production of evidence in the event of 
 the destruction of the deeds. The solicitor's knowledge, then, is 
 only with reference to direct and immediate, and not to possible 
 and future, requisites. But, in considering the eifect of abstracts, 
 the solicitor must avoid drawing wrong conclusions from the deeds 
 laid before him, though there is no duty on him to know their 
 legal operation. If, however, he does not consult counsel he liability of 
 assumes the risk of going wrong.' There is authority^ for saying i°gg'^o ™ ^°''' 
 that a solicitor is liable to his client for loss occasioned by his casjoned by 
 omission to make any of the numerous searches which may by make searches, 
 possibility disclose matter affecting the title. But it is pointed ftaledTn^^ 
 out in a work of great authority" that there is a general practice Dart, Vendors 
 to make certain specified searches, and no more ; and a doubt is chasers. 
 expressed whether a solicitor would be liable for one of these 
 omissions which are sanctioned by general practice. The solution Opimon of 
 of this doubt appears to be given by Tindal, O.J.,'" when he says : '" "^ ' ' ' 
 
 1 Stannard v. XJllithome, lo Binp. 491. ■• Sugden, Vendors and Purcliasers, 
 
 2 Taylor v. Blacklow, 3 Bing. N. C. 1 ith edit. p. 437. 
 
 235. Compare, per Kelly, C.B., Hardy ^ Wilson v. Tucker, 3 Stark. 154. 
 
 V Veasey, L. E. 3 Ex. 107, at p. m ; "4 Russ. i 
 
 37 L. J. C. P. 76 ; 17 L. T. N. S. 607. 
 
 ' ireson v. Pearman, 3 B. & G. 790. 
 
 Comyns' Dig. Action on the case for De- ^ 1 .Tarm. Conv. 104 ; i Byth & Javm. 
 
 ccif, A. 5. ° 4*'^ edit. 100 ; "Watts w. Porter, 3 E. &B. 
 
 ''Alien ?'. Clark, 7 L. T. N. S. 781 : 743; Cooper y. Stephenson, 21 L. J. Q. B. 
 
 Brooks V. Day, Dick. 572. In Potts v. 292 ; Miller v. Wilson, 24 Penn. St. 1 14 ; 
 
 Diitton, 8 Beav. 493, a solicitor was made Allen r. Clark, 7 L. T. N. S. 781. 
 
 to bear the expense of drawing a convey- ° l.lai't, Vendors and Purchasers, 6th 
 
 ance where the title-deeds were out of the edit. p. 523. 
 
 vendor's possession to his knowledge ; and '" Chapman v. Walton, 10 Bing. 57. 
 in consequence of which the sale went off. 
 
738 
 
 THE LAW OF NEGLIGENCE, 
 
 [book II. 
 
 Solicitor may 
 be lia,ble 
 where deed 
 professes to 
 be settled by 
 the Coii"t. 
 
 2. Landlord 
 and tenant. 
 
 "This [what constitutes the exercise of reasonahle and proper 
 care, skill, and judgment] is a question of fact, the decision of 
 which appears to us to rest upon this further inquiry — viz., 
 whether other persons, exercising the same profession or calling, 
 and heing men of experience and skill therein, would or would 
 not have come to the same conclusion as the defendant." The 
 solicitor would, of course, be liable if he omitted to require the 
 statutory searches to be made. And in the case of counsel 
 advising a search for specified incumbrances, it is laid down in 
 the above-cited learned treatise that the solicitor need not make 
 a more extensive search,' though the generality of the proposition 
 is guarded by the reservation unless he is aware of some par- 
 ticular reason for so doing,^ and a further reservation may be 
 suggested — ^that the duty of the solicitor would not a little be 
 dependent on the form of the opinion. Frimd facie, the solicitor ■ 
 is bound to inquire as to the payment of the past rent, but if the 
 client has made inquiries about the matter, and leads his solicitor 
 to believe that he is satisfied about it, the marginal note in Wame 
 v. Kempster' states the ruling in that case to have been that it 
 is not negligence in the solicitor to omit to call for the receipts 
 or take other precautions which otherwise would be usual and 
 necessary. This, however, does not appear from the report of 
 what Blackburn, J., said, from which the inference would rather 
 seem to be that, failing an employment "to see whether the 
 transaction was safe with reference to the past rent," there would 
 be no presumption raised whatever. 
 
 In cases in which a deed is settled in chambers there is the 
 authority of Kay, J.," for saying that the solicitor may be liable 
 for negligence even though the deed professed to be settled by 
 the Court. " The Court," says that learned judge, " acts always 
 upon the instigation of the solicitors employed in the matter, and 
 suppose that, by reason of the exceeding negligence of the solicitor 
 employed by the plaintiff in the action, a deed of settlement should 
 be settled and passed in a form which omitted some of the provi- 
 sions which the conveyancing counsel had recommended should 
 be inserted in it, is it to be said that the solicitor is relieved from 
 responsibility? I do not think so. There are many cases in 
 which a solicitor would not be relieved from responsibility, although 
 the deed was formally settled in Court, if the deed happened to 
 be in a wrong form owing to his negligence." 
 
 2. In the course of business between landlord and tenant. 
 
 1 Dart, Vendors and Purchasers, 6tli 
 edit. p. 523. 
 
 '{ Cooper 11. Stephenson, 21 L. J. Q. B. 
 Z92. 
 
 3 I F. & P. 69s. 
 Stanford v. Eoberts, 26 Ch. D. 155, 
 
 ' \^r" 
 
 at p. 160 ; 
 
 147 
 
 . S3 L- J- Ch. 
 SzW.E. 404. 
 
 338; 50 L. T. 
 
TART II.] SOLICITORS. 799 
 
 The intervention of a solicitor is next often required in this 
 case in the preparation of leases, which is often complicated by 
 the existence of settlements or special conditions. Leases should 
 contain all the proper and usual covenants applicable to the subject- 
 matter demised, the custom of the country, and the most usual 
 and probable contingencies.^ 
 
 " Usual covenants," says Jessel,M.E., in Hampshire r.Wickens,^ Usual 
 " may vary in different generations. The law declares what are "=°^^"''°*^- 
 usual covenants according to the then knowledge of mankind." 
 These, whether the agreement in terms stipulates for them or 
 not, should be inserted.^ Though in Hampshire v. Wickens the 
 way in which the case came before the Court left the judge to 
 decide what were usual covenants, in an action for negligence the 
 matter would have to be left to the jury on the question of what 
 was reasonable and competent skill. 
 
 3 . In the course of negotiating between lenders and bor- 3. Lenders 
 
 and borrowers, 
 
 rowers. 
 
 The duty of a solicitor in the case of negotiating a loan may 
 fall under any one of the three following classes : — • 
 
 a. He may receive a certain sum of money to invest in a par- a. Duty to 
 
 . . 1 •, invest in a 
 
 tlCular security. particular 
 
 In this case all he does is the legal business. He receives the security, 
 money, and has to see that the deeds are executed in proper time, 
 and that the money is handed over to the borrower, and has no 
 duty to inquire into the borrower's responsibility, nor into the 
 sufficiency of the security'' arising from the property being un- 
 incumbered or the borrower being insolvent.s 
 
 j3. He may receive money in order that he may find a security p- Duty to 
 to invest it upon, subject to the approval of his client, retaining subject to the 
 the money the meanwhile. In this case he has to submit to his hKilnt."^ 
 client the various securities proposed, to advise on their eligibility, 
 and ultimately to see that the money is handed over, and a suffi- 
 cient security given for it. But he is not liable where the matter 
 does not require the exercise of professional skill and the grounds 
 of action are submitted to the client, and are of a nature that any 
 man should be able to form an opinion with regard to them." 
 
 ■y. He may receive money to invest, and be empowered to act 7- D^ity to 
 
 reference to 
 
 ' Pulling, 3rd edit. p. 234. Stannard ' King u. Withers, Pre. Ch. 19, cited by his client, 
 
 V. Ullithorn'e, 10 Bing. 491. Pulling, 428 (the marginal note, however, 
 
 - 7 Ch. D. 555, at p. 561 : 47 L. J. Ch. is, "A scrivener who was employed to 
 
 243 ; 30 L. T. 408 ; 26 W. E. 491. Com- examine into a title fails in his duty by 
 
 pare' James w. Gouchman, 29 Ch. D. 212. neglecting to make a thorough inquiry") ; 
 
 3 Church V. Brown, 15 Ves. at p. 265 ; Dartnell v. Howard, 4 B. & C. 350. 
 
 Propert v. Parker, 3 My. & K. 280. ^ Chapman v. Chapman, L. li. 9 Eq. 
 
 * 2 Chitty, Pleading, 281, «. ; Green v. 276, at p. 296; 22 L. T. N. S. 145; 18 
 
 Dixon, I Jur. 137 ; Howell v. Young, 5 W. R. 553. 
 B, & C. 259. 
 
800 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Solicitor 
 ^ting for 
 both lender 
 and borrower. 
 
 4. Partner- 
 ship matters. 
 
 S. Principal 
 and surety. 
 
 6. Debtor and 
 creditor. 
 
 exclusively and without reference to his client, as if the client is 
 abroad. 
 
 In this case the solicitor has not merely to provide the securi- 
 ties, and conduct the legal business with reference to the settle- 
 ment of the terms of the loan, but he undertakes the responsibility 
 to his client of seeing that they are good securities on which money 
 might be safely invested.' He becomes liable for the neglect 
 of any precaution which a prudent man of competent skill 
 should have taken — as for omitting to inquire if the proposing 
 borrower had been bankrupt, or if any other circumstance of the 
 case rendered the security ineligible.^ But in no case does it 
 appear that he has to caution his client against improbable con- 
 tingencies of loss.^ His liability is that of any other agent 
 similarly employed,^ the circumstances of which employment 
 may, indeed, affect him with all the liability of a trustee.* 
 
 It happens not infrequently that the solicitor for the lender 
 acts for the borrower as well. Where this happens a duty of 
 great delicacy is cast upon the solicitor ; and this double relation 
 may be constituted not merely by actual retainer, but by infer- 
 ence from course of conduct. In this view the decision is for a 
 jury. Yet whatever the means of constituting the relation — 
 whether by actual agreement or by implication — when it is con- 
 stituted by either of these methods, the agent is responsible to 
 either of the parties who may suffer from his negligence in 
 preparing the security." 
 
 Where the solicitor acts for the borrower his duty is the converse 
 of that when he acts for the lender. 
 
 4. In Partnership matters. — In drawing up partnership 
 deeds and advising on matters arising out of partnership transac- 
 tions, the same duty is owing as in matters we have before dis- 
 cussed at large. 
 
 5. In matters affecting the relation of Principal and Surety. 
 — In addition to the duties before set out, the solicitor must see 
 that the contract of guarantee or indemnity is in writing,' and if 
 not under seal is for a consideration.' 
 
 6. In arrangements between Debtor and Creditor. — These 
 may be either under ordinary retainers, when the principles regu- 
 
 1 Dooby ». "Watson, 39 Ch. D. 178; 57 
 L. J. Ch. 86s ; 58 L. T. 943 ; 36 W. R. 
 764. 
 
 2 Cooper V. Stephenson, 21 L. J. Q. B. 
 292 ; Smith v. Pooook, 23 L. J. Ch. 545 
 
 5 Brumbridge v. Massey, 28 L. J. Ex. 
 
 59- 
 * Dqnaldson v. Haldane, 7 CI. & Fin. 
 
 762 ; Hayne v. Rhodes, 8 Q. B. 342. ■ 
 
 " Dartnell v. Howard, 4 B. & C. 345 ; 
 
 Craig V. "Watson, 8 Beay. 427. 
 
 ^ Lang V. Struthers, 2 "Wils. & Shaw, 
 563 ; Bobertson v. Fleming, 4 Macqueen, 
 167. 
 
 ' 29 Car. II. u. 3, ^i. 4 ; 19 & 20 Vict, 
 u. 97, s. 2. 
 
 ' Groodman v. Chase, i B. & Aid. 297. 
 As to guarantee and surety, Eees v, Ber- 
 rington, 2 White and Tudor, Lead. Gas. in 
 Equity, 1106, 
 
PABT n.] SOLICITOES. 801 
 
 lating work done under retainer apply, or under arrangements 
 between debtors and the general body of their creditors, when 
 the provisions of the Bankruptcy Act define what are the duties 
 of solicitors.' 
 
 7. In matters Matrimonial and Testamentary. — Shortly, it 7. Matters 
 may be said that the extreme confidence that is bestowed in these ^d*a™sto-°'' 
 matters imposes a greater obligation of care and circumspection '-"entary, 
 on the solicitor, but that there seems no difference of principle 
 involved from those relations we have already considered. 
 
 In the course of any or all of these relations the solicitor may 
 have the custody of his client's deeds ; since he is bound by his 
 position in relation to his client "to use ordinary care that it 
 should be forthcoming when wanted," he is primd facie liable if 
 he fail to do this. The matter, however, is not peculiar to the 
 relation of solicitor and client, but may be referred to its proper 
 head of the general law of bailments.^ 
 
 Property of a client held by a solicitor as trustee does not vest 
 in the trustee in bankruptcy,' and is not within the reputed 
 ownership clause.'' But it is the duty of the solicitor not to mix 
 it with his own property, though in any case it can be followed 
 by the client so long as it can be traced.* 
 
 With regard to bills of sale, the duties of solicitors are 
 prescribed by the Acts.e 
 
 In ex parte National Mercantile Bank, In re Haynes,' it was 
 laid down that a solicitor who stated in the attestation clause 
 to a bill of sale that he had explained the effect of it to the 
 grantor when he had not done so would be liable both to an 
 action by his client and also to penal proceedings. 
 
 The Court has refused to interfere sumraarily in the case of 
 borrowing money for a client on personal security (not by deed),° 
 and of a guarantee of the amount of money borrowed by the 
 client.' And where a solicitor took a charge from a company for 
 his costs, which charge was not registered, the Court of Appeal 
 affirmed the Master of the Eolls in holding that the solicitor 
 
 1 46 & 47 Vioii. c. 52. * Sub-sec. 2 (iii.). 
 
 ' Eeeve v. Palmer, S C. B. N. S. 84; "Dickson v. Murray, 31 Sol. Jour. 
 
 28 L. J. 0. P, 168 ; 7 W. E. 325 ; Wil- 493 ; Cordery, Law relating to Solicitors, 
 
 mot V. £lkington, 2 L. J. K. B. 103. 125. 
 
 Where a solicitor deposits deeds without " 41 & 42 Vict, u, 31 sec. 10 ; 45 & 46 
 
 his client's knowledge as security for an Vict. c. 43. 
 
 advance to the client, he is liable for '15 Ch. D. 42; per James, L.J., p. 
 
 having mislaid them : London and 52 ; 49 L. J. Bk. 62 ; 43 L. T. 36 ; 28 
 
 North-Western Kailway Company v. W. B. 848. As to how this duty should 
 
 Sharp, 10 Ex. 451 ; 24 L. J. Ex. 44, the be performed, see per Hannen, J. ; Mor- 
 
 papers of the client must be delivered up rell v. Morrell, 7 P. D. 68 ; 51 L. J. P. 
 
 in a reasonable state of order : In re 49 ; 46 L. T. 485 ; 30 W. E. 491. 
 
 Thompson, 20 Beav. 545 ; 24 L. J. Ch. * In re Anon. 11 Jur. 396. 
 
 599. ' In re Kearns, 11 Jur. 521. 
 46 & 47 Vict. c. 52, sec. 44, Bub-sec. i. 
 
 % E 
 
802 
 
 THE LAW OF NEGLIGENCE. 
 
 [book It. 
 
 Personal 
 liability to 
 Uiird person. 
 
 could not take advantage of the charge, as it was his duty to see 
 that the register was properly kept.' 
 
 The personal liability of a solicitor to third persons is best 
 summarized by quoting the words o£ Lord Abinger, C.B., in 
 Eobins v. Bridge :" " The attorney is known merely as the agent 
 — ^the attorney — of the principal and is directed by the principal 
 himself. The agent acting for and on the part of the principal 
 does not bind himself, unless he offers to do so by express words ; 
 he does not make himself liable for anything, unless it is for 
 those charges which he is himself bound to pay, and for which 
 he makes a charge."3 
 
 Eoman 
 practice. 
 
 Bareistees. 
 
 The duty of a barrister to his client may conveniently be 
 noticed in this place, aid in connection with the duties of soUci- 
 tors, though a barri-ster is not, like a solicitor, an oflScer of the 
 Court. 
 
 The relation between barrister and client in England is an 
 imitation of the practice followed at Rome. For a considerable 
 period of Eoman history the conduct of suits was monopolized by 
 the patricians, whose services were at first altogether gratuitous, 
 or rather were requited exclusively, by political support. The 
 patron is described as walking in the forum for the convenience 
 of suitors, who addressed him with licet consulere qucere an exis- 
 times, id jus est necne ; and on getting the answer consvie, put 
 the case, and were answered in the formula, Secwndu/m ea quce 
 proponuntur, existimo, placet, puto. When the connection be- 
 tween client and patron had ceased, and the patron had no longer 
 a claim on the services of the client, the practice arose of bring- 
 ing an honorarium in lieu of a payment by support and services. 
 But throughout the whole growth of the civil law, from the 
 foundation of Eome to the Digest of Justinian, not only was 
 the advocate always under incapacity to make any contract 
 for his remuneration, but also throughout a part of that time 
 he was under prohibition of receiving any gain for his services.'' 
 
 1 In re Patent Bread Machine Com- 
 
 pany, Ux parte Valpy and Chaplin, L. E. 
 7 Ch. 289 ; 26 L. T. 228 ; 20 W. B. 347. 
 
 2 3M, &W. 114. 
 
 ' See Parrot v. Wells, 2 Vem. 127 ; 
 Saxon V. Blake, 29 Beav. 438 ; Clark v. 
 Lord Eirers, L. E. 5 Eq. 91.- 
 
 * Per Erie, C. J., Kennedy v. Broun, 13 
 C. B. N. S. 677, at p. 732 ; 32 L. J. 0. P. 
 137 ; 7 L. T. IS. S. 626 ; 11 W. K. 284. 
 The lone of Eoman sentiment may be 
 illustrated hy a quotation from Ovid, who 
 in Amores, Bookl.Blegiax., Adpuellam, 
 
 nepro amore prcemia mseat, regards tho 
 accepting money as a like baseness 
 
 Turpe reos empta miseros defendere 
 
 Ungiut. 
 Quodfaciat magna) turpe tribunal opes. 
 
 See, too, Livy xxiv. 4 ; "Walter, Ebm. 
 Eecht, s. 751. Among the Gh^eeks the same 
 feeling was very strong. Plato thought it 
 unworthy of a virtuous man to accept a 
 salary for the discharge of any public duty 
 (Eepub. i. 19). See, too, Gorgias and 
 Sophistes. 
 
PART 11.] SOLICITOES. 803 
 
 Though in the earliest times the advocate received no money Fees limited 
 for his assistance, yet in a later stage of the history of the city ^* ^°'^^- 
 he received gifts of such extravagant amount that he had to be 
 restrained by the Zex Cincia de donis et munerihiis ne guis ea oh 
 causam orandam peteret, A.U.C. 550. This prohibition having 
 fallen into neglect, was further enforced by Augustus,' with an 
 additional clause by which the advocate who pleaded for hire 
 was condemned to pay four times the sum' he was to receive ;" 
 but later on it was relaxed by the Emperor Claudius, who by a 
 decree fixed the maximum which an advocate might lawfully 
 receive by way of gift at ;^8o, and made him liable to refimd if 
 he took more.' 
 
 Dr. Wharton* seems to countenance the position that the 
 honorarium could be recovered through a cogniiio exfraordinaria 
 of the Presses. But Erie, C. J.,° points out that the sections of the 
 Digest" that are sought to justify this view prove no more 
 than that an advocate could be made to refund so much of a fee 
 already paid as exceeded the legitimate amount under the decree 
 of the Emperor Claudius, and further he shows how this amount 
 was to be ascertained ; while a distinction is drawn between a 
 promise of remuneration during the pendency of litigation which 
 does not bind, and a security given after the suit is at an end, 
 which can be enforced, if, that is, it do not exceed the legitimate 
 amount. 
 
 In the Middle Ages, by the reduction of legal proceedings Practice in 
 to writing, the ancient methods were superseded in the heart ^ges. ^ 
 of the empire, but oral proceedings seem to have been retained 
 in what were the barbarous provinces, so that the practice of the 
 law in England in the Middle Ages came nearer the procedure 
 of ancient Eome than that in use in Eome itself.' In English 
 law there does not seem any trace of the limit imposed by the 
 decree of the Emperor Claudius, but ' in all the records of our 
 law from the earliest time till now there is no trace that an 
 advocate has ever maintained a suit against his client for his 
 fees in litigation, or a client against an advocate for breach of a 
 contract to advocate.' 
 
 The theory of the English law seems rather to be that it is of Theory of 
 
 •' ° the English 
 
 law, 
 
 ^ A.n.c. 732. * Law of Neglisonoe, §§ 486, 719. 
 
 ^ Murphy's Tacitas Annal. xi. c. 5, " Kennedy v. Broun, 13 G. B. N. S. 
 
 note. 677, at p. 735. 
 
 ' Capiendis peeuniis poauit modum ^ Lib. 50, tit. 13, §§ 10, 12. 
 
 uiqiM ad dena sestertia quern egressi ' i Colcnihoun's Summary of the Eo- 
 
 repetundarum tenerentur (Tacitus An- man Civil Law, § 501. 
 
 nal. lib. xi. 7). Tacitus gives the argu- ^ Per Erie, C.J., Kennedy v. Broun, 13 
 
 ments used on both sides in the debate C. B. N. S. 677, 727 ; 3 Black. Coram, 
 
 before Claudius which resulted in the 28, 
 limited liberty being allowed. 
 
804 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Alleged 
 distinction 
 between 
 contracts 
 concerning 
 advocacy in 
 litigation and 
 contracts in 
 cases uncon- 
 nected with 
 advocacy. 
 
 Counsel have 
 general con- 
 trol of action. 
 
 advantage for counsel to be paid " these emoluments, which 
 produce integrity and independence ; "' but that " counsel should 
 be rendered independent of the event of the cause, that no 
 temptation may induce them to endeavour to get a verdict which 
 in their consciences they are not entitled to, counsel should be 
 as independent as the judge or jury."^ That this admirable 
 provision of the law was not altogether at all times effectual for 
 its object, may be concluded from the necessity of the Statute of 
 Westminster the First, c. 29, and from Sir Edward Coke's 
 comments.' 
 
 A distinction has, however, been drawn between contracts 
 concerning advocacy iii litigation" and contracts in cases uncon- 
 nected with advocacy. These latter are not regarded as being 
 within the incapacity,' and consequently the ordinary rules as to 
 liability for negligence would apply. As to the former, there is an 
 absolute incapacity to make a contract of hiring as an advocate," 
 for it is of the essence of the employment of an advocate at the 
 English bar accepting a brief in the usual way, that he undertakes 
 a duty, but does not enter into any contract or promise, express or 
 implied.' If, however, he intentionally does a wrong and acts 
 with malice, fraud, or treachery, "for instance," says Pollock, C.B.,' 
 " we think in an action for nuisance between the owners of 
 adjoining land — ^however desirable it may be that litigation 
 should cease by one of the parties purchasing the property of 
 the other — we think the counsel have no authority to agree to 
 such a sale, and bind the parties to the suit without their consent, 
 and certainly not contrary to their instructions, and we think 
 such an agreement would be void." 
 
 The conduct and control of causes are necessarily left to 
 counsel and the apparent authority with which they^are clothed 
 is to do everything which in the exercise of their discretion they 
 may think best for the interests of their clients in the conduct of 
 causes, and if within the limits of this apparent authority they 
 
 ' Morris «. Bunt, i Chitty 544. 
 
 2 Per Best,' J,, Morris v. Hunt, supra. 
 Compare some declamation by Erie, C.J., 
 Kennedy v. Broun, 677, at p. 738, begin- 
 ning, "Such is the system." The con- 
 siderations arising from the employment 
 being one into which tact and judgment 
 so lai'gely enter, that it could not be sub- 
 mitted to the test of an action at law 
 without destroying its character, seem so 
 obvious and commonplace that they are 
 not treated of except in a style of stilted 
 rhetoric that obscures their import. 
 See an anecdote in Lord Campbell's Life 
 of Lord Eldon, 7 Lives of the Chan- 
 cellors, p. 52 : "I was counsel for a high- 
 wayman," &o. 
 
 * 2 Co. 213. 
 
 ^ That is, not merely business in Court, 
 but husiness relating to business that may 
 come into Court — e.g., for negligently and 
 unskilfully sealing and signing a bill in 
 equity : Fell v. Brown, i Peake 96.. 
 
 ^ Mingay v. Hammond, Cro. Jao. 482 ; 
 Egan V. Guardians of the Kensington 
 Union, 3 Q. B. 935, «. ; Virany «. Warne, 
 4 Esp. 46 ; Hoggins v. Gordon, 3 Q. B. 
 466 ; Marsack v. "Webber, 6 H. & N. I. 
 
 " See an article in 50 Law Times, p. 
 197, on Betainers and Ketaining Fees. 
 
 ' Swinfen v. Lord Chelmsford, 5 H. & 
 N. 890, at p. 920 ; 29 L. J. Ex. 382 ; 2 
 L. T. N. S. 406; 8W. E. S4S- 
 
 ^ Ibid., s H. & N. at p. 922. 
 
PART 11.] SOLICITOES. 805 
 
 enter into agreements with opposite counsel as to the causes in May enter 
 which they are engaged, such agreements would be held binding.^ Itreementf 
 If a party, however, desires to keep the power of directing counsel '^ *« conduct 
 in the conduct of the suit, he must agree with some counsel 
 willing so to bind himself, else it will be presumed that counsel 
 has power to act in everything within the scope of the action. 
 
 A counsel is not liable to an action, then, for any proceedings Counsel not 
 in the course of an action, as for calling or not calling a particular forS^igno- 
 witness, or for putting or not putting a particular question, or for •'^'^ce or lack 
 honestly taking a view of the case which may turn out to be quite 
 erroneous.^ He is not responsible for ignorance of law, or -any 
 mistake in fact, or for being less eloquent or less astute than he 
 was expected to be. So, too, he may withdraw a juror even 
 contrary to his client's wishes,' unless the client's dissent is 
 brought to the knowledge of the opposite party at the time, and 
 the client is bound by the representation he makes by counsel 
 acting for him so long as the representation continues. Thus, 
 even a secret withdrawal of authority unknown to the other 
 side would not affect his apparent authority. If, however, 
 counsel were to conduct a cause in such a manner that an un- 
 just advantage would be given to the other side, or to act under 
 a mistake in such a way as to work injustice, the Court could 
 review his action.* This view of the authority of counsel is sub- Opinion of 
 stantially that of Pollock, C.B. , in Swinfen v. Lord Chelmsford,* in Swin'fen 
 in which some members of his Court did not concur. " If," says Chelmsford. 
 the learned Chief Baron, " in spite of instructions to the con- 
 trary, he [counsel] enters into a compromise, believing that it 
 is the best course to take, and that the interest of his client 
 requires it, this is but an indiscretion or an error in judgment if 
 done honestly, and it appears to me that neither for the one nor 
 the other can an action be maintained against him." 
 
 As the counsel is not directly liable for negligence, so also he Counsel not 
 cannot be made indirectly liable by suing him for the recovery of iJTaireotij-. 
 his fee, even though he have not attended the hearing of the case, 
 and apparently done nothing for his money." 
 
 1 Strauss v. Francis, L. R. i Q. B, 379; " Strauss «. Francis, L. R i Q. B. 379. 
 35 L. J. Q. B. 133 ; 14 L. T. N. S. 326 ; * Matthews v. Munster, 20 Q. B. D. 
 14W.R. 634. 141; 36W. E. 178. 
 
 2 Swinfen v. Lord Chelmsfordi 5 H. & » S Jtl. & N. 890, at p. 924. 
 
 N. 890 ; 29 L. J. £x. 382 ; 2 L.T. N. S. ' Turner v. Pliillips, i Peake 123. 
 
 406 ; 8 W. B. 545- 
 
PART III. 
 
 SKILLED LABOUB. 
 
 Hiring of 
 skill. 
 
 General rule. 
 
 Direction to 
 the jui-y. 
 
 CHAPTER I. 
 
 SKILLED LABOUB. 
 
 Generally. 
 
 We have already Incidentally considered tte subject of skilled 
 labour under the head of Bailments. But it was there pointed 
 out that there were many relations which could not properly be 
 treated under that heading, since there was no bailment, but 
 merely a hiring of care, experience, or skiU. These cases we 
 shall now proceed generally to deal with,^ reserving, however, 
 any special relations for independent consideration ; and bearing 
 in mind that the general principles laid down are not applicable 
 merely to the relations immediately dealt with, but that they hold 
 good in the matter of work done upon bailments as well. 
 
 The most general rule applicable to all skilled labourers is 
 Spondet peritiam artis et imperitia culpce admcmeratur, or Spondet 
 dilig&ntiam, gerendo negotio parem!^ Where a person holds himself 
 out as willing to do certain work, there is an implied warranty 
 that he has skill reasonably competent for its performance. If 
 he have not that skill he is liable as for negligence. 
 
 In a case where collateral knowledge was required — namely, a 
 knowledge of law points in a country surveyor dealing with eccle- 
 siastical dilapidations — the jury was asked to say on the evidence 
 whether such knowledge could reasonably be expected from country 
 surveyors and valuers,' the judge asking the jury whether the 
 defendants undertook to supply more skill than was ordinarily 
 
 ^ The subject is well treated, though 
 ^¥ith some variations from what is ad- 
 vanced in the text, in the American case 
 uf Leighton w. Sargent, 27 N. H. 460. 
 
 ■■' Dig. 50, 17, 132; Story, Bailments, 
 S 433 i Trayner, Latin Maxims, pp. 239, 
 
 570; Bell, Principles, pp. 153, 154. 
 
 2 Harmer v. Cornelius, 5 C. B. N. S., 
 236, per Willes, J. ; Duncan v. Blundell, 
 3 Stark. 6, per Bay ley, J. ; Gheen v. John- 
 son, 90 Penn. St. 38; Leighton v. Sar- 
 gent, 27 N. H. 460. 
 
PART in.] SKILLED LABOUE. 80? 
 
 current in the country at large, and whether they were to bring 
 to bear the knowledge that might be looked for in a lawyer or 
 ia a person who lives nearer the sources of knowledge ; but at the 
 same time they were cautioned that the defendants could not be ex- 
 pected to supply minute and accurate knowledge of the law. On 
 this a verdict was given for the defendant. But a new trial being 
 moved for, the Court, while approving the method in which the 
 judge (Parke, B.) had placed the matter before the jury, granted 
 the application, because " we think that under the circumstances 
 they (the defendants) might properly be required to know the 
 general rules applicable to the valuation of ecclesiastical property, 
 and the broad distinction which exists between the cases of an 
 incoming and an outgoing tenant, and an incoming and an out- 
 going incumbent.' Summarized, this decision would seem to 
 point to the necessity of a person professing to act in a matter 
 requiring skill being conversant with broad general principles, 
 and the methods of practice of most ordinary occurrence, even 
 though knowledge outside the narrow scope of his absolute pro- 
 fession were involved, but would not exact an acquaintance with 
 the refinements of the subject such as would be looked for in one 
 whose main profession it was. This is expressed by Tindal, O.J. :'■' The rule 
 " Every person who enters a learned profession undertakes to iLdai, o.J. 
 bring to the exercise of it a reasonable degree of care and skill. 
 .... There may be persons who have higher education and 
 greater advantages than he has, but he undertakes to bring a 
 fair, reasonable, and competent degree of skill." That would 
 seem to be a degree of skill such as might be expected in the 
 drcnmstances of time and place from an average person in the 
 , profession — one neither specially gifted nor extraordinarily dull. 
 But where this reasonable portion of information and skill pro- 
 portioned to the duties that are undertaken be found, there is no 
 liability for errors of judgment in the application of knowledge. 
 Thus each case must depend on its own circumstances, with the 
 paramount consideration that when an injury has been sustained 
 that could not have arisen but from the absence of reasonable skill 
 or diligence, then there is liability.' 
 
 An illustration of this is found in the Scotch case of Olydesdale Clydesdale 
 Bank v, Beatson.^ A teller in the plaintiff bank was sued for Beats™. 
 ;^900 on the ground that he had failed to account for money to 
 that amount entrusted to him in the course of the business of , 
 the bank. The question was whether the loss was through an 
 
 1 Jenkins v. Betham, 15 C. B. 168. Compare per Lord Blackburn, Speight v. 
 
 " Lanphier v. Phipos. 8 C. & P. 475, at Gaunt, 9 App. Cas. at p. 17, 
 
 p. 479. * 10 B, 88. 
 3 Hart D. Frame, 6 CI. & Tin. 193. 
 
808 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Who are 
 comprehRuded 
 tinder the 
 rule. 
 
 Test sug- 
 gested by Bell 
 in his Com- 
 mentaries. 
 
 Judgment of 
 Tindal, C.J., 
 iu Chapman 
 V, 'Walton. 
 
 accident occurring where ordinary care and diligence was exercised, 
 or caused through the absence of care and diligence. The Court 
 was of opinion that it occurred through the defendant giving a 
 parcel containing ten ;^ioo notes in mistake for one of five ;£^20 
 notes in change for a ;^ioo note to a person unknown to him, 
 and that this constituted gross negligence on his part. The rule 
 of respon,sibility applied was that " in contracts reciprocally 
 beneficial the care of a man of ordinary prudence is required ; 
 culpa Urns will ground responsibility." It was, however, assumed 
 in favour of the defendant that the onus was on the pursuers to 
 prove more than the mere possession of the money and failure to 
 account, though the decision does not go the length of establishing 
 this as a point of law.' 
 
 Under this rule professional men of all classes equally with 
 skilled artisans are comprehended — lawyers, physicians, engineers, 
 machinists, ship-masters, builders, brokers, and the rest. 
 
 BelP in his Commentaries suggests some tests to indicate the 
 range of considerations that apply to determine what is negli- 
 gence in this branch. The following propositions embody a portion 
 of what there appears :^ 
 
 First, where a specific act is ordered to be done it must be done 
 according to rule, neither neglected nor unskilfully done. 
 
 Secondly, where the act to be done may be safely done by 
 following a known method, which is the plain and common rule 
 of the profession, the professional man is responsible if he neglects 
 to follow the method. 
 
 Thirdly, where an operation is complicated and difficult a pro- 
 fessional man may err and be unsuccessful, and yet not respon- 
 sible if he exerted fairly the best of his judgment. 
 
 The particular inquiry that must be made is well stated by 
 Tindal, C.J., in Chapman v. Walton': "The point to be 
 determined is not whether the defendant arrived at a correct 
 conclusion upon reading the letter, but whether upon the occasion 
 in question he did or did not exercise a reasonable and proper 
 care, skill, and judgment. This is a questiou of fact, the decision 
 of which appears to us to rest upon the further inquiry — ^viz., 
 whether other persons exercising the same profession or calling, 
 and being men of experience and skill therein, would or would 
 not have come to the same conclusion as the defendant. For the 
 
 ^ Bell, Principles, 234 ; Melville v. 
 Doidge, 6 C. B. 450. See, however, Story, 
 Bailments, 8th edit. § 410 a. 
 
 ^ I Bell, Commentaries, 7th edit. 51.489. 
 There is, says the learned author, a law in 
 Scotland enacting — (i) That a smith who 
 shoes in the quick shall pay the cost of 
 
 the horse till he be hale ; (2) And in the 
 meantime find a horse for the journey ; 
 (3) If the horse will not hale, the smith 
 shall pay- his price to the owner. 
 
 ^ 10 Bing. 57 ; Doward 1;. Lindsay, L. E. 
 SP. C. 338; 29 L. T. N. S. 335 ; 22 
 W. E. 6. 
 
PARTiii.] SKILLED LABOITR. 809 
 
 defendant did not contract that he would bring to the performance 
 of his duty on this occasion an extraordinary degree of skill, btit 
 only a reasonable and ordinary proportion of it ; and it appears 
 to us that it is not only an unobjectionable mode, but the most 
 isatisfactory mode of determining this question to shew by 
 evidence whether a majority of skilful and experienced brokers 
 would have come to the same conclusion as the defendant. If nine 
 brokers of experience out of ten would have done the same as the 
 defendant under the same circumstances, or even if as many out 
 of a given number would have been of his opinion as against it, 
 he who only stipulates to bring a reasonable degree of skill to 
 the performance of his duty would be entitled to a verdict in his 
 favour." 
 
 Where reasonable skill and diligence, as tried by the test just Where 
 indicated, has been used, Ihen the professional man or the skilled skui'and ^ 
 workman, as the case may be, is not liable for accidents, or losses, f^o^r^w to 
 or damage happening without his default ; such, for example, as *6 accepted 
 
 „ , 1 n, in n , -T ■ ■, Standard of 
 
 tor losses by robbery, by nre, or by other accident, either at sea skill has been 
 
 oronland.> ^^1*^ 
 
 But the case has been put of the skilled performer being *oi;i"ss by 
 
 , . robbery, fire, 
 
 employed for- the unusual and special skill that he possesses, or accident. 
 This often happens with engineers, architects, and persons pecu-^^®™, ,.„ 
 Karly skilled in works of difficulty and delicacy. An extraor- must be 
 
 ... exerted 
 
 dinary fee is given for a special degree of skill and experience. 
 The recipient thereupon becomes bound to a greater degree of 
 diligence than the ordinary expert. He becomes bound to a 
 diligence measured by the consummate skill attributed to him 
 which merits the unusual fee. Wharton,^ quoting Mommsen, 
 cites the case of Luca Giordana, a Neapolitan painter of extraor- 
 dinary talents, which he never fully displayed by reason of an 
 execution as rapid as his talents were remarkable. Any one 
 employing him could not therefore look for a picture equal to 
 Giordana's talents elaborated by an average man's care. The 
 opinion of Mommsen, in which Wharton concurs, is that the skill 
 that could be legally exacted from such a man would be, not 
 the skill he could exert, but the skill that he usually employed 
 when working for others. This seems to give a satisfactory test 
 for the decision of .these cases. A singer at the opera, engaged 
 there on account of special and well-recognized powers, could not 
 avoid liability for negligence by shewing that her performance 
 was up to the average of singers, but the test would be whether 
 the performance was equal to that which persons of similar 
 powers in similar positions could be reasonably expected to give ; 
 
 1 Story, Agency, 9th edit. § i88. ' Law of Negligence, § 51, 
 
810 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 or, if the performer were phemomenal, whether the performance 
 was such as was to be expected from experience based on the 
 results of the average performance of the artiste. 
 
 Definition. 
 
 Services 
 expected of 
 him. 
 
 Surveyor to 
 take out the 
 quantities. 
 
 Bolt V. 
 Thomas, 
 MS. case. 
 
 I. Aechitects, Surveyors, &c. 
 
 An architect is defined' a skilled professor of the art of building 
 whose business it is to prepare the plans of edifices, and exercise 
 a general superintendence over the course of their erection. 
 
 When an architect is employed on the erection of a house he 
 is expected usually to perform the following services : — 
 
 1. To prepare all drawings and a specification of the work. 
 
 2. To arrange terms with the contractor. 
 
 3. To superintend the work, 
 
 4. To certify what amount of money that is to be paid at the 
 dates stipulated in the contract.'' 
 
 In extensive operations the usage is for architects to employ a 
 quantity surveyor , and for the successful competitor to add to 
 his contract such quantity surveyor's charges.' Where the archi- 
 tect does supply quantities he may thereby become personally 
 liable for any loss occurring to a contractor through error on his 
 part. In Mr. Glen's pamphlet the following case^ is given: — 
 The plaintiff sued the defendant, an architect, to recover damages 
 for supplying to the plaintiff an inaccurate statement of the 
 quantities of work and materials required for the erection of a 
 building which the plaintiff contracted to erect. The defendant 
 advertised for tenders for the erection of a Baptist chapel, stating 
 that the plans and specifications could be seen, and that the 
 quantities of work and material would be furnished. The plain- 
 tiff obtained from the defendant's office a table of such quantities, 
 headed by a statement that it was to be paid for by the success- 
 ful competitor, From this table the plaintiff calculated his tender, 
 
 which was accepted For the plaintiff it was contended 
 
 that, independently of the computations, there was an implied 
 
 1 Murray's New English Dictionaiy, 
 enb nom. Mr. Buskin's conception, if 
 adopted, -would probably dispense with the 
 consideration of the subject altogether 
 through want of material to deal with ; he 
 says : " No person who is not a great 
 sculptor or painter can be an architect. 
 If he is not a sculptor or painter, he can 
 only be a builder " : Rusk. Leot. on 
 Archit. Add. 113. 
 
 2 The Duties, Obligations, and Mutual 
 Relations of Architect, Client, and Con- 
 tractor with Reference to English and 
 Foreign Practice, by Arthur Cates — a 
 paper read before the Eoyal Institute of 
 
 British Architects, 6th May, 1884. Eor 
 the law on this subject, see a pamphlet. 
 The Law in Relation to the Legal Lia- 
 bility of Engineers, Architects, Contrac- 
 tors, and Builders, by W. C. Glen. ^ 
 
 ' Kemp V. Rose, 4 Jur. N. S. 392, 
 where it was held that it is neither the 
 usual nor a safe course for the architect to 
 prepare bills of particulars or quantities of 
 the works to be executed ; Armstrong v. 
 Bowdidge, 16 C. B. 358; Moon v. Guar- 
 dians of the Witney Union, 3 Bing. N. C, 
 814. 
 
 * Bolt V. Thomas, cited from a MS. 
 report. 
 
PART in.] SKILLED LABOUR. 811 
 
 undertaking iu law that the bill of quantities paid for by the plain- 
 tiff should be reasonably correct ; and for the defendant it was 
 contended that there was no contract between the architect and 
 builder, that the committee had stipulated with the plaintiflE that 
 he should pay the architect, and that the architect was not liable 
 to the builder for any inaccuracy in the quantities. Byles, J., 
 in summing up, directed the jury that the defendant had stipu- 
 lated that the plaintiff should pay him for the calculation of the 
 quantities, and, haying been paid for them by him, was liable to 
 compensate him if the bill was not reasonably correct. The jury 
 thereupon found for the plaintiff. The direction of Byles, J., 
 practically comes to telling the jury that, if they found in this 
 particular case that a contract existed, the verdict should be for 
 the plaintiff, and they so found. But the case cannot be stretched 
 further than to favour the right where there is a contract ; the 
 more difficult question, whether there is a contract, is not affected 
 by it. 
 
 In an early case at liisi Prius,^ Abbott, C.J., laid down that, if Moneypenny 
 a surveyor who makes an estimate sues those who employ him for ''' *^ ™ ' 
 the value of his services, and if it appear that he was so negligent 
 that he did not inform himself, but went upon the information of 
 others which proved to be false or insufficient, he is not entitled 
 to recover for his plans and specifications. This ruling was 
 sustained in banc on the ground that, if the plaintiff " led his 
 employers into a great expense by his want of care, his services 
 would be worth nothing." In a subsequent phase of the same 
 case. Best, C. J.,^ explains this by saying : " Supposing negligence 
 or want of skill to be sufficiently made out, unless that negligence 
 or want of skill has been to an extent that has rendered the work 
 useless to the defendants, they must pay him, and seek their 
 remedy in a cross action. For if it were not so, a man by a 
 small error might deprive himself of his whole remuneration." 
 The learned judge continues : "I grant that it is not a trifling 
 deviation from an estimate that is to prevent a party's recovering. 
 But if a surveyor delivers in an estimate greatly below the sum 
 at which a work can be done, and thereby induces a private 
 person to undertake what he would not otherwise do, then I 
 think he is not entitled to recover." '^ In this case the action was 
 by the negligent person against those who had indubitably em- 
 ployed him, and the decision is merely that he is not to recover 
 for worthless work. It would follow, that if the employer were to 
 bring an action for negligence in the performance of the work 
 
 1 Monevponny ji. Hartland, i C. & P. 352, at p. 354. 
 
 2 2 C. & V. ^78, at p. 381. 
 
 3 Compare Nelson v. Bpooner, 2 F. & F. 613. 
 
812 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 surveyor. 
 
 Observation 
 of Erie, C.J. 
 
 that it was the duty of the architect to do, and were to shew that 
 
 through the negligence he had been put to additional expense, 
 
 Beiation of he could recover. A more difficult question arises in considering 
 
 the builde" , i •, . ^ . ^ ,^ - - - , _ , 
 
 to the architect tne relations of the builder to the architect and quantity 
 
 and quantity gurveyor. 
 
 In Scrivener v. Pask' it was sought by a builder to charge the 
 employer for want of accuracy in bills of quantities furnished by 
 his architect (who took them out himself) to the builder through 
 depending on which the builder was put to unexpected cost. 
 The Court of Exchequer Chamber decided, affirming the Court of 
 Common Pleas, that the architect was not employed to tell the 
 builders that the quantities of materials required to complete the 
 work would be so much and no more, and therefore the defendant 
 was not liable. In the course of the argument, Erie, C.J., said : 
 " I should have thought it was the builder's duty to see to the 
 accuracy of the -quantities before he tenders. If he choose to trust 
 to the accuracy of the information given to him by the architect 
 well and good," and in his judgment, " there was evidence from 
 the mouth of one of the plaintiff's own ^tnesses that a careful 
 builder always calculates the quantities for himself before he 
 makes a tender." Blackburn, J., in argument in the Exchequer 
 Chamber, is reported as saying, "if there had been misconduct 
 on the part of Paice [the surveyor], the plaintiffs''' have their 
 remedy against him." This seems inconsistent with Brie, C.J.,'s 
 view that there should be independent inquiry on the part of the 
 builder. It would appear that, if there is no duty to test, the' 
 surveyor would be liable ; if there is a duty he would not. The 
 whole matter turns, then, on the determination of this. Black- 
 bum, J., however limits his expression to " misconduct," and is 
 speaking of fraud or misrepresentation, and it is in this limitation 
 that his statement is to be taken. The law, then, would seem to 
 bo that : 
 
 1 . As between builder and owner there is no warranty of the 
 accuracy of bills of quantities.' 
 
 2. As between owner and architect there is such a warranty 
 not of absolute bat of reasonable accuracy, and possibly also 
 between the owner and the quantity surveyor; if, however the 
 incorrectness of the estimates arises from the inherent difficulty 
 of the work there is no liability.'' 
 
 3. As between quantity surveyor and builder there is no 
 liability for negligence in preparing quantities, since the quantities 
 
 Observation 
 of Slack- 
 burn, J, 
 
 Summaiy. 
 
 1 18 C. B. N. S. 78s; Exchequer 
 Chamber, L. B. i C, P. 715. 
 
 ^ Fasley v. Freeman, 2 Sm. Lead. Cas 
 9th edit. p. 84. 
 
 ^ Moneypenny v. Hartland, i C. & P. 
 352, 2C. &P. 378. 
 * Addison, Contracts, 7th edit. p. 678. 
 
PART III.] SKILLED LABOUR. 813 
 
 pass through the architect's hands before they are used by the 
 builder or surveyor.' 
 
 4. As between builder and architect, there is, prim d facie, a 
 duty on the builder's part to inquire as to the correctness of 
 quantities,^ or, if he had not sufficient time for this, he should 
 stop as soon as he discovered it, and should not go on with 
 works under the contract in the expectation of something 
 different from the contract being allowed him, but should require 
 the alteration to be then made, or repudiate the contract 
 altogether.^ Where there is fraud or misrepresentation the 
 surveyor would be liable." 
 
 5. As between quantity surveyor and owner there is an usage 
 entitling the architect to employ a surveyor, and in the event of 
 no tender being accepted and no contract entered into with a 
 builder, the owner is liable to the surveyor for the price of the 
 work done under the implied authority of the owner to the 
 architect.^ 
 
 6. As between quantity surveyor and builder there is a con- 
 tract, primd facie, implied on his obtaining the surveyor's calcu- 
 lations that he will, if successful, pay the surveyor his fees." 
 
 7. As between quantity surveyor and architect there would, 
 prima facie, appear to be no liability, since the architect employs 
 the surveyor as the agent for the builder, and not on his own 
 account. 
 
 On the retainer of an architect he becomes the agent of the 
 employer, and the ordinary rules of law governing that relation- 
 ship become applicable.^ 
 
 1 Priestley v. Stone, 4 Timea L. R. the results arrived at, if only there was 
 730. the duty. See Eobertson v. Fleming, 4 
 
 2 Scrivener v. Pask, i8 0. B. N. S. Macqueen 167. In that case the House 
 797 ; L. K. I C. P. 715. of Lords, composed of Lords Campbell, 
 
 ^ Kiinberley ?J. Dick, L. R. 13 Eq. at Cranwortli, Wensleydale, and Chelmsford, 
 
 p. 20. ^vas agreed that the doctrine that where 
 
 •• Langridgew. Levy, 2 M. & W. 530 ; A. employs B., a professional man, to do 
 
 4 TH. & W. 337; Swilt «i. Winterbothani, some act professionally, under which, when 
 
 L. R. 8 Q. B. 244; 42 L. J. Q. B. m ; done, C. would derive a benefit, and B. is 
 
 28 L. T. N. S. 338, overruled on one guilty of negligence so that C. loses the 
 
 point sub nom. Swift v. Jewesbury, L. R. contemplated benefit, B. is, as a matter of 
 
 9 Q. B. 301. See, too, per Lord Esher, course, responsible to C, "is evidently un- 
 
 M.R., Piiesiley t'. Stone, 4 Times L. I!. tenable"; Pimm v. Roper, 2 E. & F. 
 
 730 ; ' also Cann v. Wilson, 39 Ch, D. 783. 
 
 39, which was cited to the Court of Appeal '' Moon v. Guardians of the Whitney 
 
 in ' Priestley » . Stone. There is this Union, 3 Bing. N. C. 814 ; Taylor v. 
 
 dilTerence, however, that in that case Hall, Ir. R. 4 0. L. 467, the builiU^r may 
 
 there was an intermediate step between make a contract with the surveyor, iin 
 
 the furnishing of quantities and their which he is liable notwithstanding aban- 
 
 coming to the plaintiff ; in the latter they donment of the building; M'Connell v. 
 
 came directly without any intermediary. Kilgallen, 2 L. R. Ir. C. L. 119. 
 It should, however, be pointed ont that " 'J'aylor v. Hall, Ir. E. 4 C. L. 467, at 
 
 the hair-wash in George v. Skivington p. 479. 
 
 was a patent, as to which there would be ' Ifimberley v. Dick, L. B. 13 Eq. i. 
 
 no effectual inquiry. But in Cann's case As to the negligence of a surveyor in giving 
 
 there was every opportunity for checking advice as to advancing money on mortgage 
 
814 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II, 
 
 Definition, 
 
 Duty cannot 
 be delegated. 
 What the 
 duty ig. 
 
 Knle of duty 
 for an auc-, 
 tioneer stated 
 by Lord 
 Ellenborongh, 
 CJ. 
 
 Position of 
 an auctioneer. 
 
 II. Auctioneers. 
 
 An auctioneer is "one who conducts sales by auction,"* and 
 an auction is defined^ "a sale however conducted, by wHch a 
 person obliges himself to transfer property to the highest bidder 
 within the conditions of the sale ; it ordinarily denotes such 
 a sale conducted in the usual manner."' 
 
 The trust given to an auctioneer being special and involving 
 discretion, cannot be delegated to a clerk or subaltern.'' It is 
 the duty of an auctioneer, says an early case, to take the same 
 care of property entrusted to him for sale as he would of his own. 
 But this in an ordinary case must be held to mean as an average 
 auctioneer would of his own. In the absence of a special contract 
 by which goods are entrusted to a man because of his possession 
 of personal qualities, which are the ground for the confidencte, 
 the auctioneer's undertaking is not to act by reference to his 
 individual prudence, which may be greater or less than the 
 average, but rather to act up to the standard of care and dili- 
 gence which other persons exercising the same calling, and being 
 men of experience, would be expected to attain. 
 
 The rule is accurately stated by Lord Ellenborough, C.J.' 
 " I pay an auctioneer, as I do any other professional man, for the 
 exercise of skill on my behalf, which I do not myself possess, 
 and I have a right to the exercise of such skill as is ordinarily 
 possessed by men of that profession or business. If from his 
 negligence or carelessness he leads me into mischief, he cannot 
 ask for a recompense, although from a misplaced confidence I 
 followed his advice without remonstrance or suspicion." 
 
 An auctioneer may not purchase for himself," and may sell 
 only for ready money, unless otherwise authorized,' and if he 
 sells with notice that what he is about to sell does not belong to 
 his principal, he is personally liable for the real value of the 
 goods.' 
 
 " An auctioneer," says Lord Loughborough in Williams v. 
 
 of certain property, Crabb v. Brinsley, 
 Law Journal, Nov. 3, 1888, p. 573. 
 
 ^ Murray's New English Dictionary, 
 sub nom. An auctioneer is a person who 
 is authorized to sell goods or merchandise 
 at public auction or sale for a recompense 
 or (as it is commonly called) a commission : 
 Story, Agency, 9th edit. § 27 ; see also 
 §§ 107, 108. 
 
 ^ Bateman, Law of Auctions. 
 
 ' Coles V. Trecothick, 9 Ves. 234. 
 
 * Per Lord Kenyon, Maltby v. Christie, 
 I Esp. 340. 
 
 ° Denewa. Deverell, 3 Campb. 451. 
 
 " Oliver v. Court, 8 Price, 127. In this 
 case the purchase was set aside after more 
 than twelve years. 
 
 ' Williams v. Evans, L. E. i Q. B. 352 ; 
 3SL. J.Q. B. in; 13 L. T. N. S. 753 ; 
 14 W. E. 330; Williams v. Millington, 
 I H. Bl. 81. 
 
 * 3 Chitty,Commeroe and Manufactures, 
 218 ; Hardacre «. Stewart, 5 Esp. 103 ; 
 Davis V. Artingstall, 49 L. J. On. 609 ; 
 42 L. T. 507 ; 29 W. E. 137. How an 
 auctioneer may make himself personally 
 liable, see Warlow v. Harrison, i E. & E. 
 295- 
 
PART in.] SKILLED LABOUR. 815 
 
 Millington,' "has a possession coupled with an interest in goods 
 which he is employed to sell, not a bare custody like a servant 
 or shopman. There is no difference whether the sale be on the 
 premises of the owner or in a public auction room, for on the 
 premises of the owner an actual possession is given to the 
 auctioneer and his servants by the owner, not merely an authority 
 to sell. I have said a possession coupled with an interest ; but 
 an auctioneer has also a special property in him with a lien for 
 the charges of the sale, the commission, and the auction duty, 
 which he is bound to pay." From this it has been held to Neglect to 
 follow that in some circumstances the auctioneer is resposible '^ '^^'" 
 for his neglect to deliver." 
 
 In ordinary cases, where a deposit is to be paid, the auctioneer Neglect to 
 should ask the purchaser to pay the deposit, and should he ° '" ^^°^' ' 
 neglect to do so, and the purchaser go away without paying, even 
 though the seller suffer no real injury, yet, if in the opinion of 
 the jury there is a breach of duty, the plaintiff is entitled to 
 nominal damages.^ And it has been held that if the auctioneer Negligent 
 negligently misdescribe the property he has to sell he will be Son. '^^"^" 
 liable to repay to the vendor the amount claimable by the pur- 
 chaser in respect to such misdescription." 
 
 He should keep the deposit till the contract is completed,^ and 
 then immediately account for it and pay the balance due to the 
 vendor," but he is not in general liable to pay interest,' nor is he 
 responsible for the purchase-money unless it is paid to him or 
 his agent,' nor does he bind himself that the purchase should be 
 completed.' In Nelson v. Aldridge," an auctioneer having sold some Where 
 horses sent to him in the course of his business, afterwards let permits 
 the purchaser of one them rescind the contract on the ground ™|thout"par- 
 that the horse was not truly described at the sale. He was ticuiar instruc- 
 held liable to his employer for the price at which the horse had 
 been sold, since he had deviated from the course of his duty in 
 takino- upon himself to rescind the contract, and he could only 
 be justified by shewing particular instructions authorizing his 
 doing so, and this he was not in a position to shew. But where 
 there were special conditions of sale proved the auctioneer was 
 held not liable, though the purchase money had been paid to 
 him and returned to the purchaser." 
 
 1 I H Bl. 8i, at pp. 84, 85. '■ Turner v. Biirkinsliaw, L. R. z Cli. 
 
 2 Woolfe V. Home, 2 Q. B. D. 355. 488. 
 
 ^ Hibbert v. Bailey, 2 F. & F. 48. '^ Andrew v. Eobinson, 3 Campb. 199. 
 
 * Parker v. Farebrotber, I C. L. R. 323. " Kavanagli v. Cuthbert, Ir. E. 9 C. L. 
 
 5 Edwards v. Hodding, 5 Taunt. 815; 136. 
 
 Gray v. Gutteridge, 3 C. & P. 40- See i» 2 Stark. 434. 
 
 Spittle V. Lavender, 2 B. & B. 452. " Hardingham v. Allen, 5 C. B. 793 ; 
 
 6 Crosskey v. Mills, i 0. M. & B. 298 ; 17 L. .J. 0. P. 198 ; Murray v. Mann, 2 
 Gray v. Haig, 20 Beav. 219. Ex. 538 ; 17 L. J. Ex. 256. 
 
816 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Definition. 
 
 Where dis- 
 pute arises 
 between 
 members of 
 the Stock 
 Exchange. 
 
 In New Zealand it has been held that where an auctioneer 
 through negligence fails to accept a bid, and in consequence the 
 sale becomes abortive, the measure of damages is the same as if 
 the bid had been accepted and the bidder had afterwards 
 repudiated the purchase.' 
 
 A house agent letting a house for his employer is liable if he 
 neglects to make reasonable inquiries as to the solvency of the 
 tenant.^ 
 
 III. Stockbeoeebs. 
 
 A stockbroker is a broker who deals in the purchase and sale 
 of stocks and shares.^ His business is carried on in connection 
 with the Stock Exchange,^ and under rules and regulations'' 
 imposed by the committee of that institution, binding univer- 
 sally on all members, and embodying certain usages which non- 
 members, doing business with stockbrokers, are considered to 
 have knowledge of and to be bound by. 
 
 In the case, then, of a dispute arising between members of 
 the Stock Exchange in their capacity of stockbrokers, the deci- 
 sion must be had with reference to the rules to the observance 
 of which they have bound themselves by becoming members." 
 But in questions with persons not members the general law of 
 the land is paramount to any special regulations that may be 
 made.' This is subject to the consideration that if there is at a 
 particular place an established usage in the manner of dealing 
 and making contracts, a person who is employed to deal or make 
 a contract has an implied authority to act in the usual way, even 
 though the employer may not actually know what that is,' and 
 
 6S 
 
 Logie V. Gillies, N. Z. L. R. 4 S. C 
 
 Hayes v. Tindall, 2 F. & F. 444. 
 
 ^ Ogilvie's Diotionarf, s^ib nom. 
 
 ■* Before 1773 stockbrokers conducted 
 their business in and about the Kojal 
 Exchange. In that year they formed 
 themselves into an association called the 
 Stock Exchange, first having its head- 
 quarters in Sweeting Alley, Threadneedle 
 Street, and then removing to Capel Conrt 
 in 1801, where a building was erected, with 
 a capital of ;^20,ooo, raised by means of 
 fonr nnndred shares of ^50 each. 
 
 ^ These niles and regulations form an 
 appendix to Melsheimer and Gardner's 
 Law and Customs of the Stock Exchange. 
 
 « Duncan «. Hill, L. R. 8 Ex. 242 ; 
 Laoey v. Hill, Sorimgeour's claim, L. R. 8 
 Ch. 921 ; 42 1.. J. Gil. 657 ; 29 L. T. N. S. 
 281 ; 21 W. R. 857; Lacey I!. Hill, Craw- 
 ley's claim, L. R. 18 Bq. 182 ; 43 L. J. 
 Ch. SSI ; 30 L. T. N. S. 484 ; 22 W. R. 
 586, as to relations between broker and 
 
 client in the event of insolvency of the 
 former. 
 
 ' Tomkins v. Saflery, 3 App. Gas. 213 ; 
 47 L. J. Bk. II ; 37 L. T. 758 ; 26 W.R. 
 62, Distinguished in £Jx parte Grant, 
 In re Plumbly, 13 Ch. D. 667 ; 42 L. T. 
 
 387; 28W.R. 7SS- 
 
 8 Bayliffe ». Butterworth, i Ex. 425; 
 17 L. J. Ex. 78 ; Bayley v. Williams, 7 
 C. B. 886 ; 18 L. J. C. P. 273 ; Sutton v. 
 Tatham, lo A. & B. 27 ; Grissell v. Bris- 
 towe, L. R. 4 C. P. 36 ; Coles v. Bristowe, 
 L. R. 4 Ch. App. 3 ; 38 L. J. Ch. 81 ; 
 19 L. T. N. S. 403 ; Maxted v. Paine, L. B. 
 6 Ex. 132 ; 40 L. .J. Ex. S7 I 24 L. T. N. S. 
 149 ; 19 W. R. 527. See, too, Nickalls v. 
 Merry, L. R. 7 H. of L. S30 ; 4S L. J. Ch. 
 S7S; 32 L. T. N. S. 623. The Stock 
 Exchange differs from Lloyd's in being 
 within the description of a general market, 
 while Lloyd's is a mere private place of 
 business : Sweetings. Pearoe, 7 C. B.N. S. 
 449 ; 9 C. B. N. g. 534. 
 
PAETiii.J SKILLED LABOTJE. 817 
 
 also to the further qualification that such usages must neither be 
 illegal nor unreasonable,' and must be usages of which the prin- 
 cipal had knowledge either actually or constructively. 
 
 When a stockbroker ^ is employed to make a bargain in the Duty of 
 course of his business, the duty of the broker is not an absolute where h^is 
 one to procure the stock in any event, but is no more than to employed to 
 use due and reasonable diligence in endeavouring to procure it f gain in the 
 so that where an order was given to a stockbroker for fifty shares business. 
 in a foreign railway company at a time when there were no 
 shares of the company in the market, but letters of allotment were 
 shewn to be commonly bought and sold in the market as shares, 
 and the stockbroker bought these, the Court of Exchequer refused 
 a new trial where the verdict of the jury found that this was a 
 compliance with the order.'' And where the plaintiff sought to 
 recover against a stockbroker who had bought for him scrip cer- 
 tificates which were sold in the market as " Kentish Coast Eail- 
 way Scrip," and were signed by the secretary of the railway 
 company, but the genuineness of which was afterwards denied by 
 the directors, who alleged that it was issued by the secretary 
 without authority, the proper question for the jury was held to 
 be, not whether what was sold was genuine or not, but whether 
 it was what the plaintiff intended the defendant to buy for 
 him?^ 
 
 On the other hand, a broker may be employed to buy shares Where 
 in a particular market where there is a usage that, if the piir- employed to 
 chaser does not pay for his shares within a definite time, the ™rt^cuiar'" 
 vendor, after notice, may re-sell and charge the purchaser with market, with 
 the difierence ; in that event, if the broker be compelled to pay usages as to 
 a difierence on the shares through neglect of his principal to P"y™''" • 
 supply the requisite funds, the difference may be recovered by 
 action." 
 
 The broker may render himself liable for negligence, not only Broker may 
 
 , . ,. , , ■ 1 , 1 , T reuder himself 
 
 to his client, but to the person with whom he has contracted on not only 
 behalf of his principal. This was shewn in In re National Jiient.*" '^ 
 Cofiee Palace Company, Uj: parte Panmure.' A broker applied 
 for shares in the company on behalf of one Lawrence, that were 
 allotted, but, in fact, he had mistaken his authority to make the 
 application for them. In the liquidation the company claimed 
 
 ' Neilson v. James, 9 Q. B. D. 546; = Fletcher «. Marshall, 15 M. &"W. 755. 
 
 51 L. J. Q. B. 369 ; 46 L. T. 791 ; Mit- * Mitchell v. Newhall, 15 M. & W. 
 
 chell V. City of Glasgow Bank, 27 W. R. 308 ; 15 L. J. Eq. 292. 
 
 87s; Perry «. Barnett, 15 Q. B. D. 388; ^ Lamert j». Heath, 15 M. & W. 486; 
 
 54 L. .J. Q, B. 466 ; S3 L. T. 585. See 15 L. J. Ex. 297. 
 
 Robinson v. Mollett, L. R. 7 H. of L. 802 ; ^ Pollock v. Stables, 12 Q. B. 765 ; 17 
 
 44 L. J. C. P. 362 ; 33 L. T. N. S. 544. L. .J. Q. B. 352. 
 
 2 Westropp V. Solomon, 8 C. B. 345 ; ' 24 Ch. D. 367 ; S3 L. J. Q. B. 57 ; 
 
 Young V. Cole, 3 Bing. N. C. 724. S° L. T. 38. 
 
 3 F 
 
818 
 
 THE LAW OF NEGLIGENCE, 
 
 [book II. 
 
 Client not 
 liable for 
 faiUt of 
 broker. 
 
 Wot the duty 
 of a broker 
 to get 
 transfers 
 registered. 
 
 Question 
 what would 
 he the effect 
 of an fllegal 
 bargain bind- 
 ing by the 
 rules of the 
 Stock 
 Exchange, 
 
 damages against the broker, and the Court of Appeal held that 
 they were entitled to recover, on the authority of Oollen v. Wright ' 
 that " a person professing to contract as agent for another im- 
 pliedly, if not expressly, undertakes to or promises the person 
 who enters into such contract upon the faith of the professed 
 agent being duly authorized, that the authority which he pro- 
 fesses to have does, in point of fact, exist." And, further, 
 that, as the company loses an allottee, the measure of damages 
 which the broker would have to pay would be the value to the 
 company of the contract with the particular person, which would 
 of course differ as he was solvent or insolvent. 
 
 Where a loss is caused by the fault of the broker, of course 
 the client is not liable, but the broker has to pay the same 
 out of his own pocket.^ Not only is it the duty of the broker 
 to buy, but also to secure delivery of the security which he has 
 bought for his principal, and to collect payments for securities 
 sold within a reasonable time ; but it is not every delay that is 
 negligent ;^ indeed, in some circumstances of the market, as, for 
 instance, where there is none of the special stock for sale, delay 
 is unavoidable. 
 
 In Taylor v. Stray ^ it was held that it is not the duty of a 
 broker to get transfers registered ; "all he has to do is to accept 
 the transfer and pay the money." If it should afterwards turn 
 out that the transfer could not be completed by registration, 
 though an action might lie against the seller, apart from actual 
 negligence in the broker's conduct of the business there would be 
 no liability on his part, and the broad proposition may be laid 
 down that, wherever the buyer could have insisted upon receiving 
 transfers and certificates in circumstances that had occurred, 
 there the broker would be free from liability to the buyer for 
 the purchase (that is, in the absence of actual negligence).^ 
 
 A question was suggested in the judgment in this case, but was 
 not answered, as to what th'e effect would be where the purchase 
 made was in itself illegal, but where by the rules of the Stock Ex- 
 change the transaction would be held binding amongst members. 
 A different answer would appear to be required in the case where 
 the object of the prohibition is the contract itself in its essence, 
 
 1 8 E. & B. 647 ; 27 L. J. Q. B. 215. 
 
 2 Bowlby V. Bell, 3 C. B. 284; Dnnoan 
 ». Hill, L. E. 6 Ex. 25s ; L. R. 8 Ex. 
 242. 
 
 3 Fletcher v. Marshall, 15 M. & "W. 
 
 755. 
 
 'f 2 C. B. N. S. 175, at p. 195. And it 
 was held by the Court of Appeal in London 
 Eounders Association, Limited, v. Palmer, 
 20 Q. B. D. 576, that the coatraot for the 
 
 sale of shares on the Stock- Exchange did 
 not import an undertaking by the vendor 
 that the company should register the 
 transferee. 
 
 " Chapman v. Shepherd, Whitehead v. 
 Izod, L. E. 2 C. P." 228 ; 36 L. J. C. P. 
 IS L. T. 477 ; IS "W^ E. 314 ; 
 
 "31 _ 
 
 Biederman v. Stone, 
 36 L. J. C. P. 198. 
 
 L. E. 2 0. P. 504 ; 
 
PABTiii.J SKILLED LABOUR. 819 
 
 and the case where the prohibition is directed against the contract 
 unless accompanied with certain circumstances. In the former 
 case a transaction avoided by the law as contrary to common 
 principles of justice, or policy, or to the interests of the State 
 cannot in any case be enforced.' But there is the other case of 
 a contract made in ah illegal manner about something which may 
 be done in a prescribed manner. In Seymour v. Bridge,^ Mathew, Seymour v. 
 •J., was of opinion that, where a stockbroker has been engaged to -^''"^se- 
 deal in bank shares which there was a usage to make contracts 
 with regard to on the Stock Exchange in a method contravening 
 the law on the subject — ^that is, where there was no compliance with 
 the requirements of Leeman's Act (30 & 31 Vict. c. 29) requiring 
 a statement of the name of the registered proprietor of the shares 
 in the bought and sold notes — his principal could not repudiate 
 the purchase when made in accordance with the usages of the 
 Stock Exchange, omitting such statement, where he could have 
 knowledge imputed to him of the course of dealings on the 
 Exchange. Grove, J., in Perry v. Barnett,' an almost simulta- Peny ». 
 neous case, held that, where knowledge of the usage to omit ''^"^ ' 
 compliance with the Act could not be imputed to the principal, 
 the contract could not be enforced. On appeal* the decision 
 was affirmed, on the ground* that a man who employs a broker to 
 deal on a particular market is not bound to know a usage there 
 to make an invalid instead of a valid contract, and "a usage 
 according to which, when he has ordered one thing, he is expected 
 to take another thing. It would not be reasonable, I think, to 
 hold that a person is bound by such a usage unless beforehand 
 he is told or has knowledge of it. Such a usage when applied, 
 not to brokers, but to strangers who are ignorant of it, is incon- 
 sistent with the contract of employment. To bind outsiders by 
 it would be unreasonable, and it is as regards such outsiders, and 
 such outsiders only, that such a usage can be called imreasonable, 
 for it would not be unreasonable as regards those who know it, 
 and desire to be bound by it." 
 
 In Neilson v. James" the action was by the holder of bank Breach of the 
 shares against the broker for breach of duty in not making a i,e°eman's^ ° 
 contract for the sale of his shares in a form that would bind :^?'' 3° * 31, 
 
 Vict. c. 29, 
 
 jobbers to take the shares of his employer. The defence set up 
 a custom on the Bristol Stock Exchange to ignore the provisions 
 of Leeman's Act (30 & 31 Vict. c. 29). But the Court of 
 Appeal was of opinion that the plaintifiE was only bound by a 
 
 1 Pollock, Contracts, 2nd edit. p. 339. 53 L. T. 585. 
 
 ' 14 Q. B. D. 460 ; 54 L. J. Q. B. 347. ^ As stated by Bowen, L.J., at p. 3^6. 
 
 » 14 Q. B. D. 467 ; 54 L. J- Q- B. 351. " 9 Q. B. D. 546 ; Si L. J- Q- B. 369 ; 
 
 M5 Q. B. D. 388 ; 54 L. J. Q. B. 466 ; 46 L. T. 791. 
 
820 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Where a 
 letter of 
 indemnity is 
 given, 
 
 custom both reasonable and legal, " for to that extent only can 
 a person who is ignorant of a custom be assumed to acquiesce 
 in and be bound by it." Therefore the duty of the defendant was 
 to make a contract valid notwithstanding the custom of the 
 Stock Exchange, failing in which he was liable. The effect of 
 these decisions would seem to be that persons contracting with 
 reference to the practice would be bound by it, but that a 
 reference to it should be proved, otherwise the law would prevail, 
 and the contract would not admit of being enforced. In Loring 
 V. Davis ^ the matter was complicated by the plaintifE giving the 
 brokers a letter of indemnity after a repudiation which the judge 
 held " would have been an end " of their authority, and by which 
 he was held bound, failing which it would appear, on the authority 
 of the previous cases, he would have been bound. 
 
 Medical and 
 enrgioal prac- 
 titioners at 
 common law. 
 
 3 Hen. VIII. 
 
 C. II. 
 
 I. Physicians. 
 
 IV. Medical and Surgical Peactitioners.^ 
 
 At common law every man might use what calling he pleased ;' 
 and the practice of medicine and surgery not being regarded as a 
 trade, and so requiring an apprenticeship, was open more widely 
 than any handicraft. 
 
 The first statutory regulation of medical and surgical practice 
 was 3 Hen. VIII. c. 1 1 , by which no person was allowed to 
 practise as a physician or surgeon within London or seven miles 
 thereof without examination or licence. This Act applied equally 
 to physicians and surgeons. 
 
 I. Physicians are concerned with that branch of practice which 
 combats diseases by the application of medicines, and not by 
 operative treatment. 
 
 This branch of the medical profession was incorporated by 
 charter of Henry VIII. in the year 1519, which was embodied 
 and extended in an Act of Parliament (14 Hen. VIII. c. 5). 
 A legal controversy of considerable intricacy was waged as to the 
 effect of this Act (which, however, there is no need to consider in 
 detail here*), the accepted conclusion of which may be shortly 
 stated to be that the common law right of practising the profession 
 of physic was left unaffected by anything save the condition that 
 the practitioner should be competent ; of which competency the 
 President and College of Physicians were the judges ; so that it was 
 their duty to admit every person whom, upon examination, they 
 
 1 32 Ch. D. 625 ; 55 L. J. Ch. 725 ; 54 
 L. T. 899.; 34W. E. 701. 
 
 ^ For a concise history of medicine and 
 the medical profession, see an article in 
 the Encyclopsedia Britannica, " Medicine," 
 
 ' I Black. Comm. 427. 
 
 ^ Dr. Bonham's case, 8 Co. 107 a, 1 14 ; 
 College of Physicians v. West, 10 Mod. 
 353. 354- 
 
PART III.] SKILLED LABOtJE. • 8^1 
 
 thought fit to be admitted ; and not only had the candidate himself, 
 if found fit, a personal right, but the pubUc had also a right to his 
 services.' This duty of admission, being a judicial power, requiring 
 the exercise of discretion, could not be delegated, but required to 
 be exercised by the president and fellows, or the majority of those 
 present, in the same manner as the election of a fellow ; though it 
 is competent for the body at large to appoint particular persons 
 of their own number to have the immediate direction of it, since 
 the process of examination can be conducted by few only at the 
 same time.^ 
 
 II. The second class of medical practitioners is that of surgeons. II. Surgeons:. 
 Their peculiar practice consists in the use of surgical instruments 
 in all cases, and in the cure of all outward diseases whether by 
 external applications or by internal medicines. 
 
 The Act of 3 Hen. Vlll. applies to these also, and by that 
 alone can punishment be inflicted on a person for practising 
 surgery without licence in any part of the kingdom except within 
 London and Westminster and seven miles around these cities^ — 
 viz., a penalty of ;^5 for every month during which he may so 
 practise ; but this is said to be practically obsolete, as there ia 
 no instance of any person having obtained a licence under it for 
 several centuries.^ 
 
 The ancient guild of barber-surgeons had been incorporated in Inoorporatlou 
 1 46 1, but the eifect of the 3 Hen. VIII. c. 1 1 was that their right Burg^nsi 
 to exclusive practice was taken away. However, in 1541 the ^46i- 
 profession was amalgamated under the name of the Mystery and 
 Commonalty of Barbers and Surgeons of London by 32 Hen. 32 Hen. viii. 
 VIII. c. 42. It received char^^rs'oi^privilege from James I. and ' '^^' 
 Charles I., and was seiparated from the barbers' branch of the 
 union by 1 8 Geo. II. c. 1 5, which relieved its members from the 18 Geo. 11. 
 necessity of obtainiug the licence under 3 Hen. VIII., and gave 
 them an exclusive right to practise in and about London, and a 
 concurrent right with those licensed by the ordinary of practising 
 in all other parts of the kingdom. 
 
 The effect of this Act seems to have been to confine the right 
 to practise surgery in London and seven miles round to those 
 examined and admitted by the College of Surgeons, while it 
 divided those practising, in the rest of the kingdom into two 
 classes — 
 
 ' Eex V. Askew, 4 Burr. 2186. pleading, and does not seem to have been 
 
 2 Jiid. carried further, so that the point was not 
 
 • ' 18 G-eo. II. c. 13. argued, that since the Bishop of London 
 
 * Willoock, Laws of the Medical Pro- and the Dean of St. Paul's have ceased to 
 
 fession, p. 58. Compare Davies v. Makuna, hold examinations in London, or the bishops 
 
 29 Ch. b. S96 ; 54 L. J. Ch. 1 148 ; S3 i° their dioceses, and compliance with the 
 
 L. T. 314 ; 33 w. E. 668. D'AUax v. statute was impoEsible. 
 
 Jones, 26 h. J. Ex. 79, was on a point of 
 
822 
 
 THE LAW Of NEGLIGENCE:. 
 
 [book n. 
 
 III. Apothe- 
 caries. 
 
 The Apothe- 
 curies Act, 
 iSiS- 
 
 Scope of the 
 Act indicated 
 in Davies v. 
 Makuna. 
 
 First, members of the College of Surgeons, who might practise 
 in every part of the dominions of the Crown. 
 
 Secondly, surgeons licensed under 3 Hen. VIII., who might 
 practise in any particular diocese in which they were licensed, 
 except within London and Westminster and seven miles round.' 
 
 III. The third class of medical practitioners is that of apothe- 
 caries. The business of an apothecary was concerned with 
 the mixing and dispensing of drugs, and was anciently carried 
 on by grocers in conjunction with their ordinary business. It 
 was only in 1615 that grocers and apothecaries were formed 
 into distinct corporations; and even subsequently to this the 
 Apothecaries' was looked upon as a mere trading company, and 
 whoever thought fit to do so was at liberty to sell physic through- 
 out the rest of the kingdom, provided that he had conformed to 
 the provisions of the Act of 5 Eliz. c. 4 about apprentices. 
 Besides this, they on occasion prescribed the medicines they 
 sold, a practice that was called in question by the College of 
 Physicians, but held lawful by the House of Lords, overruling 
 the Courts below'' in the case of the College of Physicians v. 
 Eose.' 
 
 In 1815 was passed the Apothecaries' Act, 1 8 1 S ,* " thus," 
 as Willcock says,' " for the first time placing them as a body on 
 the footing of a liberal profession," 
 
 This Act not only imposes a penalty for practising without the 
 certificate of the court of examiners constituted by the Act,'^ but 
 renders the act of practice without the certificate unlawful.' 
 Cotton, L. J., in Davies v. Makuna,' thus indicates its scope : — 
 " The Act does not define the nature of an apothecary's employ- 
 ment, but dispensing, mixing medicine, giving medical advice, 
 and attending the sick as medical adviser must be considered 
 acting as an apothecary." The limitation expressed by Cress- 
 well, J.," must not be disregarded : " The mere fact of the 
 defendant having supplied medicines does not necessarily shew 
 he practised as an apothecary, for a surgeon may lawfully do 
 that if the medicines are administered in the cure of a sur- 
 gical case. If, for instance, in the case of a broken leg it 
 becomes necessary to administer medicine, no doubt the surgeon 
 
 ^ Willcock, Laws of the Medical Pro- 
 fession, p. 64. A physician who acta as a 
 surgeon can recover Jpr his services : 
 Little v. Oldaore, C. & M. 370; also 
 J3attersby I). Lawrence, C. & M. 277. 
 
 ^ 3 Salk. 17; 6Mo(i. 44. 
 
 8 (1703) S Bro. Pari. Cas, (Tomlin's 
 edition) 553^ 
 
 * 55 Geo. III. c. 194. 
 
 " Laws of the JMedioalProfesBior.,p. 19. 
 
 * Section 20. 
 ^ ' Section 14. As to an apothecary's 
 qualifications, Wogan «. Somerville, 7 
 Taimt. 401, As to what constituteB 
 practising, Woodman v. Ball, 6 C. & P. 
 
 577- 
 
 8 29 Ch. D. 598, at p. 606. 
 
 " Apothecaries' Company v. Lotinga, 2 
 M. & B. 495. 
 
PARTin.] . SKILLED LABOITE,. m 
 
 may lawfully do so ; but, on the other hand, if a surgeon takes 
 upon himself to cure a fever, he steps out of his lawful pro- 
 vince, and is not authorized to administer medicine in such a 
 case."' But it does not appear that there is any difference be- 
 tween the prohibition of an act under a penalty not for revenue 
 purposes ^ and an enactment of its absolute unlawfulness, since 
 in both cases they are things " forbidden and absolutely void to 
 all intents and purposes whatsoever."' 
 
 By the Medical Act, 1858, and its amending Acts'* a sys- Eegistratiou. 
 tern of registration of all medical practitioners is provided for, 
 so that none other than registered persons shall be entitled to 
 claim the title of legally or duly qualified medical practitioners ;° 
 nor to recover any charge in any court of law for any medical 
 or surgical advice or attendance, •* or for the performance of any 
 operation, or for any medicine which they have both prescribed 
 and supplied ;' nor to hold any of the Government or other 
 medical appointments specified in the Act ;' nor to sign any cer- 
 tificate required by Act of Parliament to be signed by a medical 
 practitioner ; ' and any one assuming a title implying he ia regis- 
 tered is liable to a fine of ;£^20.'° 
 
 By section 6 of the Medical Act, 1886," it is provided that " a Medical Act, 
 registered medical practitioner shall, save in this Act mentioned, 
 be entitled to practise medicine, surgery, and midwifery in the 
 United Kingdom, and (subject to any local law) in any other 
 part of Her Majesty's dominions, and to recover in due course of 
 law, in respect of such practice, any expenses, charges, in respect 
 of medicaments or other appliances, or any fees to which he may 
 be entitled, unless he is a fellow of a college of physicians the 
 
 1 Allison V. Haydon, 4 Bing. 619 ; 164 ; 8 L. T. N. S. 281 ; 11 "W. B. 700. 
 
 3 C. & P. 246 ; Leraan v. Fletcher, L. R. A book purporting to be a copy of the 
 
 8 Q. B. 319 ; 42 L. J. Q. B. 214 ; 28 Medical Eegister pursuant to 20 & 21 
 
 L. T. N. S. 499 ; 21 W. K. 738, as to Vict. 0. 90, and profeesing to be " piib- 
 
 effeot of the Medical Act, 1858, ou the lished and sold at the office of the 
 
 Apothecaries Act, 1815. General Council of Medical Education 
 
 ' Taylor v. Crowland Gas and Coke and Eegistratiop " ia admissible under 
 
 Company, 10 Ex. 293. s. 27, Pedgrift v. Chevallier, 8 C. B. N. S. 
 
 3 Per' Lord Chancellor Hatherley, In 240 j 29 L. J. M. C. 225. In America it 
 
 re Cork and Youghal Railway Company, has been decided tbat where the delay 
 
 L. R. 4 Oh. 748, at p. 758. was due to the registry clerk's negligence 
 
 '' 21 & 22 Vict. 0. 90 ; amended by 22 the plaintiff was not preyonted from re- 
 
 Vict. c. 21, 23 & 24 Vict. cc. 7 et 66, 25 & covering : Parish v. Foss, 75 Qa. 439. 
 
 26 Vict. 0. 91, 31 & 32 Vict. u. 29, 38 & " De la Rosa v. Prieto, i6 C. B. N. S. 
 
 39 Vict. c. 43, 39 & 40 Vict. CO. 40 et 41, 578 ; 33 L. J. C. P. 262 ; 10 L..T. N. S. 
 
 49 & 50 Vict. c. 48. 7S7 ; 12 W. E. 1029 ; Leman v. Houseley, 
 
 ^ The Court of Queen's Bench have L. E. lo Q. B. 66. 
 
 held that the registration to be effectual ' Wright v. Greenroyd, i B. & S. 758. 
 
 must be before action brought : Leman ^ Section 36. 
 
 V. Houseley, L. E. 10 Q. B. 66 ; 44 " Section 37. 
 
 L. J. Q. B. 22 ; 31 L. T. N. S. 833 ; 23 " Sections 40, 42, 43. ElJis «. Kelly, 6 
 
 IW. E. 23s, though not necessarily at H. & N. 222 ; 30 L. J. M. C. 35 ; 3 
 
 the lime of the attendances, Turner v. L, T. N. S. 331 ; 9 W. E. 56, 
 
 Eeynall, 14 C. B. N. S, 328 ; 32 L. J.C.P. " 49 & 50 Vict. 0. 48. 
 
the Act. 
 
 824 THE LAW 01* KEGLlGENCE. [book ii. 
 
 fellows of wliich are prohibited by bye-law from recoveriag at 
 law tlieir expenses, charges, or fees, in which case such prohibi- 
 tory bye-law, so long as it is in force, may be pleaded in bar of 
 any legal proceedings instituted by such fellow for the recovery 
 of expenses, charges, or fees." This proviso has reference to the 
 practice of physicians, whose employment, like that of barristers, 
 had always previously been held to be of a merely honorary de- 
 scription, and not to support an action for fees unless by virtue 
 of a special contract.' 
 Hon ^iii '^^® ■^°* of 34 & 35 Hen. VIII. c. 8, that persons being no 
 
 c. 8. common surgeons may minister medicines notwithstanding the 
 
 statute,^ has an important bearing on what has gone before. 
 Eiohardson, The effect of it is summed up by Richardson, C.J., in Le Col- 
 
 C.J.s, inter- . . r j ... 
 
 pretationof ledge de Physitians' case^ as follows : — " We are of opinion that 
 this statute^ reaches neither in intent and meaning to give 
 liberty to any person that practises or exercises for lucre or 
 profit, and it is apparent from the preamble, and the statute also, 
 that it was principally against chirufgeons, who were covetous j 
 for the statute has limited who shall practise, and for what dis- 
 eases, and the parties licensed by it were those who were good 
 honest people, as old women and such who will give neighbourly 
 physic for charity and piety, and not such as seek gain by it 
 as empiricks, who do not anything for piety and charity, 
 so that the statute excludes all those who take any money or 
 gain." * 
 
 Gratuitous practitioners are thus specifically excepted out of 
 the operation of the statutes. But even under the statutes the 
 only right of action is for the penalties prescribed by them, and 
 the only other result is that the unqualified practitioner is not 
 
 1 Veitoh V. Enssell, 3 Q. B. 928 ; 12 = Compare the same case before the 
 
 L. J. Q. B. 513 ; C. & M. 362 ; Chorley King's Bench on -writ of error, Butler w. 
 
 V. Baloot, 4 T. E. 317. Compare Gibbon President of College of Physicians, Cro. 
 
 V. Budd, 2 H. & C. 92 ; 32 L. J. Ex. Car. 256, wbere the judgment of the 
 
 182 ; 8 L. T. N. S. 321, as to presumption. Common Pleas was affirmed ; " admitting 
 
 This, however, does not extend to sur- the 34 Hen. VIII. 0. 8 be in force, yet 
 
 geons : Lipsoombe v. Holmes, 2 Campb. tbey all resolved the defendant's plea was 
 
 441 ; Baxter v. Gray, 4 Scott N. E. 374 ; naught and not wan-anted by the statute ; 
 
 Simpson ®. Eolfe, 4 Tyr. 325 ; Eichmond for he pleads that ' he applied and minis- 
 
 v. Coles, 1 Dowl. N. S. 560. Physicians tered medicines, plaisters, drinks, «fcm6«s 
 
 can sue in America: see the somewhat mmbis et maladiis, ccdculo, stTangmio, 
 
 declamatory judgment in Judah v. Mc- febribus et aliis in statuto mentionatis.' 
 
 Namee, 3 Blackf. 269. In Leighton v. 80 he leaves out the principal word in the 
 
 Sargent, 27 N. H. 460, it is laid down statute, viz., ' externis,' and doth not 
 
 that a medical man may bind himself to be refer and shew that he ministered potions 
 
 responsible for results. for the ' stone, strangullion, or ague,' as 
 
 ^ I.e., 3 Hen. VIII. c. 11. the statute appoints to these three dis- 
 
 '^ Littleton's Eeports, 349. This case eases only, and to no other. And by his 
 
 was twice previously argued, and is re- plea his potiolis may be ministered to any 
 
 ported by Littleton, 168-171, and from other sickness; wherefore liey all held 
 
 212-215. his plea was naught." 
 
 J 34 & 35 Hen. VIII. c. 8. 
 
PART in.] SKILLED LABOUR. 825 
 
 able to recover his charges,^ and is in no case able to set up a 
 contract in evasion of the Acts.^ 
 
 A distinction, however, must be indicated between acts void Distinction 
 
 between the parties for purposes of suit and acts illegal in them- ^13 aMAots 
 
 selves. This is pointed out by an American case," which held illegal. 
 
 that though a physician is precluded from recovering for his 
 
 services because he is unregistered, yet in an action for personal 
 
 damage he may recover for being rendered unable to continue 
 
 his practice. If, however, the practice were by statute rendered 
 
 unlawful, he clearly would not be able to do so. The ground of 
 
 this is that if his patients paid him voluntarily for his services, so 
 
 that he was receiving an income of a certain amount therefrom, 
 
 that thereby became the value of his capacity to render them and 
 
 evidence of what his compensation should be. Again, though an 
 
 irregular surgeon under the Registration Acts may not be able to 
 
 sue, it does not follow that he stands in the same position as an 
 
 irregular practitioner under the Apothecaries Act, 1815, on a 
 
 criminal prosecution for negligence. In the former case — if the 
 
 Act of Henry VIII. is to be considered inoperative — his act, 
 
 though void for all purposes of his obtaining remuneration or 
 
 benefit, is not illegal ; consequently, when he is proved to have 
 
 practised, and evil results to have followed from his practice, it is 
 
 not to be concluded that he is therefore liable without other 
 
 evidence of negligence, for his act is not unlawful, and, though 
 
 unregistered, he may be competent. In the other case, the act 
 
 of practice is unlawful, and therefore the consequences unlawful, 
 
 for the law in effect says his act, however done, is incompetent, 
 
 so that no further evidence would be legally necessary to put 
 
 the defendant to proof to exculpate himself, and, failing that, to 
 
 entitle the Crown to judgment. Yet this would be neutralized 
 
 by the consideration that some considerable negligence would be 
 
 necessary to work criminal consequences ; therefore, failing further 
 
 evidence, the prosecution would drop, though not because there 
 
 was no evidence of negligence, but because there was Tiot sufficient 
 
 evidence to establish criminal negligence. The same distinction 
 
 would seem to prevail in civil proceedings. Where the character 
 
 of the act is neutral in law — that is, not prohibited, though not 
 
 admitting positive proceedings to be taken in respect of it — 
 
 injurious consequences flowing from it would not, without some 
 
 evidence of negligence, import an actionable wrong ; but where 
 
 ^ Steel V. Henley, i C. & P. 574 ; and Taylor v. Crowland Gas Company, 10 
 
 Allison V. Haydon, 4 Bing. 619. Com- Ex. 293. 
 
 pare Gremare v. Le Clero Buis Valon, 2 ^ Davies v. Makuna, 29 Cli. D. 598. 
 
 Campb. 144, with what was said in Cope ^ McNamara v. Clintonville, 62 Wis. 
 
 V. Bowlands, 2 M. & W. 149, at p. 159, 207 ; Holmes v. Haldo, 43 Am. E. 567. 
 
826, 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 the act is unlawful, the injurious resillt would he in itself action- 
 able without positive evidence of negligence. But in civil pro- 
 ceedings the consent of the plaintiff to employ a prohibited 
 practitioner would make a difference, for the general principle is 
 undoubted that Courts of justice will not assist a person who 
 has participated in a transaction forbidden by statute to assert 
 rights growing out of it, or to relieve himself of the consequences 
 of his own illegal act. Whether, then, the form of the action is 
 in contract or in tort, the test in each case is whether, when all 
 the facts are disclosed, the action appears to be founded in a 
 violation of law in which the plaintiff has taken part.' The 
 plaintiff's act would seem to be in the nature of contributory 
 negligence, without which the injury could not have happened, 
 and this, though a defence in an action, would not avail against 
 the Crown. . Where, however, the surgeon is registered, and in- 
 injury results from his treatment, the presumption is that he is 
 competent and the treatment correct till the contrary is shewn.^ 
 The negligence of medical and surgical practitioners is usually 
 
 Malpractice, treated under the various heads of malpractice.^ Malpractice the 
 •Court resolved, iu Dr. Groenvelt's case,^ to be " a great misde- 
 meanour and offence at common law, whether it be for curiosity^ 
 or experiment, or by neglect, because it breaks the trust which 
 the party has placed in the physician tending directly to his 
 destruction." Into malpractice generally, however, there is no 
 call to enter here beyond the consideration of the relations con- 
 stituted by malpractice caused through ignorance or remissness, 
 for that large aspect which deals with malpractice " for curiosity 
 or experiment " is wholly beyond the scope of the present book. 
 
 Principle. The principle of most extensive scope, not confined to medical 
 
 practitioners, but prevailing through all classes of skilled labour, 
 is that he who undertakes the public practice of any pro- 
 fession undertakes that he has acquired the ordinary skill and 
 knowledge necessary to perform his duty towards those that resort 
 to him in that character.' There is, then, no distinction in law 
 between those who are qualified or regular practitioners and those 
 who are not in regard to the amount of maltreatment, when mal- 
 treatment is established, whether from ignorance or negligence, 
 that founds either civil or criminal liability,^ for the wrongful act 
 
 1 Hall w. Corcoran, 107 Mass. 251 ; 
 Cranson v. Goes, 107 Mass. 439 ; Myers 
 V. Meinrath, 101 Mass. 366 ; McQrath 
 V. Merwin, 112 Mass. 467. 
 
 2 Eegina v. Spencer, 10 Cox C. C. 525. 
 " Elwell, Malpractice ; Willcock, Laws 
 
 of the Medical Profession. The cases 
 under the Eoman law of medicine given by 
 luistake and through ignorance and in 
 
 what circumstances they are within the 
 provisions of the Lex Aquilia are treated 
 in Diasertationes Juridicse Thomasii, Diss. 
 xi. De Jure Circa Somnum et Somnia 
 in Delictis, §§ 4, 5, & 6, pp. 708-770. 
 
 * 1 Ld. Eaym. 213. 
 
 ^ Seare 1). Prentice, 8 East 348. 
 
 8 Rex w. Van Butchell, 3 C. & P. 
 629 ; Kex V, Williams, 3 C. & F, 635 ; 
 
PART III.] SKILLED LABOirit. 827 
 
 is the negligent or incompetent treatment, and not the want of 
 qualification. Prom the same principle it may be concluded that 
 whether the service is remunerated or gratuitous is immaterial so 
 far as concerns the attaching of liability.' The standard of care standard of 
 and competency is, however, perpetually variable. That may be pe'teMv pei'"" 
 negligence in one man which in another is competent care ; as, P^tuaiiy 
 for instance, where an experienced specialist is consulted as such, 
 and with reference to his specialit}-, an act might constitute 
 actionable negligence which in a junior and ordinary member of 
 the profession would more than pass muster. The difficulty of 
 fixing any standard is furthermore increased by the many and 
 conflicting schools of theory and practice. The law can enter 
 into no minute examination of the merits of allopathic or homceo- 
 pathic or any other peculiar system of treatment.^ The tests it 
 applies are, Is the practitioner competent or incompetent ? If 
 incompetent, it infers that injury following treatment is the 
 result of incompetency, and he has to discharge himself of the 
 onus of proving the injury was not the result of incompetency ; 
 if competent — that is, if he is a qualified and registered practi- 
 tioner — not merely must injury subsequent to treatment be shewn, 
 but some evidence must be given of negligence in treatment 
 before liability can be affixed.^ 
 
 But the evidence of negligence is not to be determined by any 
 arbitrary standard. Given the presumptive competency of the 
 practitioner, the standard of professional skill he will be required 
 to reach will be that of the ordinary and average practitioner in 
 that branch, or of that school to which he professes himself to 
 belong." But a person professing to follow one system cannot be 
 expected to practise any other. In a question, then, of the 
 amount of skill displayed in treatment, the evidence of an expe- Ev-idence of 
 rienced practitioner of the school professed by the person charged praotuionei-*"^ 
 is admissible to shew that the treatment was careful and skilful "^ofessTd b°^ 
 according to the standard of practitioners professing the tenets of tiie person 
 the school." If the practitioner is a quack, he runs the danger of mismble.* " 
 being liable for that gross negligence which Willes, J., describes 
 as consisting "in rashness where a person was not sufficiently 
 skilled in dealing with dangerous medicines which should be 
 carefully used, of the properties of which he is ignorant, or how 
 
 Eex V. St. John Long, 4 C. & T, 398 and 62 Wis. 2S9. See also Patten v. AViggin, 
 
 423. 51 Me. 594. 
 
 ' Per Heath, J., in Shiells v. Black- '■> Kcgina?'. Spencer, 10 Cox C. C. 525 ; 
 
 bnrne, l H. Bl. 161. Willcock, Laws of the Medical Profession, 
 
 2 This is definitely held in an Ameiican p. 90. 
 
 case, where it was determined tliat the ^ Corsi v. JJaretzek, 4 E. D. Smith I, 
 
 terms "physicians and surgeons" em- ° Bowman c. Woods, 7 G. Greene 441, 
 brace homceopathists : Baynor v. State, 
 
328 
 
 THE LAW or NEGLIGENCE. 
 
 [book II. 
 
 Test where 
 there is 
 divergence 
 from the 
 prevalent 
 system. 
 
 Diligence of 
 an expert. 
 
 to administer a proper dose.'" A person, the learned judge 
 further said, who, with ignorant rashness and without skill in 
 his profession, used such a dangerous medicine acted with gross 
 negligence.'' 
 
 In the case, then, of divergence from the rules of the system 
 of the majority, the test would be whether the practitioner 
 was a scientific inquirer, possessed of the principles of a system, 
 and practising them (for knowledge without practice is unavail- 
 ing), or a mere ignorant pretender ; and this would be for the 
 jury.^ In the case of an Act of Parliament making his practice 
 unlawful, he would have to shew that there is no connection 
 between his unlawful practice and the injury following. But 
 where his practice is not unlawful, whatever his disabilities 
 to sue might be, it is conceived that in being sued he would 
 stand in no worse position than a qualified man reasonably com- 
 petent ; and to allow the fact of want of qualification to operate 
 in diminishing the liability for negligence would be to give au 
 advantage to unqualified practitioners. Each, then, is liable for 
 culpa lems — the want of expert diligence. The one is an 
 expert, the other has put himself in the position of an expert." 
 If, however, the unqualified practitioner disclaims the skill of an 
 expert previously to undertaking the treatment, then he would 
 only be liable for what, in the Eoman law, is called gross negli- 
 gence, culpa lata — that is, the lack of diligence and skill be- 
 longing to an ordinary unprofessional person of common sense. ^ 
 In illustration of this may be noted a case Sir William Jones 
 cites" from the Mahomedan law, the decision of which Pufendorf ' 
 approves : — " A man who had a disorder in his eyes called on a 
 farrier for a remedy, and he applied to them a medicine com- 
 monly used for Ms patients ; the man lost his sight, and brought 
 an action for damages, but the judge said, 'No action lies, for, if 
 the complainant had not himself been an ass, he would never 
 
 ■■ Eegiua v. Markuss, 4 F. & F. 356. 
 
 == The distinction has been thus stated : — 
 " If a person assume to act as a physician, 
 however ignorant of medical science, and 
 prescribe with an honest intention of 
 curing the patient, but throngh ignorance 
 of the quality of the medicine prescribed, 
 or the nature of the disease, or both, the 
 patient die in consequence of the treat- 
 ment contrary to the expectation of the 
 person prescribing, he is not guilty of 
 murder or manslaughter. But if the 
 party prescribing have so much know- 
 £dge of the fatal tendency of the prescrip- 
 tion that it may be reasonably presumed 
 that he administered the medicine from 
 an obstinate wilful rashness, and not with 
 an honest intention and expectation of 
 
 I 
 
 effecting a ci^re, he is guilty of man- 
 slaughter at least, though he might not 
 have intended any bodily harm " : Eice v. 
 State, 8 Mo. 561. See Bishop, Criminal 
 Law, 6th edit. § 664 ; also § 314, n. 
 
 " Compare Eegina v. Wagstaffe, 10 Cox 
 C. C. 530. See the Act 31 & 32 Vict, 
 e. 122, s. 37; The Queen v. Downes, I 
 Q. B. D. 25; 45 L. J. M. C.8; 33L.T. 
 673 ; The Queen v. Morbv, 15 Cox C. C. 
 3S; 8Q. B.D. 571; 51 L.J.M. C.8s; 
 46 L. T. 288 ; 30 "W. E. 613. 
 
 * Jones V. Fay, 4 F. & F. 525. 
 
 '' Wharton, Law of Negligence, § 29. 
 
 " Bailments, p. 100. 
 
 ' De Jure Nat. et Gent. lib. 5, c. 5, 
 s. 3. 
 
PART III.] SKILLED LABOFR. 829 
 
 have employed a farrier.' " Or, as the law was stated by an 
 
 English judge' : " If a patient applies to a man of different 
 
 occupation or employment for his assistance, who either does 
 
 not exert his skill or administers improper remedies to the 
 
 best of his ability, such person is not liable in damages ; but if 
 
 he applies to a surgeon, and he treats him improperly, he is liable 
 
 to an action, even though he undertook grafts to attend to the 
 
 patient, because his situation implies skill in surgery."" Yet 
 
 the irregular practitioner who holds himself out as competent 
 
 to treat diseases thereby represents that he has a similar amount 
 
 of skill to those who are regularly qualified, and his performance 
 
 must be decided by the same test. Anciently a distinction was 
 
 sought to be set up between the malpractice of a regular and of 
 
 an irregular practitioner by exacting from the latter even greater 
 
 responsibility than from the former,^ but Sir Matthew Hale, in his 
 
 '• Pleas of the Crown," says" : " If a physician gives a person a Sir Matthew 
 
 potion without any intent of doing him any bodily hurt, but with ^^us""FielT 
 
 an intent to cure or prevent a disease, and contrary to the °f ^^^ Crown." 
 
 expectation of the physician it kills him, this is no homicide ; 
 
 and the like of a chirurgeon; and I hold their opinion to be 
 
 erroneous that think that if he be no licensed chirurgeon or 
 
 physician that occasioneth this mischance, that then it is felony, 
 
 for physic and salves were before licensed physicians and chirur- 
 
 geons, and therefore, if they be not licensed according to the 
 
 statutes, they are subject to the penalties in the statutes ; but 
 
 God forbid that any mischance of this kind should make any 
 
 person not licensed guilty of murder or manslaughter." And 
 
 this view is accepted as correct by Pollock, C.B., in Regina -y. Accepted as 
 
 Crick,* where he said : " It is no crime" for any one to administer poHock^o.B 
 
 in Eegina v. 
 
 ' Heath, J., in Shiells )■. Blackburne, i actionable negh'gence is a question of de- ''" ' 
 
 H. Bl. i6i ; Seare v. Prentice, 8 East gree only, and there is no discriminating 
 
 348. principle to distinguish them : Eegina v. 
 
 ^ So in America it has been held that Noakes, 4 F. & F. 920. " A fact," sajs 
 
 he ivho, knowing a medical man is of in- Lord Erskine, C, in Lord Melville's case, 
 
 temperate habits, yet continues to employ 29 Howell's State Tiials, 764, " must be 
 
 him, cannot set up such habits by waj' of established by the same evidence, whether 
 
 defence to bis bill : M'Kleroy v. Sewell, it be followed by a criminal or civil con- 
 
 73 Ga. 657. sequence ; but it is a totally different 
 
 ' 4 Inst. 251, quoting Bracton, "that question in the consideration of criminal 
 
 if one that is not of the mysterie of a as distinguished from civil justice " how 
 
 physitian or chirurgeon, take upon him the the person on tiial may be affected by the 
 
 cure of a man and he dieth of the potion fact when established. As Willes, .1., 
 
 or medicine, this is (saith he) covert says in Eegina «. Markuss, 4 F. &F. 356 : 
 
 felony; " i East P. C. 264. Sect. iv. in this " It is not every slip that a man may make 
 
 ■work, pp. 260-271, is on "Homicide from that renders him liable to a criminal in- 
 
 Impropriety, Negligence, or Accident in vestigation ; it must bo a substantial 
 
 the prosecution of an act lawful in itself or thing." Bayley, J,, inTossymond's case, I 
 
 intended by way of Sport or Eecreation." Lewin C. C. 169, seems to look exclusively 
 
 '' I H. P. C. 429. to the consequences arising from negli- 
 
 ^ (1859) I F. & F. 519. gence to determine whether the act is a 
 
 •■ The distinction between criminal and mere civil wrong or a criminal act. This, 
 
830 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Mere unlaw- 
 fulness of the 
 unauthorized 
 practitioners 
 act would 
 not affect with 
 criminal 
 consequence. 
 
 Opinion of 
 Bayley, J., 
 in Eefe v. 
 
 Kancy 
 Simpson, 
 
 Effect of 
 proper assist- 
 ance being 
 at hand. 
 
 medicine, but it is a crime to administer it so rashly and care- 
 lessly as to produce deaitli, and in this respect there is no differ- 
 ence between the most regular practitioner and the greatest 
 quack."' This expression of opinion was of course long subse- 
 quent to the passing of the Apothecaries Act, 1815. 
 
 The law would seem to be then that, where criminal conse- 
 quences are concerned, the mere unlawfulness of the act of the 
 unauthorized practitioner would not be allowed to affect him 
 with criminal consequences, on the ground, as we have seen, of 
 the distinction in amount between evidence of negligence and of 
 criminal negligence ;^ though in the case of his professing to act 
 as a qualified practitioner, and thereby inducing a patient to 
 submit to his treatment not knowing of his legal incapacity, in 
 the event of injury following, proof o"f his incapacity would be 
 sufiScient to cast on him the onus of shewing that the injury did 
 not result from his treatment. The opinion of Bayley, J., in 
 Eex V. Nancy Simpson^ seems inconsistent with this view. He 
 regards the undertaking to administer medicine " which may have 
 a dangerous effect,'" and " where professional aid might be ob- 
 tained," when the administration occasions death, as in itself 
 evidence of negligence so gross as to found a criminal liability." 
 This would seem to be a too wide principle of liability, since 
 the administration, though followed by death, might be perfectly 
 consistent with the strictest prudence and the rules of art ; and 
 on proof of this, though professional aid might have been obtained, 
 and though a dangerous effect was in fact produced, the pre- 
 sumption of negligence would be effectually rebutted. 
 
 The fact of proper assistance being available would undoubtedly 
 be a fact of great weight in the determination of the character of 
 an irregular practitioner's act, but it does not seem consistent 
 with principle that it should be regarded as a canon of negli- 
 gence, as it appears to be by Bayley, J., in the case under 
 
 however, is hardly so, else a trivial act 
 of every-day occuiTence in one instance 
 fraught with serious consequences would 
 thpreby become criminal. Compare Eegina 
 K.Bull, 2 F. & P. 201 ; and the note to Rich 
 V. Pierpont, 3 P. & F. 41. There is a 
 full discussion of what is required to con- 
 stitute criminal negligence in a medical 
 man in Commonwcallh v. Pierce, 138 
 Mass. 165 ; 52 Am. R. 264. See, too, 
 State V. Hardister, 42 Am. E. 5. 
 
 ' Compare Rex v. Williamson, 3 C. & P. 
 635 ; Reginaw. Chamberlain, 10 Cox C. C. 
 486, before Blackburn, J., where the 
 prisoner was acquitted; and Regina v. 
 Crook, I F. &F. 521 ; Rex v. Senior, i Moo. 
 C. C. 346, where there were con victions. 
 Compare Hex v. Van Butohell, 3 C. & 
 
 P. 629 ; and per Park, J., in Rex v. St. 
 John Long, G. & P. 398. 
 
 3 4 C. & P. 407, n. 
 
 « Bolland, B., in Bex v. Spiller, S C. & 
 P. 333, says : " If any person, whether he 
 be a regular licensed medical man or not, 
 professes to deal witb the life or healtli of 
 bis Majesty's Bubjeots lie is bound to have 
 competent skill to perform the task that 
 he holds himself out to perform, and he is 
 bound to treat his patients with care, 
 attention, and, assiduity." As to the 
 latter part it is clearly so. But if a man 
 without competent skill treat a patient, he 
 is neither liable to indictment nor action, 
 unless he does him injury. And if he 
 injures him, the liability is not for being 
 incompetent, but for causing injury.. 
 
PAHTiii.J SKILLED LABOUE. 831 
 
 consideration, and by Lord Lyndhnrst, O.B., in Res v. Webb.* 
 It is rather a circumstance from which gross negligence would 
 most usually be inferred than an actual indication of negligence 
 apart from circumstances. So, also, that the patient died under 
 treatment would doubtless raise a presumption of negligence even 
 criminal, but that it should be conclusive seems inconsistent either 
 with logical or juristic principle." 
 
 It is, however, clear that treatment cannot be applied to a patient where treat- 
 which involves probabilities of danger, whether by a licensed or "aT'erThe™^ 
 unlicensed practitioner, without some communication to the patient, patient must 
 and some expression or signification of consent by hira. The duty munioation 
 that exists in this respect was treated so long ago as in Slater v. signify "sseut 
 Baker and Stapleton.^ In that case the plaintiff employed the *" ''^ "'^PP'^" 
 
 -I I- -I ci 11 i.' cation. 
 
 defendants, one oi whom was a surgeon, the other an apothecary, 
 to cure his leg, which had been broken and set, and the callus of 
 the fracture formed. The defendants disunited the callus, and 
 Baker fixed on the plaintiff's leg a heavy steel instrument with 
 teeth to stretch or lengthen the leg. It appeared from the evidence 
 at the trial that it was improper to disunite the callus without 
 consent, and heavy damages were given. The Court refused a 
 motion to set aside the verdict, saying " it was ignorance and 
 unskilfulness in that very particular to do, contrary to the rule 
 of the profession, what no surgeon ought to have done; and, 
 indeed, it is reasonable that a patient should be told what is 
 about to be done to him, that he may take courage and put him- 
 self in such a situation as to enable him to undergo the opera- 
 tion." Yet to this information there must be a limit, and it 
 would appear reasonable to hold that the duty to forewarn the 
 patient would be performed by a general intimation of likelihood 
 of pain or danger in a particular direction, without a specification 
 with scientific accuracy of the probabilities to which the patient 
 would be exposed.'' 
 
 When, then, adequate information has been given of the No greater 
 proposed treatment, and an indication of its danger or painful- the unlicensed 
 ness, it does not seem consistent with the authorities to say there ||j,e°s*e^d 
 
 ^ I M. & E. 405. disvepard of the surgeon's directions, 
 
 " Bishop, Criminal Law, 6th edit. § 664. impair the effect of the best-cimtrived 
 
 3 2 Wils. 359. As to what is to be measures." The judge at the trial in 
 
 looked for from a surgeon employed to set charging the jury made some verv curi- 
 
 a leg, see M'Candless v. M'Wha, 22 ous observations, well worth referring to. 
 
 Penn. St. 261. Woodward, .J., said : "The Sec also Almond i: Nugent, II Am. R. 
 
 implied contract of a physician or surgeon 147. 
 
 is not to cuie — to restore a limb to its * See M'Clallen r. Adams, 36 Mass. 
 
 natural perfectness — but to treat the case 333, where husband's authority to ope- 
 
 with care and diligence. The fracture may rat? on wife is presumed. In the absence 
 
 be so complicated that no skill vouchsafed of evidence of consent the 07ius is on the 
 
 to man can restore original straightness plaintiff. 
 
 and length ; or the patient may, by wilful 
 
832 THE LAW OF NEGLIGENCE. [book n. 
 
 is in a civil action any other consequences^ attending the action 
 of the unlicensed than of the licensed practitioner.' 
 "So liability ^he law being thus, much more is a practitioner free from 
 
 act of a third liability when the injurious act is an act collateral to medical or 
 person. surgical treatment, done by some third person.^ And where a 
 
 specific act of malpractice is charged it is not admissible evidence 
 to shew that the defendant is of skill in his profession. This is 
 obviwis — first, the very nature of the charge involves either that 
 he is of skill generally and did not exercise it or represented 
 himself to have skill which he did not -in fact possess; and, 
 secondly, because the inquiry is not what he was able to do, but 
 what his conduct in a certain particular actually was. Where, 
 however, the evidence tendered is that the alleged malpractice is 
 not such, but arises from an ordinary and skilful way of performing 
 the daty, it is, of course, otherwise.^ 
 General rule The general rule of what amount of skill is to be looked for 
 sMirequired from a medical or surgical practitioner was considered by Erie, 0. J., 
 Se'l^ j'^ ^y in Kich v. Pierpont,'' who directed the jury to the following effect 
 — that a medical man was certainly not answerable merely because 
 some other practitioner might possibly have shewn greater skill 
 and knowledge, but he was bound to have that degree of skill 
 which could not be defined, but which in the opinion of the jury 
 was a competent degree of skill and knowledge. What that was 
 the jury were to judge. It was not enough to make a defendant 
 liable that medical men of far greater experience or ability might 
 have used a greater degree of skill, nor that he himself might 
 have used more care. The question was whether there had been 
 a want of competent care and skill to such an extent as to lead 
 to the bad result, or, as it was stated in an American case,* " the 
 average of the reasonable skill and diligence ordinarily exercised 
 by the profession as a whole, not that exercised by the thoroughly 
 educated, nor yet that exercised by the moderately educated, nor 
 merely of the well educated, but the average of the thorough, the 
 well, and the moderate — all, in education, skill, diligence, &c. ; " 
 and to this must be added, with allowance for particular circum- 
 stances of position, whether urban or rural, near a centre of popu- 
 lation or remote. 
 Not to have But the want of care and skill must be in the treatment 
 
 the particular itself, and not in the treatment with reference to the particular 
 constitution, constitution or circumstances of the patient, unless the treat- 
 ment presupposes knowledge or inquiries. Thus, in Hancke v. 
 
 1 Eegina v. Whitehead, 3 C. & K. 202 ; Regina v. Spencer, 10 Cox C. C. 525 ; 
 Eegina v. Ball, 2 F. & F. 201. ^ Perionowsky v. Freeman, 4 F. & F. 977. 
 
 ' Holtzman v. Hoy, 59 Am. E. 390. * 3 F. & F. 35. 
 
 '^ Smithers v. Hanks, 11 Am. E. 141. 
 
PART III.] SKILLED LABOUE. 833 
 
 Hooper,* the plaintiiF, a wMtesmith, walked into the shop ofHanokev. 
 the defendant, a surgeon, and asked to be bled, saying that he ^"°^^^- 
 had found relief from it before. He was bled by the apprentice, 
 and experienced considerable evil effects, for which he sued ; but 
 Tindal, C.J., directed the jury that " if, from accident or some 
 variation in the frame of a particular individual, an injury happen, 
 it is not the fault in the medical man. It does not appear that 
 the plaintiff consulted the defendant as to the propriety of bleed- 
 ing him ; he took that upon himself, and only required the manual 
 operation to be performed. The plaintiff must shew that the 
 injury was attributable to want of skill ; you are not to infer it. 
 If there were no indications in the plaintiff's appearance that 
 bleeding would be improper, the defendant would not be liable 
 for the bleeding not effecting the same result as at other times, 
 because it might depend upon the constitution of the plaintiff."'^ 
 Improper treatment is, moreover, a ground of defence. As improper 
 Lord Kenyon said' : " If a man is sent for to extract a thorn a'^^round'of 
 which might be pulled out with a pair of nippers, and through defence, 
 his misconduct it becomes necessary to amputate the limb, 
 shall it be said that he may come into a court of justice to 
 recover fees for the cure of that wound which he himself 
 caused?"* But if the patient has aggravated his injuries by 
 his own conduct he cannot recover on the principles applicable 
 to the law of contributory negligence. If, however, the injury 
 resulting from the patient's want of care can be separated from 
 the effects of the doctor's incompetence or neglect, there would 
 appear nothing to prevent recovery for injury thus isolated.'* 
 
 A medical man is clearly not a guarantor in the absence of Want of 
 express contract, and therefore he Only is to be held to what can test of 
 be ordinarily done in similar circumstances ; thus, if a registered efficiency. 
 practitioner sues for his fees, and is met with the defence that his 
 treatment was ineffectual, this will be no defence to the claim. 
 Neither would it that his treatment was mistaken ; unless, also, 
 it were shewn that it was negligently or ignorantly so ; but if he 
 has employed the ordinary degree of skill current in his profes- 
 sion, he is entitled to his remuneration, though it has failed of 
 its effect. ° 
 
 To enable a person injured by the malpractice of a medical or 
 
 1 7 C. & P. 8i. ^ Hibbavd v. Thompson, 109 Mass. 
 
 2 Bowater v. Smith, 3 Times L. R. 286. 
 
 187, was a case where an action was ^ Hope v. Phelps, 2 Stavk. 480 ; Ely v. 
 
 broufcht against a chemist for siipplyins; Wilbur, 60 Am. li. 668. A somewhat 
 
 a poisonous drug by mistake, where the different view seems to have been held in 
 
 plaintiff recovered damages. .lonas «. King, 81 Ala. 285. Compare .a 
 
 ^ Kannen v. M'MuUen, Peake 59. lunacy case, Pennell v. Cummings, 75 
 
 ^ Basten v. Butler, 7 East 479. Me. 163. 
 
 3 G 
 
834 THE LAW OF NEGLIGENCE. [book n. 
 
 Privity of Surgical practitioner to recover damages it is not necessary that 
 necessary to/ there shoTild be any privity of contract. This is pointed out by 
 ®°^*i®*°*'"°s Garrow, B., in Pippin v. Sheppard," who instances the case "of 
 surgeons retained by any of the public establishments," for whose 
 negligence the patients would be precluded from recovering 
 damages if a retainer were necessary, and the action were founded 
 otherwise than upon tort, " for it could hardly be expected that 
 the governors of an infirmary should bring an action against the 
 surgeons employed by them to attend the child of poor parents 
 who may have sufEered from their negligence and inattention."^ 
 So, on the other hand, a father residing away from his family has 
 been held liable for medical attendance where he did not know 
 the surgeon had been called in, and though the accident that was 
 treated was caused by the negligence of a servant.^ But where 
 there is no contract the action depends upon duty, and where 
 there is no duty the plaintiff cannot recover ; as in Pimm v. 
 Eoper,^ where the plaintiff sought to recover against the doctor 
 of a railway company who examined the plaintiff on their behalf, 
 and who advised the plaintiff that his injuries were so slight he 
 should take compensation, which the plaintiff did, but afterwards 
 sued the doctor on finding his injuries were more considerable 
 than he was told they were, but was held not entitled to recover. 
 The selling of poisons is prohibited to all persons unless regis- 
 tered under 31 & 32 Vict. c. 121 ; and the sale of poisons is 
 regulated by 32 & 33 Vict. c. 117. 
 
 ^11 Price 400. Holliday, 6 Ex. 767 ; L. J. Ex. 430. 
 
 2 Gladwell v. Steggall, J Bing. N. C. s Cooper v. Phillips, 4 C. & P. 581. 
 
 733 ; see per Parke, B., Longmeid v. * 2 F. & E, 783. 
 
PART IV. 
 
 ANOMALOUS RELATIONS. 
 CpAPTER I. 
 
 PAETNEESHIP. 
 
 " Pahtnership," says Jessel, M.E./ in commenting upon the Definition. 
 collection of definitions in Lindley on Partnership,^ " is un- 
 doubtedly a contract for the purpose of carrying on a commercial 
 business — that is, a business bringing profit — and dividing the 
 profit in some shape or other between the partners." Further, 
 if there is an association of two or more persons formed to carry 
 on a business who share between them the profits of the business, 
 they are to be treated as partners unless there are surrounding 
 circumstances to shew that they are not such.^ 
 
 The principles governing the determination of the amoupt of 
 negligence that imports liability between partners are not illus- 
 trated by decided cases. It is therefore necessary to refer to the 
 rules of the civil law for guidance.^ 
 
 The general principle of liability is thus treated : — Soquis Principle of 
 socio etiam culpoB nomine tenetv/r, id est desidice, atgue negligentice. Eoma/iavv. ^ 
 Cidpa, autem nan ad exactissimam diligentiam dirigenda est ; 
 sujfficit enim talem diligentiam communihos rebus adhibere, qualem 
 suis rebus adhibere solet ; quia qui parum diligentem sibi socium 
 adquirit de se queri debet? Or, as it is otherwise stated, the partner 
 must shew diligentia quam suis rebus adhibere solet, or diligentia 
 quam suis.^ 
 
 Partners, accordingly, are " not always obliged to use that Case of part- 
 middle kind of diligence which prudent men employ in their Son tTthe"^^" 
 
 ordinary rule. 
 
 1 Pooley V. Driver, J Ch. D. 458, at p. nership, 2nd edit. p. 288. 
 
 472 ; 46 L. J. Ch. 466 ; 36 L. T. 79 ; 25 ^ aocietas partnership in the Eoman 
 
 W. R. 162. law is treated in the Institutes, lib. 3, tit. 
 
 2 Vol. i. pp. I el seq. 25 ; Digest, 17, 2 ; Pro Socio, 
 s Pooley V. Driver, S Ch. D. at p. 474. ^ Dig. 17, 2, 72. 
 
 As to light of action, see Parsons, Part- ^ Wharton, Law of Negligence, § 54. 
 
836 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Wot respon- 
 sible for damna 
 faialia. 
 
 The mutual 
 confidence 
 between part- 
 ners deter- 
 mines the 
 amount of 
 care that is 
 to be applied 
 to the partner- 
 ship aSairs. 
 
 own affairs ;'" they are secure if they act in the partnership 
 affairs as they would do in their own, so that if a partner fall 
 into error in management for want of a larger share of prudence 
 andj skill than he was truly master of, he is not liable for the 
 consequences ; for the partners are themselves to blame that they 
 did not make choice of an associate of greater abilities, and can 
 recover only for the consequences of gross faults.'' 
 
 It follows from this, even without specific authority, that 
 partners are not responsible for what the Eoman law calls 
 damTia fatalia — accidents, as, for example, robbery or fire. But 
 a partner is liable for a theft from him as any other bailee would 
 be.' Where, however, the partner is engaged in partnership 
 business, and is thereby exposed to loss, he is entitled to recoup- 
 ment from the partnership funds ; and further, it was the opinion 
 of Julian, which was accepted, that, if a partner sustained injury 
 in defending the partnership goods, the partnership should pay 
 the doctor's bill.* 
 
 These principles of the civil law, having their basis in uni- 
 versal jurisprudence, seem strictly applicable to English law, and 
 have been so applied.^ 
 
 The diligence, then, of the partner is determined most often 
 by the mutual confidence which is the foundation of the contract. 
 If circumstances should interfere with the operation of this, 
 the test would be what Erskine terms " that middle kind of 
 diligence which prudent men employ in their own affairs ; " 
 where the diligence required, that is, is not personal, the test 
 may be referred to the standard of the diligens diligentis. But 
 the case of partnership differs from other cases in this : that 
 the accused partner may discharge himself by shewing that his 
 partnership actions are governed by identical principles with 
 those prevailing in his private business. Qida qui parum diligentem 
 sibi socium adquirit de se queri debet. On the other hand, it may 
 be shewn that the partner charged with negligence is a person of 
 extraordinary skill and care, in which event the lack of the 
 application of the qualities which prompted his selection would 
 warrant holding him liable for his default. 
 
 This is the distinction marked in the Roman law by the 
 
 ^ Erekine's Inst, book iii. tit. iii. 21. 
 ^ Utrum ergo tantum dolum, an etiam 
 prcBstare socium morteat, qiiceri- 
 Et Oelsus libro septimo digestorum 
 jsit; Sodas inter ee dolum et 
 cul^am jircBstare oportet. Si in coewnda 
 societate, inquit, artem operamvepollidtus 
 est alter, vduti cum.pecus in commune 
 pascendvm, aut agrumpolitori damns in 
 commune quarendis fructibus; nimirvm 
 
 ibi etiam prcestanda est; prelium enim 
 opercB artis est velamentvm. Qvod si rei 
 communi socius nocuit, magis admittit cul- 
 pam quoque venire: Dig. 17, 2, 52, § 2. 
 
 ' Dig. 17, 2, 52, § 3. Damna qua 
 imprudentihas acddunt, hoc est damna 
 fatalia, sodi non cogentwr prcestare. 
 
 " Dig. 17, 2, 61. 
 
 ^ Wharton, Law of Negligence, § 740 ; 
 Erskine, book iii, tit. iii. 21. 
 
PART IV.] PARTNERSHIP. 837 
 
 phrases culpa in cancreto, that is, negligence in the individual, 
 opposed to culpa in abstracto, negligence generally, apart from 
 the idiosyncrasies of the individual. 
 
 As regards the outside world, the partners will be liable for the Euie of u^- 
 acts of each other or of the agents of the partnership, on the i-eKia-d to ^ 
 ordinary principles of the law — that is, when acting within the *'"'''' P«i'sous- 
 scope of the partnership affairs or in the interest of the partner- 
 ship.' 
 
 The principle was pithily expressed by James, V.O., in James, v.0.,'3 
 Dundonald (Earl of) v. Masterman,^ " All the profits arising from th™iaw.^° 
 the transaction by him of the plaintiff's business resulted to the 
 firm, and the firm must bear the expense of any miscarriage by 
 him, whether by negligence or dishonesty in the conduct of the 
 business." 
 
 It is not negligence to leave documents in the possession of a 
 co-partner.'' 
 
 DiKECTOES OF COMPANIES. 
 
 The Companies Acts,*" with their various amending and regu- Limited 
 lating Acts," have constituted another species of partnership than companies, 
 that existing at common law, with different relations and respon- 
 sibiHties. 
 
 The business of a company incorporated under the Compa- Managed by 
 nies Acts, either with limited or unlimited liability, is managed """ °^^' 
 by the directors, subject to certain control by a general meet- 
 ing of the shareholders ;° but with the proviso that no regulation 
 made by a general meeting shall invalidate any prior act of the 
 directors which would have been valid if such regulation had not 
 been made.^ 
 
 " Directors," said Jessel, M.E.,' " are really commercial men Definition of 
 managing a trading company for the benefit of themselves and of "^^^ ™^' 
 all the other shareholders in it." It must be borne in mind that, 
 as their powers are the creation of statutes, the sole tests of the 
 
 1 Bayley v. Manoheeter, ShefiSeld, and Bulteel, L. E. 9 Cli. App. 79. 
 
 Lincolnshire Railway Company, L. E. 8 ■* 25 & 26 Vict. c. 89, 30 & 31 Vict. 0. 
 
 C. P. 148 ; 42 L. J. C. P. 78 ; 28 L. T. 131. 
 
 366 ; Bumst!. Poulson, L. E. 8 C. P. 563 ; ^ 33 & 34 Vict. c. 104, 40 & 41 Vict. 
 
 42 L. J. C. P. 302 ; 29 L. T. N. S. 329 ; 22 u. 26, 42 & 43 Vict. c. 76, 43 Vict. c. ig, 
 
 W. E. 20 ; Moreton v. Hadera, 4 B. & C. 46 & 47 Vict. 0. 28, 46 & 47 Viot. c. 30 , 
 
 223, case of partners of a coach liable for 49 Vict. c. 23. 
 
 the negligence of one of their number — ^ 25 & 26 Vict. c. 89, soiled. I., art. 55. 
 
 the wrongdoer in trespass, the co-partners ' Isle of AVight Railway Company »>. 
 
 in case. Steel v. Lester, 3 C. P. D. 121 ; Tahourdin, 25 Ch. D. 320, at p. 331 ; 53 
 
 47 L. J. C. P. 43; 37 L. T. 642; 26 L. J. Ch. 353 ; 50 L. T. 132 ; 32 W. E. 
 
 \V. E. 212, joint interest in a ship. 297. 
 ^ L. E. 7 Eq. 504. ^ In re Forest of Dean Coal Mining 
 
 ^ Cottam V. Eastern Counties Eailway Company, 10 Ch. D. 450, at p. 452 ; 40 
 
 Company, i J. & H. 343 ; Cavander i). L. T. 287 ; 27 W. E. 594. 
 
838 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Directors' 
 liability: 
 
 I. As they 
 act for their 
 company ; 
 
 II. As they 
 act for share- 
 holders. 
 
 I. As they 
 act for their 
 company. 
 
 Position of 
 directors of a 
 company con- 
 sidered by 
 Uairus, Ii.J. 
 
 Hule fixing 
 the liahility 
 for negligence. 
 
 limitations of their action are the statutes by which they are 
 empowered. Thus there is an inaccuracy in describing them by 
 any one term connoting recognized and limited incidents at 
 common law, since they are affected by other principles import- 
 ing other relations ; and it is essential to bear in mind, when 
 using such terms to describe directors under the Companies Acts, 
 "that such expressions are used, not as exhaustive of the powers 
 or regponsibilities of those persons, but only as indicating useful 
 points of view from which they may for the moment and for the 
 particular purpose be considered."' 
 
 Directors' liability may be looked at in two aspects-^I. As 
 they act for the company of which they are directors, as a trading 
 concern, in the prosecution of the purposes of its incorporation ; 
 and, II. As they act on behalf of the shareholders, and have pos- 
 session of assets for distribution amongst the shareholders. 
 
 I. As they act for the company of which they are directors, as 
 a trading concern, in the prosecution of the purpose of its incor- 
 poration. 
 
 In this capacity their position is that of agents at com- 
 mon law, and the company is their principal. This is pointed 
 out by Cairns, L.J., in Ferguson v. Wilson,^ where he says : 
 " What is the position of directors of a public company ? They 
 are mere agents of a company. The company itself cannot act 
 in its own person, for it has no person ; it can only act through 
 directors, and the case is, as regards those directors, merely the 
 ordinary case of principal and agent. Wherever an agent is 
 liable these directors are liable ; where the liability would attach 
 to the principal, and the principal only, the liability is the lia- 
 bility of the cpmpany." 
 
 Such, then, being the rule of liability, the degree of negli- 
 gence that imports liability in the case of directors acting as 
 agents in those matters reasonably necessary for the manage- 
 ment of the company' follows from ascertained rules. A man 
 who acts as director in any matter thereby impKedly under- 
 takes that he has reasonable and ordinary skill fit for the 
 business in which he engages ; and if he fails of this he is 
 liable.* This is well pointed out in the judgment of the Supreme 
 Court of Louisiana as follows^ : — " It is not contemplated that 
 
 1 Per Eowen, L.J., Imperial Hydro- 
 patliio Hotel Company, Blackpool, v. 
 Hampson, 23 Ch. D. i, at p. 12 ; "49 L. T. 
 147 ; 31 W. E. 330. 
 
 =* L. B. 2 Ch. App. 77, at p. 8g. 
 
 ^ Ex parte Booker, 14 Cb. D. 317 ; 49 
 L. J. Cli. 400 ; 42 L. T. 619; 28 W. K. 
 809. 
 
 * Story, Agency, gtli edit. § 184. 
 
 " Percy v. Millaudon, 8 Mart. (La.)68. 
 As to this case Stoiy, J., obsei-ves : " How 
 far similar doctrines will be adopted in 
 courts Bitting under the jurisprudence of 
 the common Jaw remains for future dis- 
 cussion in those courts, as I am not aware 
 that as yet the question has been litigated 
 
PART IV.] PARTNERSHIP. 839 
 
 they [directors] should devote their whole time and attention to 
 the institution to which they are appointed, and guard it from 
 injury by constant superintendence. Other officers, on whom 
 compensation is bestowed for the employment of their time in the 
 affairs of the bank " (company) " have the immediate management. 
 In relation to these officers, the duty of directors is that of con- 
 trol, and the neglect which would render them responsible for 
 not exercising their control properly must depend on circum- 
 stances, and in a great measure be tested by the facts of the 
 case. If nothing has come to their knowledge to awaken sus- 
 picion of the fidelity of the president and cashier, ordinary atten- 
 tion to the affairs of the institution is sufficient. If they become 
 acquainted with any fact calculated to put prudent men on their 
 guard, a degree of care commensurate with the evil to be 
 avoided is required, and a want of that care certainly makes 
 them responsible." ' The standard, then, of duty is that which 
 a business man capable of acting in the particular directorship 
 would be expected to shew. The absence of this Wharton^ 
 terms ctdpa levis — that is, not shewing the diligence a good 
 director should. Brett, L.J., however, in Wilson v. Lord Bury,'' Brett, L.J., 
 describing " the neglect of taking the same care which a person of Lord Bury.' 
 ordinary prudence and skill would take of his own similar affairs," 
 terms it " gross negligence." Here again, then, there recurs the 
 almost inextricable confusion wrought in the endeavour to dis- 
 criminate degrees of negligence. But taking the division of the 
 civil law of negligence into lata and levis, and adopting the view 
 that this division corresponds with the distinction between the lack 
 of diligence of an ordinary person and the lack of diligence of an 
 expert, another ground of confusion suggests itself. In all cases 
 lack of diligence by an expert is not measured by the same 
 standard. But the test of his accoimtabUity varies with the 
 particular pretensions he advances. This we have already seen 
 in the case of physicians and surgeons. The care, then, required 
 to guard against accountability for lack of diligence is not always 
 the same even where it is recognized that the test applicable is 
 that of expert diligence. To discriminate the larger from the 
 lesser degree of accountability, the term crassa mgligentia might 
 
 therein. But there can be little doubt but sense and ordinary attention -would npt 
 
 that these doctrines are just conclusions have fallen into it. The rule which fixes 
 
 from the general law of mandates." The responsibility, because men of unerring 
 
 conclusion of the passage extracted in the sagacity are supposed to exist, and would 
 
 text from the judgment in Pei-cy v. Mil- have been found by the principal, appears 
 
 laiidoni at p. 78, is : "The test of respon- to us essentially erroneous." 
 
 sibility therefore should be, not the cer- ^ Compare United Society of Shakers 
 
 tainty of wisdom in others, but the pos- v. Underwood, 9 Bush. 609. 
 
 session of ordinary knowledge; and by ^ Law of Negligence, § 510. 
 
 shewing that the error of the agent is of = S Q. B. D. 518, at p. 528 ; 50 L. J. 
 
 BO gross a kind that a man of common Q. B. 90 ; 44 L. T. 454 ; 29 W. E. 269, 
 
840 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 J)istmctioii 
 between the 
 liability of a 
 director and 
 the liability 
 of a trustee. 
 
 well be applied, and would signify the neglect of a person of 
 ordinary prudence and skill as distinguished from that other 
 degree of negligence which would affix liability where a special 
 exercise of skill is in any way called for.' 
 
 Admitting this distinction, a director is liable if he do that 
 which a man of ordinary prudence in his own affairs would not 
 do ; but he is not liable if he acts in good faith, and with proper 
 care, and with a reasonable even if not a high degree of skilP — as 
 Lord Hatherley, 0., puts it in Land Company of Ireland v. Lord 
 Fermoy,^ " Whatever may be the case with a trustee, a director 
 cannot be held liable for being defrauded ; to do so would make 
 his position iutolerable." 
 
 In In re Railway and General Light Improvement Company, 
 Marzetti's case,'' both before the Master of the RoUs and in the 
 Court of Appeal, these principles seem to have been adopted by 
 the Court. " Then, it is said," said Jessel, M.E., " he [a director 
 who authorized a payment without inquiry, which proved to be 
 one incurred in fraudulently raising the price of the company's 
 shares in the market] is not liable, because he is an honest man. 
 I have heard nothing against him to shew that there was more 
 than negligence or carelessness on his part, but still he is liable. 
 He is not to pay away other people's money without knowing 
 what he pays it for ; if he does, he must take the consequences."* 
 The Court of Appeal affirmed this decision, and James, L.J., laid 
 down the rule of liability : "A director should not be held liable 
 upon any very strict rules, such as those, in my opinion, too strict 
 rules which were laid down by the Court of Chancery to make 
 unfortunate trustees liable. Directors are not to be made liable 
 on those strict rules which have been applied to trustees ; but 
 they must shew something like reasonable diligence. It would 
 be impossible that any man managing his own affairs would make 
 such a payment as this without any real or effective inquiry." 
 The purpose of this is plainly confined to those cases where 
 directors are acting as agents for the company, and in their rela- 
 tion to the company in their capacity of agents.^ 
 
 ^ Ante, p. 30. 
 
 ^ Hodges V. New England Screw Com- 
 pany, I E. I. 312, cited Bigelow, Leading 
 Cases on the Law of Torts, p. 619. 
 
 3 L. E. s Ch. 763, at p. 772. 
 
 * 42 L. T. 206. The passage iraniedi- 
 Btely following the portion of Jessel, M.E.,'s 
 judgment above as reported would lend 
 countenance to a much severer rule than 
 seems warranted. Jessel, M.E., con- 
 tinues : " 1 cannot treat a director, who is 
 paid for his services, like a, managing 
 ^jarlner, because he is also a trustee, iu 
 
 the same way I should treat an ordinary 
 trustee of a marriage settlement, who acts 
 gratuitously, and is not bonnd to have any 
 special knowledge of the business he un- 
 dertakes to perform." But this must be 
 taken with reference to special and tech- 
 nical knowledge, which is not to be im- 
 plied in the case of a trustee, but is to be 
 in the case of a director. 
 
 ^ Compare Joint Stock Discount Com- 
 pany V. Brown, L. E. 8 Eq. 381. 
 
 * Meux's Executors' case, 2 De G. M. 
 &G. 522. 
 
PART iv.J PAHTNERSHIP, 841 
 
 The distinction taken between the duties of directors as 
 managers of a trading company and those of trustees as managers 
 of a settled estate arises from the different object in view in each 
 case respectively. The funds which form the subject of a settle- 
 ment are intended to be preserved for the benefit of those who 
 may successively become entitled to them. But the funds em- 
 barked in a trading company are to be employed for the acquisi- 
 tion of gain, and risk is of the essence of the employment. 
 Accordingly it is held by Stirling, J.,' to be "settled by such 
 cases as Overend and Gumey Company v. Gibb^ and Turquand 
 V. MarshalP that directors are not to be made liable for loss 
 occasioned by mere imprudence or error of judgment in the 
 exercise of the powers conferred on them." 
 
 II. As they act on behalf of the shareholders as distinguished il. As they 
 from the com^pany, and have possession of assets for distribution shareholders, 
 amongst the shareholders. 
 
 This is touched on by Lord Selborne, C, in Great Eastern Eail- Description 
 way Company v. Turner,'' where he says, " Directors are the mere borne, c. 
 trustees or agents of the company — trustees of the company's 
 money and property ; agents in the transactions which they enter 
 into on behalf of the company." Yet there is a wide distinction 
 between the liability of directors to their shareholders for acts 
 respectively intra and ultra vires. 
 
 If the act charged against the directors is so outside the Acts ultra 
 powers of the company that the company could not sanction the *"'^" 
 outlay, the directors may be made personally liable as trustees,' 
 for then they cannot be justly said to be forwarding the purposes 
 of the common venture, but rather to be misapplying funds with 
 which they are entrusted. 
 
 But if the act charged against the directors is one within the Acts intra 
 powers of the company, then they are not liable, unless it is of""' 
 " a character so plain, so manifest, and so simple of appreciation 
 that no men with any ordinary degree of prudence acting on their 
 own behalf would have entered into such a transaction as they 
 entered into,"° 
 
 In Flitcroft's case' the principal ground of decision was, indeed, PHtoroft's 
 
 case, 
 
 ' Leeds Estate Building and Invest- 48 ; 59 L. T. 918 ; Land Credit Company 
 
 ment Company v. Shepherd, 36 Ch. D. of Ireland v. Lord Fermoy, L. B. 8 Eq. 7, 
 
 787, at p. 798; 57 L.J. Ch. 46; 57 L. T. L. R. 5 Ch. 763; Grimes v. Harrison, 
 
 684 ; 36 W. R. 322. 26 Beav.435. 
 
 - L. R. 5 H. of L. 480 ; 42 L. J. Ch. 67. * Overend and Gurney Company v. 
 
 » L. K. 4 Ch. 376; 38 L. J. Ch. 363; Gibb, L. R. 5 H. of L. 480, 486; Joint 
 
 20 L. T. N. S. 766. Stock Discount Company w. Brown, L. R. 
 
 ^ L. E. 8 Ch. App. 149; 42 L. J. Ch. 8 Eq. 381 ; Turquand v, Marshall, L. R. 
 
 83 ; 27 L. T. N. S. 697 ; 21 W. K. 163. 4 Ch. 370. 
 
 ^ Jn re Faure Electric Accumulator ' 21 Ch. D. 519 ; 52 L. J. Cb. 317 ; 48 
 
 Company, 40 Ch. D. 141 ; 58 L. J. Ch. L. T. 86 ; 31 W. E. 174. 
 
842 
 
 THE LA:W of negligence. 
 
 [book II. 
 
 Summary of 
 the law by 
 Kay, J. 
 
 lialrillty of 
 directors 
 under the 
 analogy of 
 trustees. 
 
 that payments had been made of dividends out of capital, and 
 that sitch payments were ultra vires, and so affected the directors 
 with a liability that shareholders as a body could not assume to 
 themselves. But the principle was also involved that the act of 
 the directors was a breach of trust against which the protection 
 of the Statute of Limitations was unavailing ; and that case may 
 be cited as shewing that a different rule is to be applied to the 
 acts of the directors as agents for carrying out the purposes of 
 the incorporation with the outside world and the acts of the 
 directors as between them and the shareholders as depositaries of 
 the realized property of the concern. 
 
 Kay, J.,' has recently held that it is settled by authorities — - 
 
 1 . That directors are gwossi-trustees of the capital of the com- 
 pany. 
 
 2. That directors who improperly pay dividends out of capital 
 are liable to repay such dividends personally upon the company 
 being wound up.'' 
 
 To this head must also be referred those cases, as described by 
 Cairns, L.J.,'* "where a shareholder files a bill agaiust the com- 
 pany and against the directors, treating the directors as his 
 trustees, which in point of law they are, and seeking redress 
 against them for a breach of trust." In that case the share- 
 holders in fact allege " that the company has done no wrong 
 whatever ; that it is the executive which has committed the wrong; 
 and they — the shareholders — file the bill to protect, as it were, the 
 company from the unlawful acts of the directors. There the 
 directors, being in the position of trustees, are of course liable."'' 
 
 The Uabihty of directors under the analogy of trustees has 
 been summarized by a book of authority' under, amongst others, 
 the following heads : — 
 
 1. Those directors are Uable who — 
 
 (i) are directly implicated in the wrongful act ; 
 
 (2) have notice of it, and do not interfere to prevent it.° 
 
 2. Those directors who join the board after the commis- 
 sion of a breach of trust (if at all liable, which is a point 
 
 ^ In re Oxford Benefit Building and 
 Investment Society, 35 Cli. D. 502, at p. 
 
 509- 
 
 2 Evans v. Coventry, 8 D. M. & G. 
 835 ; Salisbury ». Metropolitan Railway 
 Company, 22 L. T. N. S. 839 ; In re 
 National Funds' Assurance Company, 10 
 Ch. D. 118 ; 48 L. J. Ch. 163 ; 39 L. T. 
 420 ; 27 W. E. 302 ; Flitcroft's case, 21 
 Oh. D. S19. 
 
 3 Terguson «. Wilson, L. E. 2 Ch. 77, 
 at p. 90. 
 
 * Compare German Mining Company, 
 
 Ex parte Chippendale, 4 D. M. & G. 19 
 52; Bennett's case, 5 D. M. & G. 284, 294 ; 
 Madrid Bank v. Belly, L. E. 7 Eq. 442 ; 
 Ex parte Williams, L. E. 2 Eq. 216 ; 
 Parker v. M'Kenua, L. E. 10 Ch. 96 ; 
 44 L. J. Ch. 425 ; 31 L. T. N. S. 739 ; 
 23 W. E. 271 i Gilbert's case, L. E. 5 
 Ch. 559 ; Sykes's case, L. E. 13 Eq. 255 ; 
 Charitable Corporation o. Sutton, 2 Atk. 
 400. 
 
 ^ Healey, Law and Practice of Joint 
 Stock Companies, 2nd edit. p. 132. 
 
 " In re Grant, 7 Moo. P. C. 0. 141. 
 
PART IV.] PARTNERSHIP. 843 
 
 unsettled) are only liable for the extra loss occasioned by their 
 inaction.^ 
 
 3. Those directors who have no notice of breach of trust are 
 not liable for the acts of their co-directors.^ 
 
 Chitty, J., in treating of this, points out the distinction Distinctiou 
 between the acts of the directors when they are acting on behalf ac'rof direo- 
 of the company with regard to third persons and when they are J°^^ acting ou 
 acting for the shareholders in a fiduciary capacity. ' ' A pro- company with 
 spectus," he says, "purports to be issued by all the directors ptfsons and "^ 
 whose names appear on the face of it ; and it may well be that J^ tUsh^ 
 an ignorant director who has not really been personally engaged iiolders in a 
 in issuing the prospectus is bound on the ground of its ratifi- capaoit;^ 
 cation ; and such ratification may, when circumstances justify it, 
 be inferred from his abstaining from taking any steps to inform 
 the public that he was not a party to issuing the prospectus. 
 But the report of directors at a general meeting is issued under 
 the powers of the articles, and is generally, as it certainly was 
 here, made by the Board acting as such. The shareholders in 
 this company knew, or must be deemed to have known, the 
 provisions of the articles that two directors were to be a quorum, 
 and therefore they were not justified, in my opinion, in accepting 
 the report as the act of all the directors." Thus the directors' 
 liability as trustees is, from this point of view, not only narrower 
 than that of a private trustee, but narrower than the liability of 
 the directors as agents ; for they are only liable according to the 
 articles of association, which circumscribe what would otherwise 
 be the general liability of trustees, while their liability as agents 
 is fixed by the incidents the common law attaches in the case of 
 dealing with third persons. 
 
 4. Those directors who are jointly implicated for a breach of Joint and 
 trust are, as a rule, jointly and severally liable for it ; but if the lability of 
 results are separable, then each is liable for his own acts and directors. 
 defaults alone.^ But it has been held that directors are not 
 
 liable for nonfeasance in omitting to take proceedings to enforce 
 a claim belonging to the company,^ though to render them liable 
 
 ' Tuvquand v- Marshall, L. E. 4 Cli. 23 "W. R. 271 ; Madrid Bank v. Pelly, 
 
 376 ; 38 L. .J. Ch. 363 ; 20 L. T. N. S. L. E. 7 Eq. 442 ; In re Englefield Col- 
 
 766 ; In re Forest of i3ean Coal Mining liery, 8 Ch. D. 388 ; 38 L. T. 112; In, re 
 
 Company, loCh. D. 450. Compare Board- Carriage Co-operative Supply Association, 
 
 man v. Mosman, i Bro. C. C. 68 ; AValker 27 Ch. D. 322 ; 53 L. J. Ch. 1154; 51 
 
 V. Symonds, 3 Swan. I, at p. 41. L. T. 286 ; 33 AV. E. 411 ; In re Lon- 
 
 - In re Denliam & Co., 25 Cb.i). 752; don and Provincial Starch Company, 20 
 
 In re Montrotier Asphalte Company, li. T. N. S. 390, as to joint and several 
 
 Perry'.9 CMse, 34 L. T. K S. 716 ; Town- liability. 
 
 ley V. Shei'borni'i 2 White & Tudor Lead. ^ In re Forest of Dean Cnal Mining 
 
 Cas. Eq. 6th edit. pp. 960, 1018. Company, 10 Ch. 1). 450 ; 40 L. T. 287 ; 
 
 ^ Parker v. JI'Kenna, L. \i. 10 Ch. 96 ; 27 W. E. 594 ; In re Wedgwood Coal 
 
 44 L. J. Ch. 425 ; 31 L. T N. S. 739 ; and Iron Company, 47 L. T. 612. 
 
sa 
 
 THE LAW OF NEGLIGENCE. 
 
 [book ll. 
 
 Neglect to 
 comply with 
 the require- 
 ments of the 
 CompanieB 
 Act. 
 
 it is not necessary that they should derive benefit from the 
 transaction complained of.' 
 
 Directors or officers of a joint stock company who neglect to 
 comply with the requirement of the Companies Act," which re- 
 quires mortgages and charges on the property of the company to 
 be registered, cannot set up their unregistered securities against 
 the general creditors of the company, but the security itself is 
 not made void by this neglect to comply with the Act.^ Share- 
 holders, however, are not affected by the neglect of the company 
 to effect registration;* nor yet are directors, if they have in- 
 structed the secretary of the company to make the entry;' nor 
 assignees of directors ;" nor partners who are mortgagees when 
 all are not officers of the company;' and where a mortgagee has 
 realized his security before the winding up he cannot be compelled 
 to refund,* 
 
 ^ In re British Gruardian Life Assurance 
 Company, 14 Ch. D. 335 ; 49 L. J. Ch. 
 446 ; 28 W. R. 945. The duties of au 
 auditor, and also of the secretary and 
 manager of a company, under the Limited 
 Liability Acts, are considered by Stirling, 
 J., Leeds Estate Building and Investment 
 Company v. Shepherd, 36 Ch. D. 787 ; 57 
 L. J. Ch. 45 ; 57 L. T. 684 ; 36 W. E. 
 322. 
 
 " 33 & 34 Vict. c. 104, B. 43. 
 
 ^ In re Native Iron Ore Company, 2 
 Cb.' D. 345 ; 45 L. J. Ch. 517 ; 34 L. T. 
 N. S. 777 ; 24 W. E. 503 ; In re Globe 
 
 New Patent Iron and Steel Company, 48 
 L. J. Ch. 29s ; 40 L, T. 580 ; 27 W. B. 
 424. 
 
 * In re General South Amencan Com- 
 pany, 2 Ch. D. 337 ; 34 L. T. 706 ; 24 
 W. E. 891. 
 
 ^ In re Borough of Hackney Newspaper 
 Company, 3 Ch. D. 669. 
 
 * In re International Paper Company, 
 6 Ch. D. 556 ; 46 L. J. Ch. 625 ; 37 L. T, 
 35 1 ; 25 W. B. 822. 
 
 ' In re South Durham Iron Company, 
 1 1 Ch. D J79 ; 48 L. J. Ch. 480 ; 40 L. T. 
 572 ; 27 W. E. 845. 
 
CHAPTER II. 
 
 TRUSTEES AND EXECUTORS. 
 
 The liability for negligence of trustees and of executors may 
 conTeniently be treated together. 
 
 A trustee has been defined as " a person in whom some estate, Definition of 
 interest, or power in or affecting property of any description is ™^ *°" ' 
 vested for the benefit of another."' 
 
 An executor, as defined by Blackstone,^ is " one to whom Definition of 
 another man commits, by his last will, the execution of that last ®''®''" °'' 
 will and testament." Hence it would appear that trustee is the 
 genVjS of which executor is the species. 
 
 Certain differences there are between executors and trustees. Distinction 
 such, for instance, as the executor's power of retainer,' which is poa]l[io^of ° 
 an implied power, and not inserted in the instrument from which trustees and 
 
 t • \ • t • 1 1 1 ■ 1 11*''^ position 
 
 he derives his authonty ; or the legal presumption that all of executors. 
 trustees are liable to account for moneys paid to the trust, while 
 only those executors are presumed liable who are shewn to have 
 acted in any matter ;* that one trustee can, and one executor 
 cannot, primd facie, give a discharge ;' or flowing from the com- 
 paratively limited scope within which the executor's powers are 
 to be exercised from the historic circumstances of their origin ; 
 but the points of difference are minute, while those of identity 
 between the position of trustees and executors are constantly to 
 be insisted on. 
 
 The most general principle to which questions of a trustee's General 
 liability are to be referred is stated by Jessel, M.R., in the Court of'Stee's 
 of Appeal, in Speight v. Gaunt,' " that a trustee ought to con- liability, 
 duct the business of the trust in the same manner that an ordi- 
 
 ' Bonvier's Law Dictionary, suh nom. App. 433 ; 38 L. J. Ch. 183 ; 20 L. T. 
 
 2 2 Black. Comm. 503. N. S. 467. 
 
 ' 2 WilliamB, Executors, 8th edit. p. " 22 Ch. D. 727, at p. 739 ; 52 L. J. Ch. 
 
 1043. 503 ; 48 L. T. 279 ; 31 W. R. 401. See 
 
 ■• Brice v. Stokes, 11 Ves. 319; Hovey per Lord Blackburn in the same case in 
 
 V. Blakeman, 4 Ves. 608. the House of Lords, 9 App. Gas. i, at 
 
 5 Walker v. Symonds, 3 Swan. 1 ; p. 19 1 S3 L. J. Ch. 419 ; 50 L. T. 330 ; 
 
 Charltou v. Lord Darham, L. K. 4 Ch. 32 W, B. 435. 
 
846 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Contention 
 tbat the lia- 
 bility of a 
 gratuitous 
 trustee must 
 be tested by 
 the degree of 
 care and pru- 
 dence he uses 
 in the manage- 
 nient of his 
 own private 
 affairs. 
 
 Trustee not 
 bound to 
 specialty 
 diligence. 
 
 nary prudent tnan of business would conduct Ms own, and that 
 beyond that there is no liability or obligation on the trustee. In 
 other words, a trustee is not bound, because he is a trustee, to 
 conduct business in other than the ordinary and usual way in 
 which similar business is conducted by mankind in transactions 
 of their own. It never could be reasonable to make a trustee 
 adopt further and better precautions than an ordinary prudent 
 man of business would adopt to conduct the business in any 
 other way. If it were otherwise, no one would be a trustee at 
 all. He is not paid for it. He says, ' I take all reasonable 
 precautions, and the precautions that are deemed reasonable by 
 prudent men of business, and beyond that I am not required 
 togo.'"' 
 
 The opinion has been adventured that the liability of a 
 gratuitous trustee must (apart from any special dispensation by 
 the trustee) be tested by reference, not to an average standard, 
 but to the degree of care and prudence which he uses in the 
 management of his own private affairs. Wharton^ appears to 
 regard this as emanating from " the scholastic jurists and those 
 that follow them ; " when, however, it came to be argued in a 
 Scotch case in the House of Lords,' Lord Watson'' said such 
 " a rule, which is quite new to me, would be highly inconvenient 
 in practice. In every case where neglect of duty is imputed to 
 a body of trustees it would necessitate an exhaustive inquiry into 
 the private transactions of each individual member, the interest 
 of the trustee being to shew that he was a stupid fellow, careless 
 in money matters, and that of his opponents to prove that he 
 was a man of superior intelligence and exceptional shrewdness." 
 
 "There is a further distinction^ between people of the class 
 we are now considering and skilled labourers, since the skilled 
 labourer is required to be expert in his specialty, but a trustee 
 is only expected to be a good business man in general, with 
 judgment to select those who must act for him in matters 
 requiring special faculties. 
 
 There is also another limitation to be regarded when consider- 
 
 Chancellor, Learoyd w. Whiteley, i2App. 
 Cas. 727, at p. 732 ; nor whether the trust 
 is voluntary or for valuable consideration : 
 Drosier v. Bfereton, ij Beav. 221 ; nor 
 whether tliose assuming to act as trustees 
 are such in reality or not : Eackham v. 
 Siddall, 16 Sim. 297 ; nor whether the 
 cestui que trv^t is known or unknown: 
 Ex parte Norris, L. R. 4 Ch. 280. 
 
 ^ Law of Negligence, § 516. 
 
 ^ Knox V. Mackinnon, 13 App. Cas. 
 
 753- 
 * At p. 767. 
 ° Wharton, Law of Negligence, § 515. 
 
 ^ "There is one clear, homely, intelli- 
 gible, but inflexible rule, which has never 
 been departed from in times ancient or 
 modern — ^viz., that a trustee is bound to 
 act in the execution of his trust as a pru- 
 dent man would in dealing with his own 
 property": per Bacon, V.C., Smethurst 
 V. Jdastings, 30 Ch. D. 490, at p. 498 ; 
 and there is no difference in degree of 
 care, in regard to the conduct of the busi- 
 ness of a trust, according to whether there 
 are persons to take in the future, or 
 whether the trust fund is to be created for 
 one beneficiary absolutely ; per the Lord 
 
PABTiv.] TRUSTEES AND EXECUTORS. 847 
 
 ing tlie range within which a trustee is to act. He must not do Traetee not 
 
 acts other than those which the terms of his trust permit, though act beyond ° 
 
 they may be such as would be done by an ordinary prudent man f]^ *f '"^ °' 
 
 of business or advised by a specialist.' Yet, on the other hand, 
 
 when there is a usual course of business and the following it is May follow 
 
 within the trustee's powers, he is justified in following it, though of busi^nesa, 
 
 there may be some risk that the property dealt with may be lost by 
 
 the dishonesty or insolvency of an agent employed in due course." 
 
 It results from the nature of a trustee's liability — from the 
 
 fact that his diligence is to be that of a good business man and 
 
 not that of a specialist — that he is authorized to employ, in the 
 
 conduct of any business of the trust which requires the exercise 
 
 of special knowledge or faculties, those who are of competent 
 
 skill, whenever such employment is according to the usual course 
 
 of business ; though, since the duty he has undertaken involves 
 
 discretion, he cannot shift the responsibility upon any other 
 
 person.' 
 
 In any event, then, he is boiind to use his own skill and Bound to use 
 judgment, and may not rest upon the untested advice of those and judgment. 
 whose assistance he has invoked, whatever their skill may 
 be. If the trustee chooses to place reliance upon such advice 
 without the means of testing its soundness, in an untoward event 
 he cannot escape personal liability unless he can shew that 
 the circumstances are such as would have justified a trustee of 
 ordinary prudence, and fully informed on the character of the 
 proposed transaction, in concluding it.** 
 
 If, on the other hand, the trustee uses what means of judgment 
 he has to test the advice of the skilled person to whom he has 
 referred any business, then in the event of an unfavourable issue 
 he will be protected ; * but he must not abdicate the exercise of 
 his own judgment by an implicit reliance on the reports of his 
 agents, however qualified they may be." Neither must he employ 
 an unskilful agent, or even a skilful agent in circumstances that 
 are not within the ordinary line of his business. " Suppose," 
 says Kay, J.,' " that, in selling trust property or changing an 
 
 1 Billing V. Brogder, 38 Ch. D. 546 ; as agent, he ceases to be a mere agent, 
 
 59 L. T. 650 ; 37 W. R. 84. and will be liable as a trustee : Morgan v. 
 
 - Ex parte Bolchier, per Lord Hard- Stephens, 3 Giff. 226 ; Archer v, Laven- 
 
 wicke, Amb. 218 ; Speight v. Gaunt, 9 der, Ir. E. gEq. 220. 
 
 App Cas. I ; Magnus v. Queensland * Learoyd v. Whileley, 12 App. Gas. 
 
 National Bank, 36 Ch. D. 25 ; 37 Ch. D. 727 ; 57 L. J. Ch. 390 ; 58 L. T. 93 ; 
 
 466 ; 57 L. J. Ch. 413 ; 58 L. T. 748 ; 36 W. E. 721 ; Sutton v. Wilders, L. E. 
 
 36 W. E. 577. 12 Eq. 373 ; 41 L. J. Ch. 30; 25 L. T. 
 
 3 Turner v. Corney, 5 Beav. 515; N. S. 292 ; 19 W. E. 1021. 
 
 Adams v. Clifton, i Euss. 297 ; Chambers ^ Speight k. Gaunt, 9 App. Cas. i, 
 
 V. Minchin, 7 Ves. 186 ; Langfordu. Gas- " Learoyd w.Whiteley, 12 App. Cas. 727. 
 
 coyne, 1 1 Ves. 333 ; though where an ' Fry r. Tapson, 28 Ch. D. 268, at p. 
 
 agent obtains possession of trust funds and 280; 54 L. J. Ch. 224; 51 L. T. 326; 
 
 acts not in strict conformity with bis duty 33 W. E. 113. 
 
848 THE LAW OF NEGLIGENCE. [book ii. 
 
 investmentj trustees were to allow the trust fund to pass into the 
 hands of their solicitors, and that it was lost in consequence, they 
 
 would he liable It would be no excuse to say, as one of 
 
 the witnesses said in this case, ' Solicitors often do so.' The 
 question is not what they often do, but what is properly within 
 the scope of their employment as solicitors."' No stronger case, 
 however, could be given of this limitation of the rule — ^that 
 trustees acting according to the ordinary course of business, and 
 employing agents as a prudent man of business would do on his 
 own behalf, are not liable for the default of an agent so employed 
 — than the case cited in the course of this judgment by Kay, J., 
 where trustees were held liable for taking a competent London 
 surveyor to value property at Broadstairs,^ on the ground that, 
 though competent, he was unacquainted with the place. 
 
 It is not in every case that the propriety of employing an agent' 
 
 can be established ; yet this is the first step for the exoneration 
 
 of the trustee. Courts of equity then stepped in, and held that 
 
 the trustee should be exonerated from loss unless guilty of wilful 
 
 default. 
 
 22 & 23 Vict. The Act 22 & 23 Vict. c. 35, s. 31, gave statutory sanction 
 
 "■ ^^' ^' ^'' to this rule in the case of " any banker, broker, or other person 
 
 Effect stated with whom trust-moneys have been deposited." The effect of 
 
 Seiborne, 0. this enactment is stated by Lord Selborne, C.,"* to be that " it 
 
 does not substantially alter the law as it was administered in 
 
 courts of equity, but gives it the authority and force of statute 
 
 law, and appears to me to throw the ontis probandi on those who 
 
 seek to charge an executor or trustee with a loss arising from the 
 
 default of an agent when the propriety of employing an agent 
 
 has been established." 
 
 Trustee's We have seen^ that a trustee is not accountable for property 
 
 accountability . r r j 
 
 for property rightly m the hands of an agent when the Court has come 
 
 hands'o™ * to the couclusion that there was reason for the employment 
 
 agent. gf g^^ agent." But 'this ground of exoneration altogether depends 
 
 on the reasonableness of the action of the trustee. A comparison 
 
 1 This case put by Kay, J. , is very like possession of the trust funds and acta other- 
 the Scotch case of Knox v. Maokinnon, wise than in strict conformity with his duty 
 13 App. Cas. 753 ; see per Lord Watson as agent, he thereby charges himself as 
 at p. 767. trastee: Lee v. Sankey, L. E. 15 Eq. 
 
 2 Bridge v. Gummow, L. E. 7 Ch. App. 204, per Bacon, V.C. ; 27 L. T. N. S. 809 ; 
 719. 21 W. E. 286. 
 
 » So long as the agent acts merely as ^ Brier «. Evison, 26 Ch. D. 238 ; 51 
 
 agent, generally speaking he cannot be L. T. 133 ; 33 W. E. 20. 
 
 held liable as constructive trustee unless ^ Ante, p. 847. 
 
 he assist with knowledge in a dishonest " Edmonds v. Feake, 7 Beav.- 239, the 
 
 and fraudulent design on the part of the case of an auctioneer ; In re Bird, L. E. 
 
 trustees : Barnes v. Addy, L. E. 9 Ch. 16 Eq. 203, the case of money sent to a 
 
 App. 244, per Lord Selborne, C. ; 43 solicitor to make a payment, which was 
 
 L. J. Ch. 513 ; 30 L. T. N. S. 4 ; 22 misappropriated. 
 AV. E. 505 ; but where the agent obtains 
 
PART IV.] TRUSTEES AND EXECUTORS. 849 
 
 of tlie cases of Olougli v. Bond' and Johnson v. Newton^ will mark ciough v. 
 both the limits and the reason of the rule. In the former case, ■^™^- 
 on the death of an intestate administration was granted to her 
 son and daughter, who was married. The assets were paid into 
 a banking account in the name of the daughter's husband and the 
 son. Seven months after, the husband died ; and ten months after 
 that, the son drew out the balance, applied it to his own use, and 
 absconded. On appeal, the Lord Chancellor affirmed the Vice- 
 Chancellor, and held that the personal representatives of the husband 
 were liable, because he had deposited the money in the two names, 
 and thus excluded his wife from ever having control — a mode of 
 deposit by which, without necessity, exclusive possession was likely 
 to vest in a person not entitled to it ; and when the money was 
 thereby lost the impropriety of so placing the money worked a 
 liability against the estate of those to whom it was imputable.^ 
 The Lord Chancellor expressed the general principle, " that, judgment of 
 although a personal representative acting strictly within the chancellor 
 line of his duty, and exercising reasonable care and diligence, 
 will not be responsible for the failure or depreciation of the 
 fund in which any part of the estate may be invested, or for the 
 insolvency or misconduct of any person who may have possessed 
 it ; yet, if that line of duty be not strictly pursued, and part 
 of the property be invested by such personal representative in 
 funds or upon securities not authorized, or put within the control 
 of persons who ought not to be entrusted with it, and a loss be 
 thereby eventually sustained, such personal representative will be 
 liable to make it good, however unexpected the result, however 
 little likely to arise from the course adopted, and however free 
 such conduct may have been from any improper motive."" " So 
 when the loss arises from the dishonesty or failure of any one to 
 whom the possession of part of the estate has been entrusted, neces- 
 sity, which includes the regular course of business in administering 
 the property, will in equity exonerate the personal representative. 
 But if without such necessity he be instrumental in giving, to 
 the person failing, possession of any part of the property, he 
 
 ' 3 My. & C. 490. co-trustee. Mendes v. Guedalla, 2 J. & IT- 
 
 " II Hare 160. 259 ; Lewie v. Nobbs, 8 Ch. D. 591 ; 47 
 
 2 Salway v. Salway, 2 Euss. & My. L, J. Ch. 662 : Clough v. Bond, 3 My. & 
 
 215; in the House of Lords, svh nom. Cr. 490. Cnmpare Kilbee v. Sneyd, 2 
 
 White V. Baugh, 9 Bligh 181, is the con- Moll. 186. As to a possible difference in 
 
 Terse case, where the House of Lords, the case of an executor from a trustee, see 
 
 aiBrming Lord Brougham and overruling Pemberton?;. Chapman, El. Bl. & El. 1056; 
 
 Sir John Leach, M.R., held that in the 27 L. .L Q.B. 429 ; hnt qniere, would not 
 
 event of loss a trustee will be liable who the providing for drawing cheques sinr/?;/ by 
 
 parts with his excltisive control of trust either executor be an act of negligence ? 
 
 t'imds by associating with himself some Consterdinei;. Consterdine, 31 Beav. 330. 
 other person not a member of the trust, op * Phillips v. Pliillips, Frcem. Ch. 1 1 
 
 leaves funds in the exclusive control of a Eep. ten.p. Finch, 410 ; i Ch. Cas. 292. 
 
 3H 
 
850 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Johnson v, 
 Newton. 
 
 will be liable although the person possessing it be a co-executor 
 or co-administrator."' 
 
 Johnson v. Newton'' was the case of executors maintaining 
 a balance of more than ;^2000 at a bank nine months after 
 their testator's death, of which sum more than ;£^iooo was lost 
 to the estate by the bankruptcy of the bankers. The Master, 
 on a reference, held that it was not necessary to retain the 
 balance or any part of it at the banker's ; but the Vice-Ohancellor' 
 held the executors not liable for the loss, since there was a rule 
 of laiw that allowed them a year to wind up their testator's estate,* 
 while there were no directions to invest the balance of the estate, 
 failing which, had they done so, they would have been liable to 
 the residuary legatee for any loss on a re-sale. "The executors 
 are no doubt bound to exercise their judgment on the safety of 
 the place of deposit, whether it be that which the testator had 
 in his lifetime chosen or whether it be selected by themselves ; 
 and when a loss unfortunately happeas, the question must always 
 be how far the executors must be held to be answerable under 
 the circumstances of the case. 
 
 Matthews v. Brice,' before Lord Langdale, M.E., illustrates 
 the rule in both its aspects in regard to trustees. A trustee was 
 there held properly to have invested trust-money in Exchequer 
 bills pending necessary delay in the completion of a mortgage, 
 but was held personally liable for having left them in the hands 
 of a broker who misapplied them." 
 Money lost by But if a trustee pays money to his own account with a banker, 
 tniet^e's'oivn and it is lost, he is personally liable,' even in cases where it would 
 account. have been equally lost had it been placed to a separate account; 
 
 for by so doing, in the event of his bankruptcy^ it would go to 
 the credit of his estate, and if the bankers had any account with 
 him for set-off they could claim the cestui que trust's fands.' 
 And though trust funds may be kept in a separate account, 
 yet if they are left standing at the bank too long, and are 
 thereby lost, the trustee becomes personally liable. Where to 
 draw the line between proper and improper detention is, as is 
 
 Matthews v. 
 Slice. 
 
 1 Langford v. Gascoyne, 1 1 Ves. 333 ; 
 Sbipl)rpok V. Hinohinljrook, 11 Ves. 252, 
 16 Ves. 477; Underwood v. Stevens, i 
 Mer. 712. The reporter in 3 My. & C. at 
 p. 497, adds : " See Hanbury v. Eirkland, 
 3 Sim. 265," 
 ' 2 II Hare l6o. 
 
 3 Page Wood. 
 
 " Brooke V. Lewis, 6 Madd. 358. 
 
 5 6 Beav. 239. 
 
 " Lunham v. Blundell, 4 Jur. N. S. 3 ; 
 Wilkinson v. Bewick, 4 Jur. N. S. loio. 
 
 7 It is a well-eBtablislied doctrine oftbe 
 
 Court of Chancery that if a tmsteo or 
 agent mixes and confuses the .property 
 which he holds in a fiduciary character 
 with his own property, he is, prima fade, 
 liable for the whole, and the omts will 
 consequently be on him to discriminate : 
 Luptoni). White, 15 Ves. 432; Cook v, 
 Addison, L. E. 7 Eq. 466. 
 
 ^ Wren v. Kirton, 11 Ves. 377. As to 
 following trust-money, see In re Hallett's 
 Estate, t3 Ch. D. 696, especially the 
 judgment of Jessel, M.B. 
 
PABTiv.] TRUSTEES AND EXECUTOES. 851 
 
 observed by Kay, J./ " extremely difficult " to determine. But 
 
 it was held by that learned judge, where ;^S00 was left in a 
 
 bank for fourteen months while trustees looked for a mortgage, 
 
 at the end of which time the bank failed, " that leaving that 
 
 money in the bank for fourteen months was leaving it there too 
 
 long," and the trustees were held personally responsible. 
 
 , " There has been no case referred to," says Bacon, V.C, in Trustee not 
 
 Toude V Cloud," " and, according to my experience, my belief is periomanoe'^" 
 
 that no case can be found, in which a trustee, however formallv of » trust of 
 
 , ; ••' -wnioli he was 
 
 lie may have been appointed, however extensive may have been iguorant. 
 the powers that were conferred upon him, has been held liable 
 for the non-performance of a trust of which he was ignorant ; 
 arid I should be very much surprised to find that any such case 
 had ever occurred, or thaJt any such decision had ever been pro- 
 nounced against a trustee in such circumstances." Where there 
 are partners, one of whom is a trustee who brings trust-moneys 
 into the firm's assets with the knowledge of the others, which is 
 misapplied, the Court holds them all liable as trustees.^ 
 
 Having thus considered the general principles of trustees' 
 accountability, we are now to treat of more special applications, 
 and — 
 
 I. As to the position of a trustee with regard to the custody i. Custody 
 
 ™ . . _, of trust pro- 
 
 of trust property. perty. 
 
 It was laid down in Crosse v. Smith'' that an executor is liable 
 at law for the loss of his testator's assets when they have once 
 come into his hands. The rule of equity was, however, always variance 
 otherwise, and is thus stated by Lord Hardwicke^ :— " If a trustee ^l^^^ ^^ 
 is robbed, that robbery properly proved shall be a discharge, and chancery 
 provided he keeps them [the trust property] so as he would keep 
 his own. So it is as to an executor or administrator, who is not 
 to be chargeable further than goods come to his hands ; and for 
 these not to be charged unless guilty of a devastavit ; and if 
 robbed, and he could not avoid it, he is not to be charged, at 
 least in this court." By force of the Judicature Act, 1873,° Effect of 
 which provides that, where there is a conflict between the rules ^"t''^**"^*° 
 of equity and the rules of law, the rules of equity are to prevail, 
 the law may be now taken as settled that an executor or adminis- 
 trator or trustee is in the position of a gratuitous bailee, who 
 cannot be charged with the loss of his testator's assets without 
 wilful default ;' and if any goods are stolen from the possession 
 
 1 Cann v. Cann, Ji L. T. N. S. 770. * 36 & 37 Vict. c. 66, s. 25, sub-s. 11. 
 
 2 L. E. 18 Eq 634, at p. 642. '' Job v. Job, 6 CL. D. 562 ; 26 W. E. 
 ' Eager ». Barnes, 31 Beav. 579. 206; Mayer u. Murray, 8 Ch. D. 424. As 
 4 J East 246. t" wilful default, see Lewin, Trusts, gth 
 ° Jones V. Lewis, 2 Ves. Sen, 240, 241. edit. pp. 904, 921. 
 
852 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Neglect of 
 trustee to 
 
 Suggested 
 distinction. 
 
 Trustees are 
 liable who pay 
 over funds on 
 a forged 
 authority. 
 
 of any of the class of persons whose liability we are now con- 
 sidering, or from the possession of a third person to whose 
 custody they have been delivered by any person affected with a 
 trust of them, or are lost by casualty, as by accidental fire, the 
 person so affected with a trust of them shall not be charged with 
 their loss.' 
 
 There is a decision of Alderson, B.,^ that an executor is not 
 liable for neglect to insure when a fire happens and destroys 
 his testator's property, which is cited as laying down the law on 
 this point f but on examination it will be seen that there a 
 business was in the possession of two persons as partners, and 
 on the death of the one the insurance was not renewed, the other 
 being interested in the matter of the insurance, and not renewing it. 
 This was treated by Alderson, B., as "a material circumstance." 
 " It would be a strong thing to say," he adds " (he as a reason- 
 able man, and taking reasonable cai'e of his own property, not 
 doing it) — it would be a strong thing to say that these parties 
 were guilty of wilful default in omitting to do what Barlow himself 
 [the surviving partner] might have done," and on this ground he 
 decided the case. 
 
 There are, however, other authorities, though, it is true, 
 upon life and not fire policies, which hold that an executor 
 or trustee dropping a policy would be liable to the bene- 
 ficiaries.'' The question seems really to turn on what, in the 
 existing state of opinion, and with reference to modes of life, 
 would be held a reasonable thing to do ; and whatever might 
 have been the case in the year 1 840, it would be a hard saying 
 that at the present day, and with the immensely diminished rate 
 of insurance, a prudent business man would not insure his 
 property. 
 
 Where, however, trustees are guilty of breach of trust, each 
 trustee is responsible for the whole loss, and execution may be 
 issued against any one of them singly.' 
 
 Lord Eomilly, M.R., held" trustees liable who had paid over 
 trust funds on the faith of a marriage certificate that proved to 
 be forged, on the ground that trustees were bound to pay over 
 
 ^ Croft «. Lyndsay, Freem. Ch. i. 
 
 " Bailey v. Goultl, 4 Y. & C. 221. See 
 F17 V. Fry, 27 Beav. 146. Ex parte An- 
 drews, 2 Eose 410, and Dobson v. Land, 8 
 Hare 216, are cited for the general pro- 
 position, but they seem very special in 
 their facts. 
 
 ' E.g., 2 Williams, Executors, 8th edit. 
 1815, note Qi). 
 
 * Garner v. Moore, 24 L. J. Ch. 687 ; 
 Marriott v. Kinnersley, Taml. 470 ; but 
 only if he has or can procure funds : Hsb- 
 
 day V. Peters (No. 3), 28 Beav. 603. 
 
 " Ex parte Shakeshaft, 3 Bro. C. C. 
 197 ; Ex parte Non-is, L. B. 4 Ch. App. 
 280. 
 
 8 Eaves v. Hickson, 30 Beav. 136. 
 "This view of mine has, I believe, been 
 affirmed by the House of Lords in the 
 case of a forgery upon one of the railway 
 companies — Midland Bail way Companv 
 V. Taylor, 8 H. L. C. 751 " : per Lord 
 Eomilly, M.Ei., Sutton «. Wilders, L. E. 
 12 Eq. 373, at p. 378. 
 
PART IV.] TRUSTEES AND EXECUTORS. 853 
 
 the fund to the persons entitled to it, and ought to have seen to 
 the genuineness of the authority to receive money ;' and, subse- 
 quently/ trustees who advanced trust-motiey on a mortgage, the 
 fact of a prior mortgage which rendered the security insufficient 
 having been kept from them, were held liable on a loss occurring 
 by the same judge, because their solicitor acted negligently, yet 
 with an intimation that the liability would attach on the other 
 ground of their taking an insufficient security. 
 
 II. As to the position of a trustee with regard to the dealing il. Dealiug 
 
 with trust funds. Funds!™" 
 
 First, as to that class of acts having special reference to 
 executors. 
 
 The general rule is founded on two principles — 
 
 1 . That, in order not to deter persons from undertaking these i. Classes of 
 offices, the Court is extremely liberal in making eveiy possible "peoM refer- 
 allowance, and cautious not to hold executors or administrators ^P"* *° ^^^' 
 
 ,. , , ,. , cutors. 
 
 hable upon slight grounds. 
 
 2. That care must be taken to guard against any abuse of 
 their trust.^ 
 
 The duty of an executor is to collect assets " with all con- Duty of 
 venient speed,"'' to pay all funeral expenses and debts, and to 
 distribute the residue in the way indicated by the will of the 
 testator ; if he fails in any of these respects, subject to the rule 
 just stated, he renders himself liable.^ 
 
 If the executor retains balances which he ought to have laid Where he 
 out, either in compliance with the express directions of the will in hand. 
 or from his general duty, he would be liable;" and if he has 
 funds in hand, and permits debts carrying interest to remain 
 unpaid, he will be liable for the interest ; ' but from the nature 
 of an executor's office it is often necessary for him to keep sums 
 in hand for the making of payments, and where this is so he 
 will not be liable.*' But where the Court is of opinion that the 
 executor is needlessly and improperly retaining funds, it will 
 hold him guilty of negligence and breach of trust, and charge 
 
 ' See an Irish case, Doyle v. Blake, 2 failure to obtain payment of a sura was 
 
 8ch. & Lef. 231. not in fact injurious: Clack v. Holland, 
 
 - Hopgood V. Parkin, L. E. 11 Eq. 74. 19 Beav. 262, at p. 271. Compare East 
 
 ^ 2 Williams, Executors, Sth edit. p. v. East, 5 Hare 343, at p. 348. In that 
 
 1804. case the ontis ■would seem to be on the 
 
 * A special direction to this effect in a executor: Stiles v. Guy, 16 Sim. 230; 
 
 will obliges to no more than the ordinary affirmed sub nom. Styles v. Guy, i Mac. 
 
 duty implied in the office of an exeoulor, & U. 422. 
 
 and there must necessarily bo some discre- " Tebbs v. Carpenter, I Mad. 2go. 
 
 tion: Buxton v. Buxton, i My. & C. 80, ' Hall v. Hallet, i Cox 134. See In re 
 
 at p. 93. Baker, 20 Ch. D. 230. 
 
 ° Powell V. Evans, 5 Ves. 839 ; Lowson ' Dawson v. Massey, i Ball & B. 219, 
 
 V, Copeland, 2 Bro. C. C. 156. Eomilly, at p. 231, and note ; Forbes v. Boss, 
 
 M.R., was of opinion that the executor 2 Cox 113 ; EJanagan v. Nolan, i Moll, 
 
 would be exonerated if it appears that his 85. 
 
554 THE LAW OF NEGLIGENCE. [book ii. 
 
 him with interest on the sums he thus keeps in his hands.' Yet 
 to warrant the doing this there must be both a clear case and 
 not a mere mistake/ and a substantial balance.' 
 
 An executor must not carry on the trade of his testator unless 
 expressly authorized to do so ;" but where he is directed to do so, 
 the trade and the debts are, so far as personal liability goes, 
 looked at as his own,' but he is entitled to go for indemnity to 
 the fund applied to carry on the business, but not to the general 
 funds of the testator/ and the creditors have the same right.? 
 
 Various doctrines were at one time current as to the circum- 
 stances in which an executor might employ the assets of his 
 testator's estate in trade,' and distinctions were drawn, between 
 solvent and insolvent executors/ and assets specifically bequeathed 
 and general assets/" but a uniform rule is now established that 
 the executor is bound to account for all profits, however derived, 
 to the estate of his testator." The beneficiary has his option 
 either of taking the profit or charging the executor with interest.''' 
 And the executor will be held to employ money in trade if, 
 being a trader, he places it to his own banking account, since 
 thereby he procures himself a credit not his due.'' 
 
 But an executor is not liable for bad judgment, nor is one 
 executor bound to surrender his own judgment because one of 
 his co-executors has a different opinion to himself, so that he 
 will not be liable in the event of his view proving wrong while 
 that of his co-executor turns out right, and the testator's estate 
 suffers injury from not acting on it." 
 
 There is no absolute rule fixing the time from which executors 
 who have neglected to realize assets outstanding upon improper 
 
 1 Littlehales v. Gasooyne, 3 Bra. C. C. Ch. D. 548 ; 49 L. J. Ch. 745 ; 43 L. T. 
 73 ; also see 108 arid 433 ; Forbes v. 372 ; 29 W. E. 168, holds that the credi- 
 Eosa, 2 Cox 113; Seers v. Hind, i Ves. tors' right is merely to be put in the place 
 294. of the executor. 
 
 2 Bruere v. Pemberton, 12 Ves. 386. ^ Eatoliff i). Graves, 2 Ch. Cas. 152. 
 The Court, however, considered ihe claim " Adams v. Gale, 2 Atk. 106. 
 
 of the executor to be just in itself. i" Child v. Gibson, 2 Atk. 603. 
 
 " Jones V. Morrall, 2 Sim. N. S. 241, " Vyse v. Foster, L. R. 7 H. of L. 318, 
 
 at p. 252 ; Davenport v. Stafford, 14 at p. 329 ; 44 L. J. Ch. 37 ; 31 L. T. 
 
 Beav. 319. For the law as to legacies N. S. 177 ; 23 W. E. 355. 
 
 and the executor's duty with regard to ^^ Usually at the rate of 4 per cent., 
 
 them, see Ashburner v. Maoguire, and the unless some higher rate of profit has been 
 
 notes to it, in 2 White & Tudor Lead. Cas. obtained: Emmet v. Emmet, 17 Ch. D. 
 
 8th edit. pp. 246-320. 142 ; 50 L.J. Ch. 341 ; 44 L. T. 172 5 29 
 
 * Kirkman v. Booth, 11 Beav. 273. W. R. 464; or where the executor is guilty, 
 
 ^ Farhall v. Farhall, L. E. 7 Ch. App. not merely of negligence, but of actual oor- 
 
 123 ; 41 L. J. Ch. 146 ; 25 L. T. N. S. ruption or deliberate breach of trust, 
 
 68s J 20 W. E. 157. when ;^5 per oentnm will be allowed: 
 
 « Eraser ». Murdoch, 6 App. Cas. 855, Mx parte Ogle, L. E. 8 Ch. App. 711. 
 
 per Lord Selborne, C, at p. 866 ; 45 L. T. ^^ Treves v. Townshend, 1 Bro. C. C. 
 
 4J7 ; 30 W. R. 162. 284. 
 
 ' Strickland v. Symons, 26 Ch. D. 245 ; " Buxton v. Buxton, I My. & Cr. 80 ; 
 
 S3 L. J. Ch. S82; SI L. T. 406; 32 Hughes K. EmpsoD, 22 Bear. 181, 
 W. R. £89 : Shearman v, Robinson, 15 
 
PART IV.] TRUSTEES AND EXECUTORS. 855 
 
 investments are to be liable, but generally the conversion should 
 take place within a year from the testator's death. Accordingly, 
 in the event of an action being brought, executors who have 
 not realized by that time have the omcs thrown on them to justify 
 for not doing so,' unless they have an absolute discretion to post- 
 pone, when they will not be liable in doing so where loss occurs, 
 even though some of the property consists in shares in unlimited 
 companies.'^ 
 
 An executor is liable to refund who, having received the assets" Where trustee 
 of his testator, voluntarily,'' and so that he cannot assign a refund.^ " 
 sufficient excuse,^ parts with them to his co-executor so that they 
 are embezzled or lost." But it is otherwise if the handing over 
 of funds is for the performance of some duty of the executorship, 
 as, for instance, the payment of debts in the ordinary course,^ 
 for "he is considered to do this of necessity ; he could not trans- 
 act business without trusting some persons, and it would be 
 impossible for him to discharge his duty if he is made responsible 
 where he remitted to a person to whom he would have given 
 credit, and would in his own business have remitted money in 
 the same way.'"* 
 
 Secondlv, as to that class of acts which has no special reference s- Tte class 
 
 •' '■ of acts with 
 
 to that species of trustees called executors. no special 
 
 It is the duty of trustees to see that all those acts are done which pxSutors.'" 
 are necessary or expedient to put the trust property in security and '•'•''i''? '"j".^ 
 out of the power of strangers to the trust to deal with it.° " Trus- property in 
 tees must," in Lord La,ngdale's emphatic words, make it impossible ^''°"" ^' 
 for any unauthorized person to receive and misapply the fund." 
 Trustees are bound to invest trust-moneys not wanted for the im- 
 mediate purpose of their trust, and cannot excuse themselves on 
 the ground that they did not themselves use the money, but placed 
 it to a separate account at a banker's;'" and it may be stated as 
 a general rule, that if a trustee is guilty of any unreasonable 
 delay in investing a fund, or, if it is his duty, paying it over to 
 the beneficiary, he will be liable for interest for the period- of his 
 delay." The rule is similar with regard to money outstanding 
 
 1 Hughes V. EmpsoD, 22 Beav. 181. greater rights creditors may have than 
 
 2 In re Norrington, 13 Ch. D. 654 ; 28 legatees, see Doyle v. Blake, 2 Sch. & Lef. 
 W. E. 711. 231. 
 
 3 Candler v. Tillett, 22 Beav. 257, at p. " Maonamara v. Carey, Ir. E. I Eq. ig, 
 263. at p. 35 ; Jacob v. Lucas, i Beav. 436 ; 
 
 * This, of course, is not so where the Kingdon v. Castleman, 46 L. J. Ch. 448 ; 
 
 executor has no legal right to retain: AVoodhouse v, Woodbouse, L. E. 8 Eq. 
 
 Davis V. Spurting, i Euss. & My. 64, 514. 
 
 ^ Langford u. Gasooyne, II Ves. 333. '" Ashburnham v. Thompson, 13 Ves. 
 
 8 Townsend v. Barber, i Dick. 356. 402 ; Younge v. Combe, 4 Ves. loi. 
 
 ' Bacon v. Bacon, 5 Ves. 331. " Tickiier v. Smith, 3 Sm. & G. 42, 
 
 8 Per Lord Eedesdale,'Joy v. Campbell, and cases cited in Bloggi', Johnson, L. R, 
 
 I Sch. & Lef. 328, at p. 341. As to the 2 Ch. App, 225. 
 
856 THE LAW OF IfEGLIGENCE. [book n. 
 
 tipon personal security — thougli trustees are not to rush into liti- 
 gation, they will not be justified in merely applying by lawyer's 
 letter for payment of a debt, even though (the trustee being an 
 executor) the debt was a loan by the testator himself/ but must 
 follow it up by legal proceedings,'' unless there is a well-founded 
 belief on the part of the trustees that an action would be useless, 
 and the burden of proving this lies on the trustees.^ 
 
 In the case of a settlement, where the trustees were to get in 
 the money "whenever they shall think fit and expedient to do 
 so," they are held not entitled to stay their hands from enforcing 
 payment on account of the interest of the tenant for life without 
 
 May compound regard to that of all the cestuis qite trvst.* But in the bond fde, 
 exercise of a discretion they might always compound a debt or 
 otherwise deal with it without incurring a personal liability,* and 
 it is no ground for liability that they refused a compromise/ 
 
 Oonveyancing Now, by the Conveyancing and Law of Property Act, 1881,' 
 
 Proper^ Act, aniple powers are conferred on executors and trustees in this 
 
 ^881. matter. By that Act— 
 
 1. An executor* may pay or allow any debt or any claim on 
 any evidence he may think sufficient. 
 
 2. An executor, or two or more trustees acting together, or a 
 sole trustee where the instrument creating his authority so 
 authorizes, may accept any composition or may allow any time 
 for payment of any debt, or settle it in any way that seems to 
 him or them expedient, without being responsible for any loss 
 occasioned by any act or thing so done by him or them in good 
 faith. 
 
 3. The enactment applies to trusts where the trust deed does 
 not exempt them from its operation ; 
 
 4. And is retrospective. 
 
 But when the money which is the subject of a trust is not 
 forthcoming, it is not for the cestuis que trust to shew that if the 
 trustee had done his duty the loss would have been avoided, 
 but, on the other hand, it is for the trustee who is seeking to 
 
 1 Powell v:_ Evans, 5 Ves. 839, for representative to sue. 
 
 personal security fluctuates day hy day : 3 Billing w. Brogden, 38 Ch. D. 546 ; 59 
 
 Bailey v. Gould, 4 Y. & C. 221, at p. 226. L. T. 650; 37 W. E. 84. 
 
 2 Lowson V. Copeland, 2 Bro. C. C. 156. ■• Luther v. Bianconi, 10 Ir. Ch. E. 
 This is the case though the outstanding 194. 
 
 debt is in the hands of a co-executor, who = Forshaw u, Higginson, 8 De G. M. 
 
 was treated as a private banker by the & G. 827, citing Blue v. Marshall, 3 
 
 lestator : Styles v. Guy, i Mac. & G. 422. P. Wms. 381. 
 
 In Yeatman v. Yeatman, 7 Ch. D. 210, « Ex paHe Ogle, L. E. 8 Ch. App. 
 
 it was held that mere refusal to sue was 714. 
 
 not sufficient to justify a legatee in suing ' 44 & 45 Vict. c. 41, s. 37. 
 
 an executor and the alleged debtor for loss s ^^ administrator is not within the 
 
 of assets, and the test suggested was of purview of the Act : In re Clay and 
 
 whether a party should be allowed to in- Xetley, 16 Ch. D. 3 ; 43 L. T. 402 ; 29 
 
 Btilute such a suit after refusal by the legal W. B. 5. 
 
PARTiv-l TRUSTEES AND EXECUTORS. 8o7 
 
 excuse himself to shew, in the absence of his having taken 
 proceedings, that no good, would have resulted had he taken 
 them. " Once shew that he has neglected his duty, and primd 
 facie he is answerable for all the consequences of that neglect.'" 
 
 The determination of the question in what funds trust pro- Trust 
 perty may be invested without negligence depends largely on the '"'^^stments. 
 special terms of the trust, and to that extent are matters of indi- 
 vidual interpretation and not of general enactment. Some general 
 principles, however, there are which must be glanced at. 
 
 Trustees will not be justified in lending on personal security. Trustees not 
 such as a promissory uote,^ unless specially authorized, even to a lending on 
 person to whom there is the clearest evidence their testator would sgg„°"y 
 have lent on the same security ; for personal security fluctuates 
 from day to day, and the trustees are to exercise their own, not 
 their trustor's, discretion;^ and even where specially authorized to 
 lend on personal security they will not be allowed to lend to one 
 of their own number.^ Moreover, such a power must be strictly 
 construed." 
 
 Trustees are to deal impartially between the various interests Trustees 
 
 • 1 /••I r-i-c 1 must deal 
 
 they have m charge, not preierrmg the tenant tor lite to the re- impartially, 
 mainder-man, nor yet sacrificing him." 
 
 Where trustees have a power to advance money on " real or Trustees may 
 personal security," it has been decided they may make an advance cases make 
 upon a person's personal undertaking as distinguished from the fipon'^a p™ 
 security of personal property.' This would be subject to the re- ^onai under- 
 quirement of reasonable care and caution in making an invest- 
 ment of that class. Words so wide as a direction that trust-money 
 should " be placed out at interest or other way of improvement " 
 will not be an authority for using it in trade.^ 
 
 By Lord St. Leonards' Act," where a trustee is not expressly Lord st. 
 
 Leonards' 
 
 1 Billing V. Brogden, 38 Ch. D. 546; 535; Greenham v. Gibbeson, 10 Bing. ^°^' 
 59 L. T. 650 ; 37 W. E. 84. 363- 
 
 2 Terry v. Terry, Free. Cb. 273 ; where " Cockburn v. Peel, 3 De CI. F. & J. 
 an executor and trustee " with power by 170; Stuart v. Stuart, 3 Beav. 430; 
 the will to act in everything for the ad- Stewart v. Sanderson, L. R. 10 Eq. 26 ; 
 vantage of an infant," was held justified Tn re Boyces Minors, Ir. R. 1 Bq. 45 ; 
 in laying out personal estate in the pur- Costello v. O'Rorke, Ir. R. 3 Eq. 172. 
 chase of lands for the infant, with the sav- ' Piokard v. Anderson, L. R. 13 Eq. 
 ing that " if he lends the money on a bad 608 ; Forbes v. Robs, 2 Bro. C. C. 430. 
 security, he must answer it out of his own ^ Cock v. Goodfellow, 10 Mod. 489. 
 pocket';" Darke ti. Martin, i Beav. 525, » 22 & 23 Vict. c. 35. This Act does 
 where executors opened an account with a not apply where the trust fund is already 
 banker and took two banker's notes carry- invested in some of the authorized securities 
 ing interest for the amount; Moyle v. and the trustee has no power, indepeii- 
 Moyle 2 Buss. & M. 710. dently of the Act, to vary the investment: 
 
 2 Sl;yles v. Guy, i Mac. & G. 422 ; In re "Ward, 2 J. & H. 191, per Page 
 Boss I). Godsall, I Y. & C. Bruce, V.C. Wood, V.C. ; contra, Waile v. Littie- 
 (^jy wood, 41 L. J. Oh. 636, per Lord Romilly, 
 
 ''Forbes v Boss, 2 Bro. C. C. 430; M.R., and /fc Clergy Orphan Corporation, 
 Francis v. Francis, 5 De G. M. & G. 108. L. 11. 18, Eq. 280; 30 L. T. N. S. 806; 
 
 3 Cocker v. Quaylc, I Russ. & My. 22 W. E. 789. 
 
858 THE LAW OF NEGLIGENCE. [book ii. 
 
 forbidden by his instrument of trust to do so, he is empowered, 
 to invest on real securities in any part of the United Kingdom, 
 or on the stock of the Bank of England, or Ireland, or on East 
 India Stock. This Act was made retrospective the succeeding 
 year by 23 & 24 Vict. c. 38, s. 12, but not to the extent of 
 interfering with any rights actually accrued.' Section 1 1 of that 
 Act provided that trustees having power to invest their trust 
 funds upon Government securities or upon parliamentary stocks, 
 funds, or securities, or any of them, might invest in any stocks, 
 funds, or securities in or upon which, by general order, cash 
 under the control of the Court may from time to time be in- 
 vested. 
 Euleofthe By a rule of the Supreme Court, dated November 14, 1888,'' 
 
 specffying """^^ cash Under the order or control of the Court may be invested in 
 trust seouri- tj^g following stocks, funds, or securities : — 
 
 Two and Three-quarters per Cent. Consolidated Stock. 
 
 Three per Cent. Annuities. 
 
 Eeduced Three per Cent. Annuities. 
 
 Two Pounds Fifteen Shillings per Cent. Annuities. 
 
 Two Pounds Ten Shillings per Cent. Annuities. 
 
 Local loans stock under the National Debt and Local Loans 
 Act, 1887. 
 
 Exchequer "bills. 
 
 Bank Stock. 
 
 India Three and a Half per Cent. Stock. 
 
 India, Three per Cent. Stock. 
 
 Indian guaranteed railway stocks or shares, provided that in 
 each case such stocks or shares shall not be liable to be redeemed 
 within a period of fifteen years from the date of investment. 
 
 Stocks of Colonial Governments guaranteed by the Imperial 
 Government. 
 
 Mortgage of freehold and copyhold estates respectively in 
 England and Wales. 
 
 Metropolitan Consolidated Stock Three Pounds Ten Shillings 
 per Cent. 
 
 Three per Cent. Metropolitan Consolidated Stock. 
 
 Debenture, preference, guaranteed, or rent-charge stocks of 
 railways in Great Britain or Ireland having for ten years next 
 before the date of investment paid a dividend on ordinary stock 
 or shares. 
 
 Nominal debentures or nominal debenture stock under the 
 Local Loans Act, 1875 ; provided in each case that such deben- 
 
 ^ Hume V. Richardson, 4 De G. F. & J. 25. 
 ' Order xxii. r. 17. 
 
PART IV.] TJEIUSTEES AND EXECUTORS. 859 
 
 tures or stocks shall not be liable to be redeemed within a 
 period of fifteen years from the date of investment. 
 
 And by section 9 of the Trustee Act, 1888/ where a trust Trustee Act, 
 deed contains a power to invest on real securities, an investment ^^^^' 
 on mortgage of certain long terms where there is no rent greater 
 than one shilling is authorized. 
 
 Section 10 authorizes and compels trustees of renewable lease- 
 holds to endeavour to renew in certain cases, and provision is 
 made by section 1 1 for raising money to enable them to do so. 
 
 The same Act also protects trustees in only dispensing with 
 production of lessor's title, and in taking a title shorter than 
 might have been required, with, however, the limitation that the 
 title must be " such as a person acting with prudence and caution 
 would have accepted." 
 
 There has been some conflict of jtidicial opinion as to whether what is 
 money paid into court under the Lands Clauses Consolidation ^™^^jj"^"j''Jj 
 Act, 1 845,^ is under the control of the Court within the meaning ^^^ Court? 
 of the Act 23 & 24 Vict. c. 38; but the rule has been now 
 broadly laid down by Cotton, L.J.,' that " cash under the control 
 of the Court must mean cash standing in the name of the 
 Accountant-General in any cause or matter." 
 
 In the case of trustees being authorized to advance money where 
 upon mortgage, the rule used to be that an advance of two-thirds authorized^ 
 of the value upon property of permanent value, as freehold land, t" advance 
 
 . 1 . , , ~ T -, ■ money on 
 
 was Within the rule of ordinary prudence ; but as to property m mortgage. 
 
 houses, " which fluctuates in value, and is always deteriorating," 
 
 an advance of not more than one-half would be justified.* But 
 
 the tendency latterly has been "to lean to the side of the honest 
 
 trustee, and not to be anxious to find fine and extraordinary 
 
 reasons for fixing him with any liability," but " to endeavour as 
 
 far as possible, having regard to the whole transaction, to avoid 
 
 making an honest man, who is not paid for the performance of an 
 
 unthankful ofiice, liable for the failure of other people from whom 
 
 he receives no benefit."^ And in the House of Lords it was lately Lord Watson's 
 
 said": " I do not think these have been laid down as hard-and- "P^^^^^^™ 
 
 fast limits up to which trustees will be invariably safe, and be- of Lords in 
 
 yond which they can never be in safety to lend, but as indicating whiteiey.' 
 
 the lowest margins which in ordinary circumstances a careful 
 
 * SI & 52 Vict. I}. 59. " Per Jessel, M.E., Speight v. Gaunt, 
 - 8 Vict. c. 18. 22 Ch. D. 727 ; Jones v. Lewis, 3 De Gr. 
 ' JUx parte St. John Baptist College, & S. 471 ; Lewin, Trusts, 8lh edit. p. 
 
 Oxford, In re Metropolitan and District 325. 
 
 Eailwajs, 22 Ch. D. 93 ; 52 L. J. Ch. ^ Per Lord Watson, Learoyd v. 'Whi(e- 
 
 268 ; 48 L. T. 331 ; 31 W. K. 55. ley, 12 App. Gas. 727. Compare per Cot- 
 
 * Stickney v. Sewell, i My. & C. 9 ; ton, L. J., J«?-6 Salmon, Priest w. Uppleby, 
 Stretton v. Ashmall, 3 Drew. 9. S Times L. li. 583. 
 
860 
 
 THE LAW OF NEGLIGENCE. 
 
 [book ir. 
 
 Effect of the 
 decision in 
 that case. 
 
 And of the 
 Trnstee Act, 
 1888. 
 
 Where 
 apparently 
 the widest 
 powers are 
 given, the 
 exercise of 
 a sound 
 discretion is 
 not super- 
 seded. 
 
 investor of trust funds ought to accept. It is manifest that, in 
 cases where the suhjects of the security are exclusively or mainly 
 used for the purposes of trade, no prudent investor can be in a 
 position to judge of the amount of margin necessary to make a 
 loan for a term of years reasonably secure until he has ascertained, 
 not only their present market price, but their intrinsic value apart 
 from those trading considerations which give them a speculative 
 and, it may be, a temporary value." The old rule, then, may be 
 now taken for an indication in normal circumstances, but is liable 
 to be displaced by proof of exceptional circumstances which may 
 either augment or detract from its force. But evidence of value 
 should come from disinterested persons, and not from those who 
 are connected in any way with the property valued, in order to 
 entitle it to weight to discharge from liability,' and should be 
 that of persons cognizant of local circumstances, and not that of 
 persons, however generally qualified, who possessed no particular 
 experience.'' 
 
 Now, however, the Trustee Act, 1888,' provides that a trustee 
 is not to be responsible by reason only of the proportion 
 borne by the amount of the loan to the value of the property 
 at the time when the loan was made, provided that it shall 
 appear to the Court that in making such loan the trustee was 
 actuig upon the report of an independent surveyor or valuer, 
 whether carrying on business in the locality or not, and the 
 amount does not exceed two-thirds valuation, and the loan was 
 made under the advice of the valuer. This applies to house 
 property as well as to property of any tenure on which the trustee 
 may lawfully lend. 
 
 It therefore now* becomes essential " that the valuer be in- 
 structed and employed independently of the owner of the pro- 
 perty," and that a form of valuation should be adopted so as to 
 shew compliance with this section. The trustee will not be 
 authorized by this to lend upon leaseholds, though, if he have the 
 power otherwise, the provisions of the Act will apply. 
 
 By section 5 of the same Act the liability of the trustee is 
 limited, in the case where he has advanced too much money on 
 a security, to the excess beyond what he could properly have 
 advanced on it. 
 
 Even where the terms of their trust deed would seem to give 
 trustees the widest powers, as, for instance, a power "to invest 
 on such securities as they may approve," they are still bound to 
 
 ^ Norris V. Wright, 14 Beav. 291 ; Ingle v. Partridge, 34 Beav. 411. 
 "^ Bridge V. Gummow, L. E. 7 Ch. App. 719; Fry v. Tapson, 28 Ch. D. 268 ; 51 
 L. T. 326; 33W. E. 113. 
 3 51 & 52 Vict. c. 59. * Crabb v. Brinsley, 5 Times L. E. 14. 
 
PARTiv.J TEUSTEES AND EXECUTORS. 861 
 
 the use of care and the exercise of a sound discretion; and if 
 they invest in stocks of an unusual character, the burthen will be 
 cast on them of justifying their action.' 
 
 In the case of loss following from some act of trustees, unless 
 in the case of wilful default or very gross negligence, they will 
 not be charged with mere imaginary values,^ but only with that 
 which they have actually received.' Neither will trustees who 
 join in a receipt for trust-money merely for conformity become 
 liable, in the absence of other circumstances, for the misapplication 
 of money coming into the hands of co-trustees," but the onus is 
 on the trustee who joins in a receipt to shew that he did not in 
 fact receive it, and only joined for conformity,^ and, in the 
 absence of evidence, he will be liable in solido.^ 
 
 When the money is ' actually received (though it is safe to Money must 
 permit a co-trustee to receive it'') a trastee is not justified in "ul tvilstee'a 
 leaving the money in his hands for a longer time than is reason- J'^°'^^ longer 
 nably necessary,' and is bound, not merely to receive assurances eary. 
 that the trust fund is intact, but also to ascertain for himself that 
 it is so in fact.' 
 
 If, then, one trustee finds that a breach of trust has been com- Trustee 
 mitted by his colleague, he is bound, if not to bring an action tSQ^cases'to" 
 for the restoration of the trust for his own exoneration," at least proceed 
 
 . against his 
 
 to take such steps as may, with regard to the circumstances of co-trustee, 
 the case, be most prudent ;" and if he conceals it or abstains from 
 action, he will thereby become answerable for his co-trustee's 
 default." 
 
 By section 2 of the Trustee Act, 1888," a trustee may Trustee Act, 
 appoint a solicitor to receive money by permitting the solicitor to ^^^®" 
 produce a deed containing a receipt within the Conveyancing 
 Act, 1 88 1, s. 56, and production of the deed will be suffi- 
 cient authority to the purchaser to pay the purchase-money. 
 But the trustee will not be indemnified if he allow the money to 
 remain in the solicitor's hands for a period longer than is reason- 
 ably necessary to enable the solicitor to pay it to the trustee, so 
 that he must not leave it in the solicitor's hands till it is invested, 
 
 ' Stretton v. Ashmall, 3 Drew. 9 ; Con- ° Brice v. Stokes, supra. 
 
 Rteidiue v. ConsterJine. 31 Beay. 333J " Walker ». Symonds, 3 Swans, i ; 
 
 Zambaco v. Cassavetti, L.R. 11 Eq. 430. Mendes v. Guedalla, 2 J. & H. 259. 
 
 2 Palmer v. Jones, I Vern. 144. ■"' Franco v. Franco, 3 Ves. 75. 
 
 " I Seton on Decrees, 4lh edit. p. 476 " Walker v. Symonds, 3 Swans. 71. 
 
 * In re Fryer, 3 K. & J. 317. '^ Boardman v. Mosman, i Bro. C. C. 
 
 " Brice V. Stokes, 11 Ves. 234; 2 68. 
 White and Tudor Lead. Cas. 6tli edit. '^ 51 & 52 Vict. c. 59. Section 2 ovcr- 
 
 p. 967. rules Inre Bellamy w. Metropolitan Board 
 
 ^ Westley v. Clarke, i Eden 357. of Works, 24 Ch. D. 387 : In re Flower, 
 
 ' Townleyj). Sherborne, Bridg. 35 ; 2 27 Gh. D. 592 ; 53 L. J. Ch. 955; 51 
 
 White and Tudor Lead. Cas. 6th edit. L. T. 257 ; 32 W. E. loil. 
 960. 
 
862 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Provision of 
 the Judicature 
 Act, 1873, as 
 to limitation 
 of action. 
 
 Alteration 
 effected by 
 Trustee 
 Act, 1888. 
 
 Distinction 
 between 
 claims not 
 enforceable 
 by reason of 
 the Statute 
 of Frauds 
 and claims 
 barred by 
 Statute of 
 Limitations. 
 Trustees 
 liable only 
 for funds, 
 actually 
 received. 
 
 even though the investment take place in a few days ; neither 
 may the trustee authorize the solicitor to receive money except 
 by means of a receipted deed. There is no general power to 
 trustees to authorize their solicitors to receive trust-moneys. 
 Sub-section 2 allows money on policies of insurance to be paid to 
 a banker or solicitor. 
 
 By the Supreme Court of Judicature Act, 1873,' no claim of 
 a cestm que trust against his trustee for any property held on 
 express trust, or in respect of any breach of such trust, shall be 
 held barred by any Statute of Limitations.^ 
 
 An alteration of the law is effected by the Trustee Act, 1888,' 
 which enables trustees to plead the Statute of Limitations " except 
 where the claim is founded upon any fraud or fraudulent breach 
 of trust " to which he was party or privy. In certain cases where 
 no Statute of Limitation applies, lapse of time is made a bar. 
 The statute is to run against married women entitled to separate 
 use in possession, whether restrained or not ; but is not to run 
 against any beneficiary until his interest is in possession. This 
 section first comes into force in 1890. 
 
 An executor would commit a devastavit who paid a debt due to 
 a creditor who is prevented from enforcing it by the Statute of 
 Frauds ;■* but it is otherwise if it is merely barred by the Statute 
 of Limitations.* 
 
 Lord St. Leonards' Act° has already been noticed in its bear- 
 ing upon agents ; the earlier part of the same section then 
 quoted provides that every instrument creating a trust shall be 
 deemed to contain a clause " that the trustees or trustee for 
 the time being of the said deed, will, or other instrument shall 
 be respectively chargeable only for such moneys, stocks, funds, and 
 securities as they shall respectively actually receive, notwithstand- 
 ing their respectively signing any receipt for the sake of con- 
 formity, and shall be answerable and accountable only for their 
 own acts, receipts, neglects, or defaults, and not for those of 
 each other, nor for any banker, broker; or other person with whom 
 trust moneys or securities may be deposited, or for any insufficiency 
 or deficiency of any stocks, funds, or securities, nor for any 
 other loss, unless the same shall happen through their own wilful 
 default respectively ; and also that it shall be lawful for the 
 trustees or truistee for the time being of the said deed, will, or 
 other instrument to reimburse themselves or himself, or pay or 
 
 1 36 & 37 "Vict. c. 66, 8. 25, suh-s. 2. * /» re Eownson^ Field v. White, 29 
 Compare 37 & 38 Vict. c. 57. 
 
 2 Burdiok o. Garriok, L. R. 5 Ch. .4pp. 
 233 ; Stone v. Stone, L. E. 5 Ch. App. 74 ; 
 39 L. J. Ch. 369 ; 18 W. E. 387. 
 
 3 51 & 52 Vict. 0. 59, 6. 8. 
 
 Ch. D. 358 ; 54 L. J. Ch. 950 ; 52 L. T. 
 
 825 ; 33 w. E. 604. 
 S( 
 
 41 
 
 Stahlschmidt v. Lett, i Sm. & G. 
 22 & 23 Vict. c. 35, 5. 31. 
 
PART IV.] TEUSTEES AND EXECUTOKS. 863 
 
 discharge out of the trust premises, all expenses incurred in or 
 about the execution of the trusts or powers of the said deed, will, 
 or other instrument." 
 
 In Wilkins v. Hogg' it was argued that, notwithstanding an Trustor may 
 extraordinary authority given by a special clause providing that exemption of 
 any trustee should not be obliged to see to the application of *'^° "^"^ 
 
 • T 1 1 • J T • . . T .11-, indpmuity 
 
 moneys paid by him to his co-trustee or be responsible by express clause. 
 or implied notice of the misapplication, the trustees were not pro- 
 tected, but were to be dealt with exactly as if there were no such 
 special clause. The Court refused to assent to such a proposi- 
 tion, and laid down the rule that, though certain cases are provided 
 for by the usual indemnity clause, there exist others to which pro- 
 tection may be afforded by special provision of the creator of the 
 trust, on the principle that it is perfectly competent for him to 
 define what should be the incidents to the duty of a trustee in a 
 trust created by him so long as he kept within the bounds of 
 law. This would exclude cases of " gross negligence or personal 
 misconduct."- It is obvious that here gross negligence is used to 
 mean flagrant negHgence in the sense of the maxim. Magna neg- 
 ligentia culpa est, magTia culpa est dolus. Lord Westbury, in this 
 case of Wilkins v. Hogg,^ specifies three classes of these cases in 
 which a trustee would be liable under the ordinary indemnity 
 clause — 
 
 1 . Where, having received money, he hands it over without Throe classes 
 
 .. T T i- of cases 
 
 securing its due application ; specified ty 
 
 2. Where a trustee allows his co-trustee to receive money, ^^^i^'^^^' 
 and does not make due inquiry as to his dealing with it : and which a 
 
 TTTi 1 • • . !• 1 1 f , trustee would 
 
 3. Where a trustee, becoming cognizant 01 a breach 01 trust, be liable 
 actual or meditated, remains quiescent after having acquired such OTcSmry^ 
 
 knowledge. indemnity 
 
 But since they do not involve any absolute misconduct in respect 
 of which liability would attach it seems they may be excepted in 
 a trust deed. 
 
 There is, however, a fourth class, where personal misconduct is A iovrth 
 
 involved — where, for example, the trustee colludes with his co- Vhere per- 
 
 tmstee, and hands over trust-money with a reasonable ground for ^°"'^' ™'?" 
 
 believing or suspecting that the trustee to whom he hands it involved. 
 
 would commit a breach of trust for which, despite any clause in 
 
 a trust deed, the trustee would be liable. This class comprises 
 
 the species of negligence which we see Bacon, V.O., describes as 
 
 " gross, "^ and which is described in the Roman law as magna 
 
 culpa dolus est.^ 
 
 I 3 Giff. 116; affimed, 8 Jnr. N. S. 25. < Pass v. Dundas, 43 L. T. N, S. 
 
 ' PasBV. Dundas, 43 L. T. N. S. 665. 665. 
 
 ' 8 Jur. N. S. 25. ° Dig- 50, 16, 226. As to the reme- 
 
861 THE LAW OF NEGLIGENCE. [book n. 
 
 Position of If a cestid qiie trust who is also swL juris acquiesces in an im- 
 
 witrregard to propor inTestment, lie cannot afterwards call it in question' if it 
 acquiescence ^^^ made with his full knowledge^ and without any misrepresenta-^ 
 
 in an improper n ^ i mi • t 
 
 investment, tion or concealment on the part oi the trustees. This doctrine 
 was sought to be extended by Kekewich, J., In re, Salmon, Priest 
 'V. Uppleby;'' where, after an investment had been made by a 
 trustee, which was within scope of the powers under the trust, 
 but which ultimately proved of insufficient value, and was held 
 not to be a proper one, the trustee retired and new trustees 
 were appointed. Six years subsequently the new trustees, with 
 the concurrence of the plaintiff, a beneficiary, but without notice 
 to the retired trustee, sold the mortgaged property for ;^5oo less 
 than the amount of the trust fund invested in it. The bene- 
 ficiary then brought his action against the retired trustee for the 
 deficiency so far as the plaintifE's share in the estate was con- 
 cerned. For the defendant the case of Knott v. Oottee' was 
 cited, where the Master of the EoUs, speaking of improper in- 
 vestments said : " The case must either be treated as if these 
 investments had not been made, or had been made for his (the 
 trustee's) own benefit out of his own moneys, and that he had 
 at the same time retained moneys of the testator in his own 
 hands." Starting from this point the learned judge argued 
 that the trustee would be entitled to the property in which the 
 investment had been made if he chose to pay up the trust fund, 
 and that since he was deprived of his option of taking this by 
 the sale he could not, ii those circumstances, be held to payment 
 of the deficiency in the value of the security. On appeal the 
 case of Thornton n. Stokill" was cited for the appellant, the 
 defendant to establish the proposition contended for, that where 
 trust money is laid out in the purchase of property the value 
 of which proves insufficient, the cestui que trust had an option 
 to take the property or to have the deficiency made up, but 
 that he was not entitled to take the property at its deficient value 
 and then to prove. But it was pointed out that in that case the 
 investment was outside the limits of the trust, while in the case 
 before the Court the investment was warranted by the terms of 
 the trust. The Court thereon drew a distinction between invest- 
 ments in their nature improper and investments proper in them- 
 selves but on sale proved to be improper. As to these latter 
 the Court of Appeal held that the cestv/i que trust could not 
 
 dies of a ceiitm que trust for breach of ^ Burrows «. Walls, S Be G. M.&G. 233. 
 
 trust, see Devaynes v. Robinson, 24 Beav. * 5 Titaea L. R. 853, reversed by the 
 
 86. Court of Appeal, Times newspaper, June 
 
 ' Harden v. Parsons, i Eden 145. 20, 1889. 
 
 ' Montford v. Lord Cadogan, 17 Ves. " 16 Beav. 79. 
 
 485. ° I Jur, N. S. 7SI. 
 
PART IV.] TRUSTEES AND EXECUTORS. 865 
 
 dissent till he had ascertained that the trustee had not acted 
 with reasonable prudence ; and that would not be in the case 
 before the Court till the deficiency was manifested by a sale, so 
 that the retired trustee was liable even though the beneficiary 
 had had notice of the investment, which, however, in the case 
 in question, the Court was of opinion he had not had. 
 
 But his acquiescence is not to be merely constructive, but direct 
 and positive ; ' nor will mere abstinence from complaint work a bar,^ 
 though neglect to sue for twenty years with a knowledge of his 
 right to do so has been held to do so.' 
 
 By section 6 of the Trustee Act, 1888,^ where a trustee com- 
 mits a breach of trust at the instigation or request, or with the 
 written consent, of a beneficiary, "the Court may impound the 
 interest of the beneficiary byway of indemnity to the trustee," and 
 this applies in all cases, Both prospective and retrospective, unless 
 proceedings are already pending. 
 
 ' Thompson V. Finch, 22 Beav. 316; - Phillipson ». Gatty, 7 Hare 516. 
 
 Fan-ant v. Blanchford, I De G. J. & Sm. " Bright v. Legerton (No. i), 29 Beav. 
 
 107 ; Taylor v. Cartwright, L. E. 14 Eq. 60 ; 2 De G. F. & J. 606. 
 
 167. * 51 & 52 Vict. c. 59. 
 
 31 
 
CHAPTEE III. 
 
 BANKERS. 
 
 I. Banker his 
 customer's 
 debtor for the 
 balance 
 standing to 
 
 Definition. A BANK is an establishment for the custody of money received 
 from or on behalf of its customers. Its essential duty is the 
 payment of the orders given on it by its customers ; its profits 
 arise mainly from the investment of the money left unused by 
 them.' 
 
 I. The relation between banker and customer is that of debtor 
 and creditor,^ with a superadded obligation on the part of the 
 banker to honour the customer's cheques so long as there are any 
 th6"oiist'omer's assets of his in the banker's hands,^ so that where the banker 
 acoonn . dishonours his customer's cheque while he has funds in hand to 
 
 meet it he is liable to an action for damages, though the 
 customer may not have suffered actual loss or damage by the 
 acf The case of Marzetti v. Williams, moreover, is an authority 
 for the position that in such circumstances the amount of damages 
 given should be greater than merely nominal. In that case the 
 cheque refused payment was for ;£^87 ys. 6d.; this seemed to 
 Lord Tenterden, C.J., an aggravation of the wrong, for, the 
 jury having found for the plaintiff with nominal damages, he re- 
 marked that it was a discredit to any person, and particularly 
 to one in trade/ to have a " draft for so small a sum refused ; " 
 
 ^ New English Dictionary, by Dr. 
 Murray, siib nom. As to the business of 
 a banker, see Foley «. Hill, 2 H. L. C. 28. 
 
 2 So that the Statute of Limitations runs 
 as against any other simple contract debt : 
 Smiih V. Leveanx, 2 De G-. J. & S. 5. 
 
 s Foley v. Hill, 2 H. L. C. 28 ; Pott 
 V. Clegg, 16 M. & W. 321, at p. 328 ; 16 
 h. J. Ex. 210; II Jur. 289 ; Garnett v. 
 M'Kewen, L. E. 8 Ex. 10 ; 42 L. J. Ex. 
 I ; 27 L. _T. N. S. 560; 21 W. E. 57. 
 In the United States the law is settled in 
 the same sense by Marine Bank v. Pulton 
 Bank, 2 Wall. 252, and Thompson v. 
 Eiggs, 5 Wall. 663. The position of 
 branch banks is generally that of agencies 
 of the principal office, though notice of 
 dishonour should be given as if they were 
 
 independent establishments, and payment 
 of a cheque may be refused except at the 
 branch where a customer keeps his 
 account : Prince v. Oriental Bank Corpo- 
 ration, 3 App. Gas. 325 ; 47 L. J. P. C. 
 42 ; 38 L. T. 41 ; 26 W. E. 543. 
 
 * Marzetli v. Williams, i B. & Ad. 415 ; 
 Whitaker v. Bank of England, 6 C. & P. 
 700 ; Eolin V. Steward, 14 C. B. 595 ; 23 
 L. J. C. P. 148. 
 
 ^ In Victoria it has been held that a 
 plaintiff who is not a trader, " and has 
 therefore no mercantile character," cannot 
 recover more than nominal damages 
 unless he proves special damage, since 
 there is no presumption legitimately dc- 
 duciblo that a person who is not a trader 
 suffers substantial damage by the dis- 
 
PART IV.] BANKERS. 8G7 
 
 and the case being remitted to them under the instruction to find 
 substantial damages, they returned a verdict for ;£^5oo, which 
 was afterwards reduced by consent, on an intimation from the 
 Court, to .£^200. 
 
 But the banker's obligation is to honour his customer's cheque Banker's 
 only, and to that end he is bound to know his customer's to hlnour his 
 handwriting ; and if in any way he is deceived without the customer's 
 
 . . . J J cheque only. 
 
 instrumentality of his customer, he must himself abide the loss. 
 Thus, in Hall v. Fuller' the alteration in a cheque was such that 
 it was found that " no person in the ordinary course of business 
 could observe it," yet the banker was held liable for the amount 
 wrongly paid on it. And the principle of the decision was 
 expressed in Young ■!?. Grote^: "A banker who pays a forged 
 cheque is in general bojind to pay the amount again to his 
 customer, because, in the first instance, he pays without autho- 
 rity." The limitations on this proposition will be discussed 
 subsequently in another connection. 
 
 There is an American case which says that a depositor has a American 
 right to inspect the books of the bank into which he has paid his downttTfthe 
 money ; that " the bank is bound to produce them on all proper ™fght to*"^^ 
 occasions ;" and that " the oflScers of the bank having the charge of inspect the 
 the books are to be so far considered as agents for both parties."' banker. 
 It is very difficult to see on what ground this right is based, 
 since it is now well-established law that his relation to the bank 
 is that of creditor only. The suggestion has been made that Considered. 
 this supposed right is limited to that portion of the books of the 
 bank in which the customer's own concerns are dealt with ; yet 
 why it should be extended so far as this even is almost as difficult 
 to comprehend as the wider proposition. But if the dictum is 
 to be understood as only applicable to " proper occasions," any 
 difficidty may be avoided by a just definition of that somewhat 
 
 lionour of his clieqne : Bank of New South the company's articles of as.iociation. 
 Wales V. Milvain, 10 V. L. E. L. 3. In This was reversed ' in the Exchequer 
 Doria v. Bank of Victoria the Court Chamber, Ir. E. 7 C. L. 169, but the 
 treated a schoolmaster as having a mer- judgment of the Common Pleas -w&a rc- 
 cantile character, 5 V. L. B. L. 397. stored by the House of Lords, the judges 
 •' 5 B. & C. 750. Smith v. Mercer, 6 having been called in to advise the House : 
 Taunt. 76 ; Kobarts II. Tucker, ^Exchequer Mahony d. East Holyford Mining Corn- 
 Chamber) 16 Q. B. 560 ; 20 L. J. Q. B. pany, L. R. 7 H. of L. 869 ; 33 L. T. N. S. 
 270. In East Holyford Mining Company 383 ; Ir. E. 9 C. L. 306. 
 V. National Bank it vfas held by the Irish » 4 Bing. 253. 
 
 Courtof Common Pleas, Ir. E. 5 C.L. 508, " Union Bank y. Knapp, 20 Mass. 96. 
 
 that the banker of a public registered In the third edition of these reports the 
 
 company is not bound to inquire whether position in the text is supported by refer- 
 
 the persons drawing cheques as directors ences to 2 Stark. Ev. p. 734 : Francis v. 
 
 against the company's banking account Ocean Insurance Company, 6 Cowen 404 ; 
 
 were legally appointed directors, or author- Bank of Utica r. Hillard, 5 Cowen 419; 
 
 ized to draw cheques, if there was nothing Angell and Ames, On Corporations, pp. 
 
 on the face of the transactions calculated 408, 409. 
 to excite euspicion or inconsistent with 
 
868 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Foster v. 
 Bank of 
 London. 
 
 Hardy v, 
 Veasy. 
 
 Banker's 
 duty to the 
 payee. 
 
 II. Banker 
 may be agent 
 (if bis cus- 
 ton)cr. 
 
 vague term, so that inspection of the debtor's account with his 
 creditor may he demanded upon " proper occasion." Thus an 
 undoubted "proper occasion " is in the course of an action when 
 the banker is summoned as a witness, and it has been decided 
 that, as against his customer, the banker is not protected, when 
 summoned in a case between his customer and a third person, 
 from giving evidence as to the balance of his customer at any 
 given date.' 
 
 In Foster v. Bank of London'' Brie, O.J., left to the jury 
 to say whether there was a duty on a banker not to disclose the 
 account of one customer to another when the latter was the 
 creditor of the former. The action of Brie, O.J., in that case 
 was regarded by Kelly, O.B., in Hardy v. Veasy,' as countenancing 
 the view that there was a legal obligation on the banker to keep 
 reasonably secret the state of the customer's account, while in the 
 same case Tassell v. Cooper* was instanced as inclining against 
 the existence of such a duty. But the Court avoided a decision 
 of the point by assuming in the plaintiff's favour that there was 
 a legal duty not to disclose the customer's account except upon 
 a reasonable and proper occasion, which was the duty laid in 
 the declaration as amended. And as the case had been left to 
 the jury on this footing, and they had found the occasion was a 
 reasonable and proper one, the Court confined its decision to the 
 point that the jury was the right tribunal for the decision of the 
 reasonableness of the occasion. The inclination of the learned 
 judge's opinion seemed, however, to be against the existence of 
 any such duty as of other than moral obligation. 
 
 The liability of the banker to his customer must not be con- 
 founded with his position with regard to the payee. If the banker 
 refuses payment of a cheque, it is very obvious that the payee has 
 a remedy against the drawer ; but even when the banker is in 
 funds on account of the customer there is no breach of duty on 
 his part with regard to the payee, for " the right of the depositor 
 is a chose in action, and his cheque does not transfer the debt or 
 give a lien upon it to a third person without the assent of the 
 depositary."* 
 
 II. But in addition to his more common duty, a banker may 
 discharge the duty of the agent of his customer ; for example, he 
 may receive money directed to be appropriated to some specific 
 purpose, or stocks and shares with instructions to take and apply 
 
 1 Loyd V. Freshfield, 2 C. & P. 325 ; 
 Foi'bes's case, 41 L. J. Cb. 467. 
 
 2 3 F. & F. 214.' 
 
 3 3 Ex. D. 107; 37 L. J. C. P. 76 ; 17 
 L. T. N. S. 607. 
 
 ' 9 C. B. S09. 
 
 " Chapman v. White, 6 N. Y . 412. And 
 the law is the same with regard to public 
 agents as to private persona : United States 
 V. Bank of the Metropolis, 15 Peters 377. 
 
PART IV.] BANKERS. 8C9 
 
 the dividends to his customer's account, or bills of exchange or 
 cheques to collect, or Exchequer bills to receive the interest upon 
 and to renew. Lord Brougham, in Foley v. Hill,' would appear 
 to consider the banker in this relation as a trustee ; yet it is 
 hard to see how his position is other than that of an agent, or 
 how the duty to collect dividends can impose other liability than 
 that attaching to an ordinary agent.^ 
 
 The effect of delivering bills and notes to a banker for collec- 
 tion was well put in an oft-quoted New York case' — that it 
 " must be considered as an act not imposing a burthen, but as 
 conferring a benefit, from which profit, however small, might 
 
 probably arise It is not necessary to shew that profits 
 
 would inevitably accrue to the bank ; it is enough that a reason- 
 able expectation exists that such would be the result." And again : 
 " The custom of receiving notes for collection is not founded 
 on mere courtesy, but with a view to the interests of the institu- 
 tion, and is the source from whence profit may and does arise." 
 
 Viewing, then, the banker as an agent merely, the question 
 arises, What are his duties with respect to the collection and 
 dealing with bills and notes placed in his hands to be col- 
 lected ? 
 
 The duty of the banker differs somewhat in respect of the 
 character of the collection he is to make. 
 
 I . Bills of Exchange, and Promissory Notes. — If bills of ex- i. Duties of 
 change or drafts or promissory notes are to be collected, the in the coUec- 
 banker must present for acceptance if the paper ought to be o°exchaiiK6 
 accepted, and also must present for payment at maturity, and, or promissory 
 if this is refused, and the instniment requires protest, must 
 send it to a notary for protest.* The undertaking to collect 
 bills binds the banker to exercise the necessary skill and diligence 
 for the accomplishment of that object ; therefore he is bound 
 to know the commercial character of the paper he undertakes 
 to collect — whether, for example, it is a bill of exchange, and 
 entitled to three days of grace, and that on the last day of grace 
 it should be protested, and notice given to the indorser, so as to 
 hold him liable for the payment of the bill. If the banker does 
 not know these and like incidents of the business he professes, then 
 he renders himself liable for the effects of his want of knowledge. 
 Thus, where a banker conducted himself in such an unskilful way 
 in collecting commercial paper committed to him for collection 
 
 1 2 H. L. C. 28, at p. 44. ' Smedes v. Utica Bank, 20 Johns. 372, 
 
 - See I'iiley, Agency, p. 45, and Ihe affirmed 3 Cow. 662; per Lord Lougli- 
 
 cases cited in In re United Service Com- borough, C.J., Shiells v. Blackbnme, I H. 
 
 pauy, Jolmston's claim, L. It. 6 Ch. App. Bl. 158. 
 
 212 ; Morse, Banks and Banking, 2nd edit. * For the duties of » notary, ante, 
 
 p. 385. P- 746- 
 
870 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Controversy 
 as to the 
 exact duty of 
 the banker in 
 the matter of 
 collection. 
 American 
 authorities — ■ 
 New York 
 and Ohio ; 
 
 chusetts. 
 
 The English 
 law. 
 
 Msickersy ». 
 Bamsays. 
 
 Van Wart v. 
 WooUey. 
 
 that the indorser was discharged in consequence, the banker was 
 held liable to his principal for the loss thereby occasioned.' 
 
 Marshall, O.J., considers the liability of the negligent bank to 
 arise by the failure to demand payment in time operating to 
 make the bill the bank's own, and thereby entitling the original 
 owner to sue for the price. ^ 
 
 There has been considerable dispute as to what is i the exact 
 obligation undertaken by the banker in the matter of the collec- 
 tion. The American authorities appear hopelessly at issue. The 
 Courts of New York' and Ohio^ hold the banker first receiving 
 paper answerable for the conduct of all subsequent agents, on the 
 ground that the first agent is liable for the acts of all sub-agents 
 employed by him. 
 
 In Massachusetts and other States the rule is that if the first 
 bank selects proper sub-agents for the business, it has discharged 
 its duty, and is not liable in the case of their default.' 
 
 The English law is thus stated by Lord Cottenham in Mackersy 
 Vi Ramsays": — "If I send to my bankers a bill or draft upon 
 anotheB banker in London, I do not expect that they will them- 
 selves go and receive the amount and pay me the proceeds, but 
 that they will send a clerk in the course of the day to the Clearing 
 House, and settle the balances, in which my bill or draft will form 
 one item. If such clerk, instead of returning to the bankers with 
 the balance, should abscond with it, can my bankers refuse to credit 
 me with the amount ? Certainly not. If the bill had been drawn 
 upon a person at York the case would have been the same, 
 although, instead of the bankers employing a clerk to receive the 
 amount, they would probably employ their correspondent at York 
 to do so ; and if such correspondent received the amount, am I to 
 be refused credit because he afterwards became bankrupt whilst 
 in debt to my bankers ? If the balance were not in favour of 
 my bankers, the question would not arise, so that my title to the 
 credit would depend upon the state of the account between my 
 bankers and their correspondent." 
 
 It has been sought' to deduce a different rule from Van Wart 
 ^ Georgia National Bank v. Hender- 
 
 Bon, 12 Am. R. 590. 
 ' Bank of Washington 
 
 Triplett, 
 
 Peters 25, at p. 31. 
 
 ' Allen V. Mei'ohauts' Bank, 15 Wend. 
 482 ; 22 Wend. 215. 
 
 ■* Beeves v. State Bank of Ohio, 8 Ohio 
 St. 465. 
 
 ^ Dorchester and Milton Bank v. New 
 England Bank, 55 Mass. 177 ; Bast Had- 
 dara Bank v. Scovil, 12 Conn. 303 ; 
 iEtna Insurance Company v. Alton City 
 Bank, 25 111. 243; Bellemire v. United 
 States Bank (Pennyslvania), 4 Whart. 105. 
 
 In Shearman aild Eedfield, Law of Negli- 
 gence, 2nd edit., the learnSd authors, re- 
 ferring to this class of cases, express a 
 decided preference for the New York de- 
 cisions, and, alluding to the Courts that 
 have decided otherwise, emphatically say, 
 and with quite a theological ring, "We 
 have no hesitation in saying that these 
 Courts have erred." See 4th edit, of the 
 same work, § 582. 
 
 8 9 CI. & ¥. 818, at p. 848. 
 
 ' Morse, Banks and Banking, 2nd edit. 
 P- 413- 
 
PART iv.J BANKEES. 871 
 
 f. WooUey.^ That was an action by an agent of au American 
 firm against bankers for neglecting to give him notice of the 
 non-acceptance of a bill forwarded from the American firm, and 
 which they also had forwarded to their agent to collect. But the 
 very first words of the considered judgment of Abbott, C.J., are 
 plain: " It is evident that the defendants (who cannot be dis- 
 tinguished from, but are answerable for, their London corre- 
 spondents. Sir John Lubbock & Co.) have been guilty of a neglect 
 of the duty which they owed the plaintiff", their employer," &c. 
 For the contrary view certain expressions farther on in the same 
 judgment are vouched : " The bill is drawn upon persons residing 
 in London ; the plaintiff", therefore, could not have been expected 
 to present the bill himself; it must have been understood that 
 he was to do this through the medium of some other person. 
 He employed for that purpose persons in the habit of transacting 
 such business for him and others, and upon whose punctuality he 
 might reasonably rely. In doing this we think that he did all 
 that was incumbent upon him .... that he is personally in 
 no default as to them, and is not answerable to them for the 
 default of the person whom he employed under such circum- 
 stances." 
 
 But it is manifest that the plaintiff" was but a general Considered. 
 agent, while the defendants were carrying on a business that 
 implied the having facilities which the general agent did not 
 possess. Therefore, as regards his principal he came within the 
 rule that where the employment of a sub-agent is authorized 
 either expressly or impliedly, by usage of trade' or by reason of 
 the course of business between an agent and his principal so 
 admitting, and the agent has used reasonable diligence in the 
 choice of a sub-agent of skill and care, the agent will not 
 ordinarily be responsible for the negligence or misconduct of the 
 sub-agent.^ Bnt the bankers whose business it is make them- 
 selves responsible for the performance of what they have un- 
 dertaken — that is, the ordinary and usual conduct of their 
 business. 
 
 The discrepancy between the authorities arises, however, rather 
 from a diff'erence in viewing facts than in any proposition of 
 law — the point at issue being whether the bills are sent to be 
 "transmitted" or "collected";^ but if it be admitted in any 
 case that bUls are to be " collected," then the skilled agent who 
 
 ' 3 B. & C. 439. Speight v. Gannt, 9 App. Cas. I. 
 
 '' llobinson v. MoIIett, L, E. 7 H. nf li. ■• See Bank of Washington v. Triplett, I 
 
 802 I 44 L. J. C. P. 362 ; 33 L. T. N. S. Peters 25 ; Mechanics' Bank v. Earp, 4 
 
 J44. Eawle 384; Allen v. Merchants' Bank, 
 
 ' Goawill V. Dunkley, Str. 680; Cock- 22 Wend. 215. 
 ran v. Irlam, 2 M. & S. 301. Compare 
 
872 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Employment 
 of a notary. 
 
 Distinction 
 between 
 notes left 
 on deposit 
 and notes left 
 as collateral 
 security for a 
 loan. 
 
 has undertaken the business would be expected to see to its 
 performance.' Where, however, a sub-agent is employed accord- 
 ing to the course of trade or the nature of the transaction, the 
 principal may treat the sub-agent as his agent, or he may go 
 against the original agent.^ 
 
 The other class of cases regards each person through whose 
 hands the bills pass as directly liable to the owner for their own 
 acts only.' 
 
 A limitation of the banker's liability would, however, arise 
 where the banker has to employ a notary public, since the official 
 position of a notary authorizes the assumption that any one 
 invested with it is a suitable person to discharge the duties to 
 which he is assigned;^ but on disproof of this presumption the 
 bank would be liable for the notary's negligence.* 
 
 Since the duty owed by the banker is that which would be 
 shewn by a business man of reasonable skill and ordinary 
 diligence, and as by reasonable skill is understood such as is 
 ordinarily possessed and exercised by persons of common capacity 
 engaged in the same business or employment, and by ordinary 
 diligence is to be understood that degree of diligence which 
 persons of common prudence are accustomed to use about their 
 own affairs,' it follows that, if any point of law concerning any 
 ^ct in the business of collecting is without authority and doubtful, 
 if the banker uses his best discretion in regard to it he will be 
 absolved if he goes wrong. This, however, will be otherwise if the 
 mistake is through want of care, as through misreading the bill.^ 
 
 A distinction exists between notes left with a banker on deposit 
 and notes left as collateral security for a loan. In the former 
 case it is no part of a banker's duty to sue out legal process for 
 their enforcement.* In the latter, he is bound to take every 
 
 ^ Story, Agency, 9th edit. § 14. Mer- drunk at the time lie took the note." He 
 chants' National Bank v. Goodman, 109 
 Penn. St. 422. Drovers' National Bank 
 V. Anglo-American Packing Company, 57 
 Am. R. 855, is a case where a bank re- 
 ceiving a cheque on another bank trans- 
 mitted it to that bank for payment, and 
 was held guilty of negligence for doing so. 
 
 2 Wilson V. Smith, 3 How. (CJ. S.) 763. 
 
 ' Lawrence v. Stonington Bank, 6 
 Conn. 521. 
 
 * Stacy V. Dane County Bank, 12 Wis. 
 629; Shearman and Eedfield, Law of 
 Negligence, 4tU edit. § 585, where the 
 American authoiities are collected. 
 
 ^ Morse, Banks and Banking, p. 416, 
 cites a case decided in Mississippi, Bowling 
 V. Arthur, 34 Miss. 41, where the Court 
 declared " it was not sufficient proof of a 
 notary's unfitness to fihew that he was a 
 man of habitually dissipated character, 
 but that it must be shewn that he was 
 
 prefixes the remark: "The standard of 
 fitness is not, of course, uniform and abso- 
 lute ; we cannot pretend to say what it 
 may be in all the various States of the 
 Union, but wo have some knowledge of 
 what it is in Mississippi." Probably in 
 this country the suggested rule would err 
 as far as the rule rejected; besides the 
 fact of dissipated character, it would he 
 necessary to shew that the defendant 
 knew, or had the means of knowledge, of 
 it. That the man was drunk at the time 
 of employment would be one means, but 
 only one, of shewing this. 
 
 " Per Shaw, C.J., Mechanics' Bank «. 
 Merchants' Bank, 47 Mass. 13, at p. 26. 
 
 ' Bank of Delaware County v. Broom- 
 hall, 38 Penn. St. 135. 
 
 * Crow V. Mechanics and Traders' Bank, 
 12 La. Ann. 692. 
 
PART IV.] BANKEES. 873 
 
 step to fix the liability of the parties, not only by resorting to the 
 ordinary means atnongst merchants, but, if necessary, to bring an 
 action with reasonable diligence and skill, and, if he fails, the 
 debtor will be discharged/ 
 
 a. A bill of exchange must be presented to the drawee for a. Present- 
 acceptance" when it is drawn payable at a certain period after ^"exchangl. 
 sight,' or when the bill expressly stipulates for acceptance, or 
 where it is drawn payable elsewhere than at the residence or 
 place of business of the drawee,'' but in no other case is present- 
 ment for acceptance necessary to chai'ge any party to the bill.* 
 
 In the cases where presentment is necessary and the bill is 
 negotiated, the holder must either present it for acceptance or 
 negotiate it within a reasonable time ; if he do not do so, the 
 drawer and all prior iijdorsers are discharged. ° In Shute v. 
 Eobins' a bill drawn by bankers in the country on their corre- 
 spondents in London, payable after sight, was indorsed to the 
 traveller of the plaintiffs. He kept it a week, then forwarded 
 it to the plaintiffs ; they kept it two days, then transmitted it 
 for acceptance. In the meantime the drawer had become bank- 
 rupt, and the drawees refused to accept. An action was brought, 
 and in summing up to the jury, after observing that the question 
 was one of mixed law and fact, Lord Tenterden, C.J., thus pro- Opinion of 
 ceeded : — " Whatever strictness may be required with respect to ^°^ q J" ^'^" 
 common bills of exchange payable after sight, it does not seem 
 unreasonable to treat bills of this nature drawn by bankers 
 on their correspondents as not requiring immediate presentment, 
 but as being retainable by the holders for the purpose of using 
 them within a moderate time (for indefinite delay of course 
 cannot be allowed) as part of the circulating medium of the 
 country." The jury found that the delay in this case was not 
 unreasonable. 
 
 To the same effect is the iudgment of Tindal, C.J., in another Opinion of 
 
 Tindal C J 
 
 case.' "The bill" — ^these are his words — " must be forwarded 
 within a reasonable time under all the circumstances of the 
 case, and there must be no unreasonable or improper delay. 
 Whether there has been in any particular case reasonable dili- 
 gence used, or whether unreasonable delay has occurred, is a 
 mixed question of law and fact to be decided by the jury, acting 
 under the direction of the judge, upon the particular circum- 
 stances of each case."° 
 
 1 Wakeman v. Gowdy, lo Bosw. 208. ^ 45 & 46 Viot. 0. 61, s. 39, sub-s. 2. 
 
 ' Macdonald v. Whitfield, 8 App. Gas. ^ 45 & 46 Viot. u. 61, s. 39, sub-s. 3. 
 
 733 ; 52 L. J. C. P. 70 ; 49 L. T. 466. " 45 & 46 Vict. i;. 61, a. 40. 
 
 * 45 & 46 Viot. 0. 61, 8. 39, sub-s. I ; " 3 C. & P. 80. 
 
 Campbell v. French, 6 T. Vi. 200 ; Holmes ' Hellish v. Kawdon, 9 Bing. 416. 
 
 B. KerrisoD, 2 Taunt. 323. " For a case where the delay id present- 
 
874 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II, 
 
 What is an 
 
 unreasonablo 
 
 time. 
 
 Immediate 
 answer not 
 required from 
 tlie drawee. 
 
 As to the meaning of " unreasonable time," where an agent 
 has to present, as between him and his principal, Lord Cairns 
 thus states it' : — " The law does not lay down as an absolute rule 
 any time which is reasonable or unreasonable, as between persons 
 standing in this relation, for the execution by the agent of the 
 duty which is imposed upon him. But inasmuch as the object 
 of the transmission of a bill of this kind from principal to agent 
 is to obtain the acceptance and payment of the bill, or, if it is 
 not accepted, to guard the rights of the principal against the 
 drawer in case recourse is to be had to the drawer, their lordships 
 are of opinion that the duty of the agent must be measured by 
 those considerations, and that the duty of the agent is to obtain 
 acceptance of the bill if possible, but not to press unduly for 
 acceptance in such a way as to lead to a refusal, provided that 
 the steps for obtaining acceptance or refusal are taken within 
 that limit of time which will preserve the right of his principal 
 against the drawer." There is, however, a difference between a 
 bill circulating and a bill locked up. " If," says BuUer, J., " a 
 bill drawn at three days' sight be kept out in circulation for a 
 year, I cannot say that there would be laches ; but if, instead of 
 putting it into circulation, the holder were to lock it up for any 
 length of time, I should say that he would be guilty of laches'" 
 
 The rules as to presentment for acceptance are set out in the 
 Bills of Exchange Act, 1882,' where along with rules providing' 
 for special cases is one dispensing with presentment " where, 
 after the exercise of reasonable diligence, such presentment can- 
 not be effected."* 
 
 The drawee is not required to say straightway whether he will 
 accept or refuse. In Bank of Van Diemen's Land v. Bank of 
 Victoria,* which has been already quoted from, their lordships 
 were prepared to hold that it was " the ordinary custom of 
 merchants to leave a bill for acceptance twenty-four hours with 
 the person upon whom it is drawn," so that, where the twenty- 
 four hours would expire after business hours on a Saturday, the 
 Privy Council was of opinion "it was a natural and justifiable 
 act to postpone the demand for an answer " till Monday .° 
 
 ment was held unreasonable, see Straker 
 V. Giabam, 4 M. & AV. 721 ; where held 
 reasonable, Goupy ». Arden; 7 Taunt. 159. 
 
 ^ Bank of Van Diemen's Land v. Bank 
 of Victoria, L. E. 3 P. 0. 526, at p. 542. 
 
 ' Muilman v. D'Eguino, 2 H. Bl. 565. 
 See the explanation of this by Tindal, 
 CI., in Mellish v. Kawdon, 9 Bing. 416. 
 
 2 45 & 46 Vict. 0. 61, 8. 41. 
 
 * The bill must be presented, though 
 the holder may know that the drawee 
 
 will not accept : Hill v. Heap, D. & E. 
 N. P. C. 57 ; and during tlie usual banking 
 hours : Parker v. Gordon, 7 East 385 ; 
 Jameson v. Swinton, 2 Taunt. 224 ; but 
 presentment after the usual hours is 
 sufficient if there is somebody at the place 
 who sees the bill and gives an answer, 
 but not otherwise : Henry v. Lee, 2 Chit. 
 124 ; Bynner v. Eussell, 7 Moore 267. 
 
 6 L. E. 3 P. C. 526. 
 
 ° In Ingram v. Foster, 2 Sn^. 242, it 
 
PAET IV.] BANKERS. 875 
 
 /3. A bill must be also presented for payment on penalty of p. Pieseut- 
 discharging the drawer and indorsers.' raymint 
 
 If the bill is payable on demand, then presentment must be 
 made within a reasonable time after its issue in order to render 
 the drawer liable, and within a reasonable time after its indorse- 
 ment to render the indorser liable .° Reasonable time is, as we 
 have seen, a mixed question of law and fact,^ though formerly 
 held a question of law merely. Quam longum esse debet non de- 
 finitur in Jure, sed pendd ex discretionc justieiariorum} 
 
 The general rule for presentment for payment has been thus General 
 expressed* : — A man taJdng a bill or note payable on demand or ^ '^' 
 a cheque is not bound, laying aside all other business, to present 
 or transmit it for payment the very first opportunity. It has 
 long since been decided in numerous cases that, though the 
 party by whom the bill or note is to be paid live in the same 
 place, it is not necessary to present the instrument for payment 
 till the morning next after the day on which it was received." 
 And later cases have established that the holder of a cheque has 
 the whole of the banking hours of the next day within which to 
 present it for payment.' 
 
 Where the parties live in the same place a bill of exchange 
 ought to be presented the next day after the payee has received 
 it. If it has to be sent by post, it ought to be posted on the day 
 next after the day on which it was received, and it is then the 
 duty of the person who receives it by post to present it on the 
 day next following the day on which it is received.* This is not 
 so with promissory notes. In the case of these it is a question 
 for the jury whether the delay in presentment is in all the cir- 
 cumstances reasonable or unreasonable." 
 
 The cases of bills of exchange and of cheques, says Lord 
 Cairns, stand upon a footing obviously different. Bank notes 
 
 was said by Lord Ellenborough, C. J., I C. & M. 637 ; 3 Tyrw. 654 ; Robson v. 
 
 that the law of merchants at Hamburg, Oliver, lo Q. B. 704 ; 16 L. j. Q. B. 437 ; 
 
 and which prevails all over the continent 45 & 46 Vict. c. 61, s. 36. 
 
 of Europe, is that when a bill is kept ' 45 & 46 Vict. c. 61, s. 45 ; Manwaring 
 
 more than twenty-fonr hours after presen- v. Harrison, i Stra. 508. 
 
 tation for acceptance it amounts to an '' Co. Litt. 56 b. . 
 
 acceptance ; but see as to this the Bills of ^ Byles, Bills of Exchange, 14th edit. 
 
 Exchange Act, 1842, ». 42. And he inti- p. 282. 
 
 mates a desire to have the point, amongst " Ward v. Evans, 2 Ld. Raym. 928 ; 
 
 others, argued whether, if the holder allows Moore v. Warren, i Stra. 415 ; and other 
 
 further time, he should not inform his in- oases. 
 
 dorser, and put him in as good a situation ' Robson u. Bennett, 2 Taunt. 388 ; 
 
 as himself. Moulc 0. Brown, 4 Bing. N. C. 266 ; and 
 
 1 45 &46 Vict. c. 61, s. 45. other cases. 
 
 ^ 45 & 46 Vict. t. 61, ss. 46 and 86. ^ Byles, Bills of Exchange, 14th edit. 
 
 A note payable on demand is not so strictly p. 283. 
 
 construed overdue as other instruments : ' Chartered Mercantile Bank of India, 
 
 Camidge v. AUenby, 6 B. & C. 373 ; as &c., v. Dickson, L. R. 3 P. C. 574 ; 45 
 
 to bankers' cash notes, Rogers v. Langford, & 46 Vict. c. 61, s. 86, 
 
876 THE LAW OF NEaLIGENCE. [book ii. 
 
 and bankers' cash notes' differ again, since they are intended to 
 
 circulate as money, but are not intended as a continuing security 
 
 in the hands of any single owner. The leading case dealing 
 
 Camidgeti. with this class of Securities is Oamidge v. Allenby.' There 
 
 «u™^^' ^S'ylsy, J., lays down the general rule applicable to negotiable 
 
 applicable instruments to be " that the holder of such an instrument is to 
 
 to negotiable . . ■ 
 
 instruments present promptly, or to communicate without delay notice of non- 
 Bayie/ J. ^ pajsment or of the insolvency of the acceptor of a bill or the 
 maker of a note."' But the rule as to bank notes was declared 
 to be that, since they are intended for circulation, the holder is 
 not bound imTnediately* to circulate them or to send them into 
 the bank for payment, but he is bound to do one or the other 
 " within a reasonable time after he had receiyed them," so that 
 where bank notes were handed over to a creditor at York on 
 Saturday afternoon at three o'clock in payment of an account, 
 and were notes of a Huddersfield bank which had stopped pay- 
 ment the same morning at eleven o'clock (though the fact was 
 not known to either payer or payee), and were neither circulated 
 nor presented for payment, but a week after the payee required 
 the payer to take them back and to pay the amount of them, the 
 Court of King's Bench held that, " in consequence of the negoti- 
 able nature of the instruments, it became his [the payee's] duty 
 to give notice to the party who paid him the notes that the 
 bankers had become insolvent, and that he, the plaintiff, would 
 resort to the defendant for payment of the notes ; and it would 
 then have been for the defendant to consider whether he could 
 transfer the loss to any other person, for, unless he had been 
 guilty of negligence, he might perhaps have resorted to the person 
 who paid him the notes," and the plaintiff had failed in the per- 
 formance of this duty, so that the defendant became discharged. 
 Rigiit of This right of resort, in the case of bills of exchange and of 
 
 penden't''on \ cheques, is, however, dependent upon indorsement. For by the 
 indorsement. BiHg of Exchange Act, 1883,° a transferor by delivery is not 
 liable on the instrument, but he will be liable to his immediate 
 transferee being a holder for value on an implied warranty con- 
 nected with, but collateral to, the instrument, to the effect that 
 the instrument is what it purports to be, that he has a right to 
 transfer it, and that at the time of transfer he was not aware of 
 any fact that rendered it worthless.' 
 
 ' Shute V. Eobins, 3 C. & P. 80. Biay be cut in halves, and sent in different 
 
 ^ 6 B. & C. 373 ; Robinson ». Hawks- parcels and on different days : Williams v. 
 
 ford, 9 Q. B. 52 ; 15 L. J. Q. B. 377. Smith, 2 B. & Aid. 496. 
 
 ^ Robson V. Oliver, 10 Q. B. 704; 16 ^ Section 58, sub-section 2; Ex parte 
 
 L. J. Q. B. 437; James v. Holditch, 8 Roberts, 2 Cox 171 ; Fenn«. Harrison, 3 
 
 D. & E. 40. T. K. 757 ; Ex parte Bird, 4 De G. & S. 
 
 * Shute V. Robins, 3 C. & P. 80. If 273. 
 
 the notes have to be transmitted, they ° Section 58, sub-section 3. As to the 
 
PART IV.] BANKERS. 877 
 
 Presentment for payment of a bill or note must be made by Presentment 
 the holder or his agent, at a reasonable hour, on a business day, *"'■" ?">■'"'•"'■ 
 at the proper place, to the person designated by the bill or note 
 as the payer or his agent, if such person can be found by the use 
 of reasonable diligence ; or may be made through the Post Office.' 
 Presentment should be, if at a banker's, within banking hours ; if 
 not at a banker's, presentment may be made at any time of the 
 day when the person chargeable may reasonably be expected to 
 be found at his place of residence or business, though it be six, 
 seven, or eight in the evening.^ When a bill or note is presented 
 at the proper place, and, after the exercise of reasonable diligence, 
 no person authorized to pay or refuse payment can be found there, 
 no further presentment to the drawee or acceptor or maker is 
 necessary.^ 
 
 A personal demand is not in general necessary.'' If, however, a Personal 
 bill is drawn upon, or accepted, or a note made by two or more persons in genera" 
 who are not partners, if no place of payment is specified, present- necessary, 
 ment must be made to all of them.' In the event of death, pre- 
 sentment must be made to the personal representative of the 
 person chargeable.' If a bill or note is not duly presented, all 
 the antecedent parties are discharged,' though the acceptor or 
 maker continues liable." Neglect to present has been held not to 
 discharge a man who guarantees the due payment of a bill or 
 note.' 
 
 In Eobarts v. Tucker" it was held in the Exchequer Chamber Eobarts «. 
 that the acceptance of a bill of exchange payable at a banker's is "° ^^' 
 equivalent to an order to the banker to pay the bill to any person 
 who, according to the law merchant, can give a valid discharge 
 for it. Therefore, the banker is warranted in paying to any one 
 who becomes the holder by a genuine indorsement, and only to 
 such, so that the responsibility for deciding on the genuineness of 
 indorsements is on the banker. The liability thus attaching to 
 bankers is extremely onerous, but, as is suggested in the judgment 
 of Parke, B., the banker may, if he pleases, avoid it by requiring 
 
 ability of a person who receives forged & 46 Vict. u. 61), s. 45, subs. 5. 
 
 bank notes, or who discounts a forged bill, * Matthews v. Haydon, z Esp. 509 ; 
 
 to sue for the pn'ce of the goods or for Brown v. M'Dermot, 5 Esp. 265. 
 
 money lent, see Jones v. Byde, 5 Taunt. = The Bills of Exchange Act, 1882 (45 
 
 488, affirmed in Gompertz v. Bartlett, 2 & 46 Vict. c. 61), s. 45, sub-s. 6. , 
 
 E. & B. 849 ; 23 L. J. Q. B. 65. ^ Section 45, subsection 7. 
 
 1 'J'he Bills of Exchange Act, 1882 (45 ' Section 45 
 
 & 46 Vict c. 61), s. 4S, 6ub-ss. 3-8 ; Prid- ^ Section 52, sub-section I. 
 
 eaux V. Criddle, L. E. 4 Q. B. 455 ; 38 » Hitchcock v. Humfrey, J M. & G. 
 
 L. J. Q. B. 232 ; 20 L. T. N. S. 695 ; 559 ; Walton v. Mascall, 13 M. & W. 
 
 Hey wood v. Pickering, L. E. 9 Q. B. 428. 452 ; see In re Bishop, Ex parte Fox, 15 
 
 2 Byles Bills of Exchange, 14th edit. Ch. D. 400; 50 L. J. Ch. 18 ; 43 L. T. 
 p. 285. ' '65 ; 29 W. R. 144. 
 
 3 The Bills of Exchange Act, 1882 (45 i" 16 Q. B. 560 ; 20 L. J. Q. B. 270. 
 
878 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 2, Cheques. 
 
 Befluition. 
 
 The position ' 
 of a baoker 
 receiving 
 cheques to 
 collect con- 
 sidered. 
 
 Boyd V. 
 Emmerson. 
 
 his customers to domicile their bills at their own offices and to 
 honour them by giving a cheque on the banker. But, failing 
 this, they are liable if they pay on other than a genuine indorse- 
 ment. The law was afterwards altered by statute 16 & 17 
 Vict. c. 59, the provisions of which are re-enacted in the Bills 
 of Exchange Act, 1882,' so that, when a bill payable to order 
 on demand is drawn on a banker, and the banker on whom it 
 is drawn pays the bill in good faith and in the ordinary course 
 of business, it is not incumbent on the banker to shew that the 
 indorsements are genuine, and he is protected if the indorsements 
 are forged. 
 
 2. Cheques.^ — The duties with regard to these are somewhat 
 more complicated and vastly more onerous, looking to their 
 amount, than those relating to bills, since the great volume of 
 ordinary banking business is conducted by their means. 
 
 A cheque has been described as the instrument by which, 
 customarily, a depositor seeks to withdraw his fands or any part 
 thereof from the bank. It is a draft or order on the bank 
 requiring it to pay a sum named either to bearer, or to a nfemed 
 person, or to order of the payee.' 
 
 The holder of a cheque may either be a customer of the same 
 bank as the drawer, or of another. 
 
 A question has been raised whether there is not a difference in 
 the character in which a banker receives a cheque where both 
 drawer and holder are customers than there is in the case where 
 he has to collect the cheque.* The English law is settled, by 
 Boyd V. Emmerson,* that if the bankers receive the cheque as the 
 holder's agent, they stand in the same position as any other agents, 
 and are only bound to use due diligence in getting the cheque 
 paid ; if they receive it as the drawer's agents, then the person 
 presenting it, on asking whether it were to be paid or not, would 
 have a right to an immediate answer ; but if the holder merely 
 asks for the cheque to be put to his account, the inference is 
 that the cheque is paid in to the holder's agent subject to its 
 being honoured or not in the course of the day.° When the 
 bankers of the holder and the drawer are different, the deposit 
 of a cheque for which credit is given on the depositor's account is 
 to be held merely for collection, and the memorandum of credit 
 may be cancelled if the collection is not accomplished in due 
 
 ' 45 & 46 Vict. c. 61, B. 60; see section 
 19 of 16 & 17 Vict. c. 59. 
 
 2 See the Bills of Exchange Act, 1882 
 (45 & 46 Vict. c. 61), ss. 73-82 ; M'Lean 
 V. Clydesdale Banking Company, 9 App. 
 Gas. 95 ; soL.T. 457. 
 
 ^ Horse, Banks and Banking, 2nd edit. 
 
 p. 249, summarized. 
 
 * Oddie V. National City Bank, 45 
 ^- Y. 735 ; Peterson v. Union National 
 Bank, 52 Penn. St. 206. 
 
 = 2 A. & E. 184. 
 
 « Kilsby V. Williams, 5 B. & Aid. 81S ; 
 see Bolton v. Eichard, 6 T. E. 139. 
 
PART IV.] BANKERS. 879 
 
 course.' The time allotted for this collection is till the close of banking 
 hours on the business day next following that on which the bank 
 comes into possession of the cheque.^ But the duty of the bankers 
 to their customer bears no necessary relation to the duty of their 
 customer to others interested in the bill;' and if the banker acts 
 in other than the usual way, unless on special instructions, and 
 loss occurs, he will be liable;'' and where the collecting bank and 
 the drawee bank are in the same place, and the collecting bank 
 has recourse to the agency of others, it will be liable for all the 
 consequences that ensue if it has not a distinct permission to act 
 in this manner.^ 
 
 The holder of a cheque is not bound to give notice of its dis- Duty of 
 honour to the drawer for the purpose of charging the person from cheque?' * 
 whom he received it. Hq does enough if he presents it with due 
 diligence to the bankers on whom it is drawn, and gives due 
 notice of dishonour to those only against whom he seeks his 
 remedy.* 
 
 Where a cheque is circulated, a distinction is drawn^ between Distinction 
 the time of presentment necessary as against the original drawer pre*s°eritmeri't : 
 in the event of the banker's insolvency, and the time necessary (i.) as against 
 
 ,1 , . •'the original 
 
 to charge the person from whom the cheque was ultimately drawer ; (ii.) 
 received. The circulation should not increase the liability of the^uitimate 
 the drawer ; and therefore, to charge him in the event of the iioi^er. 
 banker's failure, the cheque should be presented within the 
 period within which the payee or first holder must have presented 
 it. As against the party transferring the cheque to the holder, 
 it must be forwarded for presentation on the day next after the 
 transfer. 
 
 Besides the liability of the banker who collects cheques paid 
 in to his bank, there is the liability of the banker who pays 
 cheques. This has been touched upon before. It remains here 
 to notice some statutory enactments. 
 
 Before 1853 cheques were always drawn payable to bearer,^ so statutorj- 
 that a banker who paid one was not liable if the cheque was 
 regularly drawn, however it might have been obtained. 
 
 By section 19 of 16& 17 Vict. c. 59, which has already been 16 & 17 Vict, 
 noticed, " any draft or order drawn upon a banker for a sum "' ^'' 
 payable to order or demand, which shall be presented for payment 
 
 ' Moule V. Brown, 4 Bing. N. C. 266. Ridge, 2 Canipb. 537. 
 
 - Boddington v. Sohlencker, 4B. &Ad. ' Byles, Bills of Exchange, I4lh edit. 
 
 752. p. 23. 
 
 ' RIokford v. Eidge, 2 Campb. 537. ^ Vagliano v. Bank of England, 22 
 
 ^ BjJdington v. Schlencker, 4 B. & Ad. Q. B. U. 103 ; 58 L. J. Q. B. 27 ; 59 L. T. 
 
 752. 864; affirmed in the Court of Appeal, 5 
 
 ^ Moule V. Brown, 4 Bing. N. C. 266. Times L. B. 489. 
 
 " Per Lord Ellenborough, Eickford v. 
 
880 THE LAW OF NEGLIGENCE. [book ii. 
 
 purporting to be indorsed by the person to whom the same shall 
 be drawn payable, shall be a suflQ.cient authority to such banker 
 to pay such draft to the bearer or holder thereof, and it shall not 
 be incumbent on such banker to prove that such indorsement, or 
 any subsequent indorsement, was made by or under the authority 
 or direction of the persons to whom the said draft or order was 
 made payable, either by the drawer or indorsee thereof." 
 
 45 & 46 Vict. .This was substantially re-enacted in the Bills of Exchange Act, 
 
 ''■^'- 1882.' 
 
 Crossed A cheque may be crossed by the drawer, and, after issue, may 
 
 c eques. -j^^ crossed generally or specially by the holder, who may also 
 
 add the words " not negotiable." 
 
 By the Bills of Exchange Act, 1882,^ which has codified the 
 law, the duty, of a banker on whom a crossed cheque is drawn is 
 — if it is crossed generally, he must not pay it otherwise than to a 
 banker ; if specially, otherwise than to the ba,nker to whom it is 
 crossed. If he does pay the cheque otherwise than as above, he 
 will be liable to the true owner of the cheque for any loss he may 
 sustain by reason of the cheque having been so paid. If he pays 
 it according to its tenor, in good faith and without negligence, he 
 (and the drawer, if the cheque has come into the hands of the 
 payee) will be entitled to the same rights and placed in the same 
 position as if payment of the cheque had been made to the true 
 owner thereof.^ 
 
 And where a cheque is presented for payment which does not 
 at the time of presentment appear to be crossed, or to have had a 
 crossing which has been obliterated, or to have been added to 
 or altered otherwise than as authorized by the Bills of Exchange 
 Act, 1882, the banker paying the cheque, and without negligence, 
 
 ' 45 & 46 Vict. 0. 61, s. 60. Bank, 1 Q. B. D. 31 ; 45 L. J. Q. B. 149 ; 
 
 2 4S & 46 Vict. c. 61, s. 79, snb-s. 2. 33 L. T. N. S. 557 ; 24 W. E. 194, which 
 
 The law has been the subject of frequent determined that the Act did not affect the 
 
 amendments. 19 & 29 Vict. c. 25 pro- negotiability of a cheque, so that, where a 
 
 Tided that a crossed cheque should only cheque was stolen and presented throui;h 
 
 be paid to or through some banker. But another bank than that named in the cross- 
 
 this was held only to protect the drawee : ing, it was held that the drawees who paiil 
 
 Ogden V. Benas, L. E. 9 C. P. 513 ; 43 it were not liable in an action at the suit 
 
 L. J. C. P. 259 ; 30 L. T. N. S. 683 ; 22 of the loser, as he was neither the holler 
 
 W. E. 805. In Simmons v. Taylor, 4 nor was there privity nor statutory duty 
 
 C. B. N. S. 463, 27 L. J. C. P. 248 ; it between him and the bank. The 39 & 40 
 
 was held that the crossing was no part of Vict. c. 81 was the result of this decis'oii. 
 
 the cheque, and its fraudulent alteration This is now repealed, and the pro\i!<i>ii.s 
 
 no forgery, so that a payment without summarized in the text are the hiw. 
 
 negligen'ce to the holder, not being a Matthiessen «. London and County B ink, 
 
 banker, of a draft the crossing of which 5 C. P. D. 7 ; 48 L. J. C. P. 529 141 Ij. T. 
 
 had been fraudulently obliterated, was 35 ; 27 W. E. 83, was decided on scclioii 
 
 not a ground of action. 21 & 22 Vict. c. 12 of 39 & 40 Vict. 0. 81. See Stiijig- 
 
 79, amended the law to meet this state of field v. Lanezzari, 16 L. T. 361, as tu lea- 
 
 things, and made fraudulent alteration sonable time of payment in to a banker 3 
 
 forgery, though leaving the protection of of a crossed cheque, 
 the banker if the cheque were paid without " Section 80. 
 
 negligence. Then came Smith v. Union 
 
PART TV.] BANKERS. 881 
 
 shall not be responsible nor incur any liability, nor shall the pay- 
 ment be questioned by reason of the cheque having been crossed, 
 or of the crossing having been obliterated, or having been added 
 to or altered otherwise than as authorized by the Act, and of 
 payment having been made otherwise than to a banker, or to the 
 banker to whom the cheque is or was crossed, or to his agent for 
 collection being a banker, as the case may be.^ 
 
 A person taking a crossed cheque which bears on it the 
 words " Not negotiable " will not have, and will not be capable of 
 giving, a better title to the cheque than that which the person 
 from whom he took it had.^ 
 
 Apart altogether from statute, the fact of a banker paying a 
 crossed cheque otherwise than through another banker is evidence 
 of negligence to render th^ banker responsible to his customer." 
 
 III. Another relation frequently constituted between a banker m. Banter 
 and his customer is that which makes the banker a pawnee of "'^ P""''^- 
 his customers' securities. 
 , In this relation the banker has most undoubtedly " a general 
 lien on all securities deposited with him as banker by a customer, 
 unless there be an express contract or circumstances that shew 
 an implied contract inconsistent with lien."'' This lien exists not 
 only when the banker makes a loan on the pledge of these securities, 
 but also where the customer overdraws his ordinary account, and 
 the banker's liability in respect of them would appear to be that 
 of a bailee for reward.' The liability is thus stated in the Eoman 
 law: — Jfe igitur quce diligens paterfamilias in rebus suis prcestare 
 solet, a creditore exigimtur ;'"' and Q^l^a pignios uiriusque gratia 
 datur .... plamiit sufficere qiwd ad earn rem custodiendam exactam 
 diligentiam adhiheret ; quam si prcestiterit et aliquo fortvAto casu 
 eam rem amiserit, securum esse nee impediri creditum petere.^ That 
 is, the amount of care exacted is that which an ordinary prudent 
 man of business habits would use in the custody of his own 
 securities. 
 
 IV. The last relation in which bankers stand to their customers iv. Bankers 
 which it is necessary to notice here is that of warehousemen of housemen. "' 
 their plate, jewels, deeds, and securities. 
 
 The general aspects of this relationship have been already con- 
 sidered under, the head of " Deposits,"' and reference must be 
 
 ' Section 79, snb-section 2. Australia v. While, 4 App. Cas. 413. 
 
 ^ Sectiim 8i. This is n re-enactment '' In re United Service Company, 
 
 of 39 & 40 Vict. c. 81, s. 12. Johnst'in's claim, L. R. 6 Ch. App. 212 ; 
 
 ^ Bfllamy v. Marjoribaiiks, 7 Bv. 389; 40 L. J. Ch. 286 ; 24 L. T. N. S. 115 ; 19 
 
 21 L. J. Ex. 70 ; Carlon v. Ireland, 5 E. W. E. 457. 
 
 & B. 76s ; 25 L. J. Q. B. 113. ' Big. 13, 7, 14. 
 
 * Brandao v. Barnett, 12 CI. & F. 787 ; ' Inst. 3, 14, § 4. 
 
 3 C. B. 519; London Chartered Bank of ^ Ante, p. 456 
 
 3 K 
 
882 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Giblin v. 
 M'Mulleii, 
 
 Bankers as 
 gratuitous 
 
 Americau 
 authorities. 
 
 made to the cases there cited and compared. The leading case 
 on this point of law is Giblin v. M'MuUen' before the Judicial 
 Committee of the Privy Council, affirming the decision of the 
 Supreme Court of Victoria, which adopted as a correct expres- 
 sion the law as stated by Addison on Contracts^ as follows : — 
 "It is the custom of bankers to receive and keep, for the accom- 
 modation of their customers, boxes of plate and jewels, wills, 
 deeds, and securities ; and, as no charge is made for the keep- 
 ing of these things, they are gratuitous deposits; the bankers, 
 therefore, are only bound to take ordinary care of them, and if 
 they are stolen by a clerk or servant employed about the bank 
 the bankers are not responsible, unless they have knowingly hired 
 or kept in their service a dishonest servant." 
 
 In the argument of the appeal it was admitted that the appel- 
 lants were gratuitous bailees ; ' but it does not seem by any means 
 clear that that is necessarily the position of a banker receiving 
 securities for safe custody and without any special agreement. 
 There has grown up a practice of customers sending their jewels 
 and securities to bankers to be taken care of. But the banker 
 discriminates between customers and those who have no existing 
 relation with his bank. If the latter were to wish to place securi- 
 ties with him, he would either refuse or make a charge." The sum 
 total of the relations of his customer with him makes a difEerence 
 in this respect, that in the way of business he does differently in 
 the customer's case from what he would if the relation of customer 
 did not exist. Then can it fairly be said that the position of a 
 banker taking charge of securities for a customer is identical 
 with that of a man entrusting his gold watch to a friend' or 
 locking up his deed-box in a neighbour's house while he goes out 
 of town ? Unless the position is identical, the banker can only be 
 described as a gratuitous bailee in a strained and somewhat un- 
 natural sense. 
 
 This, however, is not the opinion of the American autho- 
 rities. They approach the subject from a somewhat different 
 point of view. " The bank cannot use the deposit in its busi- 
 ness, and no such profit or credit from the holding of the money 
 can arise as will convert the bank into a bailee for hire or reward 
 of any kind. The bailment in such cases is purely gratuitous, 
 
 ' L. K. 2 P. C. 317 ; 21 L. T. N. S. 214 ; 
 17 W. R. 445; Leese v. Martin, L. E. 
 17 Eq. 224 ; 43 L. J. Ch. 193 ; 29 L. T. 
 N. S. 742 ; 22 W. R. 230. As to -when a 
 lianker is liable for a- gratuitous deposit, 
 Chattahoooliee National Bank v. Sohley, 
 58 Ga. 369. All tbe chief cases are cited 
 ill De Haven v. Kensington National 
 Bank, 8 Penn. St. 95. 
 
 == 6tli edit. (Cave's), p. 406. 
 
 * See per Lord Cnelmsford, at p. 334. 
 There were two counts to the declaration, 
 the first alleging a bailment for reward, 
 which the jury negatived. Dearborn v. 
 Union National Bank, 61 Me. 369. 
 
 * Fattison v. Syracuse National Bank, 
 I Hun. 606, 
 
PART IV.] BANKERS. 883 
 
 and for the benefit of the bailor, and no loss can be cast upon 
 the bank for a larceny unless there has been gross negligence in 
 taking care of the deposit."' The matter is there treated as 
 purely one of law, but the difficulties of dealing with it in this 
 way are wholly ignored, and therefore the weight of authority is 
 not a little lessened. 
 
 1 Per Agnew, C.J., in Soott v. National Smith, 12 P. F. Smith, 54; but this latter 
 
 Bank, 72 Penn. St. 471, at p. 478, em- case does not raise the point, as the 
 
 bodying the opinion of Parker, C..J., in depositor was not a customer of the bank, 
 
 Foster v. Essex Bank, 17 Mass. 501 ; and while the bailment was absolutely gratui- 
 
 of Thompson, C. J., in Lancaster Bank r. tons. 
 
CHAPTER IV. 
 
 ESTOPPEL. 
 
 Definitions. 
 
 Parke, B., in 
 Freeman v. 
 Cooke, 
 adopting the 
 definition of 
 Lord Denman, 
 C.J., in 
 Pickard v. 
 Sears, 
 
 " ESTOPPE," says Sir Edward Coke,' " commeth of the French word 
 estoii/pe, from whence the English word stopped ; and it is called 
 an estoppel or conclusion because a man's owns act or acceptance 
 stoppeth or closeth up his mouth to aUedge or plead the truth." 
 
 A more modern definition is — the preclusion of a person from 
 asserting a fact by previous conduct inconsistent therewith on 
 his own part or the part of those under whom he claims, or by 
 an adjudication upon his rights which he cannot be allowed to 
 call in question.^ 
 
 The law relating to estoppel is extensive,' but only a small 
 portion concerns us here — ^viz., that relating to estoppel by 
 negligence. As to this, the general rule of law is stated in 
 Freeman v. Cook' by Parke, B., who adopts a previous definition 
 of Lord Denman, C.J., in Pickard v. Sears,' " that where one by 
 his words or conduct wilfully causes another to believe in the 
 existence of a certain state of things, and induces him to act on 
 that belief so as to alter his own previous position, the former is 
 concluded from averring against the latter a different state of 
 things as existing at the same time j" and explains the term 
 wilfully, as there used, " if not that the party represents that to 
 be true which he knows to be untrue, at least that he means his 
 representation to be acted upon, and that it is acted upon accord- 
 ingly ; and if, whatever a man's real intention may be, he so 
 conducts himself that a reasonable man would take the repre- 
 sentation to bo^ true, and believe that it was meant that he should 
 act upon it, and did act upon it, as true, the party making the 
 
 ^ Co. Lit. 352 a. 
 
 ^ Bouvier's Law Dictionary, sub nom. ; 
 Stephen, Plead, p. 239. 
 
 ' Seo Bigelow, Estoppel, 4th edit. 
 (1886); 2 Sm. Lead. Cas. gtli edit. p. 
 801. 
 
 " 2 Ex. 654 ; 18 L. J. Ex. 114. There 
 were earlier cases, as Heane v. Gogers, 9 
 
 B. & C. 577 ; Graves v. Key, 3 B. & Ad. 
 313 ; Mildmay v. Smith, 2 Wms. Saund. 
 (edit. 1871) 739. 
 
 " 6 A. & E. 469 ; see also Gregg v. 
 Wells, 10 A. & E. 90. See, for early 
 Ameiican decisions in the same sense, Ste- 
 phens V. Baird, 9 Cowen 274; Welland 
 Canal Company », Hathaway, 8 Wend. 48a 
 
PART IV.] ESTOPPEL. 885 
 
 representation would be equally precluded from contesting its 
 truth ; and conduct by negligence or omission, where there is a 
 duty cast upon a person by usage of trade or otherwise to disclose 
 the truth, may often have the same effect. As, for instance, a 
 retiring partner, omitting to inform his customers of the fact, in 
 the usual mode, that the continuing partners were no longer 
 authorized to act as his agents, is bound by all the contracts 
 made by them with third persons on the faith of their being so 
 authorized.'" And farther on in the same judgment he shortly 
 expresses what is necessary to work an estoppel as something 
 that is " such as to amount to the contract or licence of the 
 person making it."^ 
 
 And this explanation of Parke, B., is further amplified by Parko, B.,'s 
 Pollock, O.B., in Cornish v. Abington,^ as follows: — " Lord a^^ufleij ;^ 
 Wensleydale, perceiving that the word ' wilfully ' might be read AbiS'Aoii'by 
 as opposed not merely to ' involuntarily,' but to ' unintentionally,' roUook, c.b. 
 shewed that if the representation was made voluntarily, though 
 the effect on the mind of the hearer was produced uninten- 
 tionally, the same result would follow. If a party uses language 
 which, in the ordinary course of business and the general sense 
 in which words are understood, conveys a certain meaning, he 
 cannot afterwards say he is not bound if another, so under- 
 standing it, has acted upon it. If any person by a course of 
 conduct or by actual expressions so conducts himself that another 
 may reasonably infer the existence of an agreement or licence,'' 
 whether the party intends that he should do so or not, it has the 
 effect that the party using that language, or who has so conducted 
 himself, cannot afterwards gainsay the reasonable inference to be 
 drawn from his words." 
 
 In Howard v. Hudson,' too, Crompton, J., guards against the iioivaivl v, 
 meaning of wilfully being taken to be " Tnalo animo, or with the " *""" 
 intent to defraud or deceive, but so far wilfully that the party 
 making the representation on which the other acts means it to be 
 acted upon in that way." 
 
 1 Compare Scarf «. Jardine, 7 App. Cas, App. Gas. 120, at p. 133 ; 52 L. J. P. 0, 
 350; siL. J. Q. B. 612; 47L. T. 258; 17; 48 L. T. 689; 31 W. E. 591: 
 30 W. E. 893. M'Kenzie v. BrilisU Linen Company, 6 
 
 2 This statement of the law has been App. Cas. 82, at p. loi ; 44 L. T. 431 ; 
 recognized : Jorden v. Money, 5 fl. L. C. 39 W. E. 477. 
 
 185, at pp. 214, 255 ; 23 L. J. Ch. 865 ; ' 4 H. & N. 549 ; 28 L. J. Ex. 262. 
 
 Clarke v. Hart, 6H. L. (3. 633, at p. 656 ; * This test of an agreement or licence 
 
 Howard *. Hudson, 2 E. & B. i, at p. is also adopted by Lord Chelmsford in 
 
 10 ; 22 L. J. Q. B. 341 ; Swan v. North Cairnoross v. Lorimer, 3 Maoq. 827. The 
 
 British Australasian Company, 2 H. & C. American law seems to ho the same : 
 
 175, at pp. 177, 181, 188 ; 32 L. J. Ex. Sessions v. Eice, 70 Iowa 306, at p. 
 
 273 ; Polak V. Everett, i Q. B. D. 669 ; 310. 
 
 46 L. J. Q. B. 218 ; 35 L. T. N. S. 350 ; " 2 E. & B. i ; 22 L. J. Q. B. 341. 
 24 W. E. 689; Miles V. M'llwraitli, 8 
 
The law of negligence. 
 
 [book II. 
 
 Swan V. 
 North British 
 Australasian 
 Company. 
 
 Eule laid 
 down by 
 Wilde, B.; 
 
 qualified in 
 the Exchequer 
 Chamber by 
 Blackburn, J'. 
 
 Oarr v. 
 Iiondon and 
 North-West- 
 ern Railway 
 Company. 
 Pour pro- 
 positions by 
 Brett, J. 
 
 In Swan v. North British Australasian Company' and in Carr 
 V. London and North-Western Railway Company' certain " re- 
 cognized propositions of an estoppel in pais " are laid down. 
 
 In Swan v. North British Australasian Company, in the Court 
 of Exchequer,' Wilde, B., laid down a rule in general terms, " that 
 if a man has wilfully made a false assertion calculated to lead 
 others to act upon it, and they have done so to their prejudice, he 
 is forbidden, as against them, to deny that assertion. That if he 
 has led others into the belief of a certain state of facts by conduct 
 of culpable neglect calculated to have that result, and they have 
 acted on that belief to their prejudice, he shall not be heard 
 afterwards as against such persons to shew that state of facts did 
 not exist. In short, and in popular language, a man is not permitted 
 to charge the consequences of his own fault on others, and com- 
 plain of that which he has himself brought about." 
 
 In the Exchequer Chamber, Blackburn, J., characterized this 
 as " very nearly right, but, in my opinion, not quite," and he 
 proceeds to qualify it by two provisoes — 
 
 First, that " the neglect must be in the transaction itself, 
 and be the proximate cause of the leading the party into that 
 mistake." 
 
 Secondly, the neglect* " must be the neglect of some duty that 
 is owing to the person led into that belief, or, what comes to the 
 same thing, to the general public of whom the person is one, and 
 not merely neglect of what would be prudent in respect to the 
 party himself, or even of some duty owing to third persons, with 
 whom those seeking to set up the estoppel are not privy." 
 
 In Carr v. London and North- Western Railway Company' 
 Brett, J., formulated four propositions on the same subject, as 
 follows : — 
 
 1 . If a man by his words or conduct wilfully endeavours to 
 cause another to believe in a certain state of things which the 
 first knows to be false, and if the second believes in such state 
 of things and acts upon his belief, he who knowingly made the 
 false statement is estopped from averring afterwards that such a 
 state of things did not in fact exist. 
 
 2. If a man, either in express terms or by conduct, makes a 
 representation to another of the existence of a certain state of facts 
 
 i 2 H. & C. 17s ; in the Court of 
 Common Pleas, 7 C. B. N. S. 400. 
 
 2 L. E. 10 C. P. 307 ; 44 L. J. C. P. 
 109 ; 31 L. T. N. S. 78s ; 23 W. E. 747. 
 See per L'ndley, L.J., Coventry v. Great 
 Eastern Railway Company, 1 1 Q. B. D. 
 776, at p. 781 ; 52 L. j. Q. B. 694 ; 
 Seton V, Lafonei 18 Q. B. D> 139 ; 19 
 
 Q. B. D. 68; 56 L. J. Q. B. 415 ; 57 
 L.T. 547; 3SW.R. 749- 
 
 ' 7 H. & N. 603, at p. 633. 
 
 * L E. 10 C. V. 307 : 44 L J. C. P. 
 109; 31 L. T. N. S. 78s ; 23 W. E. 
 747 ; Farmeloe v. Bain, I C. P. D. 445 ; 
 45 L. J. C. P. 264; 34 L. T. N.. S, 
 324- 
 
PART IV.] ESTOPPEL. 88? 
 
 which he intends to be acted upon in a certain way, and it be 
 acted upon in that way in the belief of the existence of such a state 
 of facts, to the damage of him who so believes and acts, the first 
 is estopped from denying the existence of such a state of facts. 
 
 3. If a man, whatever his real meantag may be, so conducts 
 himself that a reasonable man would take his conduct to mean a 
 certain representation of facts, and that it was a true repre- 1 
 sentation, and that the latter was intended to act upon it in a 
 particular way, and he with such belief does act in that way, to 
 his damage, the first is estopped from denying that the facts were 
 
 as represented. 
 
 4. If, in the transaction itself which is in dispute, one has 
 led another into the belief of a certain state of facts by conduct 
 of culpable negligence calculated to have that result, and such 
 culpable negligence has been the proximate cause of leading, and 
 has led, the other to act by mistate upon such belief, to his 
 prejudice, the second cannot be heard afterwards, as against the 
 first, to shew that the state of facts referred to did not exist.' 
 
 These are all summed up in the expression of James, L.J., in Summed up 
 Ex parte Adamson, In re CoUie'' : " Nobody ought to be estopped ^^'^^ex 
 from averring the truth or asserting a iust demand unless by his v"''^^ Ariam- 
 
 , 1 , • ° . , , "^ . son, In re 
 
 acts or words or neglect his now averring the truth or asserting CoiUe. 
 the demand would work some wrong to some other person who 
 has been induced to do something by reason of what he had said 
 or done or omitted to say or do." 
 
 The case of M'Kenzie v. British Linen Company " is an excellent M'Keuzio «. 
 illustration of this. The appellant did not inform the respondents compaDj-. 
 that his signature to a certain bill in their hands was a forgery 
 from the 17th of July till the 29th of July, when he gave the 
 information ; and when he did so, the bank was in no worse 
 position than it was at the time when he first was able to give 
 the information to them. The Court of Session held that the 
 appellant was estopped by his negligence from setting up that 
 the signature was a forgery ; but this decision was reversed in 
 the House of Lords as being " contrary to justice " to hold a man 
 responsible for not giving information where, had he given any, 
 the position of the other party would in no degree have been 
 bettered. But while thus deciding, the case where the rights of 
 a party are altered for the worse by reason of the abstention was 
 carefully provided for : "It would be a most unreasonable thing 
 to permit a man, who knew the bank were relying upon his 
 
 ^ See Rumball v. Metropolitan Bank, 38 L. T. 920; 26 W. E. 892. 
 
 2 Q. B. D. 194 ; 46 L. J. Q. B. 346; ' 6 App. Cas. 82 ; 44 L. T. 431 ; 29 
 
 36 L. T. 240 ; 25 W. R. 366. W. B. 477. The Auieiioau cases niu 
 
 2 8 Ch. D. 817 ; 47 L. J. Ch. io5 ; cited in Allen v. Shaw, 61 N. fl. 95. 
 
888 
 
 TfiE LAW 6F l^EGLIGENCE. 
 
 [book II. 
 
 Morris V. 
 Biithell. 
 
 Limits 
 marked for 
 the operation 
 of the prin- 
 ciple. 
 
 Youug i<, 
 Grote. 
 
 forged signature to a bill, to lie by, and not to divulge the fact 
 until he saw that the position of the bank was altered for the 
 worse." In Oomish v. Abington,' on the contrary, the jury 
 drew an inference that the plaintiff was prejudiced, and a verdict 
 was accordingly entered for him. 
 
 From the case of Morris v. BethelP can be drawn the extremest 
 expression of the other aspect of the principle from that given effect 
 to in M'Kenzie v. British Linen Company — viz., that one who pays 
 one bUl which purports to bear his signature as acceptor thereby 
 makes evidence against himself that the person who wrote the 
 acceptance did so with his authority ; and if the bill be given in 
 the course of business implying a continuance of such authority, 
 it may be conclusive evidence.' 
 
 Between these limits, then, on the one side, of the case where 
 the abstaining from voluntary information causes no injury, and, 
 on the other, of the case where a similar abstinence is in con- 
 nection with a course of business that involves an admission of 
 authority, the inference to be drawn is for the jury. One other 
 limitation ought to be noticed. Where the ground of action is 
 a misrepresentation, it must be "of existing facts, and not of a 
 • mere intention," since " in the former case it is a contract, in the 
 latter it is not."* 
 
 Having ascertained the general principle applicable in this 
 description of estoppel, it remains to consider the cases which 
 have been regarded as illustrating' its operation. 
 
 I. The first of these is Young v. Grote.' A customer of a 
 banker delivered certain printed cheques to his wife signed by 
 himself, but with blanks which he instructed his wife to fill up 
 according as his business demanded. She filled up one with the 
 words fifti/ pounds two sMllings, the fifty being commenced with a 
 small letter and placed in the middle of a line. The figures 
 50 : 2 were also placed at a considerable distance from the 
 printed ;^. In this state the cheque was delivered to a clerk to 
 receive the amount, who inserted at the beginning of the line in 
 which the word fifty was written the words Three hundred and, and 
 the figure 3 between the £ and the 50. This was paid by the 
 bankers. The Court of Common Pleas held that the customer 
 must bear the loss. 
 
 1 4 H. & N. 549 ; 28 L. J. Ex. 262. 
 ' L. E. S C. P. 47, per Willes, J., at 
 
 * Compare Trickett v. Tomlinson, 13 
 C. B. N. S. 663 ; 7 L. T. N. S. 678. 
 
 * Jorden v. Money, 5 H. L. C. 185. 
 See per Lord Selborne, C, Maddison v. 
 Alderson, 8 App. Gas. 467, at p. 473 ; 
 52 L. J. Q. B. 737 ; 49 L. T. 303 ; 31 
 
 W. E. 820, where Loffus v. Maw, 3 Giff. 
 S92, ia in eflTect oveiTuled. In Pollock, 
 ContraotB, 4th edit., there is a note at pp. 
 692-700, "On the supposed equitable 
 doctrine of maUing representations good," 
 where the chief cases in this connection 
 are discussed. 
 
 ^ 4 Biiig. 253 ; Marcassen v. The B!rk- 
 beck Bank, 5 Times L. E, 463. 
 
PART IV.] ESTOPPEL. §89 
 
 The ground on which this conclusion was arrived at has been Tiie case 
 the subject of some diiference of opinion. In the view of oo°ckbarn'^" 
 Cockburn, C.J.,' the case, " which is supposed to have established ^-J-i's view. 
 the doctrine of estoppel by reason of negligence, when it comes 
 to be closely examined, turns out to have been decided without 
 reference to estoppel at all. Neither the counsel in arguing that 
 case, nor the judges in deciding it, refer once to the doctrine of 
 estoppel ; " and the conclusion was arrived at to avoid circuity of 
 action ; since, looked at technically, '• the customer would be 
 entitled to recover from the banker the amount paid on such a 
 cheque, and the banker would be entitled to recover against the 
 customer for the loss sustained through the negligence of the 
 latter." This view has been adopted by the Court of Exchequer^ 
 in Halifax Union v. Wheelwright,' and by the Supreme Court of 
 Massachusetts in Greenfield Savings Bank v. Stowell.'' 
 
 On the other hand, the Lord Chancellor (Cranworth), in Orr v. Lovd Cian- 
 Union Bank of Scotland,* expressly affirms that the ground on orr r. Union 
 which Young v. Grote was decided was estoppel. Speaking of |™'j°* 
 that case, he says : " Whether the conclusion in point of fact was 
 in that case well warranted is not important to consider. The 
 principle is a sound one, that where the customer's neglect of due 
 caution has caused his bankers to make a payment on a forged • 
 order he shall not set up against them the invalidity of a 
 document which he has induced them to act on as genuine." 
 And again, in moving the judgment of the House of Lords in 
 Bank of Ireland v. Evans's Charities," though there once more he in Bank of 
 declines to express an opinion whether the facts in law amounted Evans's 
 to estoppel, yet he treats estoppel as the basis of the decision. Trustees. 
 Further, Parke, B., in delivering the opinion of the judges, stated Parke. B.'s. 
 that in Young v. Grote " it was held to have been the fault of 
 the drawer of the cheque that he misled the banker, on whom it 
 was drawn, by want of proper caution in the mode of drawing 
 the cheque which admitted of easy interpretation, and consequently 
 that the drawer, having thus caused the banker to pay the forged 
 cheque by his own neglect in the mode of drawing the cheque 
 itself, could not complain of that payment."' Previously to this, 
 
 ^ Swan V. North British Australasian N. S. 400, at p. 431. 
 Company, 2 H. & C. at p. 189. ' It will be observed that this oxpros- 
 
 " Cleasby, B., delivering the judgment sioii is in relation to the question of 
 
 of himself and Pollock and Amphlett, BB. whether the negligence was proximate or 
 
 3 (1873) L. R. 10 Ex. 183 ; 44 L. J. remote, the point then under discussion, 
 
 Ex. 121 ; 32 L. T. N. S. 802 ; 23 W. R. and not with regard to the general merits 
 
 704. of tlm case, and that the point subse- 
 
 * 123 Mass. 961. quently taken, that the negligence to he 
 ' I Macqueen 513 ; 24 L. T. N. S. I. effectual had to work through the operation 
 
 * S H. L. C. 389, at p. 413. See, too, of a crime, was not taken, 
 per Erie, O.J., JEx parte Swan, 7 C. B, 
 
890 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Lord Cole- 
 ridge's in 
 Arnold v. 
 The Cnequo 
 Bank. 
 
 Baxendale v. 
 Bennett, 
 
 Ground of 
 Brett, L.J.j's 
 decieion. 
 
 Ground of 
 Bramwell, 
 L.J.,'s. 
 
 in the Exchequer Chamber, in Robarts v. Tucker/ Parke, B., had 
 explained Young v. Grote as " in truth considering that the 
 customer had by signing a blank cheque given authority to any 
 person in whose hands it was to fill up the cheque in whatever 
 way the blank permitted." But this must operate by estoppel ; 
 since the drawer, not having in fact given such authority, could 
 only be held in law to have given it by precluding him from 
 shewing what the real facts were ; either in virtue of a rule of 
 the law merchant, which would operate through estoppel, or 
 directly by reference to the doctrine of estoppel, without the 
 intervention of any intermediate principle. » 
 
 Again, Lord Coleridge, C.J., in Arnold v. The Cheque Bank," 
 states the principle on which Young v. Grote was decided as beiiig 
 that whenever one of two innocent parties must suffer by the act 
 of a third person, he who has enabled such person to occasion the 
 loss must sustain it ; a view which involves the essential element 
 in estoppel — the avoiding working of wrong to any one through 
 conduct induced by the act of another. 
 
 But putting aside the question of the precise ground on which 
 Yoiing V. Grote was decided, a more important question arises 
 whether it was correctly decided in view of the later cases. The 
 chief of these is Baxendale v. Bennett.' The facts shewed that 
 defendant drew a bill, without a drawer's name, addressed to him- 
 self, and then wrote what was in terms an acceptance across it. 
 In this condition it was stolen, filled up with a drawer's name, 
 and transferred to the plaintiff, a lond fide holder for value. 
 Though it was possible that the bill might have been made a 
 complete instrument without a crime,'' yet a crime was committed 
 by stealing the document, and without that the bill could not 
 have been completed. At the trial the learned judge ruled, on 
 the authority of Young v. Grote and Ingham v. Primrose,' that 
 the defendants were liable. But that judgment was reversed 
 in the Court of Appeal, and entered for the defendant. In 
 the Court of Appeal the judgment of Brett, L.J., went mainly on 
 the fact that the acceptance was not issued by the defendant, 
 and that the defendant never authorized the bill to be filled in 
 with a drawer's name, so that he could not be sued thereon ; that 
 of Bramwell, L.J., on the assumption that the defendant had 
 been negligent, but that the negligence was not the proximate 
 
 1 16 Q. B. 5601 20 L. J. Q. B. 270. 2 I C. P. D, 578 ; 45 L. J. C. P. 562 ; 
 
 Compare Shultz v. Astley, 2 Scott 815 ; 34 L. T. N. S. 729 ; 24 W. R. 759. 
 
 2 Bing. N. C. 544 ; 7 C. & P. 99, a case ' 3 Q. B. D. 525 ; 47 L. J. C. P. 624 ; 
 
 which Crompton, J., in Stoessig v. South- 26 W. E. 899. 
 
 Eastern Eailw^ Company, 3 B. & B. 549, ^ See per Bramwell, L.J., at p. 530. 
 
 at p. 556 ; 23 L. J. 9. B. 293, regards as « 7 C. B. N. S. 8z ; aS L, J. 0. P. 
 
 going to the utmost limit of tne law. 594. 
 
PART IV.] ESTOPPEL. 891 
 
 or effective cause of fclie fraud. Brett, L.J., declined to consider 
 tbat the defendant was negligent, because the defendant did not 
 owe a duty to any one, and, by putting the bill into a draw(?r 
 in his own room, he did not act otherwise than, an ordinary 
 careful man would act. 
 
 In canvassing the cases on which the judge at the trial 
 decided, Bramwell, L.J., lays considerable stress on a distinction 
 between those cases and that before the Court — that in them the 
 instruments had been parted with voluntarily, but in the case 
 before the Com-t the bill had been obtained by the commission of 
 a crime. The distinction at first sight seems very fine between 
 an instrument obtained possession of by a crime and negotiated, 
 and one which has lawfully come into possession of a person, and 
 in respect of which, subsequently, a crime has been committed to 
 give it its effect. In ieither view something has been done for 
 which the defendant could not be supposed to anticipate in one 
 sense at least, else he would be an accomplice and the appropriate 
 subject of the criminal law. 
 
 This is the view expressed by Bovill, C.J., in Societe Generale Bovill, c.J., 
 V. Metropolitan Bank,' who says, in a case where " eight days " G&draie v. 
 was altered to " eighty days " in a bill of exchange : " Here the ^j^®^™P°'^**" 
 printed form was filled up with ' eight days,' and it was said 
 there was negligence in allowing sufficient space for the addition 
 of the letter ' y,' but I cannot, sitting as a jury, say there was 
 negligence enabling the forgery to be committed. It would be 
 ridiculous to expect all persons to exclude such a possibility as 
 that. This was the usual course of filling up blanks in a form, 
 and a man is not to assume that a forgery will be committed."^ 
 Now, the weakness of Young v. Grote is that precisely jthis Toung v. 
 assumption is made. If a man is only liable for the natural p™ed ^'tk 
 results of his actions, and if a forgery is not the natural result of ^^^ "^*^^- 
 leaving a blank in a cheque or bill of exchange, it is diBScult to 
 see why the drawer of a cheque or the acceptor of a bill of 
 exchange should be precluded from averring the forgery by 
 estoppel, or held guilty of negligence in not anticipating it.^ But 
 no one would deny that a forgery in conceivable circumstances 
 may be the natural result of the action of the acceptor of a bill 
 of exchange, though the circumstances that would make it so 
 
 1 21 W. E. 335 ; 27 L. T. N. S. 849. per Parke, B., 6 Ex. at p. 869 ; 20 L. J. 
 
 ^ Of course this is otherwise where a Ex. 295; London and Sonth-Weatern 
 
 cteque ban been indorsed in blank, and Bank v. Wentworth, 5 Ex. I). 96 ; 49 
 
 subsequently filled up without fraud. See L. J. Ex. 657 ; 42 L. T. 188 ; 28 W. R. 
 
 per Buller, J., in Lickbarrow v. Mason, 7 516. 
 
 Sra. Lead. Cas. 9th edit. p. 773, citing ' jggg Bigelow, Estoppel, 4th edit, p, 
 
 Eussel V. Langstaffe, Doug. 496 (in the 512. 
 4th edit,), 2 Doug. 514; Awde v. Dixon, 
 
892 
 
 THE LAW OP NEGLIGENCE. 
 
 [book II. 
 
 Difficulties 
 in the way of 
 the decision 
 iu Young V. 
 Grote. 
 
 Day, J.,'s 
 opinion in 
 Merchants of 
 the Staple of 
 England v. 
 Sank of 
 Sngland. 
 Canadian 
 Courts dis- 
 posed to up- 
 hold the case. 
 
 would be most unusual.^ It then becomes a question of more or 
 less ; and probably tlie solution would be found in that maxim of 
 the Roman law, Magna, negligentia culpa est, magna culpa est dolus. 
 Brett, L.J., in Baxendale v. Bennett does not hesitate to express 
 his opinion that the decision in Young v. Grote is unsatisfactory. 
 Bramwell, L.J., however, seeks to save the authority of the case 
 by a distinction, before alluded to, between a voluntary and an 
 involuntary parting with the instrument. Still, this does not 
 touch the difficulty where there is negligence which enables the 
 instrument to be obtained possession of, where the owner's act 
 renders the taking of the instrument possible or likely, though he 
 is himself in fact not consenting to the issue of it. The force of 
 this Bramwell, L. J., meets by holding that the commission of a 
 crime is not the proximate result of negligence in leaving an 
 instrument in a place where it may be wrongfully obtained 
 possession of.' But if the commission of a crime is not to be 
 anticipated in the case of a non-voluntary issue, why shoilld it 
 any more in the case of a voluntary issue, where the issuer acted, 
 if negligently, yet in good faith ? The answer is that the owner 
 negligently issues the instrament, and thsrefore is bound. But he 
 is even then not liable for all the consequences of his acts, but 
 only for the ordinary and natural consequences of them ; and the 
 issue is narrowed down to whether the forgery or alteration of an 
 instrument negligently and voluntarily issued is one of these. 
 Bramwell, L.J., seems to hold that, where a crime was necessary 
 for the completion of the act causing injury, the negligence cannot 
 be considered proximate. Brett, L.J., does not consider the ques- 
 tion of negligence, and condemns Young v. Grote more directly, 
 and apparently on the broad and intelligible ground that the 
 commission of a crime is not the subject of legal intendment, and 
 this irrespective of any question of negligence or diligence. 
 
 It must, however, not be omitted that Day, J., in Merchants of 
 the Staple of England v. Bank of England,' vouched the authority 
 of Young V. Grote, which he " ventured respectfully to think was 
 most properly decided." 
 
 The Canadian Courts have discussed* Young v. Grote, and 
 appear disposed to uphold it on the ground that the bankers were 
 misled by the negligence of the drawer, and in accordance with 
 what was pointed out by Parke, B., in his opinion to the House of 
 
 ^ This would be a case for the applica- 
 tion of the principle enunciated by Lord 
 Cranworth, C, : Orr v. Dnion Bank of 
 Scotland, i Maoqueen 513, at p. 523; 24 
 L. T. N. S. I. 
 
 ^ Compare per Lord Coleridge, CJ., 
 Arnold v. Cheque Bank, i C. P. I). 578, 
 
 at p. 589 ; 45 L. J. C. P. 562 ; 34 
 L. T. N. S. 729 ; 24 W. K. 7S9. 
 
 ' 21 Q. B. D. 160. at p. 163 ; 57 
 L. J. Q. B. 418 ; 36.W. E. 880. 
 
 ^ Agricultural Savings Association v. 
 Federal Bank, 45 Canada Q. B. 214 ; 6 
 Tlinper's App. E. 192. 
 
PART iv.J ESTOPPEL. 8 
 
 Lords in Bank of Ireland v. Evans's Trustees ; this ground, too, 
 lias been taken by English supporters of the authority of the case, 
 and in itself is undoubtedly an unassailable position. But it by 
 no means follows that because the customer was negligent a forgery 
 should follow ; and this point is not touched by the arguments of 
 those who support the case. The undoubted legal priuciple, that 
 the customer, having misled the banker, is answerable for the con- 
 sequences, must be taken in connection with another, that says 
 the negligent person is only answerable for the natural conse- 
 quences of his negligence, of which the commission of felony, in 
 the normal conditions of things, is not one. The application of 
 this latter principle is, however, ignored ; and it is pointed out that 
 in Young v. Grote the negligence was in " the transaction itself," 
 and therefore proximate ; and, if proximate, it is assumed actionable. 
 The negligence, however, even if proximate, has no actionable con- 
 sequences apart from the felony ; it is damnum sine injuria ; and 
 felony is not a natural consequence of negligence.' 
 
 The other case, on the authority of which Lopes, J., gave Ingham « 
 judgment in Baxendale v. Bennett, was Ingham v. Primrose.'"' The """"^''' 
 Court that decided that case was composed of judges of the 
 greatest reputation,^ and the judgment delivered was a considered 
 one. The acceptor of a bill of exchange, with the intention of 
 cancelling it, tore it into two pieces and threw them into the street. 
 They were picked up by the indorser, joined together, and the 
 bill was put into circulation. The acceptor was held liable, 
 because " such negotiable instruments have, by the law merchant, 
 become part of the mercantile currency of the country ; and, in 
 order that this may not be impeded, it is requisite that innocent 
 holders for value should have a right to enforce payment of them 
 against those who by making them have caused them to be a part 
 of such currency."'' Brett, L. J.,'s comment on this case is : " The 
 correct mode of dealing with it is to say we do not agree with it." 
 The fallacy of the judgment in the light of subsequent discussion 
 
 ^ A cnso in Victoria, Bank of Austral- if the defendant had drawn a cheque, and 
 asia D. Erwin, i W. W. & A'B. L. go, before he had issued it he had lost it, or 
 as reported in Kerfeid and Box's Victorian it had been stolen from him, and it had 
 Digest, is substantially the same case as afterwards found its way into the bands of 
 Young V. Grote, with the difference that a holder for value without notice, who had 
 the document was a bill, and that the sued the defendant upon it, he would have 
 negligence was apparently due to the had no answer to the action; " but see con- 
 acceptor having weak sight, and not ira per Cookburn, C.J., Johnson v. Credit 
 taking precautions to obviate its effects, Lyonnaia Company, 3 C. P. D. 32, at p. 
 whereby he was held to have made the 42 ; 47 L. .J. C. P. 241 ; 37 L. T. N. S. 
 drawer, who fraudulently altei'ed the bill 657 ; 26 W. R. 195. See Bank of Ireland 
 after acceptance, his agent to do so ; such v. Evans's Trustees, 5 H. L. C. 389, per 
 a ground is obviously untenable. Parke, B., at foot of p. 410. 
 2 7 C. B. N. S. 82 ; 28 L. J. C. P. 294. •• In Barker v. Sterne, 9 Ex. 684 ; 23 
 ' Erie, C..I., and Williams, Willes, and L. J. Ex. 201, Pollock, O.B., inclines to 
 Byles, J.J. In the same judgment it is uphold Young v. Groto on this ground, 
 said : " It is, we think, settled law that 
 
894 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Coles V. Bank 
 of England. 
 
 Negligence 
 must Be 
 proximate. 
 .Bank of 
 Ireland v. 
 Evans's 
 Trustees. 
 
 seems very transparent in treating all instruments that may 
 potentially become part of the mercantile currency of the country 
 by the law merchant as having by the mere fact of their creation 
 actually become so. 
 
 A third case, of which Brett, L.J., expresses disapproval in 
 Baxendale v. Bennett, is Coles v. Bank of England,^ an action 
 by the executors of a stockholder. It appeared that the deceased, 
 who was a very aged woman, was in the habit of being accom- 
 panied by her nephew, a clerk in the bank, when she went for 
 her dividends, for which she signed receipts both on the dividend 
 warrant and in the bank books. , The nephew must have handed 
 over to her the full amount of dividends due, but he had in fact 
 taken another woman to the bank, who personated the testatrix 
 from time to time, and by forged signatures had transferred the 
 greater pai-t of the stock. The jury found that the deceased had 
 been guilty of gross negligence, but that the bank had not been 
 guilty of negligence. On motion to enter the verdict for the 
 plaintiff the rule was discharged, on the ground that the facts 
 found by the jury entitled the defendant to the verdict, or, as 
 stated by the Lord Chancellor in Bank of Ireland v. Evans's 
 Trustees,^ " that the conduct of the owner of the stock, in subse- 
 quently signing from time to time receipts for reduced sums when 
 the sums had been reduced by previous forgery, was in truth a 
 ratification of what had previously taken place." " This," said 
 the Lord Chancellor, " certainly seems to me to be rather a strong 
 result." ' But it may be said, if the conduct of the plaintiff in 
 this case, in law, and apart from considerations of her age and 
 probable incompetence in business, did not work an estoppel 
 because the wrongful act was arrived at through a crime, much 
 less would the negligence in Young v. Grote work an estoppel, 
 where also the wrongful act was effected by means of a crime. 
 
 In Bank of Ireland v. Evans's Trustees* another point was 
 insisted on — the necessity of the negligence charged being " in, 
 or immediately connected with," the transaction itself. There 
 the plaintiffs, the trustees of the charities, alleged that they were 
 possessed of stock ; that they had not transferred it ; that it was 
 the duty of the defendants — the bank — to transfer on request ; 
 that they requested the defendants to transfer it, and that the 
 defendants refused to make the transfer. The defendants set up 
 
 1 10 A. & E. 437 ; 2 P. & D. 521. 
 
 2 5 H. L. C. at p. 414. , 
 
 ' See, too, per Lord Brougliara, as to 
 the cases of Young v. Grote and Coles v. 
 Bank of England : "I agree in what the 
 learned judges have said upon them, and 
 also in the doubt insinuated rather than 
 
 expressed hy the learned judges, and 
 more plainly intimated by my noble and 
 learned friend, as to how the latter case 
 might have been determined if it had not 
 been disposed of in the way in which it 
 was:" 5H. L. C. at p. 415. 
 * 5 H. L. 0. 389. 
 
PART IV.] ESTOPPEL. 895 
 
 a transfer tinder forged powers o£ attorney, for which they said 
 that the plaintiffs were responsible, since they allowed their 
 secretary to have their corporate seal in his possession, and thus 
 were themselves responsible for his forgeries. In delivering the 
 opinion of the judges to the House of Lords, Parke, B., drew a Parke, B.,'3 
 distinction between direct and remote negligence. Direct negli- between"" 
 gence is that which itself by natural operation is productive of "I"'®"' """^ 
 injury. Eemote or indirect negligence must operate by the negligence, 
 intervention of some new cause. Now, where the intervention 
 of that new cause is the result that might be anticipated from 
 the particular negligence in the case, then the negligent person 
 would be liable to answer for the neglect ; but where the result 
 is not " the necessary, or ordinary, or likely result of that negli- 
 gence," then the loss must lie where it falls according to the 
 general principle of law. Merchants of the Staple of England jiercbants of 
 V. Bank of England' was decided on the authority of Bank of ^'^^g^^'^g'^."^ 
 Ireland v. Evans's Trustees, as being "identical," though an^aukof 
 attempt was made to discriminate the case by drawing attention 
 to the allusion by Parke, B., to the fact that the attestation 
 asserted that the sealing and delivery was had in the presence of 
 the witnesses by the successive chairmen of the company. But 
 this appeared to Pry, L.J., to be immaterial. " The terms of the 
 statute which required the attestation did not require that it shall 
 be executed in the presence of the chairman at all, and therefore 
 I cannot help concluding that it is really an immaterial matter, 
 though, no doubt, the fact that certain persons so certified is 
 evidence of their carelessness." 
 
 Arnold v. The Cheque Bank" is an illustration of the principle Arnold «. 
 thus laid down in Bank of Ireland v. Evans's Trustees. There Ti.,^^_ ^'^^^ 
 an action was brought to recover the proceeds of a draft of 
 ;^iooo, upon the ground that it was received by the defendants 
 in circumstances which made it money received to the use of 
 the plaintiffs, who were merchants in New York, and desired 
 to transmit the draft in question to Bradford. With this view 
 the draft was specially indorsed, and inclosed in a letter for 
 England. In some portion of the transit it was stolen, an in- 
 dorsement forged, and it was ultimately paid by the defendants. 
 The plaintiffs sought to recover the money thus paid. Payment 
 was resisted by the defendants, on the ground that the plaintiffs 
 had been negligent in the transmission of the draft ; and to prove 
 this they tendered evidence to shew " a usual or almost invariable 
 
 1 21 Q. B. D. l6o ; 57 L. J. Q. B. 418 ; 36 W. R. 880. In Canada the same prin- 
 ciple is recognized in Agricultural Savings Association v. Federal Bank, 6 Tupper's 
 App. E. 192. 
 
 2 I C. P. D. 578 ; 45 L. J. C. P, 562 ; 34 L. T. N. S. 729 ; 24 W. B. 759. 
 
896 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 DiBtinction 
 
 betwoen 
 
 negotiablo 
 
 and uoti 
 
 negotiable 
 
 instruments. 
 
 I. Where an 
 instrument 
 is not 
 negotiable. 
 
 practice of sending, besides the letter containing the draft, a letter 
 of advice by the same or another ship." This was rejected, and, 
 in the result, a verdict was directed for the plaintiffs. An order 
 nisi for a new trial, on the ground of the rejection of evidence 
 of the plaintiffs' negligence of the ordinary usage of merchants', 
 and that the plaintiffs were precluded from recovering by neglect 
 of proper precautions in the custody and despatch of the draft, 
 was discharged, the Common Pleas Division being of opinion 
 that the plaintiffs could not be guilty of negligence in relying on 
 the honesty of their servants in the discharge of their ordinary 
 duty of conveying letters to the post, and that there was not any 
 duty to the general pubUc to exercise the same care in transmis- 
 sion of the draft as if any or every servant employed was a 
 notorious thief.' As to the duty of sending a separate letter of 
 advice with it, " which would entail upon the senders of cheques 
 new and unheard-of responsibilities," the Court held that " this 
 duty would be collateral to the indorsing and forwarding of the 
 draft, and the omission of it could in no sense be considered as 
 the proximate cause of the larceny and forgery which have oc- 
 curred."^ 
 
 A distinction is, however, to be drawn between instruments 
 that are negotiable, or are treated in such a way as to hold out 
 to third persons that they are negotiable, and instruments that 
 are in their nature not negotiable. 
 
 I . If an instrument is not negotiable, then no right of action 
 can be transferi'ed by delivery unless there is a representation on 
 the face of the instrument made by the person in whom the title 
 would be apart from such representation — that it would pass with 
 a good title to any one taking it in good faith and for value — and 
 which representation has induced others to alter their position on 
 the faith thereof.' And this is so even where conduct of the 
 owner has enabled a fraud to be perpetrated and caused loss ; if, 
 that is, such conduct is in the ordinaiy course of business, and 
 there is no neglect of duty either to individuals or to the public, 
 as in Fine Art Society v. Union Bank of London," where plaintiffs 
 brought an action for wrongful conversion of certain post-office 
 orders which they had handed to a clerk to pay in to their account 
 at the defendants' bank, where also, unknown to them, the clerk 
 had an account. The clerk paid the orders to his own account. 
 
 ^ See per Fry, L.J., Fine Art Society 
 V. Union Bank of London, 17 Q. B. D. 
 705, P- 713 ; SS L. T 536 ; 35 W. _E. 
 114 ; Belknap v. Bank or Korlb America, 
 100 Mass. 376. 
 
 2 Compare Vagliano Bros. v. Bank of 
 England, 22 Q. B. D. 103, at p. 122 ; 
 
 S8 L. J. Q. B. 27 ; 59 L. T. 864 ; affirmed 
 in Court of Appeal, 5 Times L. R. 489. 
 
 ' Goodwin v. Rubarti, i App. Cas. 
 476 ; 45 L- J- Ex. 748 ; 35 L. T. N. S. 
 179 ; 24 W. E. 987. 
 
 ^ 17 Q. B. D. 705. 
 
PART IV.] ESTOPPEL. .397 
 
 and tke bank presented the orders to the post-ofRce, received the 
 money for them, and placed it to his credit. If the post-ofSce 
 orders were not negotiable, the defendants were clearly liable, 
 since the property of the plaintiffs would then not have been 
 divested. But, though the ordinary practice with post-office 
 orders was proved to be that the payee should sign a receipt in 
 the form appearing on the order, there was a regulation that in 
 the case of orders presented for payment by a banker they should 
 be payable without the signature by the payee of the receipt con- 
 tained in the order, provided the name of the banker presenting 
 the order was written or stamped on it ; and it was contended 
 that the effect of this order was to make a post-office order an 
 instrument which passed by delivery amongst all persons having 
 banking accounts. The Court of Appeal was, however, of opinion 
 that the effect of this wa;s merely ' ' to make the signature of the 
 banker a substitute for the signature to the receipt of the original 
 payee ; " and, to the suggestion that the conduct of the defendants 
 in trusting the orders to a clerk to pay in estopped them from 
 setting up their legal title, it was held that there was " no neglect 
 of any duty which the plaintiffs owed to the defendants or to the 
 general public, and, in fact, there was no negligence at all, for the 
 plaintiffs could not, and, if they could, they were not bound, them- 
 selves to carry the post-office orders to the bank, and they were 
 therefore acting reasonably and prudently in entrusting the orders 
 to the care and custody of their servant, and by this reasonable 
 conduct they cannot be estopped from asserting their legal claim 
 to the proceeds of the orders." 
 
 But where an instrument is negotiable a holder for value ?• Wbere an 
 without notice is entitled to recover against a person who has negotiable, 
 signed his name to it and delivered it to be negotiated, although 
 the person to whom the blank paper is given may have defrauded 
 the man who gave it to him.' 
 
 This would be on the principle that by the law merchant, 
 when an instrument of this description is issued, it becomes a 
 portion of the currency, and the person who thus issues it is 
 bound to make good the representation he authorizes. But it 
 may be urged, in conformity with cases already discussed, that 
 this is not to the extent of authorizing dealings that can exist 
 only through the perpetration of crimes. On consideration, how- 
 ever, a difference will be apparent between a case like Young v. 
 Grote and the present case. There the cheque, though negli- 
 gently filled up, was yet a perfect instrument, and, in the 
 
 ' London and South- Western Bank v. AVentworth, 5 Ex. D. 96 ; 49 L. J. Ex. 657 ; 
 42 L. T. 188 ; 28 W. E. 516. 
 
 3L 
 
898 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 American 
 decision. 
 
 Judgment of 
 Parsons, C.J. 
 
 Conaide'red, 
 
 absence of an implication, there was no anthority to alter it. 
 In tlie present case the acceptor had signed his name and 
 delivered the paper for the purpose of being filled up within 
 certain limits indicated by the stamp, and, upon its being filled 
 up in a manner to all the world, except the holder and the 
 acceptor, warranted by his dealing with it, whether he was de- 
 frauded or not became immaterial. The acceptor must be in no 
 better position if he signs before .the drawer's name is inserted 
 than if he signs after ; and if he signs after he will be bound, 
 by virtue of the third proposition in Carr v. London and North- 
 Western Eailway Company.' Or to put the case another way, 
 whether there is crime or not in the filling up of the instrument 
 is immaterial, and therefore inadmissible, since the act of the 
 acceptor has given authority to fill up the instrument in the way 
 in which apparently it has been filled up. 
 
 In an old American case a similar point was discussed." A 
 merchant entrusted his clerk with blank indorsements which 
 were obtained from the clerk by false pretences, and negotiated. 
 In an action to obtain payment from the indorser it was held 
 that he was liable. " If," says Parsons, C.J., " the clerk had 
 fraudulently and for his own benefit made use of all the indorse- 
 ments for making promissory notes to charge the indorsers, we 
 are of opinion that this use, though a gross fraud, would not be 
 in law a forgery, but a breach of trust, and, for the same reason, 
 when one of these indorsements was delivered by the clerk who 
 had the custody of them to the promiser, who, by false pretences, 
 had obtained it, the fraudulent use of it would not be a forgery, 
 because it was delivered with the intention that a note should be 
 written on the face of the paper by the promiser, for the purpose 
 of negotiating it, as indorsed in blank by the house. And we 
 must consider a delivery by the clerk who was entrusted with a 
 power of using these indorsements (although his discretion was 
 confined) as a delivery by one of the house, whether he was de- 
 ceived as in the present case, or had voluntarily exceeded his 
 direction. For the limitation imposed on his discretion was not 
 known to any but to himself and to his principals." 
 
 The distinction here indicated between consequences depen- 
 dent on the commission of a crime and those dependent on a 
 breach of trust would suit many of the cases, and would apply to 
 .such a principle as that indicated by Pollock, O.B., in Barker v. 
 Sterne,' but would not apply in the case of London and South- 
 
 ^ L. E. 10 C. P. 307; 44 L. J. C. P. issuesadocumentoftLatHnd[i.e.,abillof 
 
 log ; 31 L. T. N. S. 785 ; 23 W. R. 747. exchange] the rest of the world mustjudge 
 
 " Putnam v. Sallivan, 4 Mass. 45. of the authority to fill it up by the paper 
 
 ' 9 Ex. 684, at p. 687. " When a person itself, and not by any private instructions, " 
 
PAUT iv.J ESTOPPEL. 899 
 
 Western Bank v. Wentworth,^ where, however, a broader ground 
 is stated, that forgery was immaterial, since it did not affect the 
 rights on the bill : " Where the bill is drawn by a real person, 
 not only have those who claim under a forged indorsement no 
 title to the bill, but the title is in some one else, who is entitled 
 to have the bill restored to him and to sue upon it ; and to his 
 action a plea of payment to the man who claims under the for- 
 gery would be no defence. In the present case there is no real 
 drawer, and the defendant could have paid the plaintiff without 
 the risk of having to pay it a second time to another." 
 
 A limitation is, however, imposed by the decision of the House Limitation 
 of Lords in Earl of Sheffield v. London Joint Stock Bank.' ^^'^"^^J.^gyoj 
 Certificates of railway stock, with transfers executed in blank, ^"'^^^ ™ 
 were handed over to a money-lender to secure an advance. The Sheffield v. 
 money-lender deposited tliese securities with his bankers as secu- stock'Bank° 
 rity for large loan accounts, filling in the blanks in the transfers 
 of stock with the names of the nominees of the bankers. The 
 evidence shewed that the bankers must be taken to have known 
 that the securities on pledge with them were securities taken by 
 the money-lender in the ordinary course of his business. The 
 money-lender having become bankrupt, the bankers claimed to 
 retain the securities to satisfy the debt due to them. The Court 
 of Appeal' held, in these circumstances, that the bonds must 
 be treated as negotiable securities, and that the bank, having 
 obtained them in their course of ordinary dealing with the money- 
 lender, were entitled to hold them as security for all the debt 
 due to them. The House of Lords, however, reversed this 
 decision as " founded on the Court's forgetting that at the same 
 time that the bankers lent their money they had notice of the 
 infirmity of the pledgor's title, or of such facts and matters as 
 made it reasonable that inquiry should be made into such title." 
 This fact of notice (the Lord Chancellor went further, and was of 
 opinion the bankers had "actual knowledge"^), that should have 
 put the bankers on inquiry as to the title of the securities they were 
 taking, was held sufficient to disentitle them, assuming the secu- 
 rities were negotiable, and (i fortiori if they were not negotiable.' 
 
 II. In this connection may be treated the negligence of a 
 
 ^ 5 Ex. D, 96. Colonial Bank v. Whinncy, 11 App, Cas. 
 
 ' 13 App. Gas. 333 ; 57 L. J. Ch. 986 ; 426 ; 56 L. J. Ch. 43 ; 55 L. T. 362 ; 
 
 58 L. T. 401 ; 36 W. E. 829. 34 W. K. 705 ; Colonial Bank v. Hep- 
 
 ' Under the name of Easton v. London worth, 36 Ch. D. 36 ; 56 L. J. Ch. 1089 ; 
 
 .Joint Stock Bank, 34 Ch. D. 95; 56 57 L. T. 221 ; 36W. E. 259. In Williams 
 
 L. J, Ch. 569 ; 55 L. T. 678 ; 35 W. E. v. Colonial Bank, 36 Ch. 659, Kekewich, 
 
 220. J., held that there was no duty on bankers 
 
 * At p. 341. to inquire ; but as to this he was over- 
 
 ' Compare Soci^te G6n6ralede Paris v. ruled, 38 Ch. D. 388, on the authority of 
 
 Walker, 11 App. Cas. 20; 55 L. J. Q. B. Earl of Sheffield v. London Joint Stock 
 
 163; 54 L. T. 389; 34 W. E, 662; Bank, 13 App. Cas. 333. 
 
900 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Ground of 
 the duty. 
 
 Lord Sel- 
 borne in 
 Agra Bank 
 V. Barry. 
 
 Fry, L.J., 
 considers the 
 expression 
 " gross negli- 
 gence that 
 amounts to 
 evidence of 
 fraud" em- 
 barrassing. 
 His view 
 discussed. 
 
 mortgagee or his agent by which some other person has been led 
 to prejudice himself in dealing with the mortgaged estate. 
 
 It has been sought to place this branch of law on the ground 
 of a duty to keep title deeds secure, " as if title deeds were in the 
 eye of law analogous to fierce dogs or destructive elements, where, 
 from the nature of the thing, the Courts have implied a general 
 duty of safe custody on the part of the person having their 
 possession or control.'" But, as was shewn by Lord Selborne in 
 Agra Bank v. Barry ,^ the only foundation of this is the ambiguity 
 arising from the confounding "the course which a man dealing 
 bond fide in the proper and usual manner for his own interest 
 ought by himself or his solicitor to follow with a view to his own 
 title and his own security," and the absence of which may be 
 evidence of a want of good faith in his proceedings if sub- 
 sequently he sells or mortgages the property, with an alleged 
 obligation to any possible holder of the title or security to guard 
 him against defects that may arise through his want of care. 
 The duty merely signifies that the owner is expected to act 
 in his own afEairs as the average reasonable and prudent 
 person would be expected to do. If this so-called duty to a 
 man's self is unperformed, in the event of the title being trans- 
 ferred to a third person the neglect of ordinary precautions by 
 the owner becomes, as against him and in favour of his assignee, 
 evidence of " that gross negligence that amounts to evidence of 
 fraud.'" 
 
 Fry, L.J., regards this expression as "certainly embarrassing, 
 for negligence is the not doing of something from carelessness 
 and want of thought or attention ; whereas a fraudulent intention 
 is a design to commit some fraud, and leads men to do or omit 
 doing a thing, not carelessly, but for a purpose." The distinc- 
 tion thus brought out between a negligent and a fraudulent act 
 is undoubtedly just. The infirmity of the reasoning is, however, 
 the assumption that each carries on its face the mark of its 
 character ; while this is not in fact the case ; since the same 
 collection of facts may be consistent either with the grossest 
 negligence or with the existence of fraud, and yet there may be 
 no indications to direct the judgment preferentially to one or the 
 other of the two conclusions. For example, a man may so fail 
 to observe the most common prudence in the custody of his title 
 deeds that a fraud is perpetrated by means of them. His dis- 
 regard of all precautions may be due to his being an accomplice 
 
 1 Per F]^, L.J., Northern Counties of 
 England Fire Insurance Company v. 
 Wbipp, 26 Ch. D. 482, at p. 493 ; 53 
 L. J, Ch. 629 ; 5 J L.T. 806 ; 32 W. B. 636. 
 
 => L. E. 7 H. of L. 13s, at p. 157. 
 ^ Per Lord Eldon, Evans v. Bicknell, 6 
 Yes. 174, at p. 189. 
 
PART IV.] ESTOPPEL. 901 
 
 ia the fraud, or from fatuity of confidence in the defrauder. But 
 the facts give no clue which inference — of fraud or of negligence 
 — is to be drawn. The facts of the case being fixed and the 
 inference ambiguous, an element of uncertainty in the philosophic 
 truth of the conclusion is inevitable. But as far as the matter 
 is in its province, the law cuts the knot by saying in all such 
 cases — where the negligence is so gross as to warrant an inference 
 that what, though superficially consistent with " carelessness and 
 want of thought or attention," may be in reality contrivance, 
 '' a design to commit some fraud, and lead men to do or omit 
 doing a thing, not carelessly, but for a purpose " — whichever con- 
 clusion, whether that of fraud or that of negligence, is rightly 
 to be drawn, the consequences, so far as civil liabilities go, shall 
 not be affected ; in other words, that negligence so gross as to 
 imply a want of moral qualities shall be affected with the same 
 liability that the law attaches to certain descriptions of fraud. 
 
 That some meaning of this sort is underlying Pry, L.J.,'s 
 language is seen not only from the explanation' he gives of Perry 
 Herrick v. Attwood," but also from his gloss upon Lord Eldon's 
 words:' "Lord Eldon seems to have meant by his words to 
 describe the not doing of something so ordinarily done by honest 
 men imder the given circumstances as to be really attributable, 
 not to neghgence or carelessness, but to a fraudulent intention. 
 In short, it appears to us that in the mouth of Lord Eldon the 
 word ' negligence ' was used simply to express nonfeasance." 
 But a reference to the report will shew that this was not Lord 
 Eldon's meaning. In Evans v. BicknelP the defendant was 
 charged, not for negligence in not doing something, but for 
 negligence in actively handing over deeds to a person whose 
 possession of them enabled him to perpetrate a fraud. Lord 
 Eldon's words' are: "It amounts to no more than that a 
 trustee deUvers the deeds into the hands of a party who has 
 the settlement. I do not say it is not negligence; but it is 
 too dangerous upon such loose evidence to hold that it is that 
 gross negligence that amounts to evidence of fraud." There 
 is, nevertheless, an indication of opinion that whether careless- 
 ness or fraudulent intention is the governing notion may be 
 ambiguous ; and then, if there is " the not doing of something so 
 ordinarily done by honest men under the given circumstances," 
 it may be attributed to fraud, and not negligence. But why the 
 same attribution may not be made where there is a positive act 
 without intention that operates as negligence, and why it is 
 
 ' 26 Ch. D. at p. 492. 2 2 De(j, & J. 21. » 26 Ch. D. at p. 189. 
 
 •* 6 Ves. 174. * 6 Ves. at p. 189. 
 
902 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 lord Cran- 
 Tvorth's 
 opinion in 
 Colyer v. 
 Finch. 
 
 James, L.J.g's 
 opinion. 
 
 Division of 
 the subject 
 in Fry, L.J.,'i 
 judgment in 
 Northern 
 Counties of 
 England Firs 
 Insurance 
 Oompauy o. 
 Whipp. 
 
 necessary positively to attribute tlie fraudulent intention and not 
 to allow tlie precise colour of the act to remain ambiguous, J;he 
 Lord Justice does not explain.' 
 
 In accordance with what has been urged is the principle laid 
 down by Lord Chancellor Oranworth in moving the judgment 
 of the House of Lords in Colyer v. Pinch.^ The question was 
 whether Mr. Pinch, a mortgagee, by having left title deeds of the 
 mortgagor, by means of which the latter was able to make an 
 apparently good title to the appellant, was disqualified from 
 setting up his prior legal title. The Lord Chancellor said : 
 " The rule on this subject is now well settled. A first mortgagee, 
 having the legal title, is not to be postponed to a subsequent 
 purchaser or mortgagee merely because he has not possessed 
 himself of the title deeds. In order to deprive the first mortgagee 
 of his legal priority the party claiming by title subsequent must 
 satisfy the Court that the first mortgagee has been guilty either 
 of fraud or gross negligence but for which he would have had 
 the deeds in his possession. What are the circumstances which 
 will amount to or be evidence of gross negligence it is difficult to 
 define beforehand; but I think that primd facie a mortgagee 
 who, knowing that his mortgagor has title deeds, omits to call for 
 them, or who omits to make any inquiry on the subject, must be 
 considered to be guilty of such negligence as to make him 
 responsible for the frauds which he has thus enabled his mortgagor 
 to commit."' 
 
 James, L. J., states the principle to the same effect, though he 
 uses the term wilful negligence,'' which probably means a negli- 
 gence that contravenes all ordinary rules of prudence. He says : 
 " The legal mortgagee must have been guilty of fraud or of that 
 wilful negligence which leads the Court to conclude that he i^ an 
 accomplice in the fraud." ^ 
 
 Passing, then, from the consideration of the governing prin- 
 ciple to the various manifestations of it, the subject is admirably 
 distributed by Fry, L.J., in Northern Counties of England Pire 
 Insurance Company v. Whipp," into — 
 
 ' Compare Manners v. Mew, 29 Ch. U. 
 72s 5 541'- J- Ch. 909 ; 53 L. T. 84. 
 
 '■' 5 H. L. C. 90s, at p. 908 ; 26 L. J. 
 Ch. 65. Seethe same re-asserted by the 
 Lord Chancellor in Perry Herrick v. Att- 
 wood, 2 De G. & J. 21, at p. 37 ; and 
 powerfully pat by Turner, V.C., in Hewitt 
 V. Loosemore, 9 Hare 449, at p. 458 : 
 "gross or wilful negligence which, in the 
 e v(! of this Court, amounts to fraud. " Also 
 per Aldevson, B., in Whitbread v. Jordan, 
 I y. & C. Ex. Cas. 303, approved as to 
 
 this point by Lord Lyndhurst, C, in Jones 
 V. Smith, I Phil. 255. Clarke v. Palmer, 
 21 Ch. B. 124 ; 51 L. J. Ch. 634 ; 48 
 L. T..857. 
 
 = Eoberts v. Croft, 2De G. & J. i. 
 
 ' See per Lord Selbome, C, Dixon v. 
 Muokleston, L. R. 8 Ch. App. 155, at p. 
 160; 42 L. J. Ch. 210; 27 L. T. N. S. 
 804; 21 W. R. 178. 
 
 6 Ratcliffe v. Barnard, L. R. 6Ch. 652 ; 
 40 L. J. Ch. 777 ; 19 W. R. 764. 
 
 " 26 Ch. D. 482, at p. 487. 
 
PART IV.] ESTOPPEL. 903 
 
 I. Tliose cases wliich relate to tlie conduct of the legal mort- 
 gagee in not obtaining possession of the title deeds ; and 
 
 II. Those cases which relate to the conduct of the legal mort- 
 gagee in giving up or not retaining the possession of the title 
 deeds after he has obtained them. 
 
 I. The former of these classes is further subdivided — (a) Where 
 the legal mortgagee or purchaser has made no inquiry for the 
 title deeds, and has been postponed either to a prior equitable 
 estate' or to a subsequent equitable owner who used diligence in 
 inquiring for the title deeds ;" 
 
 ()3) Where the legal mortgagee has made inquiry for the deeds 
 and has received a reasonable excuse for their non-delivery — in 
 that case he does not lose his priority ;' 
 
 (y) Where a legal mortgagee has received part of the deeds 
 only, if he did so under a reasonable belief that he was receiving 
 all he will not lose his priority ; ■* 
 
 (8) Where the legal mortgagee has left the deeds in the hands 
 of the mortgagor, with authority to deal with them for the pur- 
 pose of raising money on the security of the estate, and he has 
 exceeded the collateral instructions given to him, the legal mort- 
 gagee wUl be postponed.' 
 
 II. The second class of cases Fry, L.J., divides into — (a) Those 
 where the title deeds have been lent by the legal mortgagee to 
 the mortgagor upon a reasonable representation made by him as 
 to the object in borrowing them, and the legal mortgagee has 
 retained his priority over the subsequent equities ; " 
 
 (j3) Those where the legal mortgagee has returned the deeds to 
 the mortgagor for the express purpose of raising money on them, 
 though with the expectation that he would disclose the existence 
 of the prior security to any second mortgagee, and in such cases 
 the Court has, on the ground of authority, postponed the legal to 
 the equitable estate.' 
 
 But the rules as thus laid down only apply where it is sought 
 to postpone a mortgagee who has obtained the legal estate to a 
 subsequent equitable mortgagee.' " The question," says Fry, L. J., 
 "is not what circumstances may, as between two equities, give 
 
 ' Worthington v. Morgan, i6 Sim. ' Perry Herrick v. Attwood, 2 De G, 
 
 54-7 
 
 & J. 21. 
 
 " Clarke i). Palmer, 21 Ch. D. 124 ; 51 ° Peter v. Eusscl, or Tlmloliefl House 
 
 L. J. Ch. 634 ; 48 L. T. 857. case, i Eq. Cas. Abridg. 321 ; Martinez 
 
 ' Barnett v. Weston, 12 Ves. 130 ; u. Cooper, 2 Knss. 198. 
 
 Hewitt V. Loosemore, 9 Hare 449 ; Agra ^ Brigps v Jones, L. E. 10 Eq. 92 ; 22 
 
 Bank V. Barry, L. E. 7 H. of L. L. T.N. S. 212. 
 
 Ijp ^ As to priorities between equitable 
 
 * Hunt V. Elraes, 2 Pe G. F. & J. 578 ; mortgagees and otliers, Eussel v. Eussel, 
 
 Eatcliffe v. Barnard, L. E. 6 Cli. 652 ; i Wliite & Tudor Lead. Caa. Eq. 6th edit. 
 
 Colyer 0. Finch, 5 H. L. C. 905. 794. "■ 
 
904 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Test. 
 
 What cironm- 
 stances suf- 
 ficient to 
 raise pre- 
 sumption of 
 notice. 
 Construc- 
 tive notice 
 defined. 
 
 General 
 principle. 
 
 Authorities 
 considered. 
 
 priority to the one over tlie other, but what circumstances justify 
 the Court in depriving a legal mortgagee of the benefit of the 
 legal estate."' 
 
 The other question became the subject of discussion in National 
 Provincial Bank of England v. Jackson," and with regard to this 
 the test was held to be " whether one party has acted in such a way 
 as to justify him in insisting on his equity as against the other." 
 
 This, then, opens up the discussion of what conduct establishes 
 the legal conclusion of such justification, or what circumstances 
 are sufficient to raise the presumption of notice. 
 
 Constructive notice is defined to be " no more than evidence 
 of notice, the presumption of which is so violent that the Court 
 will not allow even of its being controverted." ' 
 
 The general principle has been stated to be that whatever is 
 sufficient to put a person upon inquiry is good notice — that is, 
 where a man has sufficient information to lead him to a fact 
 he shall be deemed to have knowledge of it.' 
 
 Thus, in this relation, notice that the title deeds are in another 
 man's possession may be held notice of a claim by him on the 
 estate ;° though the mere absence of the title deeds, however, has 
 never been held by itself enough to afEect one with notice if he 
 has bond fide made inquiry for the deeds, and a good excuse has 
 been given for the non-deHvery of them. In Dixon v. Muckleston' 
 Lord Selborne, C, states the law on this point to be " that when 
 the Court is satisfied of the good faith of the person who has got 
 the necessary deeds, then he is not bound to examine the deeds, 
 and is not bound by constructive notice of their actual contents, 
 or of any deficiencies which by examination he might have dis- 
 covered in them. This I take to be the law even in cases where 
 the depositor of the deeds is himself acting in the double 
 character of borrower of the depositee's money and of solicitor 
 
 , 1 Northern Counties of England Fire 
 Insurance Company v. Whipp, 26 Ch. D. 
 482, at p. 487; S3 Ii. J. Ch. 629; 51 
 L. T. 806 ; 32 "W. E. 626 ; Kettlewell v. 
 Watson, 21 Ch. D. 68s ; SI L- J- Ch. 
 281 ; 46 L. T. 83 ; 30 W. R. 402. 
 
 = 33 Ch. D. I ; ss L. T. 458 ; 34 W. E. 
 S97 ; Hopgood v. Ernest, 3 De G. J. & S. 
 116. 
 
 ' Per Byre, C.B., Plumh v. Pluitt, 2 
 Anst. 432, at p. 438 ; per the Lord Chan- 
 cellor, " the doctrine of constructive notice 
 depends upon two considerations ; first, 
 that certain things existing in the relation 
 or the conduct of parties, or in the case 
 between them, begat a presumption so 
 strong of actual knowledge, that the law 
 holds the knowledge to exist, because it is 
 highly improbable it should not ; and next, 
 
 that policy, and the safety of the public, 
 forbids a person to deny knowledge while 
 he is so dealing as to keep himself ignor- 
 ant, or so that he may keep himself ignor- 
 ant, and yet all the while let his agent 
 know, and himself, perhaps, profit by that 
 knowledge." Kennedy w. Green, 3 My. & 
 K. 699, at p. 719. See The Conveyancing 
 Act, 1882 (4S & 46 Vict. c. 39), s. 3, Bub- 
 s. I. 
 
 * Anon., Ereem. Ch. Cas. 137, C. 171 ; 
 Taylor v. Stibbert, 2 Ves. 440 ; Smith v. 
 Low, 3 Atfc. 490. 
 
 ^ Hiernw. Mill, 13 Ves. 114; Dryden 
 V. Frost, 3 My. & Cr. 670 ; Maxfield v. 
 Burton, L. E, 17 Eq. 15 ; 43 L. .1. Ch. 
 46 ; 29 L. T. N. S. S7I ; 22 W. E. 148. 
 
 « L. E. 8 Ch. App. iSS ; 42 L. J. Ch. 
 210 ; 27 L. T. N. S. 804 ; 21 W. R. 178. 
 
PART IV.] ESTOPPEL. 905 
 
 for the depositee.'" But it is otherwise if he omits all inquiries. 
 Both branches of the rule are stated by Turner, V.O., in Hewitt 
 V. Loosemore' : " The law, therefore, as I collect from the autho- 
 rities, stands thus — that a legal mortgagee is not to be postponed 
 to a prior equitable one upon the ground of his not having got 
 in the title deeds, unless there be fraud or gross and wilful 
 negligence on his part; that the Court will not impute fraud 
 or gross and wilful negligence to the mortgagee if he has bond fide 
 inquired for the deeds and a reasonable excuse has been given for 
 the non-delivery of them ; but that the Court will impute fraud or 
 gross and wilful negligence to the mortgagee if he omits all inquiry 
 as to the deeds." And the same learned judge, when Lord Justice, 
 more definitely indicates the limits of the law when he says^ : 
 " A purchaser or mortgagee is bound to inquire into the title of 
 his vendor or mortgagor, and will be afEected with notice of what 
 appears upon the title if he does not so inquire ; nor can it, 
 I think, be disputed that this rule applies to a purchaser or mort- 
 gagee of leasehold estates as much as it applies to the purchaser 
 or mortgagee of freehold estates, or that it applies equally to a 
 tenant for a term of years, and I cannot see my way to hold that 
 a rule which applies in all these cases ought not to be held to 
 apply in the case of a tenant from year to year."' 
 
 A person may be affected with notice of a deed by anything Various 
 outside the ordinary course calculated to direct the attention of a Sheeting 
 reasonably prudent man to an inquiry ^ — that is, if there is a ^'* notice, 
 natural connection between the abnormal circumstance and the 
 point that it is the duty of the person to know ;^ as, for instance, 
 where the purchaser is not able to make out a title but by a deed 
 which leads him to another fact which would work disclosure, the 
 purchaser is presumed to have knowledge of it ; ° or, as has some- 
 times been stated, a man must shew, not only that he had no iafor- 
 mation, but that with due diligence he could not have obtained 
 it.' But in the case of a purchaser omitting to call for title deeds 
 he will not be aifected with notice of a fraud by the person of 
 whom he was bound to make the inquiry, in addition to being 
 
 '■ 9 Hare 449. haustively considered in connection with 
 
 - Wilson r. Hart, L. R. i Cli. App. the English cases in Green v. Fletcher, 8 
 
 463; 12 L. T. N. S. 798; 13 W. E. 988. N. S. Wales E. Eq. 58. 
 
 ^ See the Vendor and Purchaser Act, * Greenslade v. Dare, 20 Beav. 284 ; 
 '874 (37 & 38 Vict. c. 78), s. 2, sub-s. I, compare Conveyancing and Law of Pro- 
 held not to have altered the rule thata perty Act, 1881 (44 & 45 Vict. c. 41), 
 lessee has constructive notice of his a. 54) suh-s. i. 
 
 lessor's title: Patraan v. Harlaml, 17 ' Bisooe u. Earl of Banbury, i Cases in 
 
 C;h. D. 353 ; 50 L. J. Ch. 642 ; 44 L. T. Ch. 287 ; Moore v. Bennett, 2 Cases in 
 
 728 ; 29 W. E. 707. Ch. 246 ; Davies v. Thomas, 2 Y. & C. 
 
 * Kennedy v. Green, 3 My. & K. 699 ; Ex. Cas. 234. 
 
 Eobinson v. Briggs, i Sm. & G. 188. ' Wason v, Wareing, 15 Beav. 151, 
 The doctrine of Kennedy v. Green is ex- 
 
906 
 
 THE LAW OF NEGLIGENCE. 
 
 [book II. 
 
 Duty where 
 property is 
 purchased 
 knowu to be 
 in the occu- 
 pation of a 
 tenant. 
 
 Uonfiicting 
 decisions. 
 
 affected with the knowledge that they are in the possession of 
 some holder for value ;' nor yet if he is told by the person who 
 gives him notice of a deed, which does not necessarily affect the 
 property, that it does not affect the particular property he is 
 going to deal with.^ 
 
 Notice of a deed is notice of its contents,' even where there is 
 the most express representation that it contains nothing affecting 
 the title." 
 
 In cases of specific performance, however, notice of a lease 
 affects the purchaser only in the absence of misrepresentation 
 and with the knowledge of ordinary covenants. What are ordi- 
 nary covenants differ with regard to the situation of the property 
 or the circumstance of the sale." Notice of a deed actually 
 executed is necessary, and not notice merely of an intention to 
 execute a deed. " There is no case," says Lord Thurlow, " which 
 goes so far as to say that a purchaser shall be affected by notice 
 of a deed in contemplation."" Further, the mere execution of a 
 deed by a witness will not fix him with notice of its contents ; 
 for, says Lord Thurlow, " a witness in practice is not privy to 
 the contents of the deed."' Eecitals in a deed operate as notice,' 
 even though they are inaccurate ;' so, too, does a general notice 
 that an estate is subject to a charge as a judgment, though there 
 is no information as to the exact nature or amount." 
 
 Lord Romilly held" that, where a vendor contracted to sell 
 property which the purchaser knew was in the occupation of a 
 tenant, there was a duty to inquire as to the interest of the 
 tenant, failing which the purchaser was affected with notice 
 of an agreement for a lease which the tenant had; and this 
 decision was followed by the Court of Common Pleas in Phil- 
 lips V. Miller.'^ In Caballero v. Henty'^ the Court of Appeal 
 affirmed Jessel, M.R., and held that the doctrine of notice 
 
 ' Hipkins V. Amery, 2 Giff. 292, at p. 
 301. 
 
 '' Jones I". Smith, i Hare 43 ; affirmed, 
 I Phil. 244; Cox V. Coventon, 31 Beav. 
 378; GroBvenor v. Green, 28 L. J. Ch. 
 173 ; Borell v. Dann, 2 Hare 440. 
 
 ' Malpas V. Actland, 3 Eubb. 273. 
 
 •• Taylor v. Stibbert, 2 Ves. 437. See 
 Tulk V. Moxhay, 2 Phil. 774 ; Sayers v. 
 Uollyer, 28 Ch. D. 103 ; 54 L. J. Ch. i ; 
 SI t. T. 723 ; 33 "W. R. 91. 
 
 5 Wilbraham v. Livesay, 18 Beav. 206. 
 
 ^ Cothay v. Sydenham, 2 Bro. C. C. 
 391 ; per Kay, J., in Williams v. Wil- 
 liams, 17 Ch.'D. 437. 
 
 ' BSckett V. Cordley, i Bro. C. C. 353, 
 at p. 357. 
 
 9 Farrow v. Bees, 4 Beav. 18 ; Taylor 
 V. Baker, S Price 306. 
 
 " Hope V. Liddell (No. l), 21 Beav. 183. 
 As to statutoi-y limitations on the old law, 
 see the Conveyancing and Law of Property 
 Act, 1881 (44 & 45 Viot.o. 41), B. 3, snb- 
 B. 3; Smith V. Bobinson, 13 Ch. D. 148; 
 49 L. J. Ch. 20 ; 41 L. T. 405 ; 28 W. K. 
 
 37- 
 
 " Taylor v. Baker, Dan. 71 ; there is a 
 valuable reporter's note to the judgment 
 in this case. Penny o. Watts, i Hall & 
 Twells, 266; Clare Hall v. Harding, 6 
 Ha. 273. 
 
 " James v. Litchfield, L. K. 9 Eq. 51 ; 
 39 L. J. Ch. 248 ; 21 L. T. N. S. 521 ; 
 18 W. E. 158. 
 
 12 L. E. 9 C. P. 196 ; 43 L. J- C. P. 74; 
 30 L. T. N. S. 61 ; 22 W. E. 485. 
 
 " L. R. 9 Ch. App. 447 ; 41 L. J. Ch. 
 ■ 63s ; 30 L- T. 314 ; 22 W. E. 446. 
 
PART IV.] ESTOPPEL. 907 
 
 ■would be unduly extended if applied as between the vendor and 
 
 purcbaser, and whilst the matter still rests in contract.' The 
 
 true doctrine was laid down by James, L.J., as referring only 
 
 " to equities between the purchaser and the tenant when the 
 
 legal estate has passed, and to have nothing to do with the rights 
 
 and liabilities of vendors and purchasers between themselves." 
 
 James, L. J., thus continues : — " If there is anything in the 
 
 nature of the tenancies which affects the property sold, the 
 
 vendor is bound to tell the purchaser, and to let him know what 
 
 it is which is being sold ; and the vendor cannot afterwards say 
 
 to the purchaser, ' If you had gone to the tenant and inquired, 
 
 you would have found out all about it.' " Subsequently the PiuUips v. 
 
 Exchequer Chamber overruled the decision of the Court of Exchequer " 
 
 Common Pleas in Phillips v. Miller.' Possession by a vendor of p';a"»ber 
 
 ■■^ _ •'_ _ brings the 
 
 an estate which he has sold will not be constructive notice of law into 
 any lien for unpaid purchase-money if he has signed the usual ^'""""y" 
 receipt on the conveyance for the whole purchase-money; but 
 otherwise it would.' Nor will the mere circumstance of the 
 vendor having been out of possession many years affect a lond 
 fide purchaser and without notice.^ 
 
 What is notice to an agent or trustee is notice to the prin- Effect of 
 cipal ; ^ and the presumption that a solicitor has commu:nicated to agent, 
 his client facts which he ought to have made known cannot be 
 rebutted by proof that it was the solicitor's interest to conceal 
 them.° A purchaser will not be affected with notice of a prior 
 equitable mortgage by his knowledge that the title deeds are 
 in the possession of the equitable mortgagee if the equitable 
 mortgagee, by reason of his being the largest co-owner of the 
 property, was the person who, independent of the mortgage, was 
 entitled to their custody. 
 
 Chitty, J.,' following Jessel, M.E.,* refused- to extend the Notice 
 doctrine of constructive notice so as to impute to a director of a directm^o^ a 
 company a knowledge of the books where the accounts had been co^^pa^y- 
 duly audited, and the auditors were apparently accountants of 
 skill and ability, " since it would be extending the doctrine of 
 
 ' Daniels v. Davison, i6 Ves. 249 ; White & Tudor Lead. Cas. Eq. 6tli edit. 
 
 Cavander v. Bulteel, L. E. 9 Ch. App. 79 ; p. 26 ; see note at p. 67 ; Maxfield r. 
 
 43 L. J. Ch. 370; 29 L. T. N. S. 710 ; Burton, L. E. 17 Eq. 15 ; 43 L. J. Ch. 
 
 22 W. E. 177. 46 ; 29 h. T. 571 ; 22 W. E. 148. 
 
 2 L E. 10 C. P. 420; 44 L. J. C. P. ^ Bradley v. Eiches, 9 Ch. D. 189 ; 47 
 265 ; 32 L. T. N. S. 638 ; 23 W. E. 834. L. J. Ch. 811 ; 38 L. T. 810 ; 26 W. K. 
 
 3 White V. Wakefield, 7 Sim. 401 ; 910. 
 
 Mackreth v. Symmons, I White & Tudor's ' Ex parte Hardy, 2 D. & C. 393, at 
 
 Lead. Cas. Eq. 6th edit. pp. 355, note at p. 394. 
 
 p. 387. ^ In re Denham & Co. (No. i), 25 Ch. D. 
 
 * Barnhart v. Greenshields, 9 Moo. 752, at p. 766 ; 50 L. T. 523 ; 32 W. E. 
 
 P. C. C. 18, at pp. 34, 3S- 487- 
 
 ' Le Neve v. Le Neve, Amb. 436 ; 2 
 
908 THE LAW OF NEGLIGENCE. [book n. 
 
 constructive notice far beyond tliat or any other case." " It is 
 suflBcient," said OMtty, J., "if directors appoint a person of good 
 repute and competent skill to audit the accounts, and have no 
 ground for suspecting that anything is wrong." 
 
 Negligence against negligence, like estoppel against estoppel, 
 sets the matter at large.' 
 
 ' Co. Litt. 352 b ; per Stuart, V.C., Ware v. Lord Egmont, 18 Jur. 37!, 373 ; 
 Withington v. Tate, L. B. 4 Ch. 288. 
 
BOOK III. 
 
 SPECIAL RELATIONS NOT ARISING 
 OUT OF CONTRACT. 
 
CHAPTER I. 
 
 ANIMALS. 
 
 The English law has so many points of contact with the civil law 
 on this subject that it may be well shortly to summarize some of 
 the leading positions of that law previously to entering on the 
 detailed examination of what amount of liability is imputed by 
 the law of England to those who undertake the custody of 
 animals.' 
 
 In Roman law noxia is the damage arising ex delicto or quad ex Roman law. 
 delicto of a slave, who is himself termed noxa, though this term is 
 sometimes used to designate the damage done.^ The actio noxalis 
 is the remedy given by the law for this, and gives the master the 
 option either of paying the amount of the injury or of surrendering 
 the slave for satisfaction.^ The noxal action first appears in the 
 Twelve Tables^ : Si quadrupes pauperiem fecisse dicatur lex voluit 
 aut dari id quod Twcuit, id est, id animal quod noxiani commisit; 
 aut cBstinudionem noxice offen-e. This was extended by the 
 Lex Aquilia. The distinction between the law of the Twelve 
 Tables and the Zex Aquilia is thus explained: — Si servus 
 scienie domino furtum fecit, vel aliam n^xam commisit, servi 
 nomine actio est noxalis ; nee dominus suo nomine tenetur. At 
 in lege Aquilia dominus suo nomine tenetur, non servi? The 
 effect of the provision of the law of the Twelve Tables has 
 been compared with the law of England," where, in the case of 
 a beast straying and trespassing, the person on whose land it is 
 found may in certain circumstances seize and impound it till the 
 owner comes and redeems it by paying the damage and expenses 
 
 ^ In Card v. Case, 5 C. B. 622, tbere Twelfth Table says, Si servus furtum 
 
 is a learned argument and a very learned faxit noxiamve nocuit. 
 
 note on the ancient and foreign law on ' D. 9, 4, 2, § i. 
 
 this subject. ° Colquhoun, Koman Civil Law, Actio 
 
 " Inst. 4, 8, 1 ; Gains, 4, 75, D. 9, i, i. Noxalis, § 2196. The subject is also 
 
 * GaiuB, 4, 75. &ca enim iniquum illustratedin that admirable book, Holmes, 
 nequitiam eorum ultra ipsorum corpora The Common Law, Lecture I. Early 
 parentibus dominisve damnosam esse. Foi-ma of Liability. 
 
 * D. 9, I, I pr. The fragment of the 
 
912 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III, 
 
 Pauperies. 
 
 Provisions ot 
 the Soman 
 law. 
 
 of keep. But if the damage proved greater than the value of 
 the beast, the owner was unlikely to do this. In that event the 
 person damnified, not having at common law the right to sell, 
 was practically without remedy, and with the obligation of main- 
 taining the beast, till 5 & 6 Will. IV. c. 59 gave him the right 
 to sell. A similar difficulty Sir Patrick Colquhoun considers to 
 have been the origin of this chapter of the Lex AguUia, which 
 gave an action of malicious damage against the master, either on 
 the hypothesis that he has refused the surrender of the Twxa, 
 slave or beast, or that the Twxa in doing the damage acted under 
 his direction. 
 
 The name strictly given to the damage done by an irrational 
 animal belonging to another was Pauperies ; quia quad pauperio- 
 rem facit Icedatum. Pauperies est damnm/m sine injuria facientis 
 datwm. Nee enim potest animal injwriam feeisse dici, qtwd sensu 
 caret} But this term pauperies does not appear strictly to have 
 been adhered to, for it occurs occasionally where the expressions 
 noxa or noxia, and the action descending from them, actio noxalis, 
 would appear to have been applicable.'' 
 
 By the Twelve Tables the animal must have been four-footed,' 
 but by construction the remedy was extended, hcec actio utilis 
 competit si non qtcadrupes sed aliud animal pawperiem fecit,^ and 
 it could be brought for damage done by bipeds. 
 
 If the animal was given up in satisfaction of the wrong, then 
 the defendant went free.' 
 
 The action generally applied to those animals only quce contra 
 natwram moventur. — Geterum si genitalis sit feritas cessat. 
 
 By the law of the Twelve Tables and the Zct Pesidania de cane 
 forbade any one keeping a savage beast (and it is noteworthy that 
 a dog is here mentioned with a boar, a bear, and a lion) near to 
 a public road qua imlgo iter Jit; and if a beast so kept did damage 
 to a passer by, it was forfeited by way of indemnity, if even the 
 most remote blame could be laid to the owner's charge; while 
 the later ^dilitian edict ran : Qud, vulgb iter fiet ita habuisse velit, 
 
 ' P. 9, I, I, § 3. Fauperiee damnum 
 ent sine injuria facientin datum; ut cum 
 animal quod sensu et ratione caret dam- 
 num intvlerit. Caper in libro de oriho- 
 graphia paupertatem a pauperie ita 
 separat ut paupertas ipsa conditio sit 
 pauperies damnum. Lexicon Juridicum, 
 sub. nam. 
 
 2 Colquhoyn, Roman Uivil Law, § 2199. 
 
 ' D. 9, I, I, § 2. Ad omnes guad- 
 Tupedes pertinet. 
 
 * D. 9, I, 4. Colquhoun, Boman Civil 
 Law, § 2201, has the following note : — 
 " There is a sufiScientlj absurd note in 
 HSpfner's Commentary, § 1170, note 5, 
 
 as follows : Boileau was so severely 
 wounded by a turkey cock in the privaie 
 parts when a child as to feel the eft'uits 
 of it all his life. Hence Helvetius sny-t 
 his dislike to women, son ^itre sur 
 I'amour de Dieu, and his hatred to tlip 
 Jesuits arose from their having introduced 
 bubbly-jocks into France." 
 _ ° Inst. 4, 9. The law of England an- 
 ciently seems to have been similar. In 
 Mtz Natura Brevium, Hale's edit. p. 89, 
 L. Dote h, it is said : " If my dog kills your 
 sheep and 1 freshly after the fact tender 
 you the dog, you are without remedy ; 
 7 Bdw. 3, Barr. 290." 
 
BOOK HI. J ANIMALS. 913 
 
 ut cuiquam nocere, damnumve dari possit. Si adversus ea factum 
 erit, et homo liber ex ea re perierit, solidi dticenti^ prmstahuntur ,- 
 si nocitum homini libero esse diceiur, quanti honuvi et cequum jitdici 
 videbittir, condemnetur ; cceterarum rerum, qtiantum damnum datum 
 factumve sit, dupli? No action lay if an animal were irritated or 
 roused by another. Thus, when a horse was spurred, and reared 
 and kicked any one, it did not commit pauperies? In this case 
 the person that irritated the horse is liable, and not the owner. 
 So when a dog was chained in a house, and some one stumbled 
 on it accidentally and was bitten, the owner was not liable." 
 But if the owner took it where he ought not, and then allowed 
 it to slip, he was liable for all the damage, from which the 
 surrender of the dog would not excuse him.^ 
 
 But we have seen that a dog was associated with a boar, a 
 bear, and a Hon ; it is therefore not unfair to assume that a 
 similar UabUity would arise in those cases from where there was 
 negligence. The responsibility for the animal follows its owner- 
 ship (noxa caput sequitur^). If the animal died naturally or 
 by accident, the owner's liability was extinguished." Where a 
 domestic beast did damage, even secundum naturam suam, by 
 straying and grazing on another's land, an action lay under the 
 Twelve Tables." 
 
 By the law of England animals are divided into four Law of 
 classes :— ^"s'^'"''- 
 
 I. Those of a savage and irreclaimable character, as lions, Four classes. 
 tigers, bears, &c. 
 
 II. Those that have been thoroughly tamed, and are used for 
 harden or husbandry or for food, such as horses, cattle, and sheep, 
 and which are as truly property of intrinsic value and entitled to 
 the same protection as any other kind of goods. 
 
 III. Those that in their state of domestication never wholly 
 lose their wild natures and destructive tendencies, and are kept 
 
 1 About ;fi2o; a solidus ranged in •'• D. 9, i, i, 5. 
 value from lis. 4d. to lis. 8d. " D. 9, i, 1, 12 et 13. 
 
 2 D. 21, I, 42.' ' D. 9, I, I, 16. 
 
 ' Paul. Sent, i, 15, 3. M, quiirritatu ^ D. 19, 5, 14, 3. The text is : Sic/lans 
 
 suoferam hestiam vel quamcunque aliam ex arbore tua in meum fundum cadat, 
 
 quadrupedem in se proritaverit, eaqve eamque ego immisso pecore depascam, 
 
 damnum dederit, neque in ejus dominum Aristo scrihit, more sibi occurrere legiti- 
 
 neque in custodem actio datur, cited 7 mam actionem, qua experiri possim, 
 
 Meermaii, Thesaurus Juris Civilis, 694. nam neque ex lege duodecim tabularum 
 
 * D. 9, I, 2, I. The following passage depastu peeoris; quia non in tuo pas- 
 
 wijl shew that the legal obligation to have citur ; neque de pawperie neque, damni 
 
 dogs under control is no new one: — 8i injuna agi posse. In factum itaque erit 
 
 quisquam canem hdbens in plateis, aut in agendum. To which there is a gloss of 
 
 viis puhlicis, eum diurnis horis inliga- AcomBiua : Sed quid si mea pecora in tuo 
 
 mina non redegerit, quidquid damni fece- glandes tuas pasta fuerunt sine mea im- 
 
 rit, id a domino dissolvatur : Paul. Sent. missione ? Bespondit hdbet locvm forte de 
 
 J, 15, I. pauperie Accursius. 
 
 3 M 
 
9J4 
 
 THE LAW OF NEGLIGENCE. 
 
 [book m. 
 
 I. Savage 
 and ferocious 
 animals. 
 
 Bex V. 
 Huggins: 
 law stated by 
 Holt, C.J. 
 
 either for uses which depend on retaining those native instincts 
 or else for the whim and gratification of the owner. 
 
 IV. Those fercB natii/rce and unreclaimed. 
 
 We are now to consider these in their order : — 
 
 I. In regard to savage and ferocious animals the duty of any- 
 one professing to keep them is absolute and independent on 
 negligence. The propensity of such animals to do dangerous 
 mischief is well known, and the duty with regard to them 
 corresponds with that with respect to other dangerous agencies 
 as laid down in Rylands v. Fletcher,^ and is that the owner or 
 keeper of such dangerous creatures is required to exercise such a 
 degree of care with regard to them as will absolutely prevent the 
 occurrence of an injury to others through such vicious acts of the 
 animal as he is naturally inclined to commit in any way whatever. 
 To such an extent is this carried that Bramwell, B., in Nichols v. 
 Marsland, is reported : "I am by no means sure that if a man 
 kept a tiger, and lightning broke his chain, and he got loose and 
 did mischief, that the man who kept him would not be liable."^ 
 
 Holt, O.J., in the celebrated case of Rex v. Huggins,' has very 
 clearly laid down the law : " There are, indeed, cases of murder 
 where no act was done by the persons guilty, as the letting loose 
 a wild beast, which the party knows to be mischievous, and he 
 kills a man (3 Edward III, corone 3 1 1 ; Staunf , 1 7 ; Crompt. 24 b), 
 the owner of the beast is guilty of murder. In answer to those 
 cases, there is a diBference between beasts that are ferce nattcrce, 
 as lions and tigers, which a man must always keep up at his 
 peril, and beasts that are manstietce natww, and break through 
 the tameness of their nature, such as oxen and horses,'' In the 
 latter case an action lies if the owner has had notice of the 
 quality of the beast ; in the former case an action lies without 
 such notice. As to the point of felony, if the owner have notice 
 of the mischievous quality of the ox, &c,, and he uses all proper 
 diligence to keep him up, and he happens to break loose and kills 
 a man, it would be very hard to make the owner guilty of felony. 
 But if through negligence the beast goes abroad after warning or 
 notice of his condition, it is the opinion of Hale that it is man- 
 slaughter in the owner. And if he did purposely let him loose 
 and wander abroad with a design to do mischief — nay, though it 
 
 1 L. E. 3 H. of L. 330 ; 37 L. J. Ex. 
 161 ; 19 L. T. N. S. 220 ; in Ex- 
 chequer Chamber, L. E. i Ex. 265. 
 ' " li.'R. 10 Ex. 255, at p. 260. 
 
 " 2 Ld. Eaym. 1574, at p. 1583. 
 
 '' Besides the distinction between ani- 
 mals/era naturtE and mansuetce naturce, 
 there is a farther distinction between 
 
 .tnimals mamuetce naturce and mansue- 
 factce naturce — that is, where an animal, 
 having been caught and shut up, has 
 changed its wild nature, and no longer 
 tries to escape, si ex consuetudine abire 
 et redire eolet, it is called mansuefact(e 
 naturce; where its nature is tame, it is 
 called mansuetce. 
 
BOOK III.] ANIMALS. 915 
 
 were but with a design to fright people and make sport — and he 
 kills a man, it is murder in the owner." 
 
 The rule is also laid down, by Lord Denman, C.J., in the Rule laid down 
 leading case of May v. Burdett,' "that a person keeping a ^^^^"c^j^i"- 
 mischievous animal, with knowledge of its propensities, is bound May».Burdett. 
 to keep it secure at his peril, and that, if it does mischief, negli- 
 gence is presumed without express averment." The first impression 
 from these words would probably be that some proof of knowledge 
 must be given, but that this is not so appears from Crowder, J.,'s 
 charge to the jury in the subsequent case of Besozzi v. Harris^ : 
 " The statement 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. For 
 though such nature may sleep for a time, this case shews that it 
 may wake up at any time. A person who keeps such an animal 
 is bound so to keep it that it shall do no damage. If it be in- 
 sufBciently kept, or so kept that a person passing is not sufficiently 
 protected, the owner is liable." 
 
 By the Roman law, as we have already seen, if a wild animal Suggested 
 escaped, and without negligence, the temporary owner of it betweenTni- 
 would not be liable to make it good : Si genitalis est feritas actio ""^'^ '°'^^" , 
 
 ,^ , , genous ana 
 
 cessat.^ By English law a distinction must be taken between imported. 
 animals indigenous and animals imported. If a man brings a 
 bear on his land (since bears are not now native animals) he 
 must keep him at all hazards ; but if he brings a fox, and it 
 escapes, the liability of the sometime owner terminates with the 
 escape, of course excluding negligence." 
 
 In Gundry v. Feltham ' it was held that a man may hunt a fox Gnndry v. 
 into the ground of another, and not be liable for trespass, on the 
 ground that a man might justify entering into the land of another 
 to kill a fox, gray, or an otter, because they are beasts injurious 
 to the common wealth." But in the Earl of Essex v. Capel' Lord Earl of Essex 
 
 V. Capel. 
 
 1 9 Q. B. 101 ; i6 L. J. Q. B. 64. for to kill a bullBnch there, being a Iiurt- 
 
 - I F. & F. 92, at p. 93. A very fiil bird for picking the blossoms off from 
 
 similar case is Wyatt i . Rosherville Gar- the trees ; and this may be alleged to be 
 
 dens Company, 2 Times L. R. 282. for the public good, but yet this is not 
 
 ^ Inst. 4, 9. lawful for one so to do ; and the Court in 
 
 * Comyns, Actions ou the Case for this case did agree that upon a pursuit he 
 
 Negligence (A 5). might well follow and kill, but not otber- 
 
 ^ I T. R. 334 ; Nicholas v. Badgei-, 3 wise \dthout the assent of the owner of 
 
 T. R. 259, n. ; Gedge v. Minne, 2 Buls. 60. the ground. " 
 
 In this case Dodderidge, J., having ob- " Compare speech of Oliver St. John on 
 
 sei-ved, " It is not lawful by the common the trial of the Earl of Strafford, 3 St. 
 
 law for any one to hunt for pleasure or Tr.,atp. 1509: " It is true we give law to 
 
 for profit, but otherwise where it is for bares and deer, because they be beasts of 
 
 the good of the commonwealth," subse- chase. It was never accounted either cru- 
 
 quently in the case, " Croke, J., agreed elty or foul play to knock foxes and wolves 
 
 the difference before taken by Dodderidge, on the head as they can be found, because 
 
 and demanded whether it was lawful for these be beasts of prey." 
 any one to come into another's orcliard ' Hertford Assizes, 1809 ; Chitty, Game 
 
916 THE LAW OP NEGLIGENCE. [book in. 
 
 EllenlDorougli, speaking of fox-hunting, said: "These pleasures 
 are to be taken only when there is the consent of those who are 
 likely to be injured by them, but they must be necessarily sub- 
 servient to the consent of others. There may be such a public 
 nuisance by a noxious animal as may justify the running him to 
 his earth, but then you cannot justify the digging for him after- 
 wards ; that has been ascertained and settled to be law ; but even 
 if an animal may be pursued with dogs, it does not follow that fifty 
 or sixty people have therefore a right to follow the dogs and 
 trespass on other people's land. I cannot see what it is that is 
 contended for by the defendant. . The only case which will at all 
 bear him out is that of Pentham v. Gundry. If it be necessary, I 
 should be glad that that case should be fully considered. I have 
 looked into the case in the Year-book 12 Henry VIII. pi. 9. 
 That seems to be nothing more than the case of a person who 
 had chased a stag from the forest into his own land, where he 
 killed it, and on an action of trespass being brought against the 
 forester who came and took the stag, he justified that he had 
 made fresh suit after the stag, and it was held that he might 
 state that he was justified, and the plaintiff took nothing by his 
 writ. This is the case upon which that of Fentham v. Gundry is 
 built, but it is founded only on an obiter dictum of Justice Brooke, 
 and it does not appear to me to be much rehed on. But even in 
 that case it is emphatically said by the judge that a man may not 
 hunt for his pleasure or his profit, but only for the good of the 
 common weal, and to destroy such noxious animals as are injurious 
 to the common weal. Therefore, accordiug to this case, the good 
 of the public must be the governing motive." In' the subsequent 
 
 Hume«. case of Hume v. Oldacre,' before Lord Ellenborough, damages 
 
 ''™" were allowed to be recovered against a huntsman, not only for the 
 
 mischief done by the defendant himself, but also for that done by 
 the concourse of people who accompanied him. 
 
 ir. Animaia II. Animals that have been thoroughly tamed and are used for 
 
 tSorou^hiy''" biirden or husbandry, or for food. 
 
 *^mei. These are the subjects of larceny at common law. Of this 
 
 class are ducks, hens, geese, turkeys, peacocks ; all which, with 
 
 their eggs and young, are alike protected by law.^ 
 
 A man is answerable for not only his own trespass, but that 
 
 of his cattle also, for if by his negligent keeping they stray upon 
 
 the land of another, and they there tread down the herbage 
 
 and spoil the com or trees, the owner must answer in damages, 
 
 and the law gives the party injured a double remedy, either by 
 
 Laws, 32, note (/). See, too, Lord Camp- ^ i Stark. 351. 
 
 bell's Lives of the Chief Justices, vol. iii. ^ i Hale S" i i Hawk. Pleas of the 
 
 p. 164. Crown, c. 33, § 43. 
 
BOOK in.] ANIMALS. 'dl? 
 
 permitting Hm to distrain the cattle thus damage feasant, or 
 else by leaving him to his action.' 
 
 And this appears from what Holt, O.J., is reported to have said Mason «. 
 in Mason v. Keeling'' : " The difference is between things in which ^^ "'^' 
 the party has a valuable property, for he shall answer for all 
 damage done by them ; but of things in which he has no valuable 
 property, if they are such as are naturally mischievous in their 
 kind, he shall answer for hurt done by them without any notice ; 
 but if they are of a tame nature there must be notice of the ill 
 quality, and the law takes notice that a dog is not of a fierce 
 
 nature, but rather the contrary 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." Holt, C.J., draws the distinction Holt, c.J.,'s 
 between animals in which there was a " valuable property" — that (i.) Animals in 
 is, which were the subject of larceny at common law — and those ^"^'^'uabfe 
 in which there was not. This latter class he divides into those P.™P^^'y ' 
 which are " naturally mischievous in their kind " and those which in'wMoii there 
 are of a tame nature. The former we have already considered ; '^ '"''■ 
 the latter we shall presently consider. 
 
 But with regard to those that are a valuable property, the (i). Amoials in 
 
 „ f .' whicli there 
 
 owner is to " answer all damage done by them — that is, by is a valuable 
 straying and trampling down grass or com on another man's than ^^°^'^^ ^' 
 their owner's premises. For although the owner of an animal, 
 such as a cow, which he allows to roam about is responsible 
 for damage caused by its trespassing, yet in the case of animals 
 not of mischievous nature he is entitled to suppose that they 
 will not injure any one until he has actual knowledge to bring 
 him to a contrary opinion." That is, whether animals are " valu- 
 able property" at common law or merely "of tame nature" 
 without being valuable property, the same rule applies that the 
 owner must have notice of any peculiar savageness of disposi- 
 tion — which is not the property of the class as reclaimed, but 
 the specialty of any individual member of it — before any lia- 
 bility can attach from it. 
 
 As far, then, as this condition is concerned they are both in 
 the same category, which is broadly distinguished from the rule 
 relating to mischievous animals, which we have already considered, 
 The law on this point was settled in three cases. May v. Burdett (iiO,^'?'™''''^ 
 
 . . ■' in which there 
 
 m the Queen's Bench,'' Jackson v. Smithaon m the Exchequer,' is not a 
 
 valuable 
 property. 
 
 1 3 Bl. Comm, 211. L. T. N. S. 72a ; 24 W. E. 206. 
 
 2 12 Mod. 332 ; I JA. Eavm. 606. ^ 9 Q. B. loi ; 16 L. J. Q. B. 64. 
 
 2 Per Blackburn, J., Sm'ith v. Cook, Ms M. & W. 563 ; 15 L. J. Ex^ 
 
 I Q. B. D. 79 ; 45 L. J. Q. B. 122 ; 33 3if. 
 
018' THE LAW OF NEGLtGENCE. [book iil. 
 
 and Card v. Case in the Common Pleas,' and was most clearly- 
 expressed and explained by the Lord Chancellor" in Fleeming v. 
 Qj.j.3 . (( rjijjQ reason why by the English law it is necessary to 
 allege and prove the scientia is that in the case of an animal 
 mansuetce imtttrce the presumption is that no harm will arise from 
 leaving it at large. Starting from that presumption, it follows 
 that there cannot be blame or negligence in the owner merely 
 from his allowing liberty to an animal which has not by nature 
 the propensity to cause mischief. Blame can only attach to the 
 owner where, after having ascertained that the animal has pro- 
 pensities not generally belonging to his race, he omits to take proper 
 precautions to protect the public against the ill consequences of 
 those anomalous habits, and therefore, according to the English 
 law, it is necessary to aver and prove this knowledge on the part 
 of the owner. But, after all, the cidpa or negligence of the owner 
 is the foundation on which the right of action against him rests, 
 though the knowledge of the owner is the medium, and the only 
 medium, through which we in England arrive at the conclusion 
 that he has been guilty of neglect, and in that sense it is said 
 that the scientia is the gist of the action." Blackburn, J.,'s com- 
 ment in Smith v. Cook* is: "I suppose that this law was suited 
 to the convenience of earlier times, when cattle were left to wander 
 about on open commons, and it was thought that the mere fact 
 that bulls sometimes toss people was not by itself enough to make 
 their owners liable for their acts." 
 
 Evidonco of What is evidence of knowledge must obviously vary in different 
 
 circumstances, and, as the keeping is lawful, knowledge of itself 
 is not conclusive without negligence, though it is a strong indi- 
 cation, but not a conclusive one, of negligence.'' 
 
 Beck V. In Beck 'v. Dyson,' in a dog case, Lord BUenborough held that 
 
 it was not sufficient to shew that the dog was of a fierce and 
 savage disposition and usually tied up, and that the defendant 
 promised to compensate the plaintiff after the latter had been 
 
 1 5 C. B. 622; 17 L. J. 0. P. 124, consistent with the law as subsequently 
 See Hogan». Sharpe, 7 C. & P. 755. settled, it maybe well to quote the remark 
 
 2 Lord Cranworth. of the Lord Chancellor (Cranworth), in the 
 
 3 2 Macqueen 14 ; i W. E. 339. By House of Lords, in Williams v. Bayley, 
 the French Code neither knowledge in the L. K. 1 H. of L. 200, at p. 213, where, 
 owner of the mischievous qualities of the speaking of Campbell's Eeports, he says : 
 anifna], nor even the existence of these " On all occasions I have found, on looking 
 qualities, is regarded : Code Napoleon, art. at the reports by the late Lord Campbell 
 1385- of Lord EUenborough's decisions, that they 
 
 * I Q. B. D. 79, at p. 82 ; 45 L. J. really do in the fewest possible words lay 
 
 Q. B. 122 ; 33 L. T. N. S. 722 ; 24 W.E. down the law very often more distinctly and 
 
 206. _ more accurately than it is to be found in 
 
 " As to this, see per Bramwell, B., many lengthened reports, and what is so 
 
 Cooke t). Waring, 2 H. &C. 332, at p. 338; laid down has been subsequently recog- 
 
 32 L. J. Ex. 262 ; 9 L. T. N. S. 257. nized as giving a true view of the law as 
 
 ' 4 Campb. 198. As this case is in- applied to the facts of the case,'' 
 
 knowledge. 
 
 Dyson, 
 
BOOK HI.] . ANIMALS. 919 
 
 bitten by the dog ; while in Jones v. Perry ' Lord Kenyon laid Jones v. 
 great stress on the circumstance that the defendant had had his ^^"^■ 
 dog tied up, and said it shewed a knowledge that the animal was 
 fierce and unruly and not safe to be let go abroad. Abbott, J., 
 also, in Judge v. Gox,'' left it to the jury to say whether, from a Judge v. 
 caution not to go near a dog, they would infer knowledge of its '^°^' 
 disposition ; while in delivering a considered judgment of the Court 
 of Exchequer in Thomas v. Morgan,' a case of a dog worrying Thomas v. 
 sheep, Parke, B., held that an offer of compromise was so far an °''S'™- 
 admission of liability that it ought to have been left to the jury, / 
 
 but " it ought to have been submitted to them with a strong ob- 
 servation ia favour of the defendant. Lord Bllenborough thought 
 it entitled to so httle weight that he refused to leave it to a jury ; 
 but though we think, strictly speaking, it is a fact to go to the 
 jury, yet it ought to have little or no weight at all with them, 
 for the offer may have been made from motives of charity without 
 any admission of liability at all;" while in Worth v. Gilling* it Worth «. 
 was laid down that knowledge of an animal's ferocity was sufB.- ' '°^' 
 cient to fix with liability for subsequent injury, and that actual 
 previous damage had been done by it need not be shewn. But 
 the question there agitated was not whether knowledge with- 
 out negligence were sufficient, but whether knowledge that the 
 animal had done actual hai'm were not requisite to raise a right 
 of action in contradistinction to knowledge of a disposition to do 
 harm. 
 
 The decision in this case accorded with the considered iuda:- Hudson o. 
 ment of the Exchequer in Hudson v. Eoberts,^ where the inquiry 
 was from what facts knowledge might be inferred. There 
 the injury arose from driving a bull through the public streets, 
 where the plaintiff was lawfully going about his business, wear- 
 ing a red handkerchief, which irritated the animal, that ran at 
 him and did him considerable injury. The defendant was proved 
 to have said after the accident that the red handkerchief was the 
 cause of it, for he knew that the bull would run at anything red. 
 Another witness gave evidence that on a different occasion the 
 
 ' 2 Esp. 482. public, and it must be 60 confined that 
 
 ^ I Stark. 285. strangers may pursue their own objects 
 
 ' (1835) 2 Cr. M. & E. 496 ; 4 Dowl. Tpith seouiity from it. The public are 
 
 P. C. 223 ; 5 Tyr. 1085. entitled to act upon the presumption that 
 
 ^ L. R. 2 C. P. I. all dangerous animals are properly con- 
 
 ' 6 Ex. 697 ; 20 L. J. Ex. 299. In fined, and are therefore exonerated from 
 
 the American case of Earhart «. Young- any special caution against them except 
 
 blood, 27 Penn. St. 331, where a bull had when without right they go upon their 
 
 an antipathy to gray horses, Lowiie, J., owners' lands and within the place where 
 
 said : " The rule is very plain and very they may be lawfully kept : I Esp. 203 ; 
 
 just, that the owner of an animal known 5 C. & P. 489 ; 3 Id. 138." As to injury 
 
 to be vicious must take sufficient precau- done by a bull led through a street, Lin- 
 
 tions that it shall do no injury to the uehan v. Sampson, 126 Mass. 506. 
 
 Roberts. 
 
§20 
 
 ¥HE law of NilGLlGBNOE. 
 
 D 
 
 BOOK III. 
 
 Whero there 
 is abseuoe of 
 knowledge of 
 vicious dis- 
 position, but 
 actual negli- 
 gence, an 
 action lies. 
 Maule, }., in 
 Card V, Case. 
 
 Trespass 
 contra natitra 
 
 Cox B. Bur- 
 bidge. 
 
 Dickson V. 
 M'Coy. 
 
 defendant said that lie knew that a bull would run at anything 
 red. Pollock, O.B., delivering judgment: "We think that 
 either expression was some evidence to go to the jury that the 
 defendant knew that this animal was a dangerous one, and the 
 first expression no douht afforded distinct evidence that he knew 
 that such was the character of this animal." 
 
 But where there is no knowledge of vicious disposition, but 
 actiial negligence, it would seem that an action would lie, other- 
 wise the owner of an animal would be in a better position than 
 other people. The point does not appear to have been decided. 
 Maule, J., in Card v. Case,' alludes to it, saying, " It may be 
 that the allegation of negligence, coupled with the consequent 
 damage to the plaintiff, would shew a cause of action." The 
 difficulty is rather in finding a case where negligence can be 
 shewn apart from scienter productive of injury with regard to 
 which the scienter has usually to be proved. For in all other classes 
 of actions there can be no doubt that negligence alone is action- 
 able ; e.g., a man would undoubtedly be liable for throwing his 
 dead -dog into the highway, whereby the plaintiff's gig was over- 
 turned and the plaintiff injured, nor is he the less liable for chain- 
 ing his living dog so that a similar accident happens. If, then, 
 his negligence were the cause of his dog biting, there seems no 
 reason why he should go free. The law, as Lord Oranworth says, 
 proceeds through knowledge to negligence. 
 
 We have seen that the owner is liable for the trespasses of his 
 'animals where they are "valuable property." But if they are 
 trespassing and do injury " not in accordance with the ordinary 
 instinct of the animals " the owner is not liable for the injury 
 apart from the trespass (though he may be for the trespass) 
 unless he knows of the particular vice which caused the injury. 
 This rule in both its aspects is shewn respectively by Oox v. 
 Burbidge^ and an American case, Dickson v. M'Coy.^ In the 
 former a horse grazing on a newly made road struck out and 
 severely injured a young child playing in the road. In the 
 absence of any evidence that the horse was vicious, the plaintiff 
 was held disentitled to recover, though it was intimated^ that " no 
 doubt, if the horse were trespassing there, the owner of the high- 
 way might have an action against the owner of the horse. So, 
 possibly, the owner of the horse might be liable to an indictment 
 for obstructing the highway, or to a fine." In the American case 
 the owner was affected with notice of a habit of his horse to kick 
 
 1 5 C. B. 622 ; 17 L. J. C. P. 124. 
 
 2 13 C. B. N. S. 430; 32 L. J. C. P. 89 ; n W. B. 435. See Jackson v. Bmitt. 
 son, 15 M. & W. 563 ; 15 L. J. Ex. 311— the case of a ram. 
 
 3 39 N. y. 400, * Per Willes, J., at p. 441. 
 
fiooK III.] ANIMALS. S21 
 
 on the sidewalks, and was therefore held liable.' The ground of 
 this is no more than that there is no presumption made of vicious 
 inclinations in animals whose natural tendency is not to do mis- 
 chief. 
 
 The decision in Smith r. Cook" may most conveniently be Smith «. 
 noticed here. The plaintiff's horse was placed in a field by the ^°°^' 
 defendant, an agister of cattle, with a number of heifers, the 
 defendant knowing that a bull kept in an adjoining land had 
 several times been found in the field, and that there was no sufii- 
 cient fence to keep it out, but he did not know that the bull was 
 of a mischievous disposition. The horse was gored by the bull, 
 and the plaintiff brought his action against the defendant as agister. 
 The point pressed on the Court was that want of knowledge of 
 the bull's mischievous quality justified the defendant in putting 
 the horse in the field. But it was answered that the action was 
 on a contract to take care of the horse, and that the defendant 
 took such bad care of it that it was killed. The Court sustained 
 the claim. Blackburn, J., said : " It is a question of fact whether 
 he [the defendant] took sufficient care or not, and the doctrine of 
 scienter, which, as I have said, depends mainly upon authority, 
 ought not to be extended to a contract to take reasonable care." 
 And the same law has been laid down in the United States.^ 
 
 The case of Simson v. London General Omnibus Company^ had simson v. 
 previously been decided on similar grounds. The facts shewed that General 
 plaintiff was travelling in an omnibus of the defendants, and was c"™a"y 
 injured by a blow from the hoof of one of the horses, which had 
 kicked through the front panel of the vehicle. The Court was of 
 opinion that the mere fact of the horse having kicked was ]primd 
 facie, evidence for the jury. The case for the plaintiff was, however, 
 placed on a want of duty in the defendants not using reasonable 
 care to adopt proper means to make their carriages safe, and it 
 was argued (and successfully) that in such circumstances the hap- 
 pening of an accident was sufficient to call for an answer. This 
 point of view evidently differs from the common case of a horse 
 kicking. There the ownership and user of the animal is lawful, 
 and the duty to keep him from kicking only arises where it is 
 shewn that he has kicked or is inclitwd to kick, while the duty to 
 carry with reasonable care is absolute.* 
 
 1 Lee ». Eiley, 18 C. B. N. S. 722; ' Sargent «. Slack, 19 Am. E. 136. 
 34 L. J. C. P. 212 ; 12 L. T. N. S. 388 ; ^ L. E. 8 C. P. 390 ; 42 L. J. C. P. 
 13 W. E. 751, is distinguishable from this 112 ; 38 L. T. 560; 21 W. E. 595 ; Pat- 
 class of cases on the ground that the de- terson v. Kidman, 8 N. S. Wales E. 
 fendant's mare was trespassing as against 488, 
 
 the plaintiff, and the injury was not too ^ Villiers v. Avey, 3 Times L. E. 812, 
 
 remote. was a case independent of contract. 
 
 ' I Q. B. D. 79. 
 
•922 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 TiUett. V. 
 Ward. 
 
 Scotch case : 
 Harper v. 
 Worth of 
 Scotland 
 Bail way 
 Company. 
 
 In Tillett v. Ward' the law was considered to be clear that 
 while the owner of sheep or cattle which are placed in a field is 
 bound to keep them from trespassing on the land of his neigh- 
 bours, yet he is not responsible for any injury they do when on 
 the highway when they are being lawfully driven along it. And 
 the same latitude is extended to injuries done by cattle, where the 
 owner is not negligent, to property adjoining the highway ;' a 
 test of negligence is there said to be whether a reasonable time 
 had or had not elapsed for the removal of cattle trespassing when 
 the injury takes the form of trespass. Tillett v. Ward' is an 
 authority for the proposition that there is "no solid distinction 
 between the case of an animal straying into a field which is 
 unfenced or into an open shop in a town." 
 
 The Scotch case of Harper v. North of Scotland Railway 
 Company' is an authority for the care that should be taken in 
 avoiding imputabUity for negligence. A bull was being led 
 through the streets secured by a ring in its nose, with a rope 
 attached thereto, and by a halter upon its head. It was irritated 
 ■by boys in the street, and struggled ; the ring in its nose 
 broke through a latent defect ; the animal escaped and injured 
 a passenger. The earlier cases of Burton v. Moorhead* and 
 Hennigan v. M'Vey'* were cited as in point, but were discrimi- 
 nated, as the injuries in those cases were caused by a " ferocious 
 dog " and " a boar " respectively. " The reason of the judgment 
 in both cases was that a person keeping such animals did it at 
 his own risk." The case of Phillips v. Nicol" was also distin- 
 guished, on the ground that the peculiar circumstances tending 
 to excite the cow which did the injury in that case required 
 special caution to be taken. The cow had been confined for 
 some time in a slaughter-house, which there was evidence had 
 great effect in exciting such animals. The majority of the Court 
 held that the method of driving the bull through the street being 
 the usual way, and in a way reasonably safe, the law did not 
 impose any higher duty on those in charge of the animal — that 
 is, if the animal were in a normal condition. The Lord Justice 
 Clerk, however, dissented, because, " when the animal is a bull, 
 which is always known to be subject to paroxysms of sudden 
 fury, and when furious so much more dangerous than the anin^als 
 in question in those cases,' I am of opinion that, when allowed to 
 
 1 10 Q. B. D. 17 ; 52 L. J. Q. B. 61 j 
 
 47 L. T. 546 i 31 W. E. 197. 
 
 2 Goodwyn». Cheveley, 4H. &N. 631; 
 28 L. J. Ex. 298; 33 L. T., N. S. 284; 
 7 W. R. 631. The case at Nisi Priua is 
 reported i F, & F. 313. 
 
 = 23 So. L. K. S14. 
 * 8 R. 892. 
 ^ 9E. 411. 
 ^ 1 1 R. 592. 
 
 ' I.e., Burton ?'. Moorhead, S R. 892 j 
 Phillips V. Nicol, 11 R. 592. 
 
BOOK III.] AHIMALS. 923 
 
 go into the streets and crowded thoroughfares, it can be con- 
 sidered in no other light than that of a wild animal, and that 
 the person who brings it there is responsible that the conditions 
 under which it is so brought shall render it absolutely safe." 
 This, however, is not the view of the law of England.' 
 
 III. Animals that in their state of domestication never wholly HI. Animals 
 lose their wild natures and destructive tendencies ; and are kept bsrthSr^wiid 
 either for uses which depend on retaining those native instincts, ""■'"''e. 
 or else for the whim and gratification of the owner. 
 
 This class of animals includes dogs, cats, squirrels, parrots, 
 singing birds, ferrets/ and " other creatures kept for whim and 
 pleasure," which, says Blackstone,' " though a man may have a 
 base property therein, and maintain a civil action for the loss of 
 them, yet they are not of such estimation that the crime of stealing 
 them amounts to larceny."* 
 
 The test whether an animal belongs to the class of wild or tame Test, 
 animals must be referred to our knowledge of their habits derived 
 from experience.* If the animals are of wild nature, the owner 
 is not liable for their trespasses as he is for those of his cattle.' 
 This circumstance constitutes the chief distinction between 
 animals that are " valuable property " and those that are tame, 
 biit in which by common law a valuable property is not admitted 
 — that for the trespasses of the one class, as we have seen,' the 
 owner is liable, while for the trespasses not provoked by him of 
 the other sort he is excused." But a dog may be seized for 
 damage feasant while trespassing," though not shot,'" even when 
 running after a hare in another man's ground," unless the place 
 was a preserve, and there was no other way of saving the game,''^ 
 and the dog was hunting and chasing at the time it was shot, 
 and to prevent it from farther molesting the game." 
 
 The same rule applies to the other animals in this class. 
 
 1 Hudson V. Koberts, 6 Ex. 697 ; 20 24 W. E. 206. 
 
 L. J. Ex. 299. ' Bunch v. ICeunington, i Q. B. 679. 
 
 ^ Rex V. Searing, E. & E. 350. Deer in The plaintiff has either the remedy by 
 
 a park may be so reclaimed as to pass to action or may distrain an animal taken 
 
 executors : Morgan v. Abergavenny, 8 damage feasant. If he elect the latter 
 
 C. B. 768. remedy, he must at his peril find a proper 
 
 8 4 Comm. 236. pound and in proper condition : Bignell v, 
 
 * Eegina v. Eobinson, Bell C. C. 34 ; Clarke, 5 H. & N. 485 ; 29 L. J. Ex. 
 
 Wright V. Eamscot, I Wms. Saund. 257 ; 2 L. T. N. S. 189. 
 
 (edit. 1871), p. 108. See now 24 & 25 Viot. ^» Corner v. Champneys, cited arguendo 
 
 c. 96, 83. 18, 19, 20, 21, 22, 23 ; Brown Deane v. Clayton, 2 Marsh. 577, at p. 
 
 V. Giles and the cases cited in the note 584 ; 7 Taunt. 489. 
 
 I 0. & P. 118. ^' Vere V. Cawdor, 11 East 568. 
 
 o'puf. '4, c. 6, § 5. " 'Read v. Edwards, 17 C. B. N. S. 
 
 8 Eead v. Edwards, 17 C. B. N. S. 245 ; 34 L. J. C. P. 31 ; 11 L. T. 311. 
 
 245; 34L.J.C.P.31; iiL.T.N.S.311. " Protheroe w. Mathews, S C. & P. 581, 
 
 ' Supra, p. 917. ^^itli ^^^ notes ; Kellett v, Stannard, 4 Ir. 
 
 ' Mason' v. Keeling, 12 Mod. 332 ; Jur. 50. Compare Aldrich v. Wright, 53 
 
 Smith V. Cook, I Q. B. 1). 79 ; 45 N. H. 398. 
 L. J. Q. B. 122 ; 33 L. T. N. S. 722 j 
 
924 
 
 THE LAW OF NEGLIGENCE. 
 
 [book nr. 
 
 Interference 
 with this class 
 of animals a 
 civil injury. 
 
 Knowledge 
 of a fierce 
 and -vicious 
 nature. 
 
 Brock t'. 
 Uopeland. 
 
 Sarch v. 
 Blackburn. 
 
 Althougli they are not valuable property at common law, any 
 interference with them may amount to a civil injury, and be 
 redressed by a civil action' in the same manner as with other 
 property.'' But they differ from the class that we have been 
 considering in this, that they " are no longer the property of a 
 man than while they continue in his keeping or actual possession ; 
 but if at any time they regain their natural liberty, his property 
 instantly ceases, unless they have animum revertevdi, which is 
 only to be known by their usual custom of returning.' A 
 maxim which is borrowed from the civil law* : Bevertendi animum 
 videntur desinere habere tuToc cum reverteoidi consuetudinem d€- 
 seruerint."^ 
 
 We have seen, in considering the class of animals that are 
 valuable property, that knowledge of a fierce and vicious nature 
 or habit is necessary to fix the owner with liability. This rule 
 holds good with the class we are now considering.^ Still, the 
 keeping of a fierce and vicious dog with knowledge is not in 
 itself unlawful. Thus, in Brock v. Copeland,' Lord Kenyon pro- 
 ceeded on the ground that a man had a right to keep a dog for 
 the preservation of his house, and that where the dog had been 
 properly let loose, and injury had arisen from the plaintiff's 
 own fault, he could not recover. 
 
 The law as laid down in Brock v. Oopeland was accepted in 
 Sarch v. Blackburn' before Tindal, C.J., at Nisi Prius, the Chief 
 
 1 2 Bl. Comm. 394. Amongst the 
 ancient Britons oats were'looked upon as 
 " creatuies of intrinsic value." See Black- 
 stone's curious note. In "Whittingham v. 
 Ideson, 8 U. C. L. J. 14, A., having a 
 property in a cat which strayed fromnis 
 premises and was killed by B., was held 
 entitled to recover, in an action for dam- 
 ages, something beyond the market 
 value of the thing destroyed if the destruc- 
 tion were attended with circumstances of 
 aggravation. 
 _ 2 2 Kent, Comm. 12th edit. p. 348, 
 citing The Case of Swans, 7 Eep. 15 b. In 
 Finch's Law, at p. 176, is the following : — 
 "The ownership of a chattel personal is 
 termed a property which of wild beasts, 
 both fowls of the air, fishes in the sea, beasts 
 upon the earth, and generally all fowl of 
 warren, feasants \sic\, partridges, deer, 
 conies, bares, and such-like cannot be in 
 any ; and therefore it is no felony to 
 steal them ; and a writ of trespass shall 
 be gua/re wmrrenam suam intramt et 
 mitte le^ores cepit without^aaying suos ; 
 nor after they are made tame, longer than 
 they remain in one's possession. As my 
 tame hound that foUoweth me, and is with 
 my servant ; my hawk thai is flying at a 
 foul [sic] ; my deer that is chased out of 
 
 my park or forest ; and the forester maketh 
 fresh suit. These all remain in my pos- 
 session, and the property is in me ; j)ut 
 if they stray it is lawful for any man to 
 take them. Otherwise itis of hens, capons, 
 geese, ducks, peacocks, &c." Compare the 
 distinction before noted between animals 
 mansuetce natwce and mansuefaotx 
 naiwrm. 
 3 Kex V. Brooks, 4 C. & P. 131. 
 * Inst. 2, I, 15. 
 ^ 2 Bl. Comm. 392. 
 8 8mira, p. 917: Card ». Case, 5 C. B. 
 622 ; Fleeming v. Orr, 2 Macqueen 14. 
 
 ' I Esp. 203, cited Bird v. Holbrook, 
 4 Bing. 628, at p. 638. 
 
 8 4 C. & P. 297. £1 this case it was also 
 said by the Chief Justice that -■ printed 
 notice that a ferocious dog was tied up 
 near was not enough, since the person 
 bitten might not be able to read. See 
 also Curtis v. Mills, S C. & P, 489, before 
 the same judge. The case of Bird 0. 
 Holbrook, 4 Bing. 628, has some points of 
 analogy ; it proceeds from the position 
 that setting spring-guns without a notice 
 was, even independently of the statute, an 
 unlawful act. " The correctness of that 
 position may perhaps be questioned" : Jor- 
 din V. Crump, 8 M. & W. 782, The rule 
 
BOOK in.] ANIMALS. 925 
 
 Justice saying : " If a man puts a dog in a garden walled all 
 round, and a wrongdoer goes into that garden and is titten, lie 
 cannot complain in a court of justice of that which was brought 
 
 upon him by his own act Undoubtedly a man has a 
 
 right to keep a fierce dog for the protection of his property, but 
 
 he has no right to put the dog in such a situation in the way of 
 
 access to his house that a person innocently coming for a lawful 
 
 purpose may be injured by it." The dictum, then, of Lee, O.J., Dictum of 
 
 in Smith v. Pelah,' " that if a dog has once bit a man, and the smith i"!'' '" 
 
 owner having notice thereof lets him go about, or lie at his ■^'''^''• 
 
 door, an action will lie against him by a person who is bit, 
 
 though it happened by such person treading on the dog's toes, 
 
 for it was owing to the defendant not hanging the dog on the 
 
 first notice, and the King's subjects ought not to be endangered," 
 
 is not now law ; and this is the view taken by Cresswell, J., in Oomment by 
 
 Charlwood v. Greig,^ whose comment on the case is : " Our Ei'^chrriwood 
 
 criminal law has been much modified since that time, and that *'• Cri^eig. 
 
 would not now be considered as a proper mode of proceeding." 
 
 And in Line v. Taylor,^ it having been proved that the dog Line v. 
 
 charged had previously sprung upon people, and on one occasion *^™* 
 
 torn the collar of a man's coat, but " it did not appear that 
 
 on either occasion the dog really meant to bite or to inflict a 
 
 wound, as from his size and strength he easily could have done 
 
 had he meant so to do," the dog was produced in court, when 
 
 the jury " examined him, and appeared to be of opinion that, 
 
 from the expression of his eye and other indications, he was not of 
 
 a vicious disposition," and a verdict was given for the defendant. 
 
 Yet in Worth v. Gilling,'' where the dog had shewn a savage Wortii ». 
 
 disposition to the knowledge of his owner, and a verdict was given 
 
 for the plaintiff, a rule was refused that was moved, on the ground 
 
 that, though fierce, the dog had not actually bitten any one. 
 
 But knowledge of vicious or savage propensity may be either Knowledge 
 
 there stated is : " The law in certain cases brought on by the bite of a mad dog, the 
 
 makes an exception to the right of setting father could maintain an action for the 
 
 insfruments capable of causing deadljf in- expenses of the apothecary, 
 
 juries to human life, where such injury ' 3 Car. & K. 46. In Scotland the 
 
 will be a probable consequence of setting Lord Justice Clerk engrafts an exception 
 
 them, but with the exception of these cases on the law in the case of friends visiting 
 
 a man has a right to do what he pleases with knowledge of a vicious dog being on 
 
 with his own land. In Scotland, see the premises, for which, however, he cites 
 
 Daly V. Arrol, 24 So. L. E. 150. no authority : Smillie v. Boyd, 24 So. 
 
 ^ 2 Strange 1264. Compare Jones v. L. E. 148, at p. 150. 
 
 Perry, 2 Esp. 482, where evidence of a ' 3 F. & F. 731. In 35 J. P. 813 it is 
 
 common report that the dog was mad said that a dog in the liabit of flying at 
 
 was admitted. The report of this case in horses and carriages so as to render an 
 
 Peake, Law of Evidence, § ii. Actions accident probable would be a dangerous 
 
 founded in Negligence, 290, at p. 292, is dog. 
 
 verydifferentfromthatinEspiuasse. There ^ L. E. 2 C. P. i. Fraser v. Bell, 24 
 
 Lord Kenyon seems to have held that, Sc. L. E, 583, was only a decision that a 
 
 where a child had died from hydrophobia case should go to proof. 
 
926 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III, 
 
 communicated 
 or imputed 
 from circum- 
 stances. 
 
 Stiles V. 
 Cardiff Steam 
 Navigation 
 Company. 
 
 Crompton, J, 
 
 Gladman v, 
 Jolinson. 
 
 directly communicated to the defendant or may be imputed to 
 him from circumstances. With regard to what may be held 
 imputed knowledge, there has been some little difficulty with the 
 decisions. These we will now proceed to consider. 
 
 The first is Stiles v. Cardiff Steam Navigation Company.' The 
 plaintiff went on defendants' premises to take away his lugg&ge, 
 but, not finding it in the place appropriate, went to the other side 
 of the road, where there were persons of whom he could inquire. 
 As he was coming back the dog sprung out from an angle where 
 he was placed out of sight, and bit plaintiff. As to the disposition 
 of the dog, the only evidence was that "on some former occasion 
 some of the servants had heard, and perhaps one of them had seen, 
 the dog spring upon and bite some one else." The Court was 
 " clearly of opinion that the company were guilty of negligence ; ' 
 and also, as regards liability, that there was " no difference 
 between a corporation and an individual." As to the question of 
 scienter, which was the real question in the case, Crompton, J., said : 
 " I quite agree that the knowledge of a servant representing his 
 masters, and acting within the scope of their delegated authority, 
 may be competent to affect his masters with that knowledge [of 
 the vicious disposition]. But is it found in this case that any 
 such persons had knowledge, persons competent to bind the 
 defendants by their admissions, for such evidence is in the nature 
 of an admission ? No doubt there must be some such person, 
 for there must have been some one on the premises to control the 
 business of the defendants. It would have been sufficient to shew 
 knowledge in the manager, or in some person having the control , 
 of the yard. I had some doubt whether the knowledge must not 
 be brought home to some person who kept and had care of the 
 dog and had power to put an end to the. keeping of it, but per- 
 haps it would be enough if he had the care of the dog. But all 
 that was found is that some persons, who appear rather to have 
 had the care of the horses, had seen or had heard that the dog had 
 bitten a person before. It is more like the case of a gardener or 
 a cook hearing that their mistress's lap-dog was given to bite, and 
 I think that the evidence wholly fails to bring home the knowledge 
 to any person whose knowledge in point of law would be that of 
 the defendants." 
 
 The next case was Gladman v.. Johnson,^ where the Court of 
 Common Pleas held that there was evidence of knowledge on proof 
 that a complaint had been made to the wife of the defendant — a 
 milkman — the wife attending to the business occasionally, and to 
 
 1 33 L.J. Q. B. 310; 10 L. T.N. 
 844 ; 12 W. B, 1080, 
 
 2 36 L. J, C. P. 153 ; IS L- T. N. S. 
 476 ; 15 W. E. 313. 
 
BOOK III.] ANIMALS. 927 
 
 whom complaint of the dog had been made. This was followed 
 by Baldwin v. CasellaMn the Exchequer, where the opinion of Baldwin f. 
 Crompton, J., in Stiles v. Cardiff Steam Navigation Company^ Caseiia. 
 was referred to with approbation, but the defendant was held 
 liable, as " the dog was kept in the defendant's stable, and the 
 defendant's coachman was appointed to keep it ; the coachman 
 knew that the dog was mischievous, and it is immaterial whether 
 he communicated the fact to his master or not j his knowledge 
 was the knowledge of his master."' 
 
 In the subsequent case of Applebee v. Percy ,^ in the Common Appiebeo v. 
 Pleas, the whole subject was much discussed. Two persons, who ''"'^' 
 had upon previous occasions (one of them twice) been attacked by 
 a dog of which defendant was the owner, gave evidence that they 
 had gone to the defendant's public-house and made complaint to 
 two persons who were behind the bar serving customers, and that 
 one of them had also complained to the barmaid. The Court 
 was divided on the question whether this was sufficient to affect 
 the defendant with notice. Lord Coleridge, C.J., and Keating, J., 
 being of opinion that it was ; while Brett, J., dissented, on the Dissent of 
 ground that " it seems to me to be impossible to say that either ' 
 of the persons to whom the communications respecting the dog 
 were made in this case was a person having the management of 
 the business or the care of the dog in the sense indicated in either 
 of these cases ;* and I am aware of no case in which it has been 
 held that notice to one standing in any other relation is equivalent 
 to knowledge of the master." Neither was there any duty on the 
 servants to communicate to the master, or any evidence that 
 they had done so. The view of the majority was that they were 
 bound by Gladman v. Johnson,* and that decision was interpreted 
 as affirming that what is sufficient notice " must be a question of 
 degree in each case ; and that if a communication of this sort is 
 made to one who, as in that case, was entrusted even occasionally 
 only with the conduct of the defendant's business, with the intent 
 that it should come to the knowledge of the defendant, it is for 
 the jury to say whether or not it amounts to notice to him." On 
 one principle the whole Court was agreed. " It may be taken to 
 be quite clear," says Lord Coleridge," " that a mere notice to any 
 servant of the owner of the dog will not do." And in Colget 
 V. Norrish' the Court of Appeal held, in a case where a collie 
 
 ^ L. E. 7 Ex. 325 ; 41 L. J. Ex. 167 ; Baldwin v. Casella, L. R. 7 Ex. 325 ; 41 
 
 26 L. T. N. S. 707 ; 21 W. R. 16. L. J. Ex. 167 ; 26 L. T, 707 ; 21 W. R. 
 
 ' 33 L. J. Q. B. 310. 16. 
 
 = K R. 9 C. P. 647 ; 43 L- J- C P. "> 36 L- J- C. P. 153 ; 15 L. T. N. S. 
 
 365 ; 30 L. T. N. S. 78s ; 22 W. R. 704. 476 ; 15 W. E. 313. 
 
 * I.e., Stiles v. Cardiff Steam Navi.gii- « At p. 655. 
 
 tion Company, 33 L. J. Q. B. 310, and ' 2 Times L. R. 471. 
 
928 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Ownership of 
 dog not neces- 
 sarily to bo 
 proved. 
 
 American 
 
 dog rusted out of doors and bit a postman, that notice to 
 a domestic servant was not sufficient.^ 
 
 The ownership of the dog need not be proved to affect a 
 defendant with liabiHty. It may be presumed. Thus, in M'Kone 
 V. Wood,^ it was proved on the part of the plaintiff that the dog 
 was seen about the premises of the defendant, but it appeared 
 that the dog was not the defendant's, but belonged to a servant 
 of his who had left him. Lord Tenterden, O.J., however, held it 
 was not material whether the defendant was the owner of the 
 dog or not— if he kept it, that was sufficient ; and that the 
 harbouring a dog upon premises, or allowing it to resort there, 
 was sufficient to support an action, as it was the defendant's duty 
 either to have destroyed the dog or to have sent it away. This 
 case was cited in Smith v. Great Eastern Eailway Company,^ 
 where the circumstances from which evidence of liability may be 
 inferred are discussed. The case, however, turns entirely, on its 
 particular facts. 
 
 In America it has frequently been laid down that where two or 
 more animals belonging to different persons commit injuries at one 
 and the same time, the owners cannot at common law be made 
 jointly liable ; but each owner is separately liable for so much only 
 of the damage as was done by his own animal.^ The only diffi- 
 culty in this case arises from an ambiguity in the use of the word 
 joint, which may indicate either co-operation or only simultaneous- 
 ness. The law of England undoubtedly is that all parties engaged 
 in a common wrongful act are liable jointly and severally .° But 
 dogs ravagiag sheep are not necessarily engaged in a common act; 
 they are engaged at the same time and in the same place in an 
 act that is equally wrongful in both, yet in which each acts 
 independently and without reference to the other, and the fact of 
 the coincidence in wrongdoing in itself would not import the co- 
 operation which would be necessary to make the wrong a joint one.' 
 In so far, then, as this is the case, each owner would be liable 
 for the source of mischief he himself should restrain, but does not. 
 The case of two dogs of different masters coursing an animal be- 
 longing to a third person would perhaps raise the point of whether 
 they could engage in a " common wrongful act." In that case 
 there would be co-operation, and the damage arising would not be 
 
 1 See, too, Cleverton v. Ufferael, 3 
 Times L. R. 509, a case turning on what 
 constitutes charge of a dog. 
 
 2 S 0. & P. I. 
 
 s L. R. 2 0. P. 5. The head-note of 
 this case is justly celebrated for its 
 humour — unoonseious. 
 
 * See Shearman and Eedfield, Law of 
 
 Negligence, 4th edit. § 638, and the cases 
 cited there. 
 
 " BuUen and Leake, Pleading, 3rd edit, 
 p. 708. 
 
 ° Auohmuly v. Ham, 1 Demo 49S ; 
 Van Steenhurgh v. Tobias, 17 Wend. 
 562. 
 
BOOK III.] ANIMALS. 929 
 
 the act of either of them, but the result of the acts of both, for 
 which both owners would seem to be liable.' 
 
 The case of Lewis v. Jones ^ is an authority for the existence 
 of very wide powers of the Court to draw inferences where an 
 unlawful act has once been established. 
 
 A further point has been raised whether the fact that a dog Quare 
 has a habit of worrying sheep is any evidence that it is of a^t^that** 
 savage and ferocious disposition. In Mason v. Keeling, Gould, J. ^ "iog has a 
 is reported as saying, " If a dog be assuet to bite cows, and the worrying 
 master know it, that will not be sufficient knowledge to make him denceof Ws' 
 liable for his biting sheep." And in an American treatise of great ^®'"S °^\ 
 authority* it is laid down : " Proof of the owner's knowledge that ferocious 
 the dog had worried sheep would not suffice, since thousands of '^^°" '°°" 
 curs, who would not dare to touch a man, delight in attacking 
 sheep," and both the opinion and the reason on which it is based 
 commend themselves to common-sense. The " nature " of even 
 domestic dogs is to hunt sheep unless trained, but all domestic 
 dogs are presumed to be trained not to attack men. 
 
 There is a case, however, cited in Oliphant, Law of Horses,* 
 where the converse was held, that, where a dog four years 
 previously had bitten a girl, an action for worrying sheep would 
 lie at common law. This, however, is reasoning from the greater 
 to the less ; and the case can in no sort of way be an authority 
 in reasoning from the less serious act, the worrying of sheep, to 
 the more grievous, the biting of human kind. 
 
 The common law rights of dogs have been considerably statutory 
 
 abridged by statute. enactments. 
 
 The decision in Fleeming i>. Orr" produced 28 & 29 Vict. 28 & 29 Vict, 
 c. 60, section i of which enacts that the owner of every dog shall "' °" 
 be liable in damages for injury done to any cattle or sheep by 
 his dog, and that it shall not be necessary for the party seeking 
 such damages to shew a previous mischievous propensity in such 
 dog, or the owner's knowledge of such previous propensity. 
 
 Section 2 enacts that the occupier of premises where any dog 
 is permitted to live is to be deemed the owner, unless he can 
 prove that the dog was there without his knowledge, and that he 
 was not the owner. In the case of plural occupancy, the owner 
 is to be deemed to be the person in the occupancy of that 
 particular part of the premises where the dog has been permitted 
 to remain at the time of the injury. 
 
 1 See Paget v. Birkbeck, 3 F. & F. ^ jj jjoj_ ^32, at p. 335. 
 
 683- As to dogs fighting and the cironm- * Shearman and Eedfield, Law of Neg- 
 
 stances in which an action will lie, see Jigence, 4th edit. § 631. 
 Wheeler v. Brant, 23 Barb. 324 ; Wiley » 4th edit. p. 350. 
 
 V. Slater, 22 Barb. 506. ^ 2 Macqueen 14. 
 
 a 49 J. P. 198. 
 
 3N 
 
930 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 (34 * 3S Vict. 
 0. S6)- 
 
 IV. Animals 
 /erffi natura 
 and unre- 
 claimed. 
 Blades v. 
 Higgs. 
 
 In Wriglit V. Pearson' tlie protection given to cattle was held 
 to include horses. 
 TheDogs^Act In 1 87 1 was also passed the Dogs' Act (34 & 35 Vict. c. 56), 
 which provides — 
 
 First, that any police officer or constable may take possession 
 of any dog that he has reason to suppose to be savage or dangerous 
 straying on any highway, and not under the controP of any per- 
 son ; and such dog may be detained, and sold or destroyed.^ 
 
 Secondly, that any court of summary jurisdiction may take 
 cognizance of a complaint that a dog is dangerous and not kept 
 under proper control, and may order such dog to be kept under 
 proper control or destroyed. 
 
 Thirdly, that the Act is not to affect the powers contained in 
 section 18 of the Metropolitan Streets Act, 1867," or in any local 
 or other Act of Parliament for the same or like piirposes. 
 
 IV. Animals ferce natwrce and unreclaimed. 
 
 The law on this subject appears in the decision of the House of 
 Lords in Blades v. Higgs.* 
 
 By the civil law the person who reduced into possession any 
 animal ferce naiurce acquired the property in it, even though he 
 trespassed to get it. But such is not the law of England. The 
 law of England, however, agrees with the civil law to the extent 
 of holding that in wild animals not captured there is a qualified 
 property as long as they remain on land, but when a wild animal 
 is killed or caught on land, the animal so killed or caught, by the 
 law of England, becomes the absolute property of the owner of 
 the soil, unless the land is subject to the franchise anciently 
 granted by the Crown in virtue of its prerogative, whereby a 
 right was given to one man of killing and taking animals ferce 
 naturae on the land of another, when they become the property of 
 the owner of the franchise. While, then, game remains on the 
 land of any particular landowner he has a property in it, dependent 
 on its continuance there. As soon as it strays his property is 
 gone. But if it is killed on his land his property becomes 
 absolute ; if killed off his land while voluntarily straying, he has 
 no property whatever. If, however, it be driven off by a trespasser 
 
 ' L. E. 4 Q. B. 582 ; 38 L. J. Q. B. option of the justices : Pickering i>. Maisli, 
 
 312; 20 L. T. N. S. 849; 17 W. E. 
 
 1099 ; Cowell V. Mumfurd, 3 Times 
 L. E. I. 
 
 " Under control is a question of fact, 
 and, in the absence of positive evidence, 
 that a dog is nnniuzzled and not led is suffi- 
 
 cient to prove that it was not nnder pi 
 
 \il)li( 
 I Eule for a Mandamus, ^ ' 
 L. E. 24. 
 
 per control : In the. Matter of an Apiilica- 
 tion for a Eule for a Mandamus, 3 Times 
 
 ^ Whether sold or destroyed is at the 
 
 option of the justices : 
 43 L. J. M. C. 143. 
 
 * 30 & 31 Vict. c. 134. Section i8 
 provides for taking possession of any dog 
 found in the streets and not under control ; 
 also for regulations as to muzzling, sell- 
 ing, or destroying. 
 
 » II H. L. C. 621 ; 34 L. J. C. P. 286 ; 
 13 W. E. 921. See Falkland Islands 
 Company v. Eeprina, 2 Moo. P. C. C. N. S. 
 266; II L. T. N. S. 9-; 13 W. E. 87. 
 
BOOK III.] ANIMALS. 931 
 
 and killed on another man's land, Holt, O.J., in the case of Sutton 
 V. Moody,' was of opinion that the property should be in the tres- 
 passer. Lord Chelmsford, however, in Blades v. Higgs,^ is of opinion 
 that the ownership would rather be in him on whose land the 
 animal was killed;' and this seems certainly the more reasonable 
 view than that the trespasser should profit by his own wrong. 
 For damage done by animals ferw natures the landowner who 
 harbours them is not liable. As is said in Boulston's case," " for 
 as soon as the coneys come on his neighbour's land he may kill 
 them, for they are ferce natiorce, and he who makes the coney 
 borough has no property in them, and he shall not be punished 
 for the damage which the coneys do in which he has no property, 
 and which the other may lawfully kill."^ 
 
 The results attained may be presented thus : — 
 
 1 . The owner or keeper of a savage animal, such as a lion or Summaiy. 
 a bear, is bound to keep it secure at his peril.' 
 
 2. The owner of such animals as are valuable property by the 
 common law is liable for any trespasses done by them,' save while 
 lawfully going along the highway.* 
 
 3. The owner of animals that are valuable property by the 
 common law is not liable for mischief done by such animals con- 
 trary to their domestic nature — i.e., their nature as reclaimed." 
 
 4. Where an animal has a habit or vicious propensity contrary 
 to its domestic nature, and the owner has, or is affected with, 
 knowledge of it, he is liable for any injury done by the animal 
 through its habit or vicious propensity.'" 
 
 5. To fix the owner with liability for injuries done by his 
 animal giving way to a vicious habit or propensity, it is not 
 necessary that kctual injury should have been caused thereby, but 
 merely that the owner have knowledge of its existence apart 
 from the gratification of it." 
 
 ' I Ld. Eaym. 250; Churchward v. " Eex v. Huggins, 2 Ld. Raym. 1574, 
 
 Studdy, 14 East 249. at p. 1583 ; May v. Burdett, 9 Q. B. loi ; 
 
 2 At p. 639. 16 L. J. Q. B. 64 ; Besozzi v. Harris, 
 
 = One who finds game on his own i F. & F. 92. 
 
 ground cannot pursue it into the land of ' Mason v. Keeling, 12 Mod. 332 ; 
 
 another: Deane a. Clayton, 7 Taunt. Smithy. Cook, iQ. B.D. 79 ; 45 L.J. Q.B. 
 
 489 : 2 Marsh. 577. 122 ; 33 L. T. N. S. 722 ; 24 W. R. 206. 
 
 * S Rep 104 a. * Tillett v. Ward, 10 Q, B. D. 17 ; 52 
 
 5 See "The Books Case," Hannam v. L. J. Q. B. 61 ; 47 L. T. 546 ; 31 W. R. 
 
 Mockett, 2 B. & C. 934. The judgment 197. 
 
 in Aldrich v. Wright, " The Mink Case," ' May v. Burdett, 9 Q. B. loi ; Jackson 
 
 53 N. H. 398, contains all the authorities w. Smithson, 15 M. & W. 563 ; 15 L. J. 
 
 on the subject of killing wild vermin in Ex. 311 ; Card v. Case, 5 C. B. 622; 17 
 
 defence of property. This was an action L. J. C. P. 124. See Ilogau v. Sharp, 
 
 to recover penalties under a statute for 7 C. & P. 755. 
 
 killing minks in the close time. The '" Fleeming v. Orr, 2 Macqueen 14 ; I 
 
 defendant admitted the killing of four W. R. 339. 
 
 minks, but alleged in justification that the " Hudson v. Roberts, 6 Ex. 697 ; 20 
 
 animals were at the time pursuing his L. J. Ex. 299 ; Worth v, Gilling, L. E, 2 
 
 geese. This was held a justification, C. P. i. 
 
932 THE LAW OF NEGLIGENCE. [book iii. 
 
 6. Animals that in their state of domestic nature never wholly 
 lose their wild nature and destructive tendencies, and are kept 
 either for uses which depend on retaining those native instincts, 
 or else for the whim and gratification of the owner — such as 
 dogs, cats, squirrels, &o. — do not affect their owner by liability 
 for their trespasses.' 
 
 7. Animals domesticated, but which in law are regarded as 
 never wholly losing their wild nature, affect their owners with 
 liability for all acts done contrary to their domestic nature in the 
 same way as those that are valuable property at law, but they do 
 not affect their owner with liability for acts done according to 
 their nature if he is without negligence.^ 
 
 8. The test by which the class to which any animal belongs is 
 to be referred is that of knowledge of its habits derived from 
 experience.' 
 
 9. Since a man may make what use he pleases of his own 
 property, he is entitled to keep thereon a ferocious dog for its 
 protection.* 
 
 10. Knowledge of a vicious habit or propensity may be either 
 personal or presumed.' 
 
 1 1 . Personal knowledge is that with which a man may be 
 fixed as the natural consequence of his own opportunities of 
 observation.' 
 
 12. Knowledge is presumed on the part of the owner where it 
 is shewn to exist in the case of any of the owner's agents entrusted 
 by him with the care of any animal," or placed in a position from 
 which a duty with regard to the same may be inferred.' 
 
 13. Ownership is not a fact, but an inference from facts." 
 
 14. There is a qualified property in wild animals natural to 
 the soil while they remain on a man's land ; and this property 
 becomes absolute when they are killed there.'" 
 
 1 5 . For damages done by wild animals natural to the soil, the 
 owner is neither liable in trespass nor otherwise ;" the remedy of 
 the person injured is to kill them. 
 
 1 Eegina v. Eobinson, Bell C. C. 34 ; v. Waring, 2 H. & C. 332 ; 32 L. J. Ex. 
 
 Wright V. Eamecot, i Wme. Saund. (edit. 262 ; 9 L. T. N. S. 257. 
 
 187 1) 108. 7 Baldwin v. Caeella, L. B. 7 Ex. 325. 
 
 " 4 Bl. Comm. 235 ; Mason v. Keeling, » Applebee v. Peicy, L. R. 9C. P. 647 ; 
 
 12 Mod. 332 ; Fleeming v. Orr, 2 Mao- 43 L. J. C. P. 365 ; 30 L. T. N. S. 785 ; 
 
 queen 14. 22 W. R. 704. 
 
 » 2 Kent's Comm. I2tli edit. p. 348. » M'Kone v. Wood, 5 C. & P. i. 
 
 * Jordin v. Crump, 8 M. &W.,782 ; i» Blades «. Higgs, ir H. L. C. 621; 
 
 Sarch v. Blackburn, 4 C. & P. 297. 34 L. J. C. P. 286 ; 13 W. R. 927. 
 
 " Applebee v. Percy, L. E. 9 C. P. 647 ; " Boulston's case, 5 Rep. 104 a. See 
 
 43 L. J. C. P. 36s ; 30 L. T. 785 ; 22 Paget v. Birkbeck, 3 F. & F. 683, a case 
 
 W. R. 704. under an agreement by which rights over 
 
 » Hudson V. Roberts, 6 Ex. 697 ; Cooke the plaintiff's land were dealt with. 
 
CHAPTER II. 
 
 OF COLLISIONS. 
 
 I. On Water. 
 
 The law of collisions on water must find a place in a treatise on 
 negligence, though from the technicalities peculiar to the subject 
 its details cannot satisfactorily be dealt with.' In considering 
 the subject here, it must be kept in mind that only the more 
 general aspects of the law are discussed, and that, for elucidations 
 of the minuter and more technical questions that arise, resort 
 must be had to the text-books on maritime law. 
 
 The sea has been often, and not improperly, termed " the com- seatUe 
 mon highway of nations " ; and the rights and duties of ships whwly 
 traversing the sea with respect to one another do not differ from "^ nations, 
 those incurred by those who carry on a traffic by vehicles on 
 land. 
 
 Lord Blackburn has on several occasions summed up the Lord 
 leading considerations that govern in the law relating to this Kivor'weav" 
 subject,' but nowhere more clearly than in River Wear Commis- Commis- 
 sioners V. Adamson,' thus: " My lords, the common law is, I think, Adamsoii. 
 as follows : — Property adjoining to a spot on which the public have 
 a right to carry on traffic is liable to be injured by that traffic. 
 In this respect there is no difference between a shop, the railings 
 or windows of which may be broken by a carriage on the road, 
 and a pier adjoining to a harbour or a navigable river or the sea, 
 which is liable to be injured by a ship. In either case the owner 
 of the injured property must bear his own loss unless he can 
 establish that some other person is in fault and liable to make 
 it good. And he does not establish this against a person 
 merely by shewing that he is owner of the carriage or ship 
 which did the mischief, for the owner incurs no liability merely 
 because he is owner." The reason of this the same learned judge Reason of 
 
 ' For a complete treatise on tliia very Ex. 265, at p. 286 ; The Kliedive, 5 App. 
 
 technical subject, see Marsden's Law of Cas. 876, at p. 8go ; Cayzer i\ Oarron 
 
 Collisions at Seii. Company, 9 App. Cas. 873, at p. 882. 
 
 - £.(/., in Fletcher f. Itvlands, L. K. i '2 App. Cas. 743, at p. 767. 
 
934 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Liability 
 incident to 
 possession 
 and control 
 the vessel. 
 
 Liability 
 ■where vessel 
 h:is been 
 abandoned. 
 
 Maule, J.,'s 
 judgment in 
 Brown v, 
 
 Mallett. 
 
 Wliite V. 
 Crisp. 
 
 had previously explained in Fletcher v. Ey lands' to be because 
 traffic on a highway — whether by land or sea — cannot be con- 
 ducted without exposing those engaged in it to some sort of 
 risks ; and, " that being so, those who go on the highway or 
 have their property adjacent to it may well be held to do so 
 subject to their taking upon themselves the risk of injury from 
 that inevitable danger.'' 
 
 A liability for injury is accordingly based on negligence. 
 To avoid negligence every person navigating the seas or rivers 
 must use reasonable skill and care to prevent mischief to other 
 vessels.' This duty to use reasonable skill and care for the 
 safety of other vessels is, says Maule, J.,' "incident to the posses- 
 sion and control of the vessel." But subject to this he may make 
 it fast, or proceed while the vessel is afloat, or remain as long as 
 he pleases if aground. This is of course subject to navigation 
 rules. 
 
 In the case just quoted — Brown v. Mallett* — the question arose 
 what is the duty with respect to vessels navigating the river if 
 the person who had the possession and control of a vessel which, 
 without fault of his (of course if there were fault there would 
 be liability), sunk so as to obstruct a public navigable river. 
 After the vessel had sunk the owner abandoned her. The Court 
 there held (Maule, J., giving the judgment) that since the 
 liability of the original owner did not continue where the pos- 
 session and control had been transferred, so where they had 
 been not transferred, but abandoned, " we do not think that the 
 duty always arises and continues for an indefinite time." Where 
 the navigation of a river has become obstructed by a vessel which 
 has sunk and been lost to the owner without any fault of his, the 
 public inconvenience of the obstruction is one in respect of which 
 the owner differs from the rest of the public only in having 
 sustained a private calamity in addition to his share of a public 
 inconvenience ; and this difference does not appear to be any 
 reason for throwing on him the cost of. remedying or mitigating 
 the evil."* In White v. Orisp,^ Alderson, B., in a considered 
 judgment, speaking of the judgment of Maule, J., in Brown v. 
 
 ^ L. R. I Ex. 265, at p. 286 ; 35 L. J. 
 Ex. 154; 14 L. T. N. S. 621 ; in the 
 House of Lords, L. E. 3 H. of L. 330. 
 
 2 Brown «. Mallett, 5 C. B. 599; 17 
 L. J. C, P, 227. 
 
 3 Brown v. Mallett, 5 C, B. 599, at p. 
 617. 
 
 ^ S C. B. 599, followed in Hancock v. 
 York, Newcastle, and Berwick Railway 
 Company, 10 C. B. 348. In JoUiife v. 
 Wallasey Local Board, L, R. g C. P. 62 ; 
 
 43 L.7. C. P. 41; 29 L. T. N. S. 582, 
 the anchors were part of the permanent 
 works of the defenaants, and constituted a 
 concealed danger when they omitted to 
 buoy them in a sufficient manner. 
 
 ' In The King v. "Watts, 2 Esp. N. P, 
 675, Lord Kenyon held that the owner of 
 a ship sunk in the Thames without de- 
 fault was not liable to an indictment for 
 not removing the obstruction. 
 
 ^ 10 Ex. 312 ; 23 L. J. Ex. 317. 
 
BOOKiii.J OF COLLISIONS. 935 
 
 Mallett, said : " From the principles there laid down by him 
 (which, however, were not all absolutely necessary for the decision 
 of that individual case) we do not disagree at all." In that case, 
 however, the facts shewed that at the time of the injury to the 
 plaintiff's vessel the defendants, to whom the sunken ship had 
 been transferred, had exercised control. The conclusion was that 
 it was the duty of the owner, so long as he was in possession, to 
 take precautions to prevent injury.' 
 
 In the case of The Douglas,^ the Douglas had sunk in the The Douging,' 
 Thames in consequence of a collision with another ship through 
 her own negligence ; subsequently a third ship had come into 
 collision with the Douglas as she lay sunk in mid-channel with 
 one of her masts above water. In an action brought for this 
 latter collision it was contended for the plaintiff that it was the 
 duty of the Douglas to warn approaching vessels of the wreck, 
 and that no such warning was given, and therefore she was 
 responsible for the damage. This contention was sustained in 
 the Admiralty Division by Sir Robert Phillimore, on the authority 
 of a dictum of Maule, J.,'s in Brown v. Mallett' — " it is the duty 
 of a person using a navigable river with a vessel of which he is 
 possessed, and has the control and management, to use reasonable 
 skill and care to prevent mischief to others." And this liability 
 " is the same whether his vessel be in motion or stationary, 
 floating or aground, under water or above it" — in concurrence 
 with a finding of fact that " the Douglas was not abandoned by 
 her master and crew." In the Court of Appeal this was 
 reversed, because " there was no negligence of which the plaintiff 
 can take advantage." 
 
 " I incline to agree," said Brett, L. J., " that if the owners of a Brett, 1,.,1.,'s 
 wreck abandon it, their liability ceases ; but here the defendants 
 claim the ownership of the wreck. It may be that the defend- 
 ants did not hear of the accident for some time. As to those 
 employed by them, the captain is primd, facie to act. It is for 
 the plaintiff to prove that there ' is negligence." To the argu- 
 ment that the reason of the Douglas being in the position where 
 she did the injury was her negligent collision with the first ship, 
 and therefore that the primary negligence affected all her future 
 conduct, the answer of the Lord Justice was: "To wilfully 
 scuttle a ship in a tideway so as to cause an obstruction may 
 possibly be an indictable offence, but what the defendants did was 
 
 ' These cases are discussed in Taylor what was tlie proper mode of giving notice 
 
 V. Atlantic Mutual Insurance Companv, of a sunken barge. 
 
 37 N. Y. 27s, by Davies, C.J., and ap- = 7 P. D. 151 ; 51 L. J. Adm. 89 ; 47 
 
 proved as " eminently '' sound. See Har- L. T. 502. 
 mond V. Pearson, I Cainpb. 515, as to ' S C. B. 599. 
 
couRiderod. 
 
 936 THE I^AW OF NEGLIGENCE. [jsook iii. 
 
 no indictable offence ; their own ship sank. It seems to me clear 
 that no greater liability can exist against the defendants than if 
 their steamship had sunk without negligence." The decision in 
 The Douglas seems quite plain, and inevitable upon well-recognized 
 principles. " Traffic on a highway, whether by land or sea, cannot 
 be conducted without exposing those whose persons or property 
 are near it to some inevitable risks, subject to the chance of which 
 they have the user."' And negligence to be actionable must be 
 incwria dans locwm injuries? The case would then be narrowed 
 to the inquiry as to the fact of whether there was any default on 
 the part of the defendants after the ship had settled into the 
 river. The Court found there was not, and entered judgment 
 for the defendants. 
 The oases Through expressions of two of the judges the case has been 
 
 .considered to reflect on Brown v. Mallett and White v. Crisp. 
 Lord Coleridge, C.J., was of opinion " these cases may be good 
 law," and Brett, L. J., said, " I say nothing " as to them " except 
 that they were decided on demurrer." Notwithstanding this, 
 the dictum on which Sir Eobert Phillimore based his judgment 
 appears quite sufficient to comprehend the judgment in The 
 Douglas without any inconsistency. Even though it is the duty 
 of a person using a navigable river, with a vessel " either under 
 water or above it," to use " reasonable skill and care," the onus 
 is on the plaintiff to shew absence of skill and care in the special 
 circumstances of traffic on a highway. This onus, according to 
 Brett, L.J., in the case of The Douglas was not discharged, and 
 thus The Douglas would be only a case of the rule laid down in 
 Brown v. Mallett. In Brown v. Mallett it might be made to 
 appear that while there is possession and control there is lia- 
 bility ; but it only lays down this where there is a collision 
 "from the improper manner" in which the ship is managed; 
 and the general law, as we have seen, requires proof of this 
 improper management in order to found liabiUty. The expression 
 used in Brown v. Mallett, " We do not think that the duty always 
 arises " in case of abandonment, is of extreme cautiousness, and 
 is consistbnt with the duty as a practical matter never arising ; 
 since the only case that the Court was called to give judgment 
 on was a case where the duty did not arise ; and with the pro- 
 positions necessary to establish the rule outside the scope of the 
 actual case before the Court it thus carefully refrained from 
 committing itself. Possession and control by no means always. 
 import liability ; they do where there is negligence ; and in the 
 
 ' Per ■niackbum, J., Fletcher v. By- way Company v. Jackson, 3 App. Cas. 
 laud, L. R. I Ex. 265, at p. 286. 193, at p. 198. See per Brett, L.J., in 
 
 ^ Per Lord Cairns, Metropolitan Kail- The Margaret, 6 P. D. 76, at p. 79. 
 
BOOK III.] OF COLLISIONS. 937 
 
 case of abandonment it is not impossible to imagine circum- 
 stances where mere abandonment would not avoid liability,' 
 though the general rule is that the duty ceases on the abandon- 
 ment of the possession of the vessel. 
 
 In The Woodrop Sims^ Lord Stowell states four possibilities juagmcnt 
 under which a collision may occur. " In the first place, it may st^eUiu 
 happen without blame being imputable to either party, as where the '^.'"^ Woodrop 
 loss is occasioned by a storm or any other vis major. In that case Four'possi- 
 the misfortune must be borne by the party on whom it happens coiudon.^ 
 to light, the other not being responsible in any degree.' Secondly, 
 a misfortune of this kind may arise where both parties are to 
 blame ; where there has been a want of due diligence or of skill 
 on both sides." In such a case the rule of law is that the loss 
 must be apportioned between them, as having been occasioned by 
 the fault of both of them. Thirdly, it may happen by the mis- 
 conduct of the suffering party only,'' and then the rule is that the 
 sufferer must bear his own burthen. Lastly, it may have been 
 the fault of the ship which ran the other down, and in this case 
 the injured party would be entitled to an entire compensation 
 from the other.'"^ 
 
 In Cayzer r. Carron Company,' Lord Blackburn, after affirming Lord Biack- 
 the identity of the common law with the Admiralty in the first, cayzei^i'. 
 second, and fourth of these cases, and pointing out that in the Can-on Com- 
 third the rule of the common law is that, as each occasioned the 
 accident, neither shall recover, but the loss shall lie where it 
 falls, as against the Admiralty rule that if both contributed to 
 the loss it shall be brought into hotchpot and divided, con- 
 tinued : "Until the case of Hay v. Le Neve,' which has been 
 
 ^ ^.(/., Eglington r. Norman, 46 L. J. Shipping (Prenlice's edition, 1881), p. 
 
 Ex. 557 ; 36 L. T. 888 ; 25 W. R. 656 ; 576, " there is no better means of making 
 
 10 & II Vict. c. 27, R. 56. In The the masters of small vessels which are 
 Douglas, 7 P. D. 151, at p. 160, Cotton, liable to be injured by the slightest shook 
 L.J., held that under the Removal of attentive to avoid collision than to keep 
 Wrecks Act, 1877 (40 & 41 Vict. u. 16), the fear of paying for half the damage 
 s. 4, by which a harbour-master has power constantly before their eyes. And if it be 
 to put up lights, it becomes his duty to said that it would be a shorter and more 
 remove a dangerous obstruction. The simplemodeofadjustment to let each party 
 American law as to abandoning a sunken hear the loss he has sustained as arising 
 vessel is discussed and stated by Agnew, from casm fortnittis, the answer is that 
 .1., in Winpenny v. Philadelphia, 65 Penn. then the masters of larger vessels would 
 tjt. 135. make light of collision with those of 
 
 = 2 Dodson Adm. Cas. 83, at p. 85. smaller burthen." 
 
 ' Stainbach v. Bae, 14 How. (U. S.) ^ Strout d. Foster, i How. (U. S.) 89 ; 
 
 532 ; as to inevitable accident, The Naples, The Massachusetts, i W. Rob. 371. 
 
 11 P. D. 124 ; 55 L. J. P. 4; 55 L. T. ° This passage was cited with approval 
 584 ; 35 W. R. 59. The authorities are by Lord Gifford in the House of Lords in 
 set out 3 Kent, Comm. pp. 321 et seq. Hay v. Le Neve, 2 Shaw Sc. App. Cas. 
 
 ■* 3 Kent, Comm. p. 231, adopts the ex- 395. 
 
 pression of Cleirac, Us et Coutumes de la '9 App. Cas. 873, at p. 881 ; 54 L. J. P. 
 
 Mer, p. 68, in speaking of this rule as 18 ; 52 L. T. 361 ; 33 W. R. 281. 
 
 judicium rusticorum. lint, says Valin, >* 2 Shaw Sc. App. Cas. 395. 
 as quoted by Abbott, Law of -Merchant 
 
938 
 
 THE LAW OF NEGLIGENCE, 
 
 [book III. 
 
 Law in 
 America. 
 
 Effect of tbe 
 
 Judicature 
 
 Act. 
 
 Cautiou. 
 
 Tlie Feuliam, 
 
 Noticed by 
 liord Black- 
 burn in. 
 
 referred to in the argument, there was a qaestion in the 
 Admiralty Court whether you were not to apportion it according 
 to the degree in which they were to blame, but now it is, I' 
 think, quite settled, and there is no dispute about it, that the 
 rule of the Admiralty is that if there is blame causing the 
 accident on both sides they are to divide the loss equally, just as 
 the rule of law is that if there is blame causing the accident on 
 both sides, however small that blame may be on one side, the 
 loss lies where it falls.'' 
 
 In America the law has been succinctly laid down in The 
 Clara' to the same effect. Where the fault is wholly on one 
 side, the party in fault must bear his own loss and compensate 
 the other party, if such party has sustained any damage. If 
 neither be in fault, neither is entitled to compensation from the 
 other. If both are in fault, the damages will be divided. 
 
 By the Supreme Court of Judicature Act, 1 873, s. 25, sub-s. 9, 
 where the rules of the Admiralty Court and the common law 
 courts are difEerent, the rule of the Admiralty is to be followed. 
 Therefore, in the case of a collision between two ships' where 
 there has been a want of due diligence or of skill on both 
 sides, whether the action is brought in the Admiralty*- Division 
 or in the Queen's Bench Division, equally in both the loss is to 
 be divided equally. 
 
 One caution must, however, be observed. It must be ascer- 
 tained that the actual transgression imputed has been in fact to 
 some extent — to what extent is immaterial" — the cause of the 
 accident. This is matter of proof. The question of onus then 
 becomes of importance. 
 
 The Fenham'' was the case of a collision between a steamship 
 and a sailing vessel where the steamship was in fault, but it was 
 proved that the sailing vessel had not complied with certain 
 Admiralty regulations about lights, and it was contended that 
 this made the negligence contributoiy, but Lord Eomilly in his 
 judgment did not admit this contention to the full. He con- 
 sidered that the omission to exhibit lights might be immaterial 
 if it were shewn that the absence of lights did not in any respect 
 conduce to the collision. But he held that, proof having been 
 given of the absence of regulation lights, the burden lay on the 
 ship so in default to shew that this default was not the cause of 
 the collision. Lord Blackburn, however, in Cayzer v. Carron 
 
 1 102 U. S. (12 Otto) 200; I Parsons, 
 Law of Shipping, pp. 525 a seq. 
 
 ^ By tbe Merchant Shipping Act, 1854 
 (17 & 18 Vict. 0. 104), B. 2, ship shall 
 include every description of vessel used 
 in navigation not propelled by oars. 
 
 ' Dowell V. General Steam Navigation 
 Company, 5 E. & B. 195 ; 26 L. J. Q. B. 
 
 59- 
 ■ " fi. 3 P. C. 212 ; 23 L. T. N. S. 
 
 * L, 
 329- 
 
BOOK III.] OF COLLISIONS. 939 
 
 Company,' while not dissenting from the rule as applied in the 
 case of The Fenham, did not consider it applied in the case then 
 before the House of Lords, where the contributing negligence was 
 non-observance of a regulation about rate of speed. 
 
 There is a third class of cases where the rule is a rule by Breach of 
 statute, where it is provided that a breach of the rules of ^l^f "[;(,„ 
 navigation should in itself be deemed to be blame.^ But even imports lia- 
 here, though the party guilty of infringement is deemed to be 
 blameworthy, he may still exonerate himself by shewing that the 
 infringement could not possibly have contributed to the collision.' 
 "But," says Lord Hobhouse in The Glamorganshire,^ "in order The Glamor- 
 to attract that principle, and to get the benefit of it, there must sa^shu-e. 
 first be shewn that there was in fact a breach of the regulations, 
 and that must be proved like any other fact in the case. It is 
 not sufficient to say that from the facts proved there might 
 possibly have been some breach of the regulations. Proof must 
 be given leading up to the conclusion that there was a breach, 
 and then, if that breach could possibly have led to the disaster, 
 the ship must be held to blame." 
 
 With these cases should be considered The Ai-klow,'' where Sir The Arklow. 
 James Hannen, delivering the judgment of the Privy Council in 
 the case of a non- statutory regulation, stated the principle appli- 
 cable to be "that if the absence of due observance of the rule 
 can by any possibility have contributed to the accident, then that 
 the party in default cannot be excused." To this, however, as A rider to 
 we have just seen, there must be a rider, or rather, perhaps, the The Arklow. 
 expression of a condition that is implied in the rule, that the 
 party infringing is not to be shut out from shewing that the 
 infringement could not have contributed, though, failing his 
 doing this, he is to be held liable, and a limitation of the phrase 
 "any possibility"" to a possibility worked out in the normal 
 course of things. The cases then come out quite consistently. 
 If there is violation of a regulation, such as the absence of lights,^ The rule 
 which suggests a contributing cause to the accident, the onus is 
 on the plaintiff to disprove it.* 
 
 ' 9 App. Ci\B. 873, at p. 883 ; 54 L. J. P. approved in The Hookung, 7 App. Cas. 
 
 18 ; 52 L. T. 361 ; 33 W. K. 281. 512 ; 51 L. J. P. C. 92 ; 47 L. T. 485 ; 
 
 2 The Khedive, 5 App. Cas. 876 ; 52 31 W. R. 303 ; The Englishman, 3 P. D. 
 
 L. J. Adm. I ; 43 L. T. 610 ; 29 W. R. 18 ; 47 L. J. Adm. 9 ; 37 L. T. 412. 
 
 173; 36 & 37 Vict. c. 85, e. 17; The * 13 App. Cas. 454; 59 L. T. 572. 
 
 Love-Bird, 6 P. D. 80 ; 44 L. T. 650; "9 App. Cas. 136; 53 L. J. P. C. 9; 
 
 Tlie Pennsylvania, 23 L. T. 55 ; The 50 L. T. 305. 
 
 Westphalia, 24 L. T. N. S. 75. As to « xhe Breadalbane, 7 P. D. 186 ; 46 
 
 file eftect of section 17, per Lord Black- L. T. 204 ; compare The Vera Crnz, 9 
 
 burn, The Khedive, 5 App. Cas. 876, at p. P. D. 88 ; per Lord Watson, The Khedive, 
 
 892 ; The Emmy Haase, 9 P. D. 8i ; 53 5 App. Cas. 876, at p. 901. 
 
 L. .J. P. 43 ; 50 L. T. 372 ; 32 W. R. 880. ' Tlie Fenham, L. R. 3 P. C. 212 ; 23 
 
 » The Fanny M. Carvill, 44 L. J. Adm. L. T. N. S. 329. 
 
 34 ; 32 L. T. N. S. 646 ; 24 W. R. 62 ; » Per Sir James Colville, The Velas- 
 
940 
 
 THE LAW OF NEGLIGENCE. 
 
 [book iir. 
 
 Effect. 
 
 Nautical 
 negligence 
 deflued in 
 The Dundee. 
 
 Tlule of 
 diligence. 
 
 Reasonable 
 skill a rela- 
 tive term. 
 
 If tlie breach is the breach of a regulation that in the natural 
 sequence of cause and efiFect would not conduce to the accident,' 
 the onus is unaffected. If the breach is by statute to be deemed 
 to be blame, the onus is on the plaintiff to disprove such attri- 
 buted breach whether it would or would not in the natural 
 sequence of cause and effect have conduced to the accident.' The 
 effect, then, of the breach of an Admiralty regulation would be 
 the subsuming under the head of negligence those cases which, 
 but for the regulation, would be equally consistent with the 
 absence of negligence, but leaving unaffected those cases where 
 the facts negatived the presumption of negligence except in the 
 case of statutory enactment. 
 
 In The Dundee' Lord Stowell defined nautical negligence as 
 ' ' a want of that attention and vigilance which is due to the 
 security of other vessels that are navigating the same seas, and 
 which, if so far neglected as to become, however unintentionally, 
 the cause of damage of any extent to such vessels, the maritime 
 law considers as a dereliction of bounden duty entitling the 
 sufferer to reparation in damages." 
 
 The " attention and vigilance" necessary is not " extraordinary 
 skill or extraordinary diligence, but that degree of skill and that 
 degree of diligence which is generally to be found in persons who 
 discharge their duty;"^ or, as Lord Blackburn expressed the duty 
 in The Khedive,* "to take reasonable care and to use reasonable 
 skill to prevent the ship from doing injury." But reasonable skill 
 is not a fixed quantity that is to be applied in all circumstances, 
 but a variable quantity, increasing with the need. Thus, in The 
 George' Roper," the case of a collision occurring while launching 
 a vessel, Brett, J., cited the judgment in The Andalusian' as 
 follows: — "The law throws upon those who launch a vessel the 
 obligation of doing so with the utmost precaution, and giving 
 juez, L. E. I p. C. 494, at p. 499 ; 36 held that " it must be shewn to the satis- 
 
 16 L. T. N. S. 777 ; 16 
 
 quf 
 
 L. J. Adm. 19 ; 
 
 W. R. 89. 
 
 ' Cayzer v. Carron Company, 9 App. 
 Cas. 873 ; 54 L. J. P. 18 ; 52 L. T. 361 ; 
 33 W. E. 281. 
 
 2 The Khedive, 5 App. Cas. 876 ; 52 
 L. J. Adm. I ; 43 L. T. 610 ; 29 W. R. 
 173. In The Pennsylvania, 19 Wall. 125, 
 it was laid down that where there has been 
 a positive breach of a statute, it must be 
 shewn, not merely that it probably did not 
 contribute to the accident, " but that cer- 
 tainlyit didnot." In the case in question 
 this was apparently impossible, ana so the 
 liability was fixed. Compare The Chilian, 
 4 Mar. Law Cas. N. S. 473. In The 
 Benares, 9 P. D. 16 ; 53 L. J. P. 2 ; 49 
 L. T. 702 ; 32 W. E. 268, the Court of 
 Appeal distinguished The Khedive, and 
 
 faction of the Court, if there has been an 
 infringement, that the circumstances of the 
 case made a departure from the regulations 
 necessary. It is not enough, perhaps, to 
 shew that what the captain did was 
 reasonable and advisable; it must be shewn 
 to be necessary." Where a collision is 
 inevitable from tlie first, the regulations 
 do not apply : The Buckhurst, 6 P. D. 
 152. 
 
 ' I Hagg. Adm. 109, at p. 120. 
 
 * Per Dr. Lushington, The Thomas 
 Powell V. The Cuba, 2 Mar. Law Cas. 
 344. 
 
 ' 5 App. Cas. 876, p. 890. 
 
 s 8 P. D. 119 ; 52 L. J. Adm. 69 ; 49 
 L. T. N. S. 185. 
 
 ' 2 P. D. 231 ; 46 L. J. Adm. 71. 
 
BOOK HI.] OF COLLISIONS. 941 
 
 such a notice as is reasonable and sufficient to prevent any injury 
 happening from the launch ; and, moreover, the burden of shewing 
 that every reasonable precaution has been taken and every reason- 
 able notice given lies iipon her and those managing the launch." 
 And he subsequently defines " reasonable precaution " as being, 
 " in fact, the utmost precaution under the circumstances." 
 
 There is no difference, except what necessarily arises out of Coiamonlaw 
 the subject-matter, between negligence at common law and negli- negligence 
 gence by the rules of the Admiralty, and if a rule of common ''PPl'^s, 
 sense is transgressed, liability attaches, though no Admiralty 
 rule has been made in the matter.* 
 
 In another place we have considered that rule of law, illustrated Perilous 
 by Jones v. Boyce^ — that if a man is placed in such a situation by 
 the fault of another that he must adopt a perilous alternative, the 
 person causing him to be so placed is liable for the consequences. 
 This principle is of frequent application in Admiralty cases, and 
 must be taken as limiting the rule just mentioned — of reasonable 
 skill being required from the mariner ; since, if he is suddenly 
 jeopardized by the fault of another, that other is responsible for 
 the consequences of the action of the imperilled person in the 
 peril in which he has placed him.^ 
 
 We have seen that neither ship will be liable where the laeyitabie 
 damage has arisen from inevitable accident.^ "Inevitable acci- 
 dent" has been thus defined': — "Where one vessel doing a 
 lawful act without any intention of harm, and using proper pre- 
 cautions, unfortunately happens to run into another vessel." To 
 constitute an inevitable accident, says the same learned judge in 
 another case," " it was necessary that the occurrence should have 
 taken place in such a manner as not to have been capable of 
 being prevented by ordinary skill and ordinary diligence. We 
 were not to expect extraordinary skill or extraordinary diligence, 
 but that degree of skill and that degree of diligence which is 
 generally to be found in persons who discharge their duty." 
 Thus, it appears that the promiu.ent consideration in these cases " Ordiuary 
 is not the inevitability of the accident viewed from the point of ordin*" 
 
 skill " tlio 
 
 1 Per Lord Blackburn, Cayzer v. Carron 74 ; The C. M. Palmer and The Larnax, '''''■ 
 Company, 9 App. Cas. 873, at p. 880. 2 Mar. Law Civs. N. S 94 ; 29 L. T N. S. 
 
 2 I Stark. 493, 495. 120 ; 21 W. E. 702 ; Ihe Bywell Castle, 
 ' Kissam v. The Alberl, cited i Par- 4 P. D. 219 ; 41 L. T. 747 ; 28 W. R. 
 
 sons,La\vofShippiiigr.p. 533; TheSisterH, 293. 
 
 I P. D. 117 • 4i L. J. Adm. 39 ; 32L.T. ■* The AVooJrop Sims, 2 Dodson Adni. 
 
 N. S. 837 ; 24"W.'k. 412 ; The Industry, Cas. 83, at p. 85. 
 
 L. K. 3 A. & E. 303 ; 40 L. .J. Adm. ° Per Dr. Lushington, The Europa, 
 
 26 ; 24 L. i'. N. S. 446 ; 19 W. E. 728 ; 14 Jur. 627, at p. 629 ; The Thomas Powell 
 
 The Hibernia, 4 Jur. N. S. 1244; 31 u. The Cuba, 2 Mar. Law Caa. 344 ; Lack 
 
 L T N S. 803 ; 24 W. E. 60 ; The v. Seward, 4 C. & P. 106. 
 
 Marpesia L E. 4 P. C. 212 ; 26 L. T. " The Thomas Powell v. The Cuba, 2 
 
 N. S. 333 ; The Adalia, 22 L. T. N. S. Mar. Law Cas. 344. 
 
both sides. 
 
 942 THE LAW OF NEGLIGENCE. [book m. 
 
 the actual motive power that caused it so much as whether 
 "ordinary care and ordinary skill" being exerted could, have 
 prevented it ; and that not by reference merely to the moment 
 of the occurrence, but to any earlier stage in which the adoption 
 of measures reasonably to have been counted on would have ren- 
 dered the occurrence less probable.^ A collision is said to occur by 
 inevitable accident when both parties have used every means in 
 their power with adequate nautical skill and due care and caution 
 to prevent its occurrence, and have been unable to do so.' 
 Blame on The Second case put by Lord StowelPis where there is blame 
 
 on both sides. We have seen that in this case the Admiralty rule 
 differs from the rule of the common law, and renders each liable 
 to contribute half of the joint damage.'' A further distinction 
 from the rule of the common law has been sought to be made. 
 By the common law, though the plaintiff has contributed to the 
 accident, he is not disentitled to recover if the negligence of the 
 defendant was the proximate, and that of the plaintiff the remote, 
 cause of the injury — ^that is, if the defendant could in the result, 
 by the exercise of ordinary care and diligence, have avoided the 
 mischief which happened, the plaintiff's negligence will not excuse 
 him." It has been contended that, by Admiralty law, where 
 there has been any negligence on the part of the plaintiff, that 
 negligence is to be imputed in the event of a subsequent collision ;° 
 but, as we have already incidentally shewn' there is no ground for 
 this attempted distinction. Before a vessel can be held in fault 
 for a collision, negligence contributing to the accident, and not 
 negligence merely, must be shewn." 
 
 1 The Virgil, 7 Jur. 1 174 ; The Uhla, 108 ; 30 W. R. 232, sailing ship dragging 
 
 37 L. J. Adm. 16, n. ; 19 L. T. N. S. anchorwithrudderdamaged; The Swallow, 
 
 89 ; The Hibernia, 4 Jur. N. S. 1244. 3 Mar. Law Gas. N. S. 371 ; 36 L. T. 
 
 ^ The Loclilibo, 3 W. Bob. 310; The 231, dumb bargedrivingwithtlietide;The 
 
 Calcutta, 21 L. T. N. S. 768 ; The Mar- Duke of Cornwall, i Pr.Adm. Dig. 20. For 
 
 pesia, L. B. 4 P. C, 212 ; 26 L. T. N. S. the American oases see TheMoming Light, 
 
 333 ; The Secret, 26 L. T. N. S. 670. 2 Wall. 550 ; The Java, 14 Wall. 189 ; 
 
 Collision was held to have occurred througli The Merrimao, 14 Wall. 199. But where 
 
 inevitable accident in the following there was negligence the accident was held 
 
 cases : — The Shannon, i AV. Bob. 463, not inevitable. The Pladda, 2 P. D. 34 ; 46 
 
 where a steamer going against the stream L. J. Adm. 61 ; Sherman v. Mott, 5 Jjened. 
 
 collided against a brig coming down at 372; The Merrimac, 14 Wall. 199; the 
 
 night ; The William Lindsay, L. E. 5 last two cited Marsden, Collisions at Sea, 
 
 P. C. 338 ; 29 L. T. N. S. 3SS ; 22 W. B. 2nd edit. p. 13. 
 
 6, where a ship fastened to a buoy in'pur- " The Woodrop Sims, z Dodson Adm. 
 
 siianoe of port regulations came into colli- Cas. 83, at p. 85. 
 
 sion through the parting of a band round * Vaux v. Shaffer, 8 Moo. P. C. C. 75. 
 
 the buoy; The Peerless, Lush. 30, 'the ^ jj^jigy „ London and North-Western 
 
 catching of the cable on the windlass when Railway Company, t App. Cas. 754. 
 the anchor was let go ; The London, i " The Fenham, L. R. 3 P. C. 212 ; 23 
 
 Mar. Law Cas. 398 ; 9 L. T. N. S. 348, L. T. N. S. 329 ; Hay v. Le Neve, 2 
 
 cable parting in wind ; The Virgo, 3 Mar. Shaw's Sc. App. Cas. 395. 
 Law Cas. N. S. 285 ;_ 35 L. T. N. S. 519 ; ' Ante, p. 938. 
 
 25 W. R. 397, breaking of steerage gear = Cayzer v. Carron Company, 9 App. 
 
 through latent defect; The Buckhurst, 6 Cas. 873 ; 54 L. J. P. 18 ; 52 L. T. 361 ; 
 
 P. D. 152 ; 51 L. J. A4m. 10 ; 46 L. T. 33 W. R. 281 ; The Lord Saumarez, 6 
 
BooKiii.] OF COLLISIONS. 
 
 943 
 
 The cases on the point have been summed up in substance as Cases summed 
 follows' : — "P- 
 
 1. A ship, A., may recover full damages against another, B., 
 though she has been guilty of negligence contributing to the 
 collision, provided the other ship could, with ordinary care exerted 
 up to moment of the collision, have avoided it ; 
 
 2. A ship, A., can recover nothing if she could, by ordinary care 
 exerted up to the moment of the collision, have avoided a collision 
 with another ship, B., to which the negligence of the other ship 
 notwithstanding contributed ; 
 
 3. A ship, A., may recover half her loss though she has been 
 guilty of negligence contributing to the collision, and rendering 
 the collision unavoidable except by extraordinary care on the part 
 of the other ship, B., if the other ship had been guilty of such 
 neghgence contributing to the collision and rendering it unavoid- 
 able except by extraordinary care on the plaintiff ship's part ; and 
 
 4. In such a case B. may also recover half his loss. 
 
 With regard to the 07uis prohandi in cases of collision by the Omm. 
 fault of both parties. Lord Wensleydale says, in Morgan v. Sim^: loydaiei™^ 
 " There is no question or doubt about the law. The party seek- ^JJJ'^'"^ "• 
 ing to recover compensation for damage must make out that the 
 party against whom he complains was in the wrong. The burden 
 of proof is clearly upon him, and he mast shew that the loss is to 
 be attributed to the negligence of the opposite party. If at the 
 end he leaves the case in even scales, and does not satisfy the 
 Court that it was occasioned by the negligence or default of the 
 other party, he cannot succeed."^ 
 
 The rule of the Admiralty was that where both vessels were to 
 blame neither of them should gain by anjr litigation in the 
 matter,"" and therefore that no costs should be awarded to either. No costs. 
 The Privy Council adopted that view, and carried on the rule on 
 appeal save in exceptional circumstances.^ After the Judicature 
 Acts, in The Swansea v. The Condor,''' James, L.J., in giving the The Swansea 
 
 V. The Coudor. 
 
 Not. of Cas. 600. In Seccombe p. Wood, vessel : Wilson v. Canada Shipping Coni- 
 
 2 Moo. & Rob. 290, the injury was caused pany, 2 App. Cas. 389 ; S.C. nom. Tlie 
 
 acttWi/ by the vessel whose doing damage Lake St. Clair v. The Underwriter, 36 
 
 to the plaintiff's vessel was part of the se- L. T. 155. Where a fishing bnat was fast 
 
 quence of the original negligence. to her nets, The Columbus, i Pritcli. Adm. 
 
 ' Marsden, Collisions at Sea, p. 23. Dig. 199 ; Tl* Bottle Imp, 42 L. J. Adm. 
 
 •- iiMoo.P.C.C. 307,atp. 311; The 48; 28 L. T.N. S. 286; 21 W. R. 600. 
 
 Ligo, 2 Hagg. Adm. 356 ; Cayzer v. Where tlie ship had hove to, The Eleanor, 
 
 Carron Company, 9 App. Gas. 873. See, 2 Mar. Law Cas. 240 ; The Rosalie, 5 
 
 too, per Dr. Liishington, The Swanland, P. D. 245 ; 50 L. J. Adm. 3 ; 44 L. T. 
 
 2 E. & A. 107. 32. 
 
 ^ As to the burden of proof on an allega- * Vennall v. Garner, I C. & M. 21. 
 
 linn that a ship in a collision was in stays, ^ The Marpesia, L. R. 4 P. C. 212 ; 26 
 
 The Sea Nymph, Lush. 23. But a ship L. T. N. S. 333. 
 
 so placed ought to execute any pi'aoticable ^ 4 P. D. 115 ; 48 L. J. Adm. 33 ; 40 
 
 manoeuvre to avoid a starboard tacked L. T. 442 ; 27 W. R. 748. 
 
944 
 
 THE LAW OF NEGLIGENCE. 
 
 [book hi. 
 
 The 
 Miknese. 
 
 The Hector. 
 
 Where 
 through the 
 negligence of 
 one vessel 
 another is 
 driven against 
 a third. 
 
 Where the 
 injurious 
 vessel 
 cannot be 
 identified. 
 
 judgment of the Court of Appeal on a question of costs, doubted 
 whether it could be right that the rule as to costs should differ in 
 two branches of the High Court of Justice, and thought that " in 
 future the rule will be that the costs in every case follow the 
 result, as in other branches of the High Court." In the subse- 
 quent case of The Milanese' the same Lord Justice said : " We 
 are of opinion that, wherever we vary the decision of the Court 
 below by finding both vessels to blame, the rule should be that 
 no order is made as -to costs either below or on appeal — ^that 
 is, that each party should bear their own costs of the whole litiga- 
 tion ;" and in The Hector,^ Brett, L.J., said : " The better way to 
 solve the matter is, I think, to say that, in order to enforce care at 
 sea, where it is so important that care should be observed, the 
 Court of Appeal will adopt the rule of the Court of Admiralty and 
 the rule of the Privy Council to this extent that, unless in some 
 exceptional case such as I have mentioned" — i.e., where the 
 judgment of the Court below has been that both vessels are to 
 blame, and that judgment is affirmed — " they will not, where 
 both sides have been to blame, allow either ship to gain anything 
 by the litigation." This rule has been said to be a " matter of 
 discipline,"* but Cotton, L.J., preferred to refer it rather to autho- 
 rity than to reason or sound principles. 
 
 If by the negligence of one vessel another is driven against 
 a third, both vessels would have an action against the negligent 
 ship.* But the third would only have an action against the 
 second if she were guilty of negligence, and, in the imputing that, 
 the greatest allowance should be made for a captain or pilot 
 suddenly put into such difficult circumstances, so that the Court 
 should not require perfect nerve or presence of mind enabling 
 the responsible person to do the very best thing possible.* 
 There are, however, cases where the plaintiff is unable to 
 identify the guilty ship, as in The Bvangelismos," where the 
 vessel causing the damage got away. Subsequently, from the 
 appearance of a vessel in port, the owners of the damaged vessel 
 caused an arrest to be made, but the plaintiffs failed to identify 
 the vessel seized, and the Admiralty Court dismissed the action 
 with costs, but refused to award damq,ges. The Privy Council sus- 
 tained the decision, holding that " undoubtedly there may be cases 
 
 1 43 L. T. N. S. 107 ; affirmed in the 
 House of Lords, 45 L. T. 151 ; 4 Mar. 
 Law Cas. 438. 
 
 2 8 P. D. 218 ; 52 L. J. Adm. Si ; 48 
 L. T. 890; 31 W. B. 881. 
 
 2 PerBowen, L.J., at p. 221. 
 
 ■> The Sisters, i P. D. 117; 45 L. J. 
 Adm. 39 ; 34 L- T. N. S. 338 ; 24 W. K. 
 412 ; The Indnstfv, L. B. 3 A. & E. 
 
 303 ; 40 L. J. Adm. 26 ; 24 L. T. N. S. 
 446 ; 19 W. E. 728 ; The Kjobenhavn, 
 2 Mar. Law Cas. N. S. 213 ; 30 L. T. 
 K. S. 136. 
 
 = The Bywell Castle, 4 P. D. 219 ; see 
 per Brett, L.J., at p, 227 ; 41 L. T. 747 ; 
 28 W. E. 293. 
 
 s 13 Moo. P. C. C. 352. 
 
BooKiii.J OF COLLISIONS. 945 
 
 in which there is either mala fides or that erassa ncgligmitia which 
 implies malice which would justify a Court of Admiralty giving 
 damages, as in an action brought at common law damages may 
 be obtained." " The real question in this case, following the 
 principles laid down with regard to actions of this description, 
 comes to this — Is there or is there not reason to say that the 
 action was so unwarrantably brought, or brought with so little 
 colour or so little foundation, that it rather implies malice on the 
 part of the plaintiff, or that gross negligence which is equivalent 
 to it ? " And this view was approved in The Strathnaver.' 
 
 Where a vessel is sunk through negligence, and afterwards an Case of a 
 injury is caused to another ship by reason of the negligent g|°^';|^g"'' 
 sinking, but wholly apart from the negligence, so that it cannot 
 be looked on as the natural outcome of the earlier negligence, 
 Brett, L.J., in The Douglas,^ decided "that no greater liability 
 can exist against the defendants than if their steamship had sunk 
 without negligence.'"' 
 
 In considering cases of collision the precautions taken by the 
 vessel that is run down must have very considerable weight in 
 determining the rights and liabilities of the respective parties. 
 These precautions must be judged partly by reference to con- 
 siderations of nautical care and skill, and partly to general or 
 national usage.* But there are some general and broad rules 
 the neglect or observance of which goes far to determine the 
 liability or immunity respectively. 
 
 The cardinal principle is that the master is bound to take all Duty of 
 reasonable precautions — material as well as moral — against his ship 
 doing damage to others. " The true rule," as laid down in The 
 William Lindsay,* " is that he must take all such precautions as 
 a man of ordinary prudence and skill, exercising reasonable fore- 
 sight, would use to avert danger in the circumstances in which he 
 may happen to be placed." Thus he is to use all due and proper 
 care that his ship is free from defects likely to cause peril or in 
 any way to render it unfit for the voyage that it is to go ; but 
 his obligation does not extend to secure against defects which no 
 
 > I App. Cas. 58 ; 34 L. T. N. S. 148. 3 P. C. 205 ; 23 L. T. N. S. 218 ; The 
 
 2 7 P. D. 151, at p. 160 ; 51 L. J. Adm. Virgo, 3 Mar. Law Cas. N. S. 285 ; 35 
 
 89 ; 47 L. T. 502. L. T. N. S. 519 ; 25 AV. E. 397. In the 
 
 ^ Compare Bailiffs of Eomney MarBh v. earlier stages of Clyde Navigation Corn- 
 Corporation of Trinity House, L. E. 5 Ex. pany v. Barclay, I App. Cas. 790 ; 36 
 204, L. E. 7 Ex. 247 ; 41 L. J. Ex. 106, L. T. 379, it was contended that the ship 
 for the other side of the rule. was not properly manned, because, though 
 
 ^ Story, Bailments, § 6l I ; The Friends, the number on the trial trip was sufficient, 
 
 I W. Eob. 478 ; General Steam Naviga- yet they wore not regularly constituted 
 
 tion Company v. Tonkin, 4 Moo. P. C. C. officers and crew. This point, however, 
 
 314; The Lochlibo, 3 W. Eob. 310, at p. was abandoned in the House of Lords. See 
 
 319. The C. M. Palmer and The Larnax, in the 
 
 ^^ L. E. 5 P. C. 338; 29 L. T. N. S. Privv Council, 2 Mar. Law Cas.N. S. 94; 
 
 35S ; 22 W. E. 6 ; The Ocean Wave, L. E. 29 L. T. N. S. 120 ; 21 W. E. 702. 
 
 30 
 
THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Bules as to 
 British ships. 
 
 International 
 regulations. 
 
 American 
 decision. 
 The Schooner 
 Marcia 
 Tribon. 
 
 competent skill or care or foresight can detect or avert/ since, as 
 Montague Smith, J., says in Eeadhead v. Midland Railway Com- 
 pany,^ this would be "to promise the performance of an impossible 
 thing, and would be directly opposed to the maxims of law, Lex 
 7W71 cogit ad impossihilia — Wemo tenetur ad impossibilia." 
 
 Following this, the rule of the road must be observed. British 
 ships are rendered subject to certain statutory rules contained in 
 the Merchant Shipping Act' and enactments supplementary 
 thereto. But where a collision occurred on the high seas between 
 two foreign ships or between a British and a foreign ship, the 
 statutory rules were not applicable, and the question of negligence 
 in such cases had to be tried by the general maritime law. This 
 was stated by Best, O.J.'' : " The ship which has the wind at large 
 may go either to leeward or to windward, but, as a general rule, 
 she ought to expect that the ship which is close-hauled will keep 
 to windward, and therefore she ought to go to leeward unless it is 
 quite clear that she can go to windward with safety." 
 
 But the inconvenience felt by the occasional inconsistency of 
 the statutory rules with the general maritime law, which was 
 sometimes even productive of collisions, led to the adoption of 
 international regulations, by which the former difficulties are now 
 obviated. Local usages as to ships, lights, and rules to be ob- 
 served in navigating foreign waters are stUl to be observed ; and 
 although they have not the force of law in the English courts, 
 yet failure to conform to them would be cogent evidence of 
 negligence." 
 
 Again, if a vessel be at anchor, whether properly" or improperly, 
 it is the bounden duty of a vessel under way to avoid collision.' 
 This, however, has been differently held i in America, where, in 
 the case of The Schooner Marcia Tribou,' a schooner going out of 
 Boston harbour ran into a sloop that was anchored in the channel, 
 and both vessels were held in fault — ^the schooner for not keeping 
 a proper look-out, and the sloop for being improperly anchored. 
 But this decision would not be maintained in England,^ and on 
 the principle already enunciated — ^that there must be not merely 
 negligence, but negligence as a contributory cause of the accident. 
 
 1 Lack V. Seward, 4 C. & P. 106. 
 
 ' L. K. 4 Q. B. 379 ; 38 L. J. Q. B. 
 169 ; 17 W. E. 737. 
 
 3 25 & 26 Vict. 0. 63. 
 
 * Handaysyde v. Wilson, 5 0. &P. 528. 
 
 " In General Steam Navigation Com- 
 pany V. Mann, 14 C. B. at p. 133, Maule, 
 J., is reported as saying during the mga- 
 ment : " The only effect of the Admiralty 
 regulation is to substitute the sailing direc- 
 tions there given for the rule of practice 
 
 which existed before, to make it more 
 effective, not to alter the proof of negli- 
 
 gence. 
 ^ The Steamboat New York v. Eea, 
 
 18 
 
 How. U.S. 223. 
 
 J The Batavier, 2 W. Eob. 407 ; The 
 City of Peking and The Compagnie des 
 Messageries Maritimes, 14 App. Cas. 40. 
 
 8 2 Sprague 17. 
 
 " Compare Hanis v. Anderson, 14 
 C. B. N. S. 499. 
 
BOOK III.] OF COLLISIONS. 94^ 
 
 This absence of negligence on the part of the moving vessel it 
 is which distinguishes the case from Strout v. Foster, where the 
 judges of the Supreme Court of the United States were equally- 
 divided, and the judgment of the Circuit Court was consequently- 
 maintained, holding that where there is no negligence in the 
 moving ship, and a collision occurs with a ship improperly 
 anchored, the third rule laid down by Lord Stowell in The 
 Woodrop Sims' appUed, and the misconduct on the part of the 
 master of the ship so improperly anchored imported a liability 
 where there was no fault or want of skill or negligence on the 
 part of those responsible for the other ship. This decision is an 
 d, fortiori case, assuming The Marcia Ti-ibou^ to be rightly decided. 
 But, on the contrary assumption, the case would seem to be one of 
 inevitable accident — that is, an accident " which the party charged 
 with the offence could not possibly prevent by the exercise of 
 ordinary care, caution, and maritime skill." ^ The case would 
 appear to be covered by what was said by the Lord Chancellor in 
 Spaight V. Tedcastle"* : " Contributory negligence cannot be estab- 
 lished merely by shewing that, if those in charge of the ship had 
 in some earlier stage of na-vigation taken a course or exercised a 
 control .... which they did not actually take or exercise, a 
 different situation would have resulted, in which the same danger 
 might not have occurred."^ 
 
 A vessel has been held to blame for placing herself at single General 
 anchor in such a position that, if the slightest accident arose to ^^ ^' 
 interrupt or embarrass a manoeuvre, it was almost impossible to 
 avoid a collision." 
 
 When a collision takes place between a vessel under sail and 
 one at anchor, the primd facie presumption, if there be any fault, 
 is that it is on the part of the vessel which is under sail,' and 
 this "because she has the power of changing her course, -and 
 a vessel at anchor is stationary." The vessel under sail must 
 therefore clear herself from the imputation by shewing that every 
 practicable effort was made to avoid the collision. This obligation 
 is not altered by the fact that at the time of the collision the 
 moving ship was drifting in consequence of a prior collision.^ 
 
 Another general rule, "admitting perhaps of no exception," is 
 
 1 2 Dodson Adm. Cas. 83. 373 ; 8 L. T. N. S. 776. 
 
 ' 2 Sprague 17. ' The Scioto, Davies 359. In this case 
 
 ' Per Dr. Lushingtoii, The Virgil, 2 it is said, " A vessel entering » harbour 
 
 W. Eob. 201, at p. 205. under the circumstances of the Scioto, is 
 
 ^ 6 App. Cas. 217, at p. 219 ; 44 L. T. responsible delevissima culpa" at p. 363. 
 
 589 ; 29 \V. E. 761. The City of Peking and The Compagnie 
 
 ^ Cayzer v. Carron Company, 9 App. des Messageries Marilimes, 14 App. Cas. 
 
 Cas. 873 ; 54 L. J. P. 18 ; 52 L. T. 361 ; 40. 
 33 W. R. 281. ^ The Annapolis, 5 L. T. N. S. 326 ; 
 
 " 'J'he Egyptian, i Moo. P. C. C. N. S. .The George Ai-kle, 5 L. T. N. S. 290. 
 
948 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Question 
 
 whether 
 
 there is an 
 
 unqualified 
 
 oViligatibn 
 
 to exhibit a 
 
 light. 
 
 Dr. Lushing- 
 
 ton in The 
 
 Victoria 
 
 denies its 
 
 existence. 
 
 Such an 
 absolute 
 obligation 
 held to exist 
 in The 
 Saxouia. 
 
 Obligation 
 on a vessel 
 under way 
 to exhibit 
 a light. 
 
 that when a. vessel enters a harbour in the night time it must use 
 the utmost vigilance, and more especially so when the harbour is 
 one greatly frequented.' 
 
 The obvious precaution is to exhibit a light, both when sailing 
 and when at anchor. In The Victoria,^ however, Dr. Lushington 
 held that by maritime law there is no general and unqualified 
 obligation to do so ; though where the exhibiting a light would 
 have tended to prevent collision, such an obligation would arise, 
 on the ground that " no man can justly complain of an accident 
 that happens to himself if by reasonable and proper precaution 
 he could have prevented it." The practical effect of this variation 
 from the view which regards a general obligation as lying on a 
 ship at anchor to exhibit a light is that the absence of light 
 being proved antecedently to a colhsion would not be sufiScient 
 evidence of negHgence to call on the defendant for an answer. 
 The omission must further be shewn to be tainted with some 
 circumstances from which negligence might be inferred. But 
 in The Saxonia' the Privy Council was of opinion that there is 
 the absolute obligation which in the earlier case Dr. Lushington 
 denies. " A vessel at anchor," says the Master of the Rolls, giving 
 the opinion of the Committee in that case, " or a fishing-boat, is 
 bound by the general rules of -the sea to exhibit a light, so as to 
 afford to the vessels whose duty it is to avoid her the means of 
 doing so ; and this, even apart from authority, seems the prefer- 
 able opinion. Primd facie, in a collision between a vessel at 
 anchor and one in motion in the daytime, the collision raises a 
 presumption of the . negligence of the ship in motion which has 
 to be rebutted."* But it was always held to be a duty on the 
 part of a vessel under way to exhibit a light. 
 
 " It is the bounden duty," says Dr. Lushington,' " of a vessel 
 under way, whether the vessel at anchor be properly or im- 
 properly anchored, to avoid, if it be possible with safety to her- 
 self, any collision whatever." If, then, there is an obligation 
 for a vessel at anchor to exhibit a light, & fortiori a vessel in 
 motion must do so ; and this is definitely held in the same case." 
 Now, however, by the various regulations for preventing collisions 
 
 ^ The Soioto, Davies 359 ; The Ariadne, 
 13 "Wall. 475 ; see Angel, Law of Carriers, 
 at p. 624. 
 
 2 3 W. Eoh. 49. 
 
 ' Lush. 410 ; IS Moo. P. C. C. 262 ; 
 31 L. J. Adm. 201 ; 6 L. T. N. S. 6 ; 10 
 W. E. 431. The 0. M. Palmer and The 
 Lamax, 2 Mar. Law Gas. N. S. 94 ; 29 
 L. T. N. S. 120 ; 21 W. R. 702. 
 
 * The Annot Lyle, 1 1 P. D. 1 14 ; 55 
 L. J. P. 62 ; 55 L. T. 576 ; 34 W. k 
 647 ; The Indue, 12 P. D. 46 ; 56 L. J. P. 
 
 88; S6L.T. 378; 35 W. E. 490. 
 
 » The Batavier, 2 W. Bob. 407. As 
 to a vessel heing launched coming into 
 collision, see The Cachapool, 7 P. D. 217 ; 
 also The Vianna, Swabey 405 ; The 
 United States, 12 L. T. N: S. 33; The 
 Glengarry, 43 L. J. Adm. 37 ; 30 L. T. 
 N. S. 341. The " utmost precaution " 
 must be used and reasonable notice of the 
 launch given : The Andalusian, 2 P. D. 
 231. 
 
 ' The Saxonia, Lush. 410, at p. 422. 
 
BOOK III.] OP COLLISIONS. 949 
 
 at sea, by which ships of vaiious countries are bound, specified 
 lights must be carried in all weathers from sunset to sunrise,' and 
 in the precise way that is necessary for giving the warning that 
 the regulation requires the light to be carried in order to afford.^ 
 
 The duty of the master of a vessel to use care in the case of JTog or 
 fog or darkness rises in proportion to the need for care. In The "''^ ''^°°' 
 Itinerant' this obligation is expressed to be " to use the utmost 
 vigilance "; still, by this no more must be understood than a duty 
 to use that amount of vigilance which a master of competent skill 
 would judge called for by the circumstances; for there is no 
 invariable rule of conduct. Thus, in The Virgil/ sailing on a The Virgil. 
 dark and foggy night with topmast studding sails set was held 
 to be negligence ; while in the case of The Ebenezer,^ where in 
 dark and thick weather a vessel running with a fair wind on a 
 foggy night carried her square sail, topmast studding sail, fore and 
 aft mainsail, and gaff topsail set, came into collision, was yet held 
 not liable for a collision, on the ground of inevitable accident. 
 But in this latter case the sail was carried to prevent vessels 
 immediately in the wake of the colliding vessel running into 
 her, and conduct that else had been negligent became thereby 
 justified. 
 
 If the fog is very dense, it becomes the duty of a steam Ejira- 
 vessel to anchor as soon as possible.' A vessel which has the deusTfog. 
 wind free is bound to give way to a vessel close hauled, 
 and a steam ship is to be treated as a vessel which has the 
 wind free.' Thus in all situations a steam vessel is bound 
 to give way to a sailing vessel f or, to state the rule somewhat 
 differently, whatever a sailing vessel going with a free wind 
 would be required to do with reference to any sailing vessels it 
 meets,' in that manner would a steam vessel in any situation be 
 required to act with reference to a sailing vessel whatever." 
 
 To render a steamer liable for an omission there should, says Duly on 
 
 steamer. 
 
 1 See art. 2, Eegulations of 1884 ; Bx « The Otter, L. K. 4 A. & E. 203 ; 30 
 parte Ferguson and Hutchinson, L. E. 6 L. T. N. S. 43 ; 22 W. R. 557 ; The 
 Q. B. 280 ; 40 L. J. Q. B. 105 ; 24 L. T. Lancashire, L. E. 4 A. & E. 198 ; 29 L. T. 
 N. S. 96 ; 25 & 26 Vict. ^. 63, BS. 25, N. S. 927. 
 
 27, 28, 57, 58. ' The Saxonia, Lush. 410. 
 
 2 The Palinurua, 13 P. D. 15 ; The « The Warrior, L. R. 3 Adm. 553 ; 27 
 Patroclus, 13 P. D. 54. L. T. N. S. loi ; 21 W. R. 82. 
 
 3 2 "W. Eoh. 236. The Pennsylvania, " As to this duty, see The Peckforton 
 23 L. T. N. S. 55 ; The Westphalia, 24 Castle, 3 P. D. 11 ; 47 L. J. Adm. 69 ; 
 L. T. N. S. 75 ; The Magna Charta, 25 38 L. T. 816 ; 26 W. E. 346. As to 
 L. T. N. S. 512; The EranklandandThe "overtaking" ships and ships "being 
 Kestrel, L. E. 4 P. C. 529 ; 27 L. T. overtaken," see The Main, 11 P. D. 132. 
 N. S. 633. A sailing vessel when hove to See The Essequibo, 13 P. D. 51. 
 
 in a fog should ring a bell, and not use a 10 The Gazelle, 2 W. Rob. 515, at p. 
 
 horn: The Alfredo, 30 Fed. Rep. 842. 518; The Columbine, 2 W. Rob. 27; 
 
 * 2 W. Rob. 201. The Aleppo, 35 L. J. Adm. 9 ; 14 L. T. 
 
 " What is "moderate speed" in a fog N. S. 228. 
 considered : The Ebor, 11 P. D. 25. 
 
950 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 111. 
 
 Begulations. 
 
 Where the 
 rules are not 
 applicable. 
 
 Where 
 intention of 
 not conform- 
 ing to rules 
 is manifested 
 by another 
 ship. 
 
 Lord WeStbury,' be clear proof of three things — ^first, that the 
 thing omitted to be done was clearly within the power of the 
 steamer to do ; secondly, that if done it would in all probability 
 have prevented collision ; and thirdly, that it was an act which 
 would have occurred to any officer of competent skill and 
 experience in command of the steamer. With steam ships 
 approaching each other neither can be excused from re- 
 sponsibility, in case of omission, merely upon the ground that 
 it was the duty of the other to have adopted the corresponding 
 precautions at the same time, if it appears that the party setting 
 up that ■ excuse enjoyed equal facility to obey the requirements 
 of the regulation. For the law requires both to adopt every 
 necessary precaution, and will not tolerate an apportionment of 
 the duty of precaution.^ 
 
 But the law on these matters is settled in the regulations to 
 which allusion has already been made, and to the text of which 
 reference must be had.' 
 
 The rules are, however, not an unfailing test of the obligation 
 of the master, as the test is limited by the consideration that the 
 circumstances are " such that it ought to have been present to the 
 mind of the person in charge, that it [the rule] was applicable."* 
 So that in the event of a case occurring provided for by a rule 
 the applicability of which would not have suggested itself to a 
 competent navigator, the person failing to follow it would be 
 discharged notwithstanding conformity to the rule would have 
 obviated the accident. But admitting the application of the rule, 
 and supposing a departure from it in circumstances where its 
 relevancy should be present to the mind of the person respon^ble, 
 the sequence of cause and effect is not narrowly to be scrutinized, 
 since the governing consideration is " that if the absence of due 
 observance of the rule can by any possibility have contributed 
 to the accident, then that the party in default cannot be ex- 
 cused."* 
 
 The duty incumbent on the master of a ship where the intention 
 of not conforming to the rules is manifested by another ship with 
 which a collision subsequently ensues was considered by Dr. 
 
 1 The City of Antwerp, L. E. 2 P. C. 
 2S ; 37 L. J. Adm. 25 ; The City of 
 Peking v. Cbmpagnie des Messageries 
 Maritimes, 14 App. Cas. 40. 
 
 " The America, 92 U. S. (2 Otto) 432. 
 See Maolaren v. Compagnie Franfaise de 
 Navigation jl Vapeur, 9 App. Caa. 640 ; 
 The Manitoba, 122 TJ. S. (15 Davis) 97. 
 Compare The Stanmore, 10 P. D. 134 ; 
 54 L. J. P. 89 ; S3 L. T. 10. 
 
 ' These regulations are set out, with 
 the cases upon them, in Marsden, Law of 
 
 Collisions at Sea, and are also printed in 
 extenso in the Digest of Oases to the Law 
 Reports, 1881-1885. 
 
 * Per LordHerschell, The Theodore H. 
 Band, 12 App. Cas. 247, at p. 250 ; 56 
 L. J. P. 65 ; 56 L. T. 343 ; 35 W. B. 
 781, citing LordEsher, M.E., The Bervl, 
 9 P. D. 137, at p. 138 ; 52 L. J. P. 75 ; 
 SiL. T. 554; 33W.E. 191. 
 
 " Per Sir James Hannen, The ArWow, 
 9 App. Cas. 136, at p. 139 ; S3 L. J. P.O. 
 9 ; SO L. T. 305. 
 
BOOK iti.] OF COLLISIONS. 951 
 
 Lushington in The Commerce/ where the principle laid down was The Com. 
 
 that, when those on board one vessel approaching a collision find ™®™^" 
 
 that those on the other vessel are not going to perform their duty, 
 
 they ought not pertinaciously to adhere to the letter of the rule 
 
 when by varying from the rule some manoeuvre might be executed 
 
 which might probably avert an impending collision. This principle 
 
 was considered by the Privy Council in The Byfoged Ohristensen,'-' The Byfoged 
 
 where it was said that, though the principle stated may be in itself cimstensen. 
 
 a sound one, great caution was necessary in its application, since 
 
 " to leave to masters of vessels a discretion as to obeying or 
 
 departing from the sailing rules is dangerous to the public ; and 
 
 that to require them to exercise such discretion except in a very 
 
 clear case of necessity is hard upon the masters themselves, 
 
 inasmuch as the slightest departure from these rules is almost 
 
 invariably relied upon as constituting a case of at least contributory 
 
 negligence."^ 
 
 Where the master of a ship fails to use extraordinary skill or Conduct 
 nerve, the exertion of which might have avoided the collision, his criSs^f a° 
 failure will not be imputed to him as negligence if he is placed in collision, 
 the position calling for the exertion of such imusual faculties by the 
 conduct of those on the other vessel. " My opinion," says James, Judgment of 
 L.J., in The Bywell Castle,'' " is that, if in that moment of extreme j^ ThoByWeil 
 peril and difficulty, such other ship happens to do something Castle. 
 wrong so as to be contributory to the mischief, that would not 
 render her liable for the damage, inasmuch as perfect presence 
 of mind, accurate judgment, and promptitude under all circum- 
 stances are not to be expected. You have no right to expect 
 men to be something more than men." The same principle holds 
 good in perils brought about by inevitable natural agencies ; for 
 the obligation of the master is to use, not exceptional, but merely 
 competent still.' "The Court," says Butt, J., in The Emmy 
 Haase," " is not bound to hold that a man should exercise his 
 judgment instantaneously ; a short, but a very short, time must be 
 allowed for this purpose." 
 
 "Another rule of interpretation of these regulations," says Time of 
 Brett, M.E., in The Beryl,' " is (the object being to avoid risk of oFthe rale's. 
 
 ^ 3 W. Bob. 287. " The City of Antwerp, L. E. 2 P. C. 
 
 ^ 4 App. Cas. 669 ; 41 L. T. 535 ; 28 25 ; 37 L. J. Adm. 25. Story, Bailments, 
 
 W. E. 233. §117. TheMarpesia, L. E. 2P. C. 212, 
 
 " Compare New York and Liverpool at p. 220 ; 26 L. T. N. S. 333 ; The 
 
 Steamship Company v. Rumball, 21 BTow. Khedive, per Lord Blackburn, 5 App. Cas. 
 
 (U.S.) 372, at p. 383; The Khedive, 5 App. 876, at p. 894; 52 L. J. Adm. i; 43 
 
 Cas. 876 ; The Hibemia, 2 Mar. Law Cas. L. T. 610 ; 29 W. E. 173. 
 
 454; 31 L. T. N. S. 805; 24 W. R. 60; » 9 P. D. 81 ; 53 L. J. P. 43 ; 50 L. T. 
 
 The Benares, 9 P. D. 16 ; 32 W. E. 268. 372 ; 32 W. E. 880. 
 
 ^ 4 P. D. 219 ; 41 L. T. 747 ; 28 !■ 9 P. D. 137, at p. 140 ; 52 L. J. P. 
 
 W. E. 293. There is a valuable judgment 75 ; 51 L. T. 554 ; 33 W. E. 191. 
 by Clifford, J,, in The Seagull, 23 Wall. 165. 
 
952 THE LAW 6i* NEGLIGENCE. [book in. 
 
 collision) that they are all applicable at a time when the risk of 
 collision can be avoided, not that they are applicable when the 
 risk of collision is already fixed and determined. We have always 
 said that the right moment of time to be considered is that which 
 exists at the moment before the risk of collision is constituted." 
 Yet, again, since they are issued for the guidance of masters of 
 vessels, they are to be read literally,' but by reading them literally 
 is not to be understood the construction of a philologist, or that 
 of one versed in the shades and niceties of meaning words may 
 bear, " but according to a reasonable and business interpretation 
 of it [them] with regard to the trade or business with which it is 
 [they are] dealing."^ 
 Presumption By 36 & 37 Vict. c. 85, s. 1 6,' where one ship sails away 
 L the case after Collision without first ascertaining whether the other vessel 
 away^™^ has need of assistance, the ship so sailing away shall be presumed 
 guilty of negligence, and damage may be recovered without 
 further proof.^ But the law will not compel a ship to remain 
 alongside another which has been injured, and thus to run a 
 risk of capture by an enemy's fleet.* 
 
 The 25 & 26 Vict. c. 63, s. 54, provided that "the owners" of 
 any ship,' whether British or foreign, shall not, in cases where 
 all or any of the following events occur without their actual 
 fault or privity — ^that is to say : 
 
 1 . Where any loss of life or personal injury is caused to any 
 
 person being carried in such a ship ; 
 
 2. Where any damage or loss is caused to any goods, mer- 
 
 chandise, or other thiags whatsoever on board any such 
 ship. 
 
 3. Where any loss of life or personal injury is, by reason of 
 
 the improper navigation of such ship as aforesaid, 
 caused to any other ship or boat, or to any goods, mer- 
 
 1 The Libra, 6 P. D. 139, at p. 142, 6Q. B. 280 ; 40 L. J. Q. B. 105 ; 24L.T. 
 
 per Brett, M.E. ; 45 L. T. 161 ; The Mar- N. S. 96 ; The Adriatic, 3 Mar. Law Cas. 
 
 garet, 9 P. D. 47 ; 53 L. J. P. 17 ; 50 N. S. 16 ; 33 L. T. N. S. 102. 
 L. T.,447 ; 32 W. fi. 564. * As to the law previous to statutory 
 
 > 2 ^g to ^gat jg a "risk of collision," enactment, The Celt, 3 Hagg. Adm. 321. 
 
 see per Dr. Lushington, The Mangerton, " The Thuringia, 41 L. J. Adm. 44 ; 26 
 
 Swab. Adm. 120 ; 17 & 18 Vict.o. 104, s. L. T. N. S. 446. 
 
 296 ; The Ericsson, Swab. Adm. 38 ; The « The Spirit of the Ocean, Brown & L. 
 
 Dumfries, Swab. Adm. 63 ; The Cleopatra, 336 ; Hughes v. Sutheriand, 7 Q. B. D. 
 
 Swab. Adm. 135 ; The Sylph, 2 E. & A. 160 ; 50 L. J. Q. B. 567 ; 45 L. T. 287 ; 
 
 75 ; The Colonia, 3 Notes of Cases, 13, to. ; 29 W. R. 867 ; The Volant,- i W. Eob. 
 
 The Libra, 6 P. D. 139 ; The Wenona, 19 383. As to liability of master who is also 
 
 Wall. 41, at p. 52 ; The Nicholls, 7 Wall. owner, The Obey, L. E. i A. & E. 102 ; 
 
 656 ; The Free State, 91 U. S. (i Otto) The Cricket, 5 Mar. Law Cas. N. S. 53. 
 200, where the authorities, American and ' Me parte Ferguson and Hutchinson, 
 
 English, are collected. L. E. 6 Q. B. 280 ; 40 L. J. Q. B. 105 ; 
 
 3 The Queen, L. E. 2 A. & E. 354 ; 24 L. T. N. S. 96 ; The Mac, 7 P. D. 38, 
 
 38 L. J. Adm. 39 ; 20 L. T. N. S. 855 ; (C. A.) 126 ; 51 L. J. Adm. 81 ; 46 L. T. 
 
 Exparte Ferguson and Hutchinson, L. B. 907. 
 
BOOK III.] OF COLLISIONS. 953 
 
 chandise, or other things whatsoever on board any 
 
 other ship or boat — 
 be answerable • in damages in respect of loss o£ life or personal 
 injury, either alone or together, with loss or damage to ships, 
 boats, goods, merchandise, or other things, to an aggregate 
 amount exceeding fifteen pounds for each ton of their ships' 
 tonnage ; nor in respect of loss or damage to ships, goods, mer- 
 chandise, or other things, whether there be in addition loss of life 
 or personal injury or not, to an aggregate amount exceeding 
 eight pounds for each ton of the ship's tonnage, such tonnage to 
 be registered tonnage" in the case of sailing ships, and in the 
 case of steam ships the gross tonnage without deduction on account 
 of engine room."' There are provisions for the measurement 
 of foreign ships.* This liability is independent on the considera- 
 tion that the ship is sunk," though in Amei'ica, under the local 
 statutes, the law seems otherwise.'' But cargo laden on board at 
 the time of a collision is in no case liable,' though the freight on 
 it may be ordered to be paid into court.* 
 
 The Board of Trade has power to institute proceedings for the Amount of 
 recovery of damages in the case of loss of life or personal injury ooverabk in 
 under the provisions of 17 & 18 Vict. c. 104. It has been held "/^'^^nai'* 
 by the Court of Appeal that the effect of the construction of the injury. 
 complicated series of Acts of Parliament affecting this matter 
 is, that the liability of the owners of the ship which has occa- 
 sioned loss of life to the crew of another vessel, is limited to 
 
 1 London and South-Western Eailway 471 ; 32 L. J. Adm. 191 ; 8 L. T.N. S. 
 Company v. James, L. E. 8 Ch. 241 ; 42 805 ; 12 W. B. 24. The Court may 
 L. J. Ch. 337 ; 28 L. T. N. S. 48 ; 21 marshal assets : The Victoria, 13 P. D. 
 W. B. 151 ; The Normandy, L. E. 3 A. 125 ; 57 L. J. P. 103 ; 59 L. T. 728 ; 37 
 & E. 152 ; 39 L. J. Adm. 48 ; 23 L. T. W. B. 62. The point involved in Mills v. 
 N. S. 631 ; 18 W. E. 903. Armstrong, TheBemina, 10 App. Cas. i, 
 
 2 The Andalusian, 3 P. D. 182; The is of general legal concern, and not parti- 
 John M'Intyre, 6 P. D. 200 ; 50 L. J. culai-ly applicable to the law of collision on 
 Adra. 76 ; 30 W. E. 276. water. 
 
 i* The Kranconia, 3 P. D. 164; 39L. T. * Ako see section 60, and 17 & 18 
 
 57 ; 27 W. E. 128 ; The Palermo, 10 P. D. Vict. 0. 104, o. 506, limiting liability in 
 
 21 ; 54 L. J. P. 46 ; 52 L. T. 390 ; 33 the event of more than one collision: The 
 
 W.'e. 643. As to the constiTiction to be Eajah, L. E. 3 A. & E. 539 ; 41 L. J. Adm. 
 
 put on this, see per Abbott, C. J., Gale v. 97 ; 27 L. T. N. S. 102 ; 21 W. E. 14 ; 
 
 Laurie, 5 B. & C. 156, at p. 163 ; Chap- tJnion Steamship Company v. The Ara- 
 
 man v. Eoyal Netherlands Steam Naviga- can, The American and The Syria, L. B. 
 
 tion Company, 4 P. D. 157 ; 48 L. J. Adm. 6 P. C. 127 ; 43 L. J. Adm. 30 ; 31 L. T. 
 
 449 ; 40 L. T. 433 ; overruled in The N. S. 42 ; 22 W. E. 927. 
 
 Khedive, 7 App. Caa. 795; 52 L. J. ^ The Normandy, L. E. 3 A. & E. 152 ; 
 
 Adm. I ; 47 L. T. , 198 ; 31 W. E. 249, 39 L. J. Adm. 48 ; 23 L. T. N. S. 631 ; 
 
 and in America in The Northern Star, 106 18 W. I!. 903; Brown «. Wilkinson, 15 
 
 U. S. (16 Otto) 17; The Manitoba, 122 M. & W. 391. 
 
 U. S. (is Davis) 97;TheEttrick, 6P. I). _^ 2 Parsons, Shipping, p. 120; Nor- 
 
 127 ; 45 L. T. 399. As to what ships it wich Steamboat Company v. Wright, 13 
 
 applies to, The Warkworth, 9 P. D. 20; Wall. 104. 
 
 (C A.) 145; S3 L. J. P. 6S ; Si L. T. ' The Victor, Lush. 72. 
 
 5S8 ; 33 W. E. 1 12, and in what situa- ' The Leo, Lush. 444. 
 tions, The Amalia, i Moo, P. C. C. N. S. 
 
954 THE LAW OF NEGLIGENCE. [book iii. 
 
 ;^ 1 5 on the registered tonnage." A further question was then 
 raised, whether the damages which could be claimed under 
 Lord Campbell's Act (9 & lo Vict. c. 93) by the widow or 
 children of the seamen killed was limited to £20, by virtue of 
 the operation of 17 & 18 Vict. c. 104, ss. 510-514, and 25 & 
 26 Vict. c. 63, ss. 54-56, for each man killed, whatever might 
 be the actual damage sustained by the family. This was de- 
 cided in the negative. The effect of the legislation on the 
 matter is thus worked out by the Master of the EoUs : " Suppose 
 the tonnage of the wrongdoing vessel to be 1 00 tons, then the 
 extent of the liability of the owners is ;^i 500, and suppose 100 
 persons to be drowned by the fault of this vessel, the family of 
 each would get ;^ 1 5 , that amount being clearly less than the 
 damage actually sustained ; but suppose two persons only were 
 drowned, it would not therefore follow that the whole ;£^I500 
 was to be divided amongst the families of each person so de- 
 stroyed. It might be the opinion of a jury or a judge that the 
 damage sustained by the loss of one of those persons did not 
 exceed ;^200, whilst the damage sustained by the loss of the 
 other amounted to ;£^SOO ; in that case these sums would be the 
 amount of the damages which the owner would have to make 
 good. In other words, the damages were to be ascertained in 
 the same way as if the liability of the owner was unlimited, and 
 when this had been done, the sum for which the owner was 
 liable was to be applied in payment of the damages so ascer- 
 tained if less than the amount of his liability ; or it is to be dis- 
 tributed rateably amongst the claimants if the damages so ascer- 
 tained exceeded the amount of his liability."^ 
 
 After ool- The duties of the master after a collision are regulated by 
 
 lision. 36 & 37 Vict. c. 85, ss. 16 and 17.' 
 
 ^ Gladholmw.Barker(No.i),L.E.iCl). on the excess, if any, of the value of ;f 15 
 
 223 ; 35 L. J. Ch. 259 ; 1 3 L. T. N. S. 653 ; per ton over the actual value of the ship : 
 
 14 W. B. 296. When damage is done by Nixon v. Roberts, i John. & H. 739 ; 30 
 
 a ship both to persons and goods, the ship L. J. Ch. 844 ; 4 L. T. N. S. 679 ; 9 
 
 is to be estimated at not less than ;^I5 W. E. 890. 
 
 per ton, for the purpose of adjusting the " Gladholm v. Barker (No. 2), L. E. 
 
 compensation to be paid to claimants in 2 Eq. 598 ; 35 L. J. Ch. 657 ; 14 L. T. 
 
 respect of loss of life or personal injury ; 880; i/^'W.U. 1006. 
 
 but where the only claimants are the '^ See The Adriatic, 33 L. T. N. S. 102. 
 
 owners of property, the ship is not to be As to measure of damages, The Parana, 2 
 
 estimated at more than her actual value, P. D. 118; 36 L. T. 388 ; 25 W. E. 596 ; 
 
 although loss oflife or personal injaiy may The Netting Hill, 9 P. D. 105 ; 53L. J. P. 
 
 in fact have occurred; yet where claim- 56; 51 L. T. 166; 32 W. R. 764; The 
 
 iints of both kinds appear, the owners of Argentino, 13 P. D. 191 ; 58 L. J. P. i ; 
 
 property are entitled to have compensa- 37 w. E. 210. See also The Vindobala, 
 
 tion marshalled so as to throw that for 13 P. D. 42 ; 57 L. J. P. 37 ; 58 L. T. 
 
 loss of life and personal injury primarily 353. 
 
BOOK HI.] OF COLLISIONS. 955 
 
 II. On Land. 
 
 We have already noted the dictum of Blackburn, J., in Fletcher Dictum of 
 V. Eylands,^ that • ' Traffic on the highways, whether by land or ;„ Fletcher "' 
 sea, cannot be conducted without exposing those whose persons "• Kyiauds. 
 or property are near it to some inevitable risk ; and that being 
 so, those who go on the highwaj'', or have their property adjacent 
 to it, may well be held to do so subject to their taking upon 
 themselves the risk of injury from that inevitable danger." In 
 these cases, then, they cannot recover without proof of want of 
 care or skill occasioning the accident,^ since for a pure accident 
 there is no liability.' But there are certain rules necessary for 
 the fullest enjoyment of the highways which we are now to con- 
 sider, and the lack of observance of which in riding or driving 
 constitutes evidence of that negligence which the law requires in 
 these cases in order to affix liability for an accident occurring on 
 a highway. 
 
 The custom or law of the road is that horses and carriages Law of the 
 should respectively keep on the near or left side, and foot 
 passengers take the right hand — and this is judicially recognized 
 without proof." 
 
 The person riding or driving is not hound to keep his side ; Person 
 but if he does not, he must keep a better look out to avoid driving°oot 
 colHsion than would be necessary if he were on the proper part ^ound to keep 
 of the road.* And the mere fact of a man driving on the wrong his side, 
 side of the road is, per se, no evidence of negligent driving in an 
 action brought for running over a person who was crossing the 
 road on foot.^ Of course, the fact that a person is driving on the 
 wrong side of the road would not justify another in wantonly 
 injuring him ; and if the road is of sufficient breadth, it is 
 incumbent on any person coming the other way " to take that 
 course which would carry him clear of the person who was on 
 
 ^ See ante, p. 933 ; L. E. i Ex. 265, It has also been put into Latin as fol- 
 
 at p. 286. lows : — 
 
 2 JIanzoni v. Do-Jglas, 6 Q. B. D. 145 ; iSed precor Jwc poathac reminiseere 
 
 50 L. J. Q. B. 289 ; 29 W. K. 425 ; carpe sinistrara, 
 
 Holmes v. Mather, L. E. 10 Ex. 261 ; 44 Dextram occurrenti linquere norma 
 
 L. J. Ex. 176 ; 32 L. T. N. S. 361 ; 23 jubet. 
 
 W. E. 864. On the Continent and in America the rule 
 
 " Wakeman v. Eobinson, i Bing. 213 ; is the other way, travelleis, vehicles, and 
 
 8 Moo. 63 ; Gibbons v. Pepper, i Ld. animals under the charge of man all 
 
 Eaym. 38. taking the right when meeting, if it ia 
 
 * The rule is best known in the follow- reasonably practicable to do so : 2 Steph. 
 
 ing doggerel rhyme :— N. P. 984 ; i Taylor, Evidence, p. 7. 
 
 " The rule of the road is a paradox quite ; ^ Pluckwell v. Wilson, 5 C. & P. 375. 
 
 Mark, as you go along, ^ Lloyd v. Ogleby, S C. B. N. S. 667 ; 
 
 If you keep to the left you are right, Aston v. Heaven, 2 Esp. 533. 
 
 If you go to the right you are wrong." 
 
956 THE LAW OF NEGLIGENCE. [book in. 
 
 Ms wrong side," and in the event of an injury happening from 
 his acting otherwise he would be liable to the person so riding or 
 driving on the wrong side.' 
 Circumstances Again, circumstances may warrant a deviation from the law 
 TdevTation" of the road. This is laid down in Wayde v. Oarr," where it 
 from the rule. [^ said: "In the crowded streets of a metropolis .... situa- 
 Can-. tions and circumstances might frequently arise where a devia- 
 
 tion from what is called the law of the road would not only 
 be justiEable, but absolutely necessary." But in general the rule 
 holds, and applies not merely to horses drawing carriages, but 
 to saddle horses,' and, indeed, to any other animal in similar 
 circumstances." Though there is one case not unambiguously 
 reported which seems to bear another construction,* the fact that 
 a person driving was on the wrong side of the road would 
 indicate carelessness, and hence would primd facie point to 
 neigligence.^ Any other view would seem destructive of the 
 rule ; for if conformity did not raise a presumption of right con- 
 duct, observance or disobedience of it would become absolutely 
 indifferent in the case of an action. Negligence having to be 
 shewn apart from the rule, the effect on the rule would be to 
 neutralize it. And if conformity to the rule is presumptively 
 going right, non-conformity would seem presumptively to be not 
 going right.' But this jprimd facie presumption is rebuttable, 
 so that in the case of a man, driving on his wrong side, colliding 
 against another traveller, the primd facie presumption would be 
 rebutted by proof that, there being ample room for both, the 
 other traveller insisted on occupying that portion of the way 
 along which the person on his wrong side was driving.' Being 
 on his wrong side, a traveller must leave more than barely 
 enough room for other travellers ;° as was said by Eook, J.,'° 
 " It was evidence for the jury if the accident arose from want of 
 that sufficient room ; the driver was not to make experiments ;" 
 and he has no right by his conduct to impose on other people 
 using the road any greater exertion of care and sMlI than they 
 would have had to exert had he seen fit to conform to the general 
 rule of travelling." In the case of a fog or at night the rule must 
 
 ^ Clay V. "Wood, 5 Esp. 44 ; Turley v. Mayhew v. Boyce, l Stark. 423. 
 Thomas, 8 C. & P. 103. 8 Per Patteson, J., Eeed v. Tate, cited 
 
 ^ 2 D. & K. 255 ; see, too, per Cole- Oliphant, Law of Horses, p. 328; Clay «. 
 
 ridge, J-, Turley v. Thomas, 8 C. & P. Wood, S Esp. 44 ; Cruden v. Fentham, 2 
 
 103. Esp. 685. 
 
 •Turley v. Thomas, 8 C. & P. 103. » Chapliu «. Hawes, 3 C. & P. 554. 
 
 '' Shearman and Eedfield, Law of Negli- '"' Wordsworth v. Willan, 5 Esp. 273. 
 
 gence, 4th edit. § 644, n. u Plnckwell v. Wilson, 5 C. & P. 375 ; 
 
 'Wayde ». CaiT, 2 D. & E. 255. Brooks v. Hart, 14 N. H. 307, where the 
 
 'Burdiok v. Worrall, 4 Barb. 596. law is laid down clearly and at length. 
 
 ' Chaplin v. Hawes, 3 C. & P. 554 ; 
 
BOOK III.] OF COLLISIONS. 957 
 
 be strictly observed, even though no other people may appear to 
 be on the road.' 
 
 The rider or driver of a horse is required to have a com- Duty ot riiier 
 potent knowledge of horses and adequate skill in their manage- a'hors™'^ °^ 
 ment — that is, that knowledge and that degree of care which 
 prudent men exercise, or should exercise, in similar matters. 
 If the defendant's act fall below the standard, he is liable, 
 but not unless." In Flower v. Adam,^ A. placed lime rubbish Flower v. 
 in a highway ; dust blowing from it frightened the horse of ■*-'^*™' 
 B., which, startHng, would have run against a waggon but 
 that B. hastily pulled him round, and he then ran over a lime 
 heap lying at C.'s door. In an action by B.- against 0. he 
 was held not entitled to recover. The ground of this decision 
 must have been that B.'s conduct was such as a competent driver 
 would not have been guilty of even in the emergency, and thus 
 amounted to contributory negligence. Had the action been 
 against B., the scope of the inquiry would have been different, 
 and would have been whether the act of the defendant was one 
 reasonably productive of confusion of mind, and whether the act 
 of the plaintiff was a consequence flowing from such confusion 
 produced by the defendant's wrongful act." As against 0., it 
 could only be whether in the circumstances the conduct of B. 
 was that of an ordinarily competent driver. But a competent rider 
 or driver is not bound to know the peculiarity of any horse he may 
 happen to have the charge of, though he would be held bound to 
 know the general habits and disposition of horses ; and it is not, 
 therefore, negligence to drive a horse that becomes unmanageable, 
 and inflicts injury on a passer-by, if the driver had no notice of 
 its peculiarity of character which resulted in the accident, and was 
 not negligently ignorant of it.'^ If, however, a person, riding a 
 vicious horse, spurs it when close to a bystander, and the horse 
 kicks out and injures him, the rider is guilty of negligence." 
 The pace at which a horse is driven should be moderate ;' and Pace. 
 
 1 Craden v. Fentham, 2 Esp. 685. 588 ; 31 L. J. C. P. 129 ; J L. T. N. S. 
 
 ^ Bigelow, Lead. Gas. on the Law of 676 ; 10 W. R. 230 ; compare Michael r. 
 
 Torts, p. 595. It has been held not Alestree, 2 Lev. 172. 
 
 negligence per se for a one-armed man to * North v. Smith, lo C. B. N. S. 572 ; 
 
 drive a horse : Reynolds v. Hanrahan, 100 4 L. T. N. S. 407. 
 
 Mass. 313. ' Butterficld v. Forrester, 11 East 60 ; 
 
 ' 2Taunt.3i4. The fact that the driver Payne «. Smith, 2 Dana (Kentucky) 497. 
 of a carriage was intoxicated when he ran The Chief Justice says : " He who is so 
 against the plaintifiF is some evidence that unmindful of the peace and security of 
 he was negligent: Wynn v, AUard, 5 others as to vide or drive in a gallop or 
 Watts & S. 524 ; the evidence so given rapid trot or pace through a crowded city 
 is, however, not to be used to inflame or town, is held by the common law re- 
 damages, sponsible for all damage that any other 
 
 * Lnrrabee i\ Sew.ill, 66 M?. 376 ; person, without fault, shall sustain in con- 
 Jones V. Boyce, i Stark. 493. sequence of cuch voluntary and perilous 
 
 ' Hammack v. White, 11 C. B. N. S. imprudence." 
 
958 
 
 THE LAW OF NEGLIGENCE. 
 
 Tbook ni. 
 
 Too rapid 
 driving. 
 
 Duty of drivers 
 to fool pas- 
 sengers. 
 
 Duty of foot ■ 
 passenger. 
 
 Defect in the 
 vehicle. 
 
 Mere happen- 
 ing of an 
 accident on 
 a highway 
 not evidence 
 of negligence. 
 
 Teinpleman v. 
 Haydon. 
 
 reckless driving which, frightens a horse so that he runs away, 
 to the injury of the plaintiflTs property, has been held in New 
 York to constitute a cause of action, even though no actual 
 collision has resulted.* 
 
 What is too rapid driving is, however, a question dependent 
 upon circumstances, and a rate of speed that would be well 
 allowably in driving along a country lane would be excessive and 
 dangerous in the city of London.^ 
 
 "It is the duty of persons," said Pollock, C.B.,' "who are 
 driving over a crossing for foot passengers which is at the 
 entrance of a street, to drive slowly, cautiously, and carefully ; 
 but it is also the duty of a foot passenger to use due care and 
 caution in going upon a crossing at the entrance of a street, so 
 as not to get among the carriages, and thus receive injury." 
 In all circumstances the driver must keep his horse well in hand, 
 and look to see that the way is clear,' and be specially careful 
 in turning corners.^ 
 
 In addition to accidents arising from the conduct of the 
 driver or the circumstances of the horse, they may arise from 
 defect in the vehicle. When this is the case, some circumstance 
 of negligence must still be shewn. 
 
 The mere occurrence of an accident on a highway is not 
 enough. Thus, where it was shewn that an axle-tree had broken, 
 Willes, J., held that negligence was not thereby to be attributed 
 to the owner." The ruling in Sharp v. Gray' may at first sight 
 seem inconsistent with this, but that case was in assumpsit by a 
 passenger, while the case before Willes, J., was in tort by a 
 stranger. If, however, any circumstance can be shewn which 
 afiects the owner with negligence in not providing good tackle, 
 to which he is bound, he will be held liable.' 
 
 The case of Templeman v. Haydon" should be noticed. There 
 the Court of Common Pleas dismissed an appeal from a county 
 court, where, the plaintiff having proved the fact of a collision, 
 the defendant proved that the accident arose from the horse 
 suddenly beginning to kick, whereby the shafts of the cart 
 
 1 Burnham v. Butler, 31 N. Y. 480. 
 
 2 Reed v. Deerfield, 90 Mass. 522 ; 
 Martin «. North Metropolitan Tram Com- 
 pany, 3 Times L. B. 600. 
 
 s WiUiama v. Eiohards, 3 C. & K. 81. 
 
 - Phelps V. Wait, 30 N. Y. 78. The 
 principal point decided in the case was 
 that a joint action will lie against princi- 
 pal and agent for a personal injury caused 
 by the negligence of the latter (in the ab- 
 sence of the former) in the course of his 
 employment. 
 
 5 Springett V. Ball, 4 F. & F. 472. 
 
 «_ Doyle V. Wragg, i F. & F. 7. No 
 action will lie against the mere driv^ not 
 the owner apart from actual negligence. 
 
 ' 9 Bing. 457. Hyman v. Nye, 6 
 Q. B. D. 68s ! 44 L. T. 919, was also a 
 case of the existence of a contractual 
 obligation. 
 
 ' Welch V. Lawrence, 2 Chit. 262. No 
 action will lie against the driver for in- 
 juries caused by defect in the vehicle where 
 he has not been guilty of negligence: Doyle 
 V. Wragg, I F. & F. 7. 
 
 9 12 C. B. 507. 
 
BOOK III.] OF COLLISIONS, 959 
 
 were broken, the driver thrown out, and the horse, starting off, 
 ran against and injured the plaintifif's horse. This decision is 
 probably to be attributed more to the way in which the facts 
 were presented to the Court than to an absolute decision that 
 the breaking o£ shafts by a kicking horse is any evidence of 
 the defective condition of a cart. Oresswell, J., expressly limits 
 his opinion to the point that, on the whole of the evidence before 
 him, the plaintifE ought not to have been nonsuited. 
 
 In Moffatt V. Bateman^ the kingbolt by which the front wheels Moffattu. 
 of a carriage were attached to the hind part broke through ^**'^"'^"- 
 jolting over an uneven road, and the Privy Council was of 
 opinion that this was not evidence of negligence in the circum- 
 stances. That being so, the breaking of the shafts of a cart in 
 an unexplained way would not seem any more to be ground for 
 attributing neghgence ; while the circumstances that it was 
 brought about by a kicking horse would not appear to import 
 any additional element of negligence than had before existed.^ 
 
 It has been held not negligence to remove goods from a cart lUidge ». 
 without putting a person at the head of the horse to prevent his 
 moving;^ but in the often-cited case of Illidge v. Goodwin" the 
 owner of a horse and cart left standing in a street without any 
 one to watch them was held liable for damage done by them, 
 though the proximate cause was the act of a passer-by in striking 
 the horse. This case has, however, not escaped comment. 
 
 The general rule of law is that where, between the act or General rule 
 neglect of one person and the injury inflicted, the independent ^'°^ ''^ ' ' ^' 
 act of another person has intervened which directs the first 
 negligence to the object it ultimately affects, the person whose 
 default has caused the first negligence is not liable. This is 
 illustrated in the Roman law' by the passage, Celsus scrihit, si 
 alius mortif era vul'/ierc percusserit, alius postea exanimaverit, prior em 
 quidem non teneri quasi occiderit sed quasi vulneravit, quia ex alio 
 vulncre periit ; postcriorem teneri quia occidit, quod ex Marcello 
 videtur et est prohdbilius ; and in English law, by Erie, C.J., in 
 The Queen v. Ledger": "A mistake, indeed, was said to have The Queen tj. 
 arisen from the negligence of the defendant. Still, if the ° ' 
 particular neghgence imputed to the prisoner appeared not to 
 have been the proximate and efficient cause of the catastrophe, 
 the bill for manslaughter ought not to be found, and if it appeared 
 that other causes had intervened, the prisoner's negligence would 
 
 ' L. E. 3 P. C. 115 ; 22 L. T. N. S. the plaintiff was kicked by a horse while 
 
 140. attending a sale of horses. 
 
 ^ Cox V. Burhidge, 13 C. B. N. S. 430; ^ Haymanu. Hewitt, Peake's Add. Cas. 
 
 32 L. .T. C. P. 89 ; II W. R. 435- See 170. ^ 5 C. & P. 190. 
 
 also Abbott v. Freeman, 35 L. T. N. 8. ^ D. 9, 2, 11, § 3. 
 
 783, reversing 34 L. T. N. S. 544, where « 2 F. & F. 857. 
 
960 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Injuriona act 
 to be the 
 necessary or 
 ordinary or 
 likely result 
 of the negli- 
 gence. 
 
 American 
 
 Tramcars. 
 
 not have been the proximate and efficient cause of the deaths 
 that had occurred. That this was in entire accordance with the 
 authorities will appear from the most recent cases. The case is 
 to be clearly distinguished from that of joint negligence.'" 
 
 Another rule of law is that stated by Parke, B., in Bank of 
 Ireland v. Evans's Trustees,^ that the injurious act should be " the 
 necessary or ordinary or likely result of that negligence." In 
 Illidge V. Goodwin it is to be observed that not merely is there 
 the act of an independent person intervening, but the interven- 
 tion is a wilful intervention, an independent trespass by an adult, 
 which would scarcely be brought within Parke, B.,'s postulates. 
 If it were conceded that the act of learning a horse and cart un- 
 attended were the negligent act, the dissociation between the first 
 negligence and the act producing the injurious result would 
 appear distinct, and the difficulty of reconciling the case with 
 principle insuperable. The negligent act, however, is rather to 
 be considered the absence of the master at the time of the wilful 
 blow, whereby the negligence may be regarded rather as con- 
 current than independent. Even in this view there is a difficulty 
 in holding a negligent person responsible for the wilful act of a 
 third person, since the law would not presume a breach of law 
 and trespass to be the necessary, ordinary, or likely result of 
 negligence." In any event the sweeping nature of Tindal, O.J.,'s 
 remark, " If a man chooses to leave a cart standing in the street 
 he must take the risk of any mischief that may be done," must 
 be considerably qualified and restrained.' 
 
 In the United States it has been laid down that a traveller on 
 foot or on horseback must give way, and, if necessary, cross the 
 road, for a vehicle with a heavy load,^ and that a lightly loaded 
 vehicle must give way to one heavily loaded.' 
 
 The rule of the road has to be modified in its application to 
 tramcars, which cannot get out of the, way, as they move only 
 along the rails laid down for them. In America it has been laid 
 down that carriages meeting them should turn to that side which 
 appears to be the safest, without regard to the usual rule ; and 
 the fact that either was on the left of the road at the time of a 
 collision is no evidence of negligence." Again, when a collision 
 occurs between an ordinary vehicle and a street-car travelling in 
 
 ^ Coinpare Scott r. Shepherd, 2 W. Bl. 
 892 ; I am. Lead. Cas. 9th edit. 480. 
 , ^sH.L. C.389. 
 
 2 Heney v. Dennis, 47 Am. R. 378, 
 \rhere defendant, having left a tuh of fish 
 brine by the side of the way, -wliioh was 
 wilfully turned over by a third person into 
 the gutter, the plaintiff's cow drunk of the 
 spilled brine, and died in consequence, the 
 
 defendant was held liable to the plaintiff 
 for the loss ; but see the cases cited in the 
 note, at p. 382, where an opinion adverse 
 to the case is given. 
 
 * Beach v. Parmeter, 23 Penn. St. 
 196. 
 
 ° Grier v. Sampson, 27 Penn. St. 183. 
 
 " Hegan v. Eighth Avenue Railroad 
 Company, 15 N. Y. 380. 
 
BOOK III.] 
 
 OF COLLISIONS. 
 
 961 
 
 the same direcfcion, the presumption is that the driver of the 
 vehicle is negligent.' 
 
 Lastly, as to foot passengers, the law was laid down in the case Foot paa- 
 of Cotteril v. Starkey^ by Patteson, J., as follows :— " A foot pas- '™^"''- 
 senger has a right to cross a highway, and it was held in one 
 case' that a foot passenger has a right to walk along the carriage 
 way. But, without going that length, it is quite clear that a foot 
 passenger has a right to cross, and that persons driving carriages 
 along the road are liable if they do not take care so as to avoid 
 driving against the foot passengers who are crossing the road ; 
 and if a person driving along the road cannot pull up because his 
 reins break, that will be no ground of defence, as he is bound to 
 have proper tackle. With respect to what has been said about 
 the carriage being on the wrong side of the road, I think you 
 should lay it out of your consideration, as the rule as to the 
 proper side of the road does not apply with respect to foot pas- 
 sengers, and as regards the foot passengers the carriages may go 
 on whichever side of the road they please." ■* 
 
 The law does not require either of two travellers going in the 
 same direction to turn to the right of the other.' But it is the 
 duty of a foot passenger to use due care and caution in going 
 upon a crossing at the entrance of a street to avoid the carriages 
 passing.* 
 
 ' Siiydam v. Grand Street Railroad 
 Company, 41 Barb. 375. As to running 
 traracars along the highway upon a tram- 
 way in a defective condition, see Sadler 
 V. South Staffordshire and Birmingham 
 District Steam Tramways Company, 23 
 Q. B. D. 17, in which case to do so was 
 held an unlawful act, that rendered the 
 company liable for a trespass in respect of 
 a personal injury caused thereby. 
 
 - 8 C. & P. 691, at p. 693 ; Lloyd v. 
 Ogleby, 5 C. B. N. S. 667. 
 
 3 Boss V. Litton, 5 C. & P. 407 ; 
 Coombs V. Purrington, 42 Me. 332. 
 
 * Slater v. Swann, 2 Str. 872, is too 
 broadly expressed. The right of the 
 tradesman could only arise if the impedi- 
 ment was for an unnecessarily long time : 
 see per Jessel, M.E., Original Hartlepool 
 Collieries Company v. Gibb, 5 Ch. D. 713 ; 
 46 L. J. Ch. 311 ; 36 L. T. 433. Com- 
 pare Bell V. Quebec ('Corporation), 5 App. 
 Cas. 84; 49 L. J. P.'C. I. 
 
 ^ Bolton V. Colder, i Watts 360. 
 
 ^ Williams v. Richard p, 3 Car. & K. 
 81, approved by Erie, C.J., Cotton v. 
 Wood, 8 C. B. N. S. 568 ; 29 1-. J. C. P. 
 333- 
 
 sp 
 
CHAPTER HI. 
 
 FENCES AND PARTY-WALLS. 
 
 Definition. 
 
 Presumptive 
 ownership. 
 
 No obligation 
 to fence at 
 common law. 
 
 L Fences.* 
 
 "A FENCE," says Woolrych, "may consist of almost any kind of 
 division or inclosure, but a hedge, ditch, or a wall will be most 
 commonly found to answer that term."^ 
 
 In agricultural districts the most usual way of fencing is by 
 hedge and ditich. 
 
 The rule with regard to the presumptive ownership of hedges 
 and ditches is that, where adjacent fields are separated by a 
 hedge and ditch, the hedge and ditch primd facie belong to the 
 owner of the field that contains the hedge; for no man making a 
 ditch can cut into his neighbour's soil, but usually he cuts to 
 the extremity of his own land; and is of course bound to throw 
 the soil which he digs out upon his own land.' 
 
 But if there are two ditches, one on each side of a hedge, or if 
 there be a bank on each side of a ditch, or a bank without a ditch, 
 then the ownership of the hedge, ditch, or bank must be ascer- 
 tained by proving acts of ownership.* 
 
 By the common law the owner of land is under no obligation 
 to fence,' but he is bound to see that his cattle do not stray into 
 his neighbour's land, since then he is guilty of trespass. 
 
 In Boyle v. Tamlyn,' Bayley, J., lays down the law : " The 
 general rule of law is that a man is only bound to take care that 
 his cattle do not wander from his own land, and trespass upon 
 
 ^ See an article, The Law Eelating to 
 Fences, i Law Mag. 590. 
 
 ^ Law of Fences, p. 281. This does not 
 seem to lay stress enough on palings, 
 which have now become a primary sense 
 of the word, though it certainly includes 
 them. 
 
 ' Per Lawrence, J., Vowleg v. Miller, 
 3 Taunt. 138 ; per Holroyd, J., Doe d. 
 JPring V. Pearsey, 7 B. & C. 307 ; Strang 
 V. Steuart, 4 M. (Uas. in H. of L.) 5. 
 
 ■• Per Bayley, J., in Guy v. West, 2 
 
 Selwyn N. F. 13th edit. 1244. As to the 
 French law, see articles 666 to 668 of the 
 Code NapolSon. 
 
 ° This rule dates from the Year-books 
 — e.gi, 20 Edward IV., fol. 10 b, cited and 
 set out 17 C. B. N. S. 251, and con- 
 sidered in connection with the other 
 authorities in the judgment of Blackburn, 
 J., in Fletcher v. Eylands, L. E. I Ex. 
 265, at p. 280. 
 
 « (1827) 6 B. & G. 329, at p. 337 ; z 
 RoUe Abridg. 565, pi. 7. 
 
BOOK III.] FENCES AND PAETY-WALLS. 963 
 
 the lands of others. He is under no legal obligation, therefore, 
 to keep up fences between adjoining closes of which he is the 
 owner ; and even where adjoining lands which have once belonged 
 to different persons, one of whom was bound to repair the fence 
 between the two, afterwards become the property of the same 
 person, the pre-existing obligation to repair the fences is destroyed 
 by the unity of ownership. And where the person who has so 
 become the owner of the entirety afterwards parts with one of the 
 two closes, the obligation to repair the fences will not revive, 
 unless express words be introduced into the deed of conveyance 
 for that purpose.'" Though the law is thus, the effect of it in 
 practice is indistinguishable from what it would be were there 
 an absolute obligation to fence. Bigelow," indeed, lays it down 
 that "by the common law of England the owner of land is 
 bound to keep it fenced," and cites Chancellor Kent as his 
 authority for the proposition.^ But the law, in theory at least, 
 is clearly otherwise, and there is no obligation to fence, though 
 the natural effect of not fencing may be a liability against which 
 fencing is the only preventive. 
 
 To this effect is the law as laid down by Williams, J., in Cox Williams, j., 
 V. Burbidge^ : " If I am the owner of an animal in which by law BurMdge. 
 the right of property can exist, I am bound to take care that it 
 does not stray into the land of my neighbour, and I am liable for 
 any trespass it may commit, and for the ordinary consequences of 
 that trespass. Whether or not the escape of the animal is due to 
 my negligence is altogether immaterial." And in Ellis v. Loftus Eiiis «. Loftus 
 Iron Company^ it was found that there was an iron fence on the ^™ ompany. 
 plaintiff's land, and that a horse of the defendants' did damage to 
 a horse of the plaintiff's through the fence. " It seems to me," 
 said Lord Coleridge, " sufficiently clear that some portion of the 
 defendants' horse's body must have been over the boundary. That 
 may be a very small trespass, but it is a trespass in law." And 
 Brett, J.° : " For a time I doubted whether, if the animal strayed 
 upon the plaintiff's soil without negligence on the part of the 
 
 ' Ab to strips of land adjoining a road, nevertheless bound at his peril to keep 
 
 Doe dem. Pring v. Pearsey, 7 B. & C. his cattle on his own grounds and prevent 
 
 304 ; 13 Vin. Abridg. Fences. them from escaping." 
 
 2 Leading Cases on the Law of Torts, ^ 13 C. B. N. S. 430, at p. 438, cited 
 
 p. 490. and approved by Blackburn, J., Fletcher 
 
 ' 3 Kent Comni. 12th edit. p. 438, note v. Eylands, L. R. i Ex. 265, at p. 281. 
 
 I. The passage is : " The doctrine is ^ L. R. ro C. P. 10 ; 44 L. J. G. P. 
 
 that at common law the tenant of a close 24 ; 31 L. T. N. S. 483 ; 23 W. R. 246. 
 
 was not bound to fence against an adjoin- Lee v. Riley, 18 C. B. N. S. 722 ; 34 
 
 ing close, unless by force of prescription, L.J. C. P. 212 ; 13 W. R. 774 — mare tres- 
 
 and, if bound by prescription to fence his passed into a field of defendant's ; there was 
 
 close, he was not bound to fence against a question also of remoteness of damages, 
 
 nny caltle but such as were rightfully in 44 L. J. C. P. 26 ; the report in the 
 
 the adjoining close. If not bound at Law Reports is neither so clear nor so 
 
 common law to fence his land, he was full. 
 
964 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Sistiuction, 
 
 Bramwell, B., 
 in Bicbols v, 
 Marsland, 
 
 Cases con- 
 sidered. 
 
 , might perhaps 
 that ' a man is 
 
 defendants, a trespass would have been conamitted. However, 
 upon reference to the authorities, I find that the owner of an 
 animal, although he may be guilty of no default, is liable to be 
 sued in trespass if he strays on to another's ground. A 
 in 3 Blackstone's Commentary, chap. xii. p. 211 
 cause a little hesitation. The writer there says 
 answerable, not only for his own trespass, but that of his cattle 
 also ; ' but he then proceeds to speak of ' negligent keeping.' The 
 language is not quite decisive. If, however, we refer to Comyns's 
 Digest, Trespass, C r, and i Ohitty, On Pleading, pp. 93, 202 
 (7th edit.), we shall find that the owner is liable in trespass if 
 cattle stray upon another's land, although he himself commits no 
 fault." 
 
 A distinction must, however, be taken, for the liability of a 
 landowner for what escapes from his land is not universal. Thus, 
 in Comyns's Digest' it is laid down : " If a man has a tame fox, 
 which escapes, and becomes wild and does mischief, the owner 
 shall not answer for the damage done afterwards : perTwisden, J., 
 I Ventris 295." 
 
 Hale, however,' has the following : — " These things seem to be 
 agreeable to law : 
 
 " I. If the owner have notice of the quality of his beast, and 
 it doth anybody hurt, he is chargeable with an action for it. 
 
 " 2. Though he have no particular notice that he did any such 
 thing before, yet if it be a beast that is ferce naturce, as a lion, a 
 bear, a ^olf , yea, an ape or monkey, if he get loose and do harm 
 to any person, the owner is liable to an action for the damage ; 
 and so I know it adjudged in Andrew Baker's case, whose child 
 was bit by a monkey that broke his chain and got loose.' 
 
 "3. And therefore, in case of such a wild beast, or in case of 
 a bull or cow that doth damage, where the owner knows of it, 
 he must at his peril keep him safe from doing hurt, for though 
 he use his diligence to keep him up, if he escape and do harm, 
 the owner is liable to answer damages." 
 
 Again, in Nichols v. Marsland,^ Bramwell, B., says : " I am 
 by no means sure that if a man kept a tiger, and lightning broke 
 his chain, and he got loose and did mischief, that the man who 
 kept him would not be liable.'' 
 
 To reconcile these dicta it is necessary to draw into prominence 
 
 the distinction between animals natural to the country and 
 
 animals brought for the convenience or pleasure of their captors. 
 
 A fox breaking its chain merely resumes its natural state in a 
 
 1 Action on the Case for Negligence, ^ See May v. Burdett, 9 Q. B. loi ; 16 
 
 A S. L. J. Q. B. 64. 
 
 " Pleas of the Crown, 430. * L. ^t. 10 Ex. 2$$, at p. 260, 
 
BOOK in.] FENCES AND PARTY-WALLS. 965 
 
 country where other foxes exist ; so, too, of hares, partridges, or 
 pheasants. But a monkey escaped, or a lion, or a bear is a 
 dangerous agency that of its own nature would not have been a 
 peril to the neighbourhood, but has been imported there. The 
 distinction is between the introducing a new means of mischief 
 and then permitting it to get free, and arresting an existing 
 mischief to the ravages of which property is naturally subject, 
 and which after an interval resumes its natural course. Could it 
 be shewn that by reason of the temporary confinement damage 
 of a special character was done, there seems no reason why 
 liability would not attach. The case of the tiger put by Bram- 
 well, B., may assist to illustrate the rule. In this country the 
 person responsible for the presence of the tiger would be liable 
 for its escape. But in India the proprietor of a territory acquired 
 for tiger-shooting, having captured and confined a tiger, would not 
 be liable for the ravages done on its escape, })ecause the liability 
 for tigers is an incident of property thereabouts, and the escape 
 of one merely restores the condition of things before the capture, 
 and so imposes no liability. This consideration is appUcable to 
 and explains the rule of the civil law : Si ursus fugit a domino et 
 sic nocuit, non potest quondam dominus conveniri quia desiit dominus 
 esse ubi /era evasit} Bears are indigenous over all the region 
 where the civil law prevailed.^ 
 
 The difference between the liability alleged to exist in Bigelow's Duty towai-dg 
 " Leading Cases on the Law of Torts,"' and that which the law ^tle."""^* 
 actually imposes becomes of importance when we come to con- 
 sider the position of a landowner with regard to his neighbour's 
 cattle. If there were a liability to fence, then, in default of fencing, 
 injury happening to his neighbour's cattle would import a right of 
 action to the neighbour. But unless by prescription, or through 
 the force of an agreement, no such liability exists. This is laid 
 down in Williams's Saunders^ : " It must be observed that the 
 general rule of law is that I am bound to take care that my 
 beasts do not trespass on the land of my neighbour, and he is 
 only bound to take care that his cattle do not wander from his 
 land and trespass on mine: 6 Mod. 314, Tenant v. Goldwin ; 
 I Taunt. 529, Churchill v. Evans; 6 B. & C. 337, Boyle v. 
 Tamlyn, 9 D. & E. 430, S.C. And therefore this kind of action 
 [i.e., an action on the case for not repairing a fence] will only lie 
 against a person who can be shewn to be bound by prescription 
 or special obligation to repair the fence in question for the benefit 
 of the owner or occupier of the adjoining land. And no man can 
 
 ' Inst, book 4, tit. 9. ^ Encyclopsedia Britannica, gtli edit. art. Bears. 
 
 " Supra, p. 490. * Kdition 1871, vol. i. 559, note (t) 
 
966. THE LAW OF NEGLIGENCE. [book iii. 
 
 be boimd to repair for the benefit of those who have no right." 
 Cases of Where, then, an action has been held maintainable for an acoideilt 
 
 repair fences *° ^^^ plaintiff's Cattle by reason of defective fences on the. 
 examined. defendant's land, the liabiHty to repair the fences was either 
 admitted, as in Eooth v. Wilson," or was apparent from the terms 
 of the holding, as in Firth v. Bowling Iron Company,^ or was 
 proved, as in Boyle v. Tamlyn,' or was presumed, as in Lawrence v. 
 JenMns,^ from the fact that fences had been kept in repair, at the 
 request of the neighbours, by the occupiers of the land sought to 
 be charged. A twenty years' repairing in this manner will raise 
 a presumption of liability, capable of being rebutted by proof that 
 the parties whose tenants repaired were under disability, or were 
 merely tenants for life ; but if the proof be that repairs have been 
 uniformly done for forty years, the prescription will be conclusive.' 
 The fact of repair, unaided by other circumstances, will not be 
 sufficient ; it must also be shewn that such repairs have been 
 made upon the requisition from time to time of the persons 
 claiming the easement, or at least sufficient must be shewn to 
 warrant a jury making such a presumption." 
 Unfenoed _ But if unfenced land adjoins a highway the owner of cattle 
 
 a highway. - travelling along the highway is not liable, negligence being out 
 of the way, for damage done by his cattle in straying into un- 
 fenced land.' This is an exception to the general law requiring 
 a man to keep his cattle oil his own land, or, more accurately, to 
 keep them off his neighbour's, and is made probably for the pur- 
 pose of facilitating commerce. As long ago as 22 Edward IV.' it 
 was said : " If one drive a herd of cattle along the highway where 
 trees or wheat or any other kind of com is growing, if one of the 
 beasts take a parcel of the com, if it be against the will of the 
 driver, he may well justify, for the law will intend that a man 
 cannot govern them at all times as he would ; but if he permitted 
 them or continued them, then it is otherwise." And if the cattle, 
 are on the highway, not for passage, but to graze, such user is 
 unlawful ; for the public rights on a highway are but to pass and 
 repass thereon, and the owner of them is hable for an entry on 
 land adjoining the highway.' 
 
 With this exception, then, the law is absolute. Assuming, 
 
 I B. & Aid. 59. GiBbon, Law of Dilapidations, p. 264. 
 
 3 C. P. D. 254; 47 L. J. C. P. 358 ; 5 Lawrence ». Jenkins, li.R. 8 Q.B. 274. 
 
 38 L. T. 568 ; 26 W. E. 558 ; Bush v. ' Goodwyn v. Chevcley, 4 H. & N. 
 
 Brainard, 1 Cowen 78 ; Blood v. Sp^nlding, 631 ; 28 L. J. Ex. 298 ; 33 L. T. N. S. 
 
 57 Vem. 422. 284 ; 7 W. R. 631 ; Tillett v. Ward, 10 
 
 3 6 B. & 0. 329 ; 9 Dowl. & Ry. 403. Q. B. D. 17 ; 52 L. J. Q. B. 61 ; 47 L. T. 
 
 4 L. R. 8 Q. B. 274 ; 42 L. J. Q. B. 546 ; 31 W. R. 197. 
 
 147 ; 28 L. T. N. S. 406. 8 Year-book 22 Edward IV. 8, pi. 24. 
 
 " 2&3'Will. IV. c. 71. Compal'e Gale, » Dovaston «.. Payne, 2 H. Bl, 527 j 
 Law of Easements, 5th edit. p. 166, witli 2 Sm. Lead. Gas. gtq edit. 154. 
 
BOOK in.] Fences and pahty-walls. 967 
 
 however, the obligation to fence, the sufficiency of the fence Sufficiency of 
 erected in discharge of the obligation is a matter for the jury, therrisan™ 
 who have to say whether the fence was such as an adjoining oi'iigation 
 landowner using his land according to the accustomed course of 
 farming has a right to have.' It is not to be a fence so close 
 and strong that no pig could push through it, or so high that no 
 horse or bullock could leap it. One could scarcely tell the limits 
 of such a requirement, for the strength of swine is such that they 
 would break through almost any fence if there were a sufficient 
 inducement on the other side. But the company are to put up 
 such a fence that a pig not of a peculiarly wandering disposition 
 nor under any excessive temptation will not get through it." 
 
 And with regard to the public, it is so notoriously the duty of Occupier'.-! 
 the actual occupier to repair the fences, and so little the duty of " ^ ° repair, 
 the landlord, that without any agreement to that effect the land- 
 lord may maintain an action against his tenant for not so doing ;' 
 but this is not to exclude agreements between the landlord and 
 tenant, the benefit of which against the landlord may be taken by 
 any third person cognizant of their existence.* 
 
 At common law the owner of land is only bound to fence Duty to fence 
 agaiast an adjoining owner,' but if such adjoining owner happen adjoining 
 to be a gratuitous bailee of a horse injured by the neglect to °'"'^^'^- 
 fence, he can recover,* since beneficial ownership is not neces- 
 sary. 
 
 By common law, then — 
 
 1 . Owners of land are under no obligation to fence.' Summary. 
 
 2. Owners of land are under an obligation to see that their 
 cattle do not wander from their own land.' 
 
 3. The obligation to see that cattle do not wander from the 
 owner's own land is independent of negligence.' 
 
 4. The owner of land is under no obligation to confine wild 
 animals naturally to be looked for on land, even though they 
 
 1 Bessant v. Great Western Eailway West India Docks, &o. , Company, 1 2 C. B. 
 Company, 8 C. B. N. S. 368 ; Wiseman 160, at p. 171 ; 21 L. 3. C. P. 201 ; i 
 V. Booker, 3 C. P. D. 184; 38 L. T. Wms. Saund. 32, cited Jervis, C.J., Man- 
 292 ; 26 W. E. 634. cheater, Sheffield, and Lincolnshire Rail- 
 
 2 Per Bramwell, B., Child v. Heam, way Company v. Wallis, 14 C. B. 213, at 
 L. E. 9 Ex. 176, at p. 182. "1 agree that p. 218 ; 23 L. J. C. P. 85 ; Eioketts v. 
 the company are not bound to fence East and West India Docks, &c., Com- 
 against animals of extraordinary capaci- pany, 12 C. B. 160. 
 
 ties, or under unusual conditions ; but " Eooth v. Wilson, i B. & Aid. 59. 
 
 they must have a fence sufficient against ' i Wms. Saund. 559, note (b), cited 
 
 ordinaryoattle": perPigott, B.,atp. 183; Jervis, C. J., Eicketts «. East and West 
 
 43 L. Ex. 100 ; 22 W. E. 864. Compare India Docks, &g.. Company, 12 C. B. 160 ; 
 
 M'llvaine v. Lantz, 100 Penn. St. 586. 21 L. J. C. P. 201. 
 
 ' Cheetham v. Hampson, 4 T. E. " Boyle v. Tamlyn, 6 B. & C. 329 ; 
 
 318. Cox V. Burbidge, 13 C. B. N. S. 430. 
 
 ' Payne v. Eogers, 2 H. BI. 350. " Ellis v. Loftus Iron Company, L. E. 
 
 5 Fitz. N. B. 128, note (a), cited Jervis, 10 C. P. 10; 44 L. J. C. P. 24; 31 
 
 C.J., and set out in Eioketts v. East and L. T. N. S. 483 ; 23 W. E. 246. 
 
968 
 
 THE LAW OF NEGLIGEl^CE. 
 
 [book III. 
 
 Obligation to 
 fence by 
 statute. 
 Eailways 
 Begulation 
 Act, 1842, 
 
 Hail ways 
 Clauses Act, 
 1845. 
 
 have been confined and subsequently escape from confine- 
 ment.' 
 
 5. There is an absolute obligation on the owner of land to 
 safeguard mischievous animals brought on the land and not a 
 natural incident to its possession.' 
 
 6. Owners of land may be under an obligation to fence by 
 prescription or by special obligation.' 
 
 7. Where the obligation to fence exists it is — 
 
 (a) Primd facie the duty of the occupier,* not of the 
 
 landlord, to perform it ; 
 (6) Limited to sufficiency for the purposes of the ordinary 
 
 use of land.* 
 
 8. The owner of cattle is not liable for trespasses committed 
 by them without negligence while in the ordinary user^of the 
 highway.' 
 
 9. The owner of land is bound to fence only for the benefit of 
 adjoining proprietors.' 
 
 We are next to consider the obligation to fence by statute. 
 
 By section i o of the Eailways Kegulation Act, 1 842 (5 & 6 Vict, 
 c. 55), it is enacted that all railway companies shall be under the 
 same liability of obligation to erect and to maintain and repair 
 good and sufficient fences throughout the whole of their respective 
 lines as they would have been if every part of such fences had 
 ' been originally ordered to be made under an order of justices by 
 virtue of the provisions to that eif ect in the Acts of Parliament 
 relating to such railways respectively. 
 
 And by the Railways Clauses Act, 1845 (8 Vict. c. 20), s. 68, 
 railway companies are bound to supply sufficient posts, rails, 
 hedges, ditches, mounds, or other fences for separating the land 
 taken for the use of the railway from the adjoining lands not 
 taken, and protecting such lands from trespass or the cattle" of 
 the owners or occupiers thereof from straying thereout by reason 
 of the railway, together with all necessary gates made to open 
 towards such adjoining lands, and not towards the railway, and all 
 necessary stiles. 
 
 ^ Comyns' Digest, Action on the Case 
 for Negligence, A 5. See, too, cases 
 cited in argument, Kead v. Edwards, 17 
 C. B. N. S. 24s; 34 L. J. C. P. 31 ; 11 
 L. T. N. S. 311. 
 
 ^ Hale, Pleas of the Crown, 430; 
 Fletcher v. Eylands, L. E. i Exi 265 ; i 
 H. of L. 330. 
 
 ' I Wms. Sannd. 559, note (6). 
 
 * Cheetham v. Hampson, 4 T. R. 318. 
 
 " Bessant v. Qi-eat Western Railway 
 Company, 8 C. B. N. S. 368. 
 
 ^ Povaston v. Payne, 2 H, Bl. 527 ; 2 
 
 Sm. Lead. Cas. 9th edit. 154. 
 
 ' Bicketts v. East and West India 
 Docks, &c., Company, 12 C. B. 160 ; 
 21 L. J. C. P. 201. 
 
 * Cattle — ^Beasts or quadrupeds in gene- 
 ral serving for tillage or other labour, and 
 forfood to man. The word is said to include 
 " perhaps - swine " : Webster. Cattle — 
 Kine, horses, and other animals appro- 
 
 friated to the use of man : Richardson. 
 n Child V. Heam, L. R. 9 Ex. 176 ; 43 
 L, J. Ex. 100 ; 22 W. R. 864, the word 
 " cattle " was held to include pigs. 
 
BOOK III.] FENCES AJvTD PAETY- WALLS. 969 
 
 This section, says Jervis, O.J., in Manchester, Sheffield, and 
 Lincolnshire Railway Company v. Wallis,' " was plainly intended 
 as a substitution for " the earlier provision. 
 
 The first reported case to notice is Sharrod v. London and sharrod v. 
 North-Western Eailway Company,' but this went off on the point an™ North- 
 that the action had been framed in trespass instead of on the Western 
 case. This was followed by Fawcett v. York and North Midland Compauy. 
 Eailway Company,' brought on section 9 of 5 & 6 Vict. c. 5 5 , y'^^lv" ^^ ' 
 whereby an obligation was imposed on railway companies to keep North Midland 
 the gates at the ends of level crossings closed against all persons company. 
 or cattle upon the highway, and the Court held'' that "that 
 imposes an obligation to keep them closed against everything, 
 whether straying or passing,'' and that a company not performing 
 this obligation was liable to an action for its breach of duty. 
 
 This decision was strongly insisted on in Eicketts v. East and 
 West India Docks, &c., Company,* which was brought under 
 section 68 of the Eailways Clauses Act, 1845. The company 
 was bound to make and maintain, fences in the terms of the statute. 
 The plaintiff was the owner of a close adjoining a close belonging 
 to the Great Northern Eailway Company, which abutted upon the 
 defendants' railway, the fences of which close of the plaintiff the 
 plaiatiff was bound to repair. By the defect of his fences 
 plaintiff's sheep escaped into the adjoining close and thence 
 passed to the defendants' railway, but, in consequence of the 
 want of a fence between it and the railway, were killed. There 
 was no allegation of negligence. The Court decided that where 
 an obligation to fence existed under the common law, that obliga- 
 tion was limited to the benefit of adjoining owners, and that " the 
 statute had most properly taken the common law rule as the 
 measure " of railway companies' liability. 
 
 We have already seen that whilst cattle are passing along a straying 
 highway the owners of such cattle are using it according to the 
 dedication of the owner of the soil, and, being there with his 
 consent, the owners are strictly occupying the highway, and that 
 if, therefore, whilst passing along the road they stray into an 
 adjoining field, the owner of the field cannot distrain them damage 
 feasant if he were bound to keep up the fence against the road ; 
 but if, instead of jjassing along the road, the cattle had strayed 
 there, they might, if they escaped into the adjoining close, be 
 distrained damage feasant, even although the owner of the close 
 was bound to repair the fence between his close and the road, 
 because the cattle were wrongfully on the road, and the owners 
 
 » 14C. B. 213, atp. 220; 33L. J. C. P. 3 16Q. B. 610; 20 L. J. Q. B. 222. 
 
 gc, * Per Patteson, J., at p. 618. 
 
 2 4 Ex. 580. ^ 12 C. B. 160 ; 21 L. J. C. P. 201. 
 
970 
 
 THE LAW OP NEGLIGENCE. 
 
 [book III. 
 
 Manchester, 
 Sheffield, and 
 Lincolnshire 
 Eailway 
 Company v. 
 Wallis. 
 
 ChaiTniin ». 
 South-Eastem 
 Eailway 
 Company. 
 
 were not occupying it so as to cast any obligation to repair upon 
 the distrainor.' 
 
 This distinction is observed in the cases fixing the import of a 
 railway company's statutory liability to fence. In Manchester, 
 Sheffield, and Lincolnshire Railway Company v. Wallis' — 
 designated by Lord Esher, M.R., in Oharman v. South-Eastern 
 Railway Company,' " a strong decision, but it was the decision 
 of a very strong Court ;" and he added, " It is useless now to cavil 
 at that decision, and I think no Court of appeal ought to interfere 
 with it and the cases that followed it " — plaintifiE's horses strayed 
 on the highway which ran alongside the railway, and through 
 defect of the fences of the defendant company got upon the rail- 
 way and were killed. The Court held that the plaintiff could 
 not recover, as his horses were not rightfully using the highway, 
 and that therefore there was no obligation on the defendants to 
 maintain a fence against them. The distinction between this case 
 and Fawcett v. York and North Midland Railway Company* was 
 pointed out to be tha| that case was decided on another section, ° 
 by which an unqualified duty was imposed on the company to 
 keep constantly closed gates across any turnpike road or public 
 carriage road on a level, while the 68th section had been decided 
 in Ricketts's case^ to impose no more than the common law 
 obligation to keep up the fences against the cattle of the owners 
 or occupiers of the adjacent land, and Cresswell, J., instanced the 
 case of The King v. Pease' as " a strong authority to shew that 
 the Legislature having legalized railways, they were not subject 
 to any liability beyond the ordinary common law liability." 
 
 The duty imposed by the terms of section 47 formed the sub- 
 ject of decision in Charman v. South-Eastem Railway Company.' 
 In that case horses of the plaintifE had strayed upon a road 
 leading from a common across the defendants' railway, which it 
 crossed at a level. The road was divided from the railway by 
 properly constructed gates ; but beyond the limit of the road, 
 on a triangular piece of ground belonging to the defendants, was 
 a swing gate for the use of foot passengers. One of the posts 
 of this was rotten, and a defect in the fencing was thereby caused 
 through which the horses made their way and were killed. The 
 68th section of the Act was not applicable, because the horses were 
 straying.' The wider provisions of section 47 were, it was con- 
 
 ^ Dovaiton v. Payne,. 2 H. Bl. 527. 
 
 2 14 C. B. 213 ; 23 L. J. C. P. 85. 
 
 3 21 Q. B. D. 524 ; 57 L- J. Q. B. 
 S97; 37 W. E. 8. 
 
 * 16Q. B. 610; 23 L. J. C. P. 85. 
 
 ^ Section 47. 
 
 ' 12 C. B, 160 ; 21 L. J. C, P. 201. 
 
 ' 4 B. & Ad. 30. 
 
 8 21 Q. B. D. 524; 57 L. J. Q. B. 
 597 ; 37 W. E. 8. 
 
 <* Manchester, Sheffield, and Lincoln* 
 shire Bailway Company v. Wallis, 14 
 C. B. 213 ; 23 L. J. C. P. 85. 
 
BOOK III.] FENCES AND PAETY-WALLS. 971 
 
 tended, not applicable, because tlie duty of tlie company (possibly 
 absolute as far as it extended) extended only so far as the 
 breadth of the road, and since in this case the protection was 
 afforded for the total breadth of the road, and the defect was off 
 the road, it was urged that the statutory duty did not apply. The 
 Court of Appeal, however, took another view. The duty imposed 
 on the company by the section being to protect cattle going along 
 the road, the gates constructed in accordance with the provisions 
 of the section may never be narrower than the road, but may be 
 required, for the discharge of the duty on the railway, to be wider, 
 for the object of the section is " to prevent cattle using the road 
 as a road of passage from entering upon the railway." Lord judgment 
 Esher, M.R., thus interpreted the section : — " I think that the Esher'M.E. 
 company are bound to make the gates not merely the width of 
 the road, but of such a width that when they are closed they will 
 fence in the railway so as to prevent cattle or horses which are 
 using the road as a road of passage, and acting as cattle or 
 horses naturally would act upon such a road, from entering ' on 
 the railway ' — not merely from entering on the level crossing, but 
 from entering on the railway ; and whatever the width of the 
 road, if it is necessary to do so in order to give that protection, 
 the gates must be wider than the road." He adds : "To say, 
 however, that the company would be obliged to make a fence a 
 quarter of a mile long, or even a hundred yards long — something 
 which no one would call a gate — would be absurd and un- 
 reasonable." In the case before the Court it was held on the 
 facts that the company were liable for not having discharged 
 this obligation. 
 
 We have seen that at common law an adjoining owner Dawson v. 
 could recover from a neighbouring proprietor bound to fence for uaiiway 
 damage caused by negligence to a horse of which he was gratuitous Company, 
 bailee.' Dawson v. Midland Railway Company'' was the converse 
 case, but under the Act. There the licensee of the occupier^ of 
 land adjoining the defendants' railway sued for injury to his 
 horse, which was allowed to graze on the land, but through 
 a defective fence managed to get on the defendants' line, and 
 was killed. Kelly, C.B.,'s judgment went on the ground that 
 "the plaintiff's horse was lawfully in the field from which it 
 escaped through defect of the defendants' fences;" and that of 
 Bramwell, B., that " the statute was for the benefit of all persons 
 who are lawfully using adjoining land." The term cattle of 
 occupiers used in the Act must, then, be taken to include the 
 
 1 Booth V. Wilson, i B. & Aid. 59. 
 
 ' L. E. 8 Ex. 8 ; 42 L. J- Ex. 49 ; 21 W. R. 56. 
 
 ^ The Act is for the protection of " the cattle of the owners or the occupiers,'' 
 
972 
 
 THE LAW OF NEGLIGENCE. 
 
 [book hi. 
 
 Midland 
 Eailway 
 Company v. 
 Daykin, 
 
 EobertB V. 
 Great Western 
 Eailway 
 Company, 
 
 Marfell v. 
 South Wales 
 Eailway 
 Company. 
 
 cattle of all persons who are lawfully upon lands adjacent to a 
 railway, and the liability cast on the company by the Act is 
 "very much like the old prescriptive liability to fence."' 
 
 An unsuccessful effort was made in Midland Eailway Company 
 1). Daykin'' to contend that a colt that had strayed on the high- 
 way, but which the owner's servants were in the act of driving 
 home when, by the negligence of the company's servants, it got 
 upon the railway, was within this rule. The Court, however, was 
 clear as to the liability of the railway company in this case. 
 
 The cases of Eoberts v. Great Western Eailway Company' and 
 Marfell v. South Wales Eailway Company^ remain for considera- 
 tion. In the former, plaintiff sued for the loss of some cattle 
 which were sent by railway, and on arrival at their destination 
 were removed from the truck into a yard belonging to the 
 company adjoining the railway, but not fenced therefrom. The 
 cattle, being frightened, rushed on to the line and were killed. 
 The plaintiff sued for negligence, and alleged that the company 
 had negligently omitted to fence the yard from the railway. "The 
 defendants denied their obligation to fence either by statute or 
 at common law. The Court entered judgment for the defendants, 
 on the ground that no legal liability was " cast upon the company 
 to make or maintain any fence between their station yard and 
 the railway." 
 
 In the latter case' a railway and a tramway ran in parallel 
 lines each on the land of the railway company. The plaintiff 
 was using the tramway with horses and trucks by permission of 
 the defendants, and was paying toll for the privilege. A fence 
 had been placed between the railway and the tramway, in which 
 fence was a gate which had been left open by the defendants' 
 servants. The evidence was that plaintiff had never seen the 
 gate shut. Through the opening thus left plaintiff's horse 
 swerved through fear on the railway and was killed. It was 
 sought to put the defendants' liability on two grounds — first, 
 that the company were liable under section 68 ; and secondly, 
 failing that, at common law. The Court was agreed that there 
 was no liability under the first head. "It is clear," said Erie, 
 C.J., "that the defendants are under no obligation to put any 
 fence on their own land." The Chief Justice was also of opinion 
 that there was no evidence of common law negligence, " for if it 
 [i.e., the gate] was always open, there would be no ground for 
 
 1 Per Lopes, J., Wiseman ». Booker, 3 
 C. P. D. 184, at p. 189 ; 38 L. T. 292 ; 
 26 W. E. 634. 
 
 2 17 C. B. 126; 25 L. J. C. P. 73. 
 
 3 4 C. B. N. S. S06 ; 27 L. J. C. P. 266. 
 
 < 8 C. B. N. S. 525 ; 29 li. J. C. P. 
 31S ; 2 L. T. N. S. 629; 8 W. E. 765. 
 
 * Marfell v. South Wales Railway Com- 
 pany, 8 0. B. N. S. 525. 
 
BOOK in.] FENCES AND PAETY-WALLS. 973 
 
 inferring a contract for keeping it shut, and upon tlie notes the 
 plaintiff states that he never saw the gate shut." The majority 
 of the Court,' however, thought that the defendants, having con- 
 structed a fence with a gate, were bound to use some care in the 
 use of the gate, and on this ground sustained the verdict for the 
 plaintiff. 
 
 The case may be distinguished from Roberts v. Great Western Cases dis- 
 Railway Company on the ground that in Marfell's case the '="™™'''<"'- 
 defendants professed to adopt precautions in the use of which 
 they were bound to some degree of care, which obligation they 
 failed to discharge ; while in Roberts's case the railway company 
 left their premises without any affectation of precautions, and by 
 law they were not bound to adopt any. Having undertaken a 
 duty, they were bound to use some care in the discharge of it, 
 though there was no legal obligation which could at first hand 
 have constrained them to undertake it.^ The principle on which 
 they are agreed is that the statute imposes no obligation on a 
 railway company to fence a portion of their own lands against 
 some other portion. 
 
 But the neglect of a railway company efficiently to perform Wiseman «. 
 their obligations in Wiseman v. Booker^ enured to the detriment ^°*®"'- 
 of their own tenant. There a railway company let some of their 
 land to a tenant, who planted it with vegetables, which were con- 
 sumed by horses on the defendant's lands adjoining putting their 
 heads over the fence that the railway company had set up in 
 assumed discharge of their statutory obligation. On action being 
 brought by the tenant, the defendant set up that the fence erected 
 by the plaintiff's landlord was insufficient, and in the Divisional 
 Court, on appeal from the coimty court, this objection was sus- 
 tained. Lindley, J., thus interpreted the language of the section : Interpretation 
 " The fence is to be for the benefit of the owner or occupier of by Lindley, J. 
 the adjoining lands. The structure is to be sufficient to keep the 
 cattle of the adjoining owners from straying on to the land of the 
 company. The horses here were straying within the fair meaning 
 of those words, and this it was the duty of the company to pre- 
 vent. Suppose the company had, after erecting such a fence as 
 here described, planted yew-trees so near to it as to be within 
 reach of the cattle of the adjoining owner, and they had eaten 
 and died, would not the company have been responsible for their 
 
 ' Williams and Byles, JJ. J., Skelton v. London and North-Western 
 
 '^ If a person undertakes to perform a Eailway Company, L. R. 2 0. P. 631, at 
 
 voluntary act he is liable if lie performs p. 636 ; 36 L. J. C. P. 249 ; 16 L. T. N. S. 
 
 it improperly, but not if he neglects to per- 563 ; 15 W. E. 925. 
 
 tbrm it. Such is the result of the decision ^ 3 C. P. D. 184; 38 L. T. 292 26 
 
 in the case of Coggs ^.Bernard : per Willes, W, E. 634. 
 
SU THE LAW OF NEGLIGENCE. [book m. 
 
 loss witltin the principle of the decision in Ellis v. Loftus Iron 
 
 Company?"' 
 Proviso to At the end of section 68 of the Eailways Clauses Act, 1845, 
 
 ^iiways ° there is a proviso that a company shall not be required to make 
 Clauses Act, jjJ^q fences or other works in the section provided for if "the 
 
 1845, con- ^ *■ 
 
 sidered in owners and occupiers of the land shall have agreed to receive, and 
 Western ^^ shall have been paid, compensation instead of the making them." 
 Commnv '^^® effect of this was considered in Corry v. Great Western 
 Railway Company.' The plaintiff was tenant from year to year. 
 During his tenancy some of his lands were taken, and an arrange- 
 ment made with his landlord, the effect of which deprived the 
 landlord of the right of insisting upon either the original making 
 or the maintaining any such fence as the 68th section provided 
 for. Posts and rails that the railway had originally put having 
 decayed, the railway company, in consequence of their arrange- 
 ment with the landlord, neglected to repair them, and a cow of 
 the plaintiff's was killed in consequence. On an action being 
 brought, the defendants set up their agreement with the landlord, 
 but it was held in both the Divisional Court and in the Court of 
 Appeal that the landlord could not be taken to have given up any 
 right which the plaintiff had as his tenant, because " the plaiutiff 
 was no party to the agreement by which his landlord gave up the 
 right of fencing." It was intimated,^ however, that " a person 
 who acquired a fresh tenancy after the owner had given up his 
 right to the accommodation works could not enforce such a 
 demand as is made by the plaintiff in the present action." The 
 case would then have resembled Wiseman v. Booker* in so far as 
 the plaintiff would not have been allowed to have set up a higher 
 right than that of his lessor, and on its peculiar facts is ex- 
 tremely unlikely to recur. The company's obligation under section 
 68 is limited to owners and occupiers of adjoining land, and 
 therefore the want of fencing cannot be alleged as negligence by 
 a mere passenger on the rail way .° 
 Summary. i. The statutory obligation to fence generally is not more 
 
 extensive than the duty imposed by prescription at common law.' 
 
 1 L. E. 10 0. P. 10 ; "Wilson «. New- Company, L. E. 3 Q. B. 549 ; 37 
 
 berry, L. E. 7 Q. B. 31 ; 41 L. J. Q. B. L. J. Q. B. 258 ; 18 L. T. N. S. 795 ; 
 
 31; 25 L. T. N. S. 695; 20 W. E. II ; 16 W. E. 1124. See, however, 5 & 6 
 
 Firthc. Bowling Iron Company, 3 C. P. D. Vict. c. SS. s. 10, which has never in 
 
 254; 47 L. J. C. P. 358; 38IJ. T. 568;. tenns been repealeil, though we have 
 
 26 W. R. 558. seen Jervis, C. J., in Manchester, Sheffield, 
 
 ^ 6 Q. B. D. 237, 7 Q. B. D. 322 ; 50 and Lincolnshire Eailway Company v. 
 
 L. J. Q. B. 386; 44 L. T. 7oi ; 29 Wallis, 14 C. B. 211, at p. 220 {ante, 
 
 AV. E. 623. p. 969), says section 68 of 8 Vict. c. 20 is 
 
 ' Per Baggallay, L.J., 7 Q. B. D. at substituted for it. 
 
 ''■PI, 
 
 ° Eicketts v. East and West India 
 
 3 C. P. D. 184. Docks, &c., Eailway Company, 12 C. B. 
 
 " Buxton V. North-Eastem Eailway 160; 21 L. J. C. P. 201, 
 
BOOK III.] FENCES AND PAETY-WALLS. 975 
 
 2. This common law obligation was to fence for the benefit of 
 the owners or occupiers of adjoining lands.' 
 
 3. Cattle rightfully using a highway for passage are under the 
 Act placed in a similar position to that occupied by the cattle of 
 adjoining owners at common law.' 
 
 4. Cattle straying on a highway are under the Act placed in 
 a similar position to that occupied by the cattle of owners of lands 
 not adjoining at common law.' 
 
 5. There is an absolute obligation on railway companies to 
 keep gates opening on highways or turnpike roads closed for 
 the benefit of the public at large, and not limited to adjacent 
 proprietors.* 
 
 6. All persons who have their cattle lawfully upon lands adja- 
 cent to a railway are occupiers within the benefit of the Act.'' 
 
 7. There is no obligation on a railway company to fence a 
 portion of its own lands against any other portion." 
 
 8 . The tenant of a railway company is so identified with the 
 company that he is disentitled to recover for injuries arising from 
 the company's neglect adequately to fence land demised to which 
 the obligation to fence is attached by statute.' 
 
 II. Paety-walls. 
 Bv the Metropolitan Bmldiag Act, 1855,' "party-wall shall Metropolitan 
 
 , I-, -, ■,■■,,• T ■ 1 T Building Act, 
 
 apply to every wall used or built m order to be used as a sepa- 1855. 
 ration of any building from any other building with a view to 
 the same being occupied by different persons." 
 
 In Watson v. Gray, Fry, J., says" : " The words [party-wall] Fry, J., in 
 appear to me to express a meaning rather popular than legal, gray as to 
 and they may, I think, be used in four different senses. They ^^^^f^j/y 
 may mean, first, a wall of which the two adjoining owners are wall." 
 tenants in common, as in Wiltshire v. Sidford" and Cubitt v. 
 
 ' Eicketts v. East and West India pany, L. E. 8 Ex. 8 ; 42 L. J. Ex. 49 ; 
 
 Docks, &c., Eailway Company, 12 C. B. 21 W. E. 56. 
 
 160 • 21 L. J. C. P. 201. " Eoberts v. Great Western Railway 
 
 2 Manchester, Sheffield, and Lincoln- Company, 4 C. B. N. S. 506 ; 27 L. J. C. P. 
 
 chire Eailway Company v. Wallis, 14 266 ; Marfell v. South Wales Eailway 
 
 C. B. 213; 23 L. .T. C. P. 85 ; Dovaston Company, 8 C. B. N. S. 525; 29 
 
 V. Payne, 2 H. Bl. 527 ; 2 Sm. Lead. L. J. C. P. 315 ; 2 L. T. N. S. 629 ; 8 
 
 Gas. 19th edit. 154. W. E. 765. 
 
 2 Manchester, Sheffield, and Lincoln- '' Wiseman v. Booker, 3 C. P. D. 184. 
 
 shire Eailway- Company o. Wallis, 14 8_ 18 & 19 Vict. c. 122, s. 3. The prn- 
 
 C. B. 213 ; Midland Eailway Company v. visions of the French law are to be found 
 
 Daykin, 17 C. B. 126; 25 L. J. C. P. in articles 653-664 of the Code. See, too, 
 
 y^ 3 TouUier, lib. 2, ch. 3, art. 2, Droits 
 
 * Fawcett v. York and North Midland que donne la Mitoyonnete. 
 
 Eailwav Company, 16 Q. B. 610 ; 23 "14 Ch. D. 192, at p. 194 ; 49 L. J. 
 
 L. J. C. P. 85. Ch. 243 ; 42 L. T. 294 ; 28 W. E. 438. 
 
 '> Dawson v. Midland Eailway Com- '» l Mann. & Ey. 404. 
 
976 
 
 .THE LAW OF NEGLIGENCE. 
 
 [book m. 
 
 i. Case of 
 tenants in 
 common of 
 the wall. 
 
 II. Case of 
 ndjoiniug 
 owners each 
 having half 
 the wall. 
 
 III, Case of 
 one adjoining 
 owner having 
 ownership of 
 the wall over 
 which the 
 the other has 
 an easement, 
 
 IV. Case of 
 cross ease- 
 ments. 
 
 Porter.' I think that the judgments in those cases shew that 
 that is the most common and the primary meaning of the term. 
 In the next place, the term may be used to signify a wall divided 
 longitudinally iato two strips, one belonging to each of the 
 neighbouring owners, as in Matts v. Hawkins.' Then, thirdly, 
 the term may mean a wall which belongs entirely to one of the 
 adjoining owners, but is subject to an easement or right in the 
 other to have it maintained as a dividing wall between the two 
 tenements. The term is so used in some of the Building Acts. 
 Lastly, the term may designate a wall divided longitudinally into 
 two moieties, each moiety being subject to a cross easement in 
 favour of the owner of the other moiety."' 
 
 I. If the adjoining owners are tenants in .common, one cannot 
 maintain an action for trespasses not amounting to an ouster, 
 because all have equal rights of possession and property." If the 
 act amounts to an ouster, an action will lie, as if the common 
 property is destroyed or a chattel eflfectually carried away.* 
 
 The old rule of law, as illustrated by the judgment of Little- 
 dale, J., in Cubitt v. Porter,* was that trespass would not lie 
 between co-tenants for anything short of a destruction of the 
 common property. But the doctrine now adopted, as laid down 
 in Murray v. Hall,' is that trespass will lie by a co-tenant against 
 a co-tenant for an ouster. 
 
 II. If the adjoining owners are entitled each to a strip of half 
 the thickness of the wall, because half is on the land of one and 
 half on the land of the other, " each party for any injury done to 
 the part which stands on his own land must have the ordinary 
 remedy."' 
 
 III. If the wall belongs to one owner, and the other has ease- 
 ments over it, then the owner of the dominant tenement is 
 entitled to put any amount of weight on the wall that does not 
 endanger its stability .' 
 
 IV. If the ownership of the wall is in two moieties, each 
 being subject to a cross easement, then each is similarly entitled 
 to put any amount of weight on the wall ; and each party, for 
 any injury done to the part which stands on his own land (subject 
 to the easement), must have the ordinary remedy.'" 
 
 1 SB. &C, 2S?. 
 
 2 5 Taunt. 20. 
 
 ' See note to Wiltshire v. Sidford, I 
 Mann. & By. 408. 
 
 * Wilkinson v. Haygarth, 12 Q. B. 
 837 ; 16 L. J. Q. B, 103 
 
 ^ Jacolis V. Seward, L. B. S H. of L. 
 464 ; 41 L. J. C. P. 221 ; 27 L. T. N. S, 
 185. 
 
 6 8 B. & C. 267. 
 
 ' 7 C. B. 441 ; 18 L. J. C. P. 161. 
 
 " Matts V. Hawkins, 5 Tannt. 20; 
 Bradbee v. Christ's Hospital, 4 M. & G. 
 714, at pp. 760, 761 ; S Scott N. B. 
 
 79- 
 
 9 Sheffield Industrial Society v. Tarvis, 
 W. N. 1871, 208 ; 1872, 47. 
 
 '" Supra, 
 
BOOK III.] FENCES AND PAETY-WALLS. 977 
 
 But under the Metropolitan Buildings Act, 1855,' different Effect of 
 considerations come into being. " Whatever the rights at com- ^fad^g Act, 
 mon law might have been, such right no longer exists."^ The -"^ss. 00 the 
 object of the Act is to limit the acts of private owners for the 
 general benefit of the public, to prevent the spread of fire, and 
 for similar purposes. And therefore, in order to determine 
 whether a wall is a party-wall, it is not necessary to consider 
 what rights of ownership the plaintiff and defendant have, but 
 what is the physical condition, position, and user of the wall.^ 
 
 The question of ownership, therefore, becomes of but small 
 account ; and when the circumstances of condition, position, and 
 user that constitute a party-wall are determined, the rights are 
 then fixed by the provisions of the Building Act. 
 
 In this view, the following statement by Pry, J.," is of import- Fry, J.,'s 
 ance: — "Acts of Parliament often take away some control of Emgh™ . "^ 
 owners over their property for public purposes. Therefore I ^™^'^''- 
 consider this wall to be a party- wall, but only so far as it is used 
 by the plaintiff on the one hand and the defendant on the other 
 as a support for their buildings. The case of Weston v. Arnold^ 
 shews that a wall may be a party-wall for some part of its 
 height, and above that height may be the separate property of 
 one of the adjoining owners. In the same way I hold this wall 
 to be laterally a party-wall for such distance as it is used by both 
 plaintiff and defendant for their buildings, and no further. The 
 result is that, for the distance that the plaintiff's closets extend," 
 the wall is a party- wall, and, upon giving the proper notices 
 under the Act, the defendant may deal with that part of the 
 wall in accordance with the 88th section of the Act."' 
 
 1 18 & 19 Vict. c. 122. 22 W. E. 284. 
 
 ^ Per Jessel, M.E., Standard Bank of ^ The facts shewed that the plaintiff 
 
 British Sonth America v. Stokes, 9 Ch. D. was the owner of a boundary wall built 
 
 68, at p. 73 ; 47 L. J. Ch. 554 ; 38 L. T. on his own land, against which he had 
 
 672 ; 26 W. E. 492. built some closets, and the defendant, hig 
 
 ' Per Fry, J., Knight v. Parsoll, 1 1 adjoining neighbour, had recently built a 
 
 Ch. D. 412, at p. 414. substantial structure. 
 
 '' Knight V. rursell, 11 Ch. D. 412, at ' See an American case. Partridge j. 
 
 p. 415; 48 L. J. Ch. 395 ; 40 L. T. 391 ; Gilbert, 10 Duer. 184; and a Canadian 
 
 27 W. E. 817. one, Brooke v. M'Lean, 5 Ontario 209. 
 
 s L. K. 8 Ch. 1084 ; 43 L- J- Ch. 123 ; 
 
CHAPTEE IV. 
 
 FIRE. 
 
 of land to his 
 . iieighbonrs. 
 
 Duty of o-wner The doctrine of the common law as to the duty generally owed 
 by the owner of land to his neighbours is summed up in the 
 head-note to Fletcher v. Rylands, in the House of Lords/ as 
 follows : — " Where the owner of land, without wiKulness or 
 negligence, uses his land in the ordinary manner of its use, 
 though mischief should thereby be occasioned to his neighbour, 
 he will not be liable in damages. But if he brings upon his 
 land anything which would not naturally come upon it, and which 
 is in itself dangerous, and may become mischievous if not kept 
 under proper control, though in so doing he may act without 
 personal wilfulness or negligence, he will be liable in damages 
 for any mischief thereby occasioned." Much of the reasoning in 
 this case obviously applies to fire as one of the things which, if 
 a man brings on his land, he is bound to see does no harm to 
 his neighbour. 
 
 In Jones v. Festiniog Railway Company,^ which was the case 
 of sparks emitted from an engine causing damage, Blackburn, J., 
 said : " The general rule of common law is correctly given in 
 rietcher v. Rylands, that when a man brings or uses a thing of 
 a dangerous nature on his own land he must keep it in at his 
 own peril, and he is liable for the consequences if it escapes and 
 does injury to his neighbour." He then proceeds to apply the 
 rule to the case of fire : " Here the defendants were using a 
 locomotive engine with no express parliamentary powers making 
 lawful that use, and they are therefore at common law bound 
 to keep the engine from doing injury ; and if the sparks escape 
 and cause damage, the defendants are liable for the consequences, 
 though no actual negligence be shewn on their part." The 
 early cases seem to bear out the position that at common law 
 the liability of the owner of property with regard to the safe- 
 
 1 L. R. 3 H. of L. 330 ; 37 L. J. Ex. = L. E. 3 Q. B. 733 ; 37 L. J. Q. B. 
 
 161 ; 19 L. T. N. S. 220. 214 ; 18 L. T. N. S. 902 ; 17 W. R. 28. 
 
 Jones V, 
 Festiniog 
 Eailway 
 Company. 
 
BOOK III.] FIKE. 979 
 
 keeping of fire brought on iiis land was a case under tlie general 
 principle stated from Fletcher v. Eylands. 
 
 The earliest case is thus translated by Gibbons' from the Year- Caae in the 
 book: — "A man sued a bill against another for burning jjjg Year-book. 
 house vi et armis. The defendant pleaded not guilty. It was 
 found by the verdict at the inquest that the fire broke out 
 suddenly in the house of the defendant, he knowing nothing 
 about it, and burned his goods and also the house of the plain- 
 tiff, wherefore upon this verdict it was adjudged that the plaintifiE 
 should take nothing by his writ, but should be amerced." 
 
 In Rolle's Abridgement^ the case is stated as follows : — " If fire EoUe's 
 (I knowing nothing of it) suddenly break out in my house and ^^ gemen . 
 burns my goods, and also the house of my neighbour, my neigh- 
 bour shall have an action on the case against me, 42 Assis. 9. 
 Admit. But it seems that it was adjudged there that the action 
 did not lie, because it was m et armis." Gibbons's conclusion 
 from this is : "If anything is to be inferred from the Year-book 
 it is that it was adjudged that the action did not lie because the 
 fire was not caused by the plaintiff's [? defendant's] fault." The 
 passages quoted in Gibbons, Law of Dilapidations, from the Year- 
 book and from Eolle seem, however, perfectly consistent. The 
 objection evidently was that the action was wrongly conceived, 
 being brought in trespass and not upon case. The jury found 
 that " the fire broke out suddenly in the house of the defendant, 
 he knowing nothing about it." The judgment was that the 
 injury was consequential, and therefore should have been brought 
 in case, and did not lie because it was alleged vi et armis. 
 
 A case more often cited than, and subsequent to, the last is BeauUou v. 
 
 Sir William Beaulieu v. Eoger Fingham.^ The declaration '°^ '^™' 
 
 alleged that every person by the custom of this realm shall keep 
 
 his fire safely and securely, and is bound so to keep it, lest any 
 
 damage happen to his neighbour in any manner, and that Eoger 
 
 so negligently kept his fire that for want of due keeping his 
 
 fire spread to the house of William, and William's goods were 
 
 burned. This case is cited as the authority for the statement in 
 
 Comyns' Digest, Action on the Case for Negligence (A 6), and 
 
 in Viner's Abridgement, Action (B) — that by the common law 
 
 a man in whose house a fire originated, though by no act or 
 
 ' Law of Dilapidations, p. 136; Liber Tindal, C.J., Eoss v. Hill, 2 C. B. 877, at 
 
 Assisarum, 42 Edward III. pp. 9> 259. pp. 889-90, cited as the authority), which, 
 
 Most of the old cases on the law are care- however, cannot in » general treatise be 
 
 fully collected in Gibbons, Law of Dilapi- examined in detail, 
 
 dations, together with a mass of very loose ^ Action sur Case, B, pur Fewe, B, 2. 
 
 and inaccurate reasoning upon tliom ^ Bro. Abrider. Accion sur le Case, pi. 
 
 {e.g., on Jarmey v. Lowgar, pp. 134-S; or 3° ; ^- 2 Hen. IV. 18. See, too, 28 Hen. 
 
 compare note on the words " safely and VI. 7. 
 
 securely," p. 136, wilh the judgment of ^ 
 
980 
 
 THE LAW OF NEGLIGENCE. 
 
 [book hi. 
 
 Anonymoiis 
 case. 
 
 ConcluGion 
 as to the old 
 law. 
 
 I. Exception 
 where the fii'e 
 was caused by 
 the act of a 
 third person. 
 
 Crogate v. 
 Morris. 
 
 Turberville i;. 
 Stampe. 
 
 fault of his, and even if it were accidental, was liable for what- 
 ever damage it caused to the house or goods of another. 
 
 In Cro. Eliz. at p. i o, there is an anonymous case : " Snagg 
 moved this case, and demanded the opinion of the judges on it. 
 J. S. with a gun at the door of a house shoots at a fowl, and by 
 this fireth his own house and the house of his neighbour, upon 
 which he brings an action on the case generally, and doth not 
 declare on the custom of the realm as 2 H. 4, viz., for negligently 
 keeping his fire. The question was, if this action doth lie ? and 
 the Court held it did, for the injury is the same, although the 
 mischance was not by common negligence, but by a misadventure ; 
 and if he had counted upon the custom of the realm as 2 H. 4, 
 the action would not have been well brought, yet consueiudo regni 
 est communis lex."^ 
 
 From these authorities it appears that, by the old law, if a fire 
 occurred in a man's house or field he was bound to control it 
 so as to prevent damage to his neighbour.^ But to this there 
 appears to have been an exception — where the fire was caused 
 by the act of a third person without any intervention of the 
 ierre tenant.^ Thus in the 2nd Inst, it is stated to have been 
 adjudged in 9 Edward II. that if thieves bum the house of the 
 tenant for life without evil keeping of the lessee for life's fire, 
 the lessee shall not be punished therefor in an action of waste. 
 In Orogate v. Morris* it was said, " If my friend come and lie 
 in my house and set my neighbour's house on fire, an action lieth 
 against me." Eolle* contains the proposition, "If a stranger, 
 against my will, puts fire in my house by which the house of my 
 neighbour is burnt, no action lies against me ;" while in Comyns's 
 Digest ° it is laid down that in an action for negligently keeping 
 a fire " the defendant may plead that an unknown person set 
 fire to his house per quod, and traverse the negligence." And 
 with this accords what was said by Holt, C.J., in Turberville v. 
 Stampe,' " If a stranger sets fire to my house and bums my 
 neighbour's, no action lies against me." 
 
 A second exception may be collected from the same case of 
 Turberville v. Stampe,' which was an action on the case for 
 negligently keeping a fire lit in a field, which extended to the 
 plaintiff's field, and burned his clpthes. The objection was : 
 "There is a difference between fire in a man's house and in 
 the field; in some counties it is a necessary part of husbandry 
 
 1 As to the general principle of liabUity ton, 2 Salk. 644. 
 
 for torts done by a defendant ipso invito ' Co. Lit. 53 a. 
 
 aut casualiter et per infortunium et * Brownlow 197. 
 
 contra vohmtateim suam, see Lambert and ' Abridg. Action sur Case, B, pnr Fewe. 
 
 OUiot V. Bessey, Sir T. Eaym. 421. « Pleader, 2, p. 3, citing I Bro. Ent. 29. 
 
 ' Smith V, Brampton, Smith v. Pramp- ' i Ld. Baym. 264 ; iz Mod. 151, 
 
BOOK III.] FiEfi 98i 
 
 to make fire in the ground, and some unavoidable accident may- 
 carry it into a neighbour's ground, and do injury there." But 
 Holt, C.J., and the rest of the Court, Turton, J., dissenting, held : Holt, c.J.,'s 
 " Every man must so use his own as not to injure another. The J"''sment. 
 law is general ; the fire which a man makes in his fields is as 
 much his fire as his fire in his house ; it is made on his grounds, 
 with his materials, and by his order, and 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.'" 
 
 Thus the second exception is, where the damage is caused by H- Exception 
 the intervention of a natural agency not to be calculated on, damage is 
 and the act is one done in the natural, ordinary, and proper ?^"^^jf^^^Jg^*^® 
 enjoyment of property. To this effect also is the civil law : >Si of » natural 
 qiiis in stipulam suam vel spimiin comburendw ejus caiisa ignem bo calculated 
 immiserit ct ulteriv^ cvagcdus et progressus ignis alienam segetem vel °°" 
 vineam Iceserit requiravms, num hnperitia ml negligentia id accidit ; 
 nam si die ventoso id fecit eulpcc reios est nam et qui occasionem 
 prcestat damnuvi fecisse vidctur ; in eodem crimine est et qui non ob- 
 Scrvavit n« ignis longiiis procederet. At si omnia qiice oportuit ohser- 
 irivit, vel subita vis venti longius ignem prodiixit, caret culpa." 
 
 Soon after Turberville v. Stampe was decided, the 6 Anne, 6 Anne, c. 31. 
 c. 31,' was passed, which enacted " that no action, suit, or process 
 whatsover should be had, maintained, or prosecuted against any 
 person in whose house or chamber any fire should accidentally begin, 
 nor any recompense be made by such person for any damage 
 suffered or occasioned thereby, any law, custom, or usage to the 
 contrary notwithstanding." 
 
 ^ If, on the other hanJ, the fire has accidental, hy Tleta ; as to the negligent, 
 
 Bpread beyond its natural limits by means by the Countess of Shrewsbury's case : 
 
 of a new agency — if, for example, after that the Statute of Gloucester made 
 
 its ignition, a high wind should arise and them liable for destruction by fire, but by 
 
 carry burning brands to a great distance, the statute of Anne the ancient law was 
 
 by which a fire is caused in a place wbicli restored. See Pantam v. Isham, I Salk. 
 
 would have been safe but for the wind — 19 ; where "one seised of a house in fee 
 
 such a loss might fairly be set down as a made a lease at will, and lessee negli- 
 
 remote coneequence for which the railroad gently burnt the house, no action lies, fiir 
 
 company should not be held responsible : he had it in his power to secure himself by 
 
 per Lawrence, C.J., Fent v. Toledo, Peoria, covenant. Secus, if lessee for years made 
 
 and Warsaw Eailway Company, 14 Am. a lease at will, not ; but that he might 
 
 E. 13. secure himself by covenant ; but because 
 
 2 D. 9, 2, 30, 3. he is answerable over to his lessor, in that 
 
 ' The clause set out in the text was respect he shall have an action on the 
 
 originally to continue for the space of three case. Also the Court held no action lay 
 
 years, but lo Anne, c. 14, s. i, made the against the defendant for the stable he took 
 
 clause perpetual. In a note to Coke upon if the fire ceased there ; but if it goes on 
 
 Littleton, Hargrave's edition (573, note l), and bums his next neighbour's, he shall 
 
 it is said that at common law lessees are have an action for his loss, because he is 
 
 not liable for fire, either accidental oi- a stranger, and had it not in his power to 
 
 negligent ; which is proved, as to the make him covenant to be careful." 
 
9S2 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 14 Geo. III. 
 0. 78, s. 86. 
 
 Vaughan v, 
 llenlove. 
 
 Judgment of 
 Tindal, O.J. 
 
 If KeBZie v. 
 M'Leod. 
 
 Vanghan v, 
 Menlove. 
 
 The other 
 view: Black- 
 stone in his 
 Commentaries, 
 
 Lord Lynd- 
 hurst, C., in 
 Viscount 
 Canterbury v. 
 Attorney- 
 General. 
 ITiUiter v. 
 X'hippard. 
 
 By 14 Geo. III. c. 78, s. 86, the Acts of Anne and 12 Geo. III. 
 c. 73, which had been substituted for them, were all repealed, but 
 the clause respecting fires was re-enacted, with a change in the 
 wording : " Any person in whose house, chamber, stable, bam, 
 or other building, or on whose estate, any fire shall accidentally 
 begin." 
 
 Vaughan v. Menlove' is the first reported case after Turberville 
 ■a. Stamps. The defendant had negligently^ managed a stack of 
 hay on his premises, in consequence of which it took fire, and 
 the plaintiff's property was thereby destroyed. In answer to the 
 contention that, if the defendant acted to the best of his own 
 individual skill and judgment, nothing more was required of 
 him, the Court held that this was not the test ; and Tindal, 0. J., 
 said: "It is for the jury to say whether or not under the 
 circumstances the party has conducted himself with such a 
 degree of care and caution as might be looked for in a 
 prudent man To hold the degree of care to be suffi- 
 cient if co-extensive with the judgment of the individual would 
 introduce a rule as uncertain as it is possible to conceive. In 
 the present case it appears to me that the defendant not 
 only failed to observe the degree of care and caution that the 
 law required of him, but was guilty of very gross negligence." 
 In M'Kenzie v. M'Leod^ the law of Scotland was proved to 
 be the same — ^that for actual negligence the tenant was liable. 
 But in neither case was the attention of the Court in any 
 way called to the statute. In Vaughan v. Menlove, a case 
 tried at the assizes for Berkshire a year or two previously, before 
 Alderson, B., where defendant, in burning couch in his field, set 
 fire to and destroyed a plantation adjoining, was held to be acting 
 with negligence, and consequently liable, was cited by Seqeant 
 Talfourd, and approved of by the Court. 
 
 On the other hand, Blackstone says* : "By the common law, if 
 a servant kept his master's fire negligently, so that his neigh- 
 bour's house was burnt down, an action lay against the master ; 
 but now the common law is altered by the statute 6 Anne." 
 This passage was cited by Lord Lyndhurst, C, in Viscount 
 Canterbury v. Attorney-General,* who, however, refrained from 
 giving an opinion on the point raised by it. Shortly after 
 occurred the case of Filliter v. Phippard,* where the point had to 
 
 1 3 Bing. N. C. 468 ; 4 Scott 244. 
 
 2 "When the condition of the stack, 
 and the probable and almost inevitable 
 consequence of permitting it to remain in 
 its then state, were pointed out to him, he 
 abstained from the exercise of the pre- 
 cautionary measures that common pru- 
 dence and foresight would naturally sug- 
 
 gest, and very coolly observed that he 
 would chance it " : per Vaughan, J., 4 
 Scott, at p. 254. 
 
 ' 10 Bing. 385. 
 
 * 1 Bl. Com. 431. 
 
 ° (1843) I Phil. 306, at p. 320. 
 
 « II Q. B. 347; 17 L. J. Q. B. 89. 
 
BOOK III.] FlUE. gga 
 
 be considered ; and there Denmau, O.J., delivering the considered 
 judgment of the Queen's Bench, held that the word " acciden- 
 tally " in the Act of Parliament as applied to fire excluded " negli- 
 gently," and therefore, in a case of negligence, the liability for 
 fire still existed. The general efiect of this decision would 
 appear to be to require the plaintiff in the action affirmatively to 
 shew negligence in the defendant before he would be entitled to 
 recover. This, however, is not true in its widest sense, since 
 negligence may be inferred from facts where it is not positively 
 shewn. Thus, in Piggott v. Eastern Coimties Eailway Com- Piggott v. 
 pany>— a case decided before FilHter v. Phippard, but throwing aesMiway"' 
 some light on it — in order to shew that the fire for which action Company, 
 was brought was probably caused by sparks or particles of 
 ignited coke emitted from the funnel or chimney or from the 
 fire-box of the engine, a witness stated that he had frequently 
 seen pieces of ignited coke fall from the lower part of the engine. 
 Other witnesses stated that they had frequently seen small par- 
 ticles of coke come from the chimneys of the company's engines, 
 and that sometimes ignited coal fell from the fire-box and were 
 thrown to a considerable distance. Tindal, 0. J., held that this Judgment of 
 constituted abundant evidence of negligence, and likened the '" *' ' " 
 case to Beaulieu v. Pingham, adding " there was no suggestion 
 that it was necessary to define the particular sort of negligence 
 that was complained of." And Maule, J., said "the matter Judgment of 
 in issue was whether or not the plaintiff's property had been *""' ' 
 destroyed by fire proceeding from the defendants' engine ; and 
 involved in that issue was the question whether or not the fire 
 could have been so caused ; " and subsequently he adds, with 
 reference to damage done by fire to buildings adjoining the rail- 
 way : " I am far from saying that it is impossible that this could 
 have occurred without negligence on the part of the company. 
 But it at least affords a strong presumption of negligence in the 
 absence of evidence to shew that something had been done by 
 the company to lessen the chances of danger." Thus it appears Conclusion. 
 that actual negligence, in the particular transaction, need not be 
 shewn even under the statute, but that the negligence may be 
 inferred from the surroundings. In this case the statute was 
 not cited in argument ; but this would be a fact rather corro- 
 borative of the decision in Pilliter v. Phippard, when taken in 
 connection with the counsel who were concerned in Piggott's 
 case. 
 
 There remains, then, to consider what the duty of a railway com- Duty of rdl- 
 
 , ... T.i c.i' ■ way company 
 
 pany is With regard to the construction and the use oi tneir engines, with regard to 
 
 the construe- 
 ' (1846) 3 C. B. 229; IS L, J. C. P. 235. 
 
984 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 14 Geo. III. 
 c. 78, s. 86. 
 
 with a view of avoiding liability for fire caused by them. This is 
 well stated by Williams, J., summing up in Freemantle v. London 
 and North-Western Eailway Company' : The company, " in the 
 u construction of their engines, are bound not only to employ all 
 due care and skill for the prevention of mischief arising to the 
 property of others by the emission of sparks or any other cause, 
 but they are bound to avail themselves of all the discoveries 
 which science has put within their reach for that purpose, pro- 
 vided they are such as, under the circumstances, it is reasonable 
 to require the company to adopt. But if the dangers to be 
 avoided were insignificant or not very likely to occur, and the 
 remedy suggested was very costly and troublesome or such as 
 interfered materially with the efficient working of the engine, 
 you will say whether it could reasonably be expected that the 
 company should adopt it. On the other hand, if the risk was 
 considerable, and the expense or trouble or inconvenience of pro- 
 viding the remedy was not great in proportion to the risk, then 
 you would have to say whether the company would reasonably 
 be excused from availing themselves of such remedy because it 
 might, to some extent, be attended with expense or other disad- 
 vantage to themselves." 
 
 The efEect of the Act 14 Geo. III. c. 78, s. 86, seems to be 
 that whereas before the Act, on a fire occurring, liability was 
 assumed unless it was shewn to have been due to the acts of 
 strangers or to unanticipated action of nature ; since, the statute 
 liability is negatived till circumstances may be shewn from which 
 the inference of negligence could be drawn. Then it is for the 
 defendant to shew either that the fire was caused (a) by the act 
 of strangers, or (j3) by some unlooked-for natural agency, or 
 (y) by accident in its widest sense — e.g., by occurrence similar 
 to that in Snook v. Grand Junction Water Company.^ The 
 effect of the statute may be stated as changing the onus, and 
 limiting the class of acts importing legal wrong ; or as a declen- 
 sion from the highest degree of diligence' to that required of a 
 prudent man in the provident conduct of his business.'' 
 
 Mere occur- 
 rence of a fire 
 sometimes 
 evidence of 
 negligence. 
 
 But here, again, a distinction must be taken. In some 
 
 cases 
 
 6 
 
 the mere occurrence of a fire would be evidence of negligence.' 
 
 Eylands, L. E. 2 H. of 
 
 1 2 F. & F. 337, at p. 340. A rale waa 
 moved for in this case, and refused : lo C. B. 
 N. S. 89. The statement of the law in tho 
 text was adopted by Keating, J. , in Dim- 
 mock V. North Staffordshire Kaihvay Com- 
 pany, 4 F. & F. 1058, as embodying " the 
 rule by which the liabilities of companies 
 for negligence in respect of their engines 
 aro governed." 
 
 2 2 Times L. E. 308. 
 
 3 Fletcher v. 
 L. 330. 
 
 * Vaughan v. Menlove, 3 Bing. N. C. 
 468 ; 4 Scott 244. 
 
 ' In America it has frequently been held 
 that the burden is on the company to shew 
 that the engines they used were properly 
 constructed — e.g'.,Bnrke w.Louisville Kail- 
 road Company, 19 Aro. E. 618, and note; 
 but the statute dees not seem to have been 
 
BOOK III.] FlEE. 985 
 
 As was said by Erie, O.J., in the Exchequer Chamber, in Scott v. Soott v. 
 
 London and St. Katharine Docks Company' : " Where the thing |t° Katoe 
 
 is shewn to be under the management of the defendant or his J^ooks Oom- 
 
 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 defendants, that the accident arose from want 
 
 of care ;" while in other cases something beyond should be shewn, 
 
 as stated by Eobinson, C.J., in Dean r. M'Carty, in the Queen's joean v. 
 
 Bench of Upper Canada " : "To hold that what is so indispens- *'-'^*'^'y- 
 
 able, not merely to individual interests, but to the public good, 
 
 must be done wholly at the risk of the party doing it without 
 
 allowing for any casualties which the act of God may occasion, 
 
 and which no human care could certainly prevent, would be to 
 
 depart from a principle which, in other necessary business of 
 
 mankind, is plainly settled and always upheld ; if it could be 
 
 shewn that this business of clearing land could, by means which 
 
 we can suppose to be within the reach of those employed in it, 
 
 be done at a time or in a manner that would make it wholly 
 
 independent of any accident within the control of the party, 
 
 then, perhaps, the bare fact of not having taken those certain 
 
 means might be held to constitute negligence, in which case 
 
 the liability for damages would always as a matter of course 
 
 follow the injury. But as we cannot, I think, venture to hold 
 
 that there are any certain means of avoiding such accidents, it 
 
 must in each case be a question of fact for the jury whether 
 
 the defendant has any negligence to answer for or not." 
 
 This passage from the judgment in Dean v. M'Carty was Furlong ». 
 cited and approved in Furlong v. Carroll' by the Canadian ju'^g^ent of 
 Court of Appeal in an admirable judgment by Patterson, J. A., Patterson, j.a. 
 in which the English authorities are considered and reviewed. 
 This case may serve as an illustration of the distinction between 
 the two classes just adverted to. It was there held that where 
 fire has been properly set out by a person on his land for the 
 necessary purposes of husbandry, at a proper place, time, and 
 season, and managed with due care, he is not responsible for 
 damage occasioned by it; and this on the ground that every 
 man has a right to use his land in the way that seems best to 
 himself, though in using fire he is bound to use proper precau- 
 tions that it does not extend to his neighbour's. But where a 
 
 alluded to in that case, which prohably would therefore appear requisite. 
 
 would not be held good law in England. ^ 3 H. & C. 596, at p. 601 ; 34 L. J, 
 
 The plaintiff has to prove his cause of Ex. 220; 13 L. T. N. S. 148; 13 W. E. 
 
 action; to shew there has been a fire, and 410. 
 
 from an engine, does not shew it under ^ 2 U. C. R. 448. 
 
 the statute; some evidence of negligence = (1882) 7 Ontario App. Kep, 145. 
 
9^6 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III 
 
 Distinction 
 diTiwn. 
 
 Effect of 
 6 Anne, c. 
 
 Smith V. 
 London and 
 
 Hallway 
 Company, 
 
 lighted matcli has been thrown down, which set fire to combus- 
 tible 'material, and which the defendant could easily have put out, 
 but, instead, merely isolated, so that the fire, after burning- for 
 four or five days, spread to the plaintiff's premises and burnt 
 them down, he is responsible, for he has brought a dangerous 
 thing on his groimd, and is responsible for all the damage which 
 is the natural consequence of its spreading, unless the spreading 
 is a consequence of vis major. The distinction drawn is between 
 fire as an instrument of husbandry and fire as a dangerous 
 agency.^ 
 
 Before the Act of Anne there would have been equal liability 
 in both cases. Since the Act, the happening of the fire in the one 
 class of cases may be evidence of negligence ; in the other, some 
 overt act is necessary to raise the presumption of negligence, 
 without which liability does not attach. This view is borne out 
 by the case of Siiiith v. London and South-Westem Railway 
 Southwestern Gompany,'' where, sparks from a passing engine having set fire to 
 a heap of dry grass piled up by the side of the railway, the fire 
 was carried across a road by a high wind and burned the cottage 
 of the plaintiff. BovUl, O.J., and Keating, J., held there was 
 evidence of negligence to make the railway chargeable, but Brett, 
 J., dissented. Adopting the doctrine of Eletcher v. Rylands, the 
 liability of the defendants would have been clear. The effect of 
 the statute was to limit their liability to those cases where negli- 
 gence was to be inferred. It was agreed that the mere circum- 
 stance of the fire beiug caused by sparks or cinders emitted from 
 the engine of the company was not enough to give a cause of 
 action against them ; and this on a similar ground to that by which, 
 in the Canadian case, a fire, in certain circumstances, was held a 
 mere lawful operation of husbandry — that what happened in that 
 respect was an incident of legally authorized business ; but the 
 majority of the Court thought the presence of the bundles of 
 dry grass was evidence of negligence to go to the jury ; while 
 Brett, J., was of opinion there was no duty, " because it was not 
 shewn that plaintiff's property was of such a nature and so situate 
 that the defendants ought to have known that, by permitting 
 rummage and hedge-trimmings to remain on the banks of the 
 railway, they placed it in undue peril." Had the view of Brett, J., 
 prevailed, the effect of the statute would have been extended by 
 requiring negligence to be shewn with reference to any particular 
 
 Brett, J.,'s 
 dissent. 
 
 1 See Gillson v. Nortii Grey Railway 
 Company, 35 Canada Q. B. 475 ; Hilliaid 
 V. Thurston, 9 Ontario App. Rep. 514. 
 Compare Jones v. Festiniog Railway Com- 
 pany, L, R. 3 Q. B. 733 ; 37 L. J. Q. B. 
 
 214 i 18 L. T. N. S. 902 ; 17 W. E. 28) 
 Powell V. Tall, 5 Q. B. D. 597 ; 49 L. J. 
 Q. B. 428 ; 43 L. T. 562. 
 
 2 L. R. s C. P. 98 ; 39 L. J. C. P. 68 \ 
 21 L. T. N. S. 668 ; 18 W. E, 343. 
 
BOOK III.] FIRE. 987 
 
 plaintiff.' On appeal to the Exchequer Chamber,^ the judgment Case re- 
 of the majority in the Court below was sustained, Kelly, O.B., fteEx^oh^quer 
 saying : " I am of opinion that no reasonable man would have ptamber : 
 foreseen that the fire would consume the hedge and pass across a Kelly, c.b. 
 
 stubble field and so get to the plaintiff's cottage It may 
 
 be that they did not anticipate, and were not bound to anticipate, 
 that the plaintiff's cottage would be burnt as a result of their 
 negligence ; but I think the law is that if they were aware that 
 these heaps were lying by the side of the rails, and that it was 
 a hot season, and that therefore by being left there the heaps 
 were likely to catch fire, the defendants were bound to provide 
 against all circumstances which might result from this, and 
 were responsible for all the natural consequences of it." The 
 effect of this plainly is that, negligence being found, it is not 
 necessary to find, in addition, a probability of damage to any 
 given property or person. It is sufficient if, when the negligence 
 works out its results, one of them reasonably and naturally is a 
 damage to any particular property, in order to make the person 
 negligent on his own property liable for damage to another's, 
 irrespective of the antecedent manifestation of elements likely to 
 raise a duty.' 
 
 Since, then, we see that the negligence of a person on whose obligation 
 property fire begins is actionable, without requiring any obvious use of land 
 antecedent duty pointing to the exercise of special care in any !,™ pj^,^'"^ 
 given direction to accentuate the negligence — since, that is, negli- 
 gence is actionable when followed by damage as its natural conse- 
 quence, even though antecedently the causation is not apparent — 
 we must inquire what, if any, is the obligation that the use of 
 land for a -lawful purpose, but one that is likely to prove danger- 
 ous to neighbours, imposes upon them. On principle, it is clear 
 that a man is entitled to the natural user of his property free 
 from interruption or limitation from his neighbours. 
 
 But this must not be stated universally. For instance, if an Limitation. 
 adjoining proprietor were to sow his field next a railway with 
 wheat or other crop which was combustible, it could not be said 
 he was contributory to his loss. He must be allowed to use 
 his land after the construction of the railway as he did before 
 it, where the use he is putting it to is not necessarily or in- 
 evitably dangerous."" But if out of mere wantonness he were 
 
 ' Higgins V. Dewey, 107 Mass. 494, is '_ Higgins v. Dewey, 107 Mass. 494, is 
 
 decided on the same principle. A late decided on the same principle. 
 
 case is Adams v. Young, 58 Am. E. 789, * In Gagg y. Vetter, 13 Am. E. 322, at 
 
 with a note examining the authorities, p. 346, there is to be found a most compre- 
 
 "■* P- 795- hensive review of the duty to prevent 
 
 2 L. E. 6 C. P. 14 ; 40 L. J. C. P. 21 ; sparks from a chimney injuring a neigh- 
 
 23 L. T. N. S, 678 ; 19 W. E. 230. hour. lu that case sparks from a brewery 
 
works. 
 
 988 THE LAW Of NEGLIGENCE. [book iii. 
 
 to put up his hay or straw stacks close to the railway ground, 
 or if he were to erect a powder factory close to the railway 
 track, his conduct would have a very different aspect.' 
 
 Eule. With this limitation, however, it may be said that the owner 
 
 of lands adjacent to those on which dangerous operations are 
 carried on may cultivate, build upon, and use his lands or leave 
 them in a state of nature as he may see proper, and will take 
 upon himself no other risks than are incident to the ordinary and 
 natural user of the neighbouring properties,' and will be entitled 
 to remedy for damages arising from negligence by his neigh- 
 bours ; with this further limitation, in the case of a company 
 authorized to carry on any particular business by statute, that 
 all the ordinary and necessary processes in carrying out the statu- 
 tory purpose become themselves authorized, and, though bringing 
 damage, do not legally import injury.' 
 
 Use of fire- The interpretation of the Act 14 Geo. III. c. 78, excluding 
 
 fires arising from defendant's negligence from the protection of 
 the Act, is the same in America* as in England and Canada. 
 
 Closely allied with the subject we have been discussing is that 
 of the use of fireworks. 
 
 By the English law regulations are placed on their sale, both 
 with regard to the place in which they are sold, which has to be 
 licensed," and the person to whom they are sold, who is required 
 to be not " apparently under sixteen years of age."' And " if any 
 person throw, cast, or fire, or aid and assist in throwing, casting, 
 and firing, any squib, serpent, rocket, or other firework in or into 
 any thoroughfare or public place, he shall for every such offence 
 forfeit any sum not exceeding £^."'' If he were to injure any 
 one when thus infringing the Act, his liability sufficiently appears 
 from the well-known case of Scott v. Shepherd.^ But, apart from 
 the Act of Parliament, the explosion of fireworks in public places 
 is wrongful by common law." 
 
 cliimney were the cause of the burning of 420 (the English cases are subjected here to 
 
 plaintiff's property. The question whether an elaborate examination). In Spaulding 
 
 proper means have been taken to prevent v. Chicago and North-Western Railway 
 
 the escape of sparks is for the .jury: Company, 11 Am. K. 550, a distinction is 
 
 Toledo, &c., Railway Company v. Pindar, drawn between 6 Anne, 0. 3, s. 6, which 
 
 5 Am. R. 57. isheldpart of the common law of America, 
 
 1 Holmes v. Midland Railway of and 14 Geo. III. c. 78, s. 86, which is 
 
 Canada, 35 Canada Q. B. 253 ; Jaffrey v. there held not to apply at all. 
 Toronto, Grey, and Bruce Railway Com- ^ The licence is granted by the justices 
 
 pany, 23 Canada C. P. 553. at general quarter sessions or at petty 
 
 3 Philadelphia and Reading Railroad sessions, or by the council of a borough : 
 
 Company ?;. Hendrickson, 21 Am. R. 97. 23 & 24 Vict. 0. 139, a. n ; 24 & 25. 
 
 'Delaware Railroad Company i^. Sal- Vict. c. 130, sp. r, 2. 
 mon, 23 Am. R. 214, where there is a most " 23 & 24 Vict. c. 139, d. 8. 
 
 exhaustive judgment ; Hammersmith Rail- '' 23 & 24 Vict. c. 139, s. 9. 
 
 wayCompany«.Brand,L.R.4H.ofL.i7i. * 2 W. Bl. 892; i Sm. Lead. Cas. 9th 
 
 * Scott V. Hale, 16 Me. 326 ; Webb v. edit. 480. 
 Rome, &c., Railroad Company, 49 N. Y. " Conklin 0. Thompson, 29 Barb. 2l8. 
 
BOOK III.] FIEE. 989 
 
 But even in circumstances in which the explosion of fireworks Lord Eiieu- 
 is not unlawful the greatest care must be used with them, and ^I'ew'of'a 
 failure in this respect will import liability. In one case^ Lord schoolmaster's 
 EUenborough said that " if a master of a school, knowing that regard to fiie- 
 fireworks would be used, were to be guilty of negligence in not to°soiiooiboys. 
 preventing the use of them, he would be amenable for the con- 
 sequences," and was of opinion that an action would be main- 
 tainable if it were shewn that a schoolmaster had delivered out 
 fireworks to boys, and that an accident had then occurred 
 through the wilful misconduct of one of them. This could only 
 be on an assumption that fireworks and boys were agencies 
 dangerous in conjunction, however innocent apart, to which the 
 words of Tindal, C.J., in Vaughan v. Menlove^ were applicable : 
 " Put the case of a chemist mixing substances which alone are 
 perfectly innocent, but which are liable to explode on coming 
 into contact, and thereby occasioning damage to his neighbour, 
 who could for a moment doubt that the injured party would have 
 a remedy by action ? " 
 
 This alleged dictum of Lord BUenborough's would impose a Whitby ». 
 liability for which it would be hard to find independent authority. 
 In Whitby v. Brock' Lord Esher, M.E., is reported as saying, 
 " The mere fact that the fireworks struck the plaintiff was suffi- 
 cient primd facie evidence of negligence, because fireworks did 
 not ordinarily strike the spectators and bystanders ; " but the 
 evidence of negligence that Lord EUenborough would seem to 
 admit as primd facie is a long stage beyond that covered by the 
 principle laid down by Lord Esher, M.R. Besides the fact, that 
 fireworks struck the plaintiff, which is to aflSx a liability to the 
 person letting them off, there is the further fact, that the person 
 letting them off, if a schoolboy, is in rightful possession of them 
 — that is, has them from, or by permission of, his schoolmaster 
 — and this, without any evidence of circumstances of time, or 
 place, or precaution, is to make an action maintainable. The 
 proposition required to support this position is that the posses- 
 sion of fireworks by schoolboys is in all circumstances unlawful. 
 The absurdity of the dictum as reported seems the greater when 
 it is considered that the freak of a mischievous animal will not 
 import liability,'' while the freak of a mischievous boy would 
 do so. 
 
 The case of Whitby v. Brock, just alluded to, is a valuable Amount ot 
 authority on the amount of care to be used in the letting off in letting off 
 
 ' King V. Ford, I Stark. 421. * Hammaok v. White, 11 C. B. N. S. 
 
 2 4 Scott 244, at p. 252 ; 3 Bing. N. C. 588 ; 31 L. J. C. P. 129 ; S L- T. N. S. 
 
 ^58. 676. See Manzoni v. Douglas, 6 Q. B. D. 
 
 s '4 Times Ij, E. 241. 14S ; 5° L. J. Q. B. 289 ; 29 W. E. 425. 
 
990 
 
 THE LAW OP NEGLIGENCE. 
 
 [book hi. 
 
 ful ocoasion. 
 
 fireworks in fireworks in a lawful place and on a lawful occasion. Defendants 
 and^ "a^aw! ^^re letting off fireworks for their own benefit in the Crystal 
 Palace grounds, when plaintiff's wife, entering the Palace grounds, 
 was struck on the leg by a firework and injured. As we have 
 already seen, Lord Esher, M.E., held that the mere occurrence 
 of an accident was sufficient to warrant the Court leaving the 
 question of negligence to the jury. And Lopes, L.J., referring 
 to his judgment in Parry v. Smith,' was of opinion that this case 
 came under the principle there enunciated, that a duty " attaches 
 in every case, where a person is using or is dealing with a 
 highly dangerous thing, which, unless managed with the greatest 
 care, is calculated to cause injury," to use the greatest care. 
 The law is the same as that which regulates the use of fire- 
 arms : " It was incumbent on him, who by chargiug the gun 
 had made it capable of doing mischief, to render it safe and 
 innoxious."^ In any event, after the occurrence of an accident 
 through a dangerous agency — ^the mere fact, as we have seen, 
 being primd facie evidence of negligence — it is for the jury to 
 decide whether there has been " absence of care according to the 
 circumstances."' 
 
 But the circumstances may require very different degi-ees of 
 care." " A hunter shooting in a wilderness is not bound to the 
 caution of a person shooting in a populous neighbourhood."' 
 But it is matter for a jury whether, on any facts " from which 
 negligence may be reasonably inferred " being established, negli- 
 gence ought to be inferred from them.° And therefore, in these 
 cases, where the mere occurrence of an accident is sufficient 
 j)rinid facie evidence of negligence to go to a jury,' it is left 
 practically to a jury to decide what degree of diligence should 
 be required, subject, of course, to the direction of the judge, who 
 should call their attention to the fact that there is no undeviating 
 and cast-iron rule as to .what is negligence, but that negligence 
 is " absence of care according to the circumstances." 
 
 Within certain limits the verdict of a jury would be con- 
 clusive, but where they are sheWn to have affixed liability by 
 requiring a different degree of diligence from that which the 
 law demands, their verdict would probably be set aside as not 
 warranted by the evidence. Thus, if a man shot on the moors 
 
 Province of 
 the jury. 
 
 1 4 0. P. D. 32s ; 48 L. J. C. P. 731 ; 
 41 L. T. 93 ; 27 W. B. 801. 
 
 2 Dixon V. Bell, 5 M. & S. 198. 
 
 3 Per Willes, J., in Vaughan v. Taff 
 Vale Railway Company, 5 H. & N. 679, 
 at p. 688. 
 
 * Eegina v. Hutchinson, 9 Cox C. C. 
 .5SS- 
 
 ^ Wharton, Law of Negligence, § 882, 
 citing Bizzell v. Booker, 16 Ark. 308. 
 
 " Metropolitan Railway Company v. 
 Jackson, per Lord Cairns, C, 3 App. Cas. 
 193, at p. 197. 
 
 ' Per Lord Esher, M.R., Whitby v. 
 Brock, 4 Timos L. R. 241. 
 
BOOK m.] FIEE. 99J 
 
 of Yorkshire were to bring Ms action, and it were to be shewn 
 that every precaution was used customary for men out shooting, 
 but the jury were to adopt for their standard that which should 
 be adopted by a man carrying a gun down Fleet Street : on this 
 being apparent, the verdict would be set aside, because the jury 
 had not applied their minds to the only relevant inquiry — " care 
 according to the circumstances." 
 
 1 . Where the owner of land, without wilfulness or negligence, Summary, 
 uses his land in the ordinary manner of its use, though mischief 
 should thereby be occasioned to his neighbour, he will not be 
 
 liable to his neighbour in damages.' 
 
 2. Where the act from which mischief has arisen is admitted 
 to be in the natural use of land, it is a conclusion of law that 
 mischief so arising is not actionable ; but where the quality of the 
 act is not admitted, the question whether the user of land is the 
 ordinary and natural one, and without negligence or otherwise, is 
 for the jury.^ 
 
 3. Where the owner of land brings upon his land anything 
 which would not naturally come upon it, and which is itself 
 dangerous, and may become mischievous if not kept under 
 proper control, though in so doing he may act without negli- 
 gence, he will be liable for any mischief thereby occasioned.' 
 
 4. At common law the duty to keep fire on one's land was a 
 case under the rule in Rylands v. Fletcher.'' 
 
 5. Where fire was caused by the wrongful act of a third 
 person, and without the intervention of the owner of the land, 
 there was an exception,^ and the owner of the land was not 
 liable. 
 
 6. Where fire was caused in the natural use of land, as for 
 the purpose of clearing ground in course of husbandry, and with- 
 out negligence, the owner of the land would not be liable." 
 
 7. Where fire, brought on land in the ordinary and proper 
 enjoyment of property, becomes mischievous through the inter- 
 vention of a natural agency, and one not to be calculated on, as 
 a violent storm or wind, there is another exception to the rule 
 before stated, and the landowner is not liable.' 
 
 8. By statute no person is liable for fire accidentally beginning 
 
 1 Fletcher v. E.vlands, L. E. 3 H. of pany, L. E. s Q: B. 733 ; 37 L._ X Q. B. 
 L. 330 ; Ross V. Fedden, L. E. 7 Q. B 
 661 ; Nichols v. Marsland, L. R. 10 Ex, 
 255, per Bramwell, B., at p. 260 ; (C. A.) 
 2 Ex. D. I. 
 
 2 Dean v. M'Carty, 2 U. C. E. 448 
 Farlong v. Carroll, 7 Ontario App. Eep, 
 145. 
 
 V ■> Fletcher v. Eylands, L. E. 3 H. of L 
 ' 330 ; Jones «. Festiniog Eailway Com 
 
 214 ; 18 L. T. N. S. 902 ; 17 "W. E. 28. 
 
 * See cases cited p. 979. 
 
 " 2 Inst. 53. 
 
 8 Dean v. M'Carty, 2 U, C. E. 448 ; 
 Furlong v. Carroll, 7 Ont. App. 145, and 
 the cases there cited. 
 
 ' Tnrberville v. Stampe, 12 Mod. 151 ; 
 I Ld. Eaym. 264. 
 
992 THE LAW OF NEGLIGENCE. [book iii. 
 
 in his house, chamber, stable, bam, or other building, or on his 
 estate.' 
 
 9. By the words " accidentally beginning " is excluded a fire 
 having its origin in negligence.^ 
 
 10. Under the Act 14 Geo. III. c. 78, s. 86, the onus of 
 shewing facts from which negligence may be inferred is on the 
 plaintiff,' except in those cases where the thing is shewn to be 
 under the management of the defendant and his servants, and 
 the accident is such as, in the ordinary course of things, does not 
 happen if those who have the management take proper care.* 
 
 1 1 . To constitute primd facie evidence of negligence, where 
 mischief has arisen from want of care of fire or other dangerous 
 agency, it is not requisite there should be antecedent probability 
 of mischief if subsequently, in fact and in natural course, mis- 
 chief has happened to the plaintiff from an act capable of being 
 negligent.' t 
 
 12. Damage arising from the use of dangerous agencies or 
 fire (apart from statute) is primd facie evidence of negligence for 
 a jury." 
 
 1 14 Geo. III. c. 78, s. 86. L. J. Ex. 220 ; 13 L. T. N. S. 148 ; 13 
 
 2 Filliter v. Phippard, 11 Q. B. 347 ; 17 W. E. 410. 
 
 L. J. Q. B. 89. = Smith v. London and South-'Westem 
 
 ' Piggott V. Eastern Counties Railway Railway Company, L. E. 5 C. P. 89, 
 
 Company, 3 C. B. 229 ; 15 L. J. C. P. L. C. 6 C. P. 14 ; 40 L. J. C. P. 21 ; 23 
 
 23s. L. T. N. S. 678 ; 19 "W. E. 230. 
 * Scott V. London and St. Katharine ^ Whitby v. Brock, 4 Times L. E. 
 
 Docks Company, 3 H. & C. 596 ; 34 241. 
 
CHAPTEE V. 
 
 GAS AND WATEE COMPANIES. 
 
 We are now to consider the position of gas and water companies. 
 For this purpose it will be necessary to discriminate their different 
 relations, which may be either to the local authority of the district 
 iu which they carry on their operations ; or to the public at large ; 
 or, lastly, to their customers. 
 
 With regard to their relations to the district authorities in 
 which they carry on their operations, these may be regarded, first, 
 from the point of view of the common law unmodified by statute ; 
 and, secondly, by statute as modifying the common law. 
 
 First, then, with regard to the position of gas and water com- 1. Position of 
 panics at common law. s^ and water 
 
 '^ companies at 
 
 The law is laid down in Regina v. Longton Gas Company.' In common law. 
 that case the defendants were charged with obstructing a high- loagton Gas 
 way by opening trenches and laying down pipes, and conveying Company. 
 gas to private houses. There was a power by Act of Parliament 
 to do such acts in respect of laying down pipes and mains for 
 public purposes, but not for private purposes. Cockburn, 0. J., Judgment of 
 delivering the considered judgment of the Court of Queen's 
 Bench, said : " General convenience is greatly against the allow- 
 ing private persons or companies, without parliamentary powers, 
 to interfere from time to time with the public streets. The 
 making openings from time to time for water, gas, sewage, and 
 other purposes, and the opening of the streets for repairs and 
 alterations, are a serious inconvenience, even when done under 
 the restrictions which an Act of Parliament puts upon the persons 
 clothed with parliamentary authority so to act ; and it would be 
 difficult to see how far the annoyance might extend if unauthorized 
 dealings of this nature with the highways were allowed. Is every 
 private person to be at liberty to open the street for laying down 
 
 ' 2 E. & E. 651 ; 8 Cox C. C. 317 ; Ellis v. Sheffield Gas Consumers' Company, 
 2 Ell. & BI. 767 — an action for negligence caused by the negligence of defendants' 
 contractor. 
 
 3E 
 
094 
 
 THE LAW OF NEGLIGENCE. 
 
 [book in. 
 
 a pipe to any gasworks, or to any conduit of water, or to any well 
 or fountain in a market-place ? How far is such a right to extend ? 
 If anybody can lay down such a pipe from the nearest water or 
 gas, how great would be the inconvenience from the continual 
 opening of the streets for the first laying down' and for the con- 
 stantly recurring purpose of repairing. Were such private rights 
 as to gas, sewage, and water pipes to be allowed, the highways 
 would be in a constant state of obstruction. The present is an 
 exceptional case, where it happens, from the fact of the mains 
 being laid for public purposes, that it is more easy to get at the 
 supply of gas than in ordinary cases ; but this ought not to affect 
 the principle. The case does not seem to me to fall within what 
 may be called the ordinary incidents and rights which, in common 
 sense and for common use, are understood to appertain to the 
 enjoyment of property. On the contrary, such a right as is here 
 claimed of interfering with the streets is never exercised except 
 under the authority of Acts of Parliament conferring special 
 powers with great care and under proper control, in the case of gas, 
 by placing the companies supplying it under the provisions of The 
 General Gasworks Companies Act, according to which the parties 
 are subjected to wholesome restrictions, and to the control of the 
 magistrates." And in the subsequent case of The Queen v. Train,' 
 where the right to lay tram lines in a highway without parlia- 
 mentary sanction was discussed, Orompton, J., when giving the 
 judgment of the Court, said: " This case also falls within Eegina 
 V. Longton Gas Company, Limited, with which we took a good deal 
 
 of pains If persons wish for power to act as the defendants 
 
 acted here, they must take the usual regular and constitutional 
 course of getting the protection of the Legislature." 
 
 The limits of these cases have sometimes been supposed not to 
 consist ^ entirely with cases like Attorney-General v. Sheffield Gas 
 Consumers' Company' and Attorney-General v. Cambridge Gas 
 Consumers' Company.* This, however, arises from a misappre- 
 Cambridge Gas hension of what those cases decided. They were proceedings in 
 Company? iovvQ. by a public officer, but in substance by an antagonistic and 
 competing company — in form to obtain an injunction restrain- 
 ing a public nuisance, but in substance to prevent trade competi- 
 tion affecting their private interests ; and in each case the Court 
 was of opinion that " the suit has been instituted more from 
 regard to private than to public good. If the public interest 
 
 The Queen ii. 
 Train. 
 
 Attorney- 
 General V. 
 Sheffield Gas 
 Consumers' 
 Company and 
 Attorney- 
 General V. 
 
 1 2 B. & S. 640; 9 Cox C. C. 180; 31 
 L. J. M. C. 169; 10 W. B. S39; at^m 
 Prius, 3 F. «i! ¥. 22. 
 
 2 See per Malins, V.C., Attorney- 
 General V. Cambridge Consumers' Gaa 
 
 Company, L. B. 6 Eq. 282, at p. 293. 
 
 3 3 De G. M. & G. 304. 
 
 * L., R. 4 Ch. App. 71 ; 38 L. J. Ch. 
 94 ; 17 W. B. 145. 
 
BOOK III.] GAS AND WATEE COMPANIES. 995 
 
 clearly required the immediate interposition of the Court, that 
 might not be material."' And, again, " that not one single inhabi- 
 tant is brought forward to say, though five miles of work has been 
 completed, that there has been any inconyenienco to himself ; no 
 passenger along the Queen's highway says that he has been 
 impeded." The decision of the Court was in each case based on 
 the fact that what was required was an injunction, and there was 
 a legal remedy. 
 
 In Attorney-General v. Cambridge Consumers' Company, Wood, 
 L.J., said ' : " Where the Court interferes by way of injunction 
 to prevent an injury in respect of which there is a legal remedy, 
 it does so upon two grounds which are of a totally distinct 
 character : one is that the injury is irreparable, as in the case 
 of cutting down trees ; the other, that the injury is continuous, 
 and so continuous that the Court .... restrains the repeated 
 acts, which could only result in incessant actions, the continuous 
 character of the wrong making it grievous and intolerable." 
 
 The decision in these cases, then, was no more than that the Cases con- 
 Courts will not interfere by injunction to restrain a nuisance 
 which is not continuous so as to be grievous and intolerable. 
 Now, in the same judgment of Wood, L.J., referring to Regina 
 V. Longton Gas Company,^ the Lord Justice said : "It was held, 
 upon grounds in which I entirely acquiesce, that to say that any 
 private individaal or company may break up the pavements for 
 the purpose of laying down gas-pipes or water-pipes, or of 
 making communications with the gas-pipes or water-pipes of 
 another company, without subjecting themselves to an indictment, 
 would be to create confusion and discomfort to the inhabitants of 
 a town." The grounds of decision were, therefore, altogether 
 different, and cover distinct provinces — the one being referable 
 to the equitable and discretionary jurisdiction of the Court of 
 Chancery, the other relating to an absolute and public legal 
 right. This is the more manifest from a note to the report in 
 Attorney-General v. Sheffield Gas Consumers' Company," which 
 states that, subsequently to the decision of the Lord Chancellor 
 and the Lords Justices, an indictment was tried and a verdict 
 given for the Crown, which the Queen's Bench refused to disturb, 
 as they were of opinion the obstruction amounted to a nuisance — 
 or rather probably that there was evidence from which the jury 
 might find the existence of a nuisance. Thus, although the Court 
 of Chancery refused to intervene, after its refusal the legal remedy 
 
 1 I.e., that they were instituted from = 2 E. & E. 651 ; 29 L. J. M. C. 118 ; 
 private, and not from public, regardf. 8 Cox C. C. 317. 
 
 2 L. E. 4 Ch. App. 71, at p. 80. -i 3 De G. M. & G. 304, at p. 338. 
 
996 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Local boards 
 cannot giro 
 pennission to 
 companies to 
 disturb the 
 highway 
 unless em- 
 powered by 
 statute. 
 Hawkins v, 
 Bobinson, 
 
 Edgeware 
 Highway 
 Board v. 
 Harrow Gas 
 Company, 
 
 was available notwithstanding, through the verdict of a jury. 
 The two Chancery cases, therefore, illustrate the discretionary 
 nature of the Chancery jurisdiction in matters of injunction, and 
 not any conflict with the principle of the common law, which will 
 not allow interference with the highways. 
 
 The right of the public to the enjoyment of their highways unim- 
 peded is absolute, and cannot be alienated even by the authorities in 
 whom the highways are made to vest for the purposes of mainte- 
 nance, but by statute only. Thus, in Hawkins v. Robinson' a local 
 board affected to give permission to a gas company, without an Act 
 of Parliament, to lay their pipes in the streets, but the Court of 
 Queen's Bench held that the licence of the local board was no answer 
 to the indictment ; and the subsequent case of Edgeware High- 
 way Board v. Harrow Gas Company^ does not affect this decision, 
 for that did no more than adjust the respective rights of the 
 litigants without raising any question as to the legality of their 
 action with regard to outside persons, and turned upon the 
 terms of an agreement which the plaintiffs, as surveyors of high- 
 ways, made with the defendant gas company, and by which the 
 plaintiffs gave permission to the defendants to break the surface 
 of the highway to lay down gas-pipes, in consideration that the 
 company should make good the surface of the road and should 
 pay a sum per yard for the highway opened. The company laid 
 their pipes, but did not make good the highway, and refused to 
 pay the price. The plaintiffs were held by the Queen's Bench 
 entitled to recover, on the ground that the agreement was not 
 necessarily a licence to create an indictable offence, and, since it was 
 possible so to regard it, as against the defaulting company it must 
 be held good. There was a doubt expressed by Lush, J., whether, 
 even assuming such a contract to be illegal, the defendants would 
 be entitled to set it up. This case, it is manifest, turns on other 
 considerations than that of a right in the local board to give 
 permission to dig up the highway ; but, had the case turned on 
 the validity of such a pretension, the judgment would merely 
 authorize it to the extent that it was not a nuisance. Now, it is 
 only to the extent that an obstruction is a nuisance that it can 
 be indicted, and what is a nuisance is for the jury, so that no 
 conflict can arise between this decision and the rule already 
 enunciated as that of the common law. 
 
 Two cases remain for consideration — Pudsey Coal Gas Company 
 
 1 37 J. P. 662, cited Michael and Will, 
 Law relating to Gas and Water, 3rd edit, 
 p. 16. 
 
 " L. E. 10 Q. B. 92 ; 44 L. J. Q. B. i ; 
 
 31 L. T. N. S. 402 ; 23 W. E. 90 ; Ben- 
 fieldside Local Board v. Consett Iron Com- 
 pany, 3 Ex.D. 54; 47 L. J. Ex. 491 ; 38 
 L. T. 530; 26W. E. 114. 
 
BOOK III.] GAS AND WATER COMPANIES. 997 
 
 V. Corporation of Bradford' and Mayor, &c., of Preston v. Full wood Pudsey Coai 
 
 Local Board." ^^^ Company 
 
 V. Corporation 
 
 In the former the Corporation of Bradford, having parliamen- °f Bradford. 
 
 . .,.,,.. 1.1.1 1 Mayor, &c., of 
 
 tary powers within the limits of their borough, commenced sup- Preston ». 
 ply™g gas in an adjoining township in which they had not Local Board. 
 parKamentary powers, but in which there was a gas company. 
 The gas company filed a bill against the corporation to restrain 
 them from continuing to supply gas within their district. Malins, 
 V.O., decided, in accordance with the principle laid down by Lord 
 Westbury in Stockport District Waterworks Company ■;;. Mayor, 
 &c., of Manchester,^ that though the corporation had no right to 
 do what the bill alleged them to hare done, since an incorporated 
 body had only those powers which were conferred upon it, still there 
 was no private right shewn which entitled the plaintiffs to main- 
 tain the suit ; and also on the ground that there was nothing to 
 prevent them supplying gas as they liked — that is, as against the 
 plaintiffs, and in the circumstances before the Court — if they keep 
 clear of committing a nuisance. 
 
 In Mayor, &c., of Preston v. Fullwood Local Board* the Cor- Mayor, &o., of 
 poration of Preston, who had no parliamentary powers for the Fullwood' 
 purpose, supplied water to the adjoining urban district, and ^°''^^ Board, 
 claimed the right to enter and break up the streets, whenever 
 occasion should require, for the purpose of repairing their 
 water-pipes. North, J., however, held there was no such power, 
 since it was a claim to commit a nuisance, which could not be 
 granted by the surveyor of highways, nor could it be obtained 
 by acquiescence. The case we have already considered of Edge- Edgeware 
 ware Highway Board v. Harrow Gas Company* was much pressed Brard^^f 
 in argument, but the learned judge distinguished it, for that it c^^^^y |]|ig. 
 "turned on its special facts, and the grounds of the decision tinguished by 
 
 ,. . 1 -i • i i.- c north, J. 
 
 have no application to a case where it is not a question oi com- 
 mitting a particular act on a particular highway at a certain 
 time, but a question as to the right to enter on the highway 
 and do the acts." Perhaps a more obvious and equally satis- suggested 
 factory ground would be that the Court will not be astute to s™""''- 
 detect invalidities in a contract when the defendant has obtained 
 the benefit and seeks to avoid the onus of it. One exception — 
 though an exception not substantially interfering with the rule 
 
 1 L. E. 15 Eq. 167 ; 42 L. J. Ch. 293 ; previously laid down. 
 28 L. T. N. S. 1 1 ; 21 W. R. 286. = 9 Jur- N. S. 266. 
 
 2 53 L. T. N. S. 718. Compare Norman- * 53 L. T. N. S. 718. Gas Light and 
 ton Gas Company v. Pope and Pearson, 32 Coke Company v. South Metropolitan Gas 
 W. E. 134; 52 L. J. Q. B. 629, where Company, 4 Times L. E. 3 (C. A.), 351, 
 pipes were laid down without parliamen- turned on the construction of a clause of 
 tary powers, but parliamentary powers the Metropolis Gas Act, i860. 
 
 were obtained subsequently ; the powers ^ L. R. 10 Q. B. 92 ; 44 L. J. Q. B. i ; 
 
 thus obtained were held to cover the pipes 31 L. T. N. S. 402; 23 W. R. 90. 
 
998 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 that pipes may not be laid in a highway without an Act of 
 Parliament authorizing the act — must be mentioned. " The 
 owner of the soil may carry water-pipes under a highway ; " ' 
 but this right is, as pointed out by Blackburn, J., in Cattle v. 
 Stockton Waterworks Company," only " provided he does not inter- 
 fere with the road above him." Thus, not even the owner himself 
 may disturb the highway, and he is in a better position than other 
 persons only as his ownership of the adjoining land may enable 
 him to tunnel without interfering with it, while his ownership 
 of the highway obviates what would else be a trespass. 
 Veet of the The case of a using of the soil beneath the highway, and with 
 
 than the owner *^^ consent of the highway authorities, by some one not the 
 and without owuer of the soil, and without his assent, did arise in Goodson v. 
 
 his consent. , 
 
 Eichardson.' There the defendant, having obtained the consent 
 of the highway board of the district, commenced to lay water- 
 pipes in the highway, which was the soil of the plaintifE. Jessel, 
 M.R., granted a perpetual injunction, which, on appeal, was 
 affirmed by the Lord Chancellor and the Lords Justices, Lord 
 Selbome, C, saying: "The plaintiff is the owner of the soil 
 through which these pipes have been laid, and no one has a 
 right to take that soil for such a purpose except under contract 
 with the owner or with his consent. At the same time the 
 plaintiff has not the right of an unlimited owner in respect of 
 that soil, because the upper surface is dedicated to the public 
 for the purpose of a public highway, which is under the manage- 
 ment of local authorities ; and the plaintiff cannot use the soil 
 or deal with it by breaking it open or in any other manner so 
 as to interfere with the use of it by the public for the purposes 
 of a highway." 
 
 The absence of powers at common law authorizing the supply 
 of gas and water has from time to time been supplied by various 
 Acts of Parliament,'' both general and local, and now, by the Gas 
 and Water Facilities Act, 1870 (33 & 34 Vict. c. 70), which is 
 incorporated with the Public Health Act, 1875, by section 161, 
 
 II. statutory 
 powers. 
 
 ^ Per Lord Mansfield, Goodtitle v. Alker 
 and Elmes, i Burr. 133, at p. 143. 
 
 = L. R. 10 Q. B. 453, at p. 4SS ; 44 
 L. J. Q. B. 139 ; 33 L. T. N. S. 475. 
 
 » L. E. 9 Ch. App. 221 ; 43 L. J. Ch. 
 790 ; 30 L. T. N. S. 142 ; 22 W. E. 337. 
 
 * As to gas :— 10 & II Vict. c. 15 
 (Gasworks Clauses) ; 22 & 23 Vict. c. 66 
 (Measures for Sale of Gas) ; 23 & 24 
 Vict. c. 125 (Metropolis Gas Act, i860) ; 
 23 & 24 Vict. c. 146 (Measures for Sale 
 of Gas); 33 & 34 Vict. c. 70 (Gas and 
 Water Works Facilities) ; 34 & 35 Vict, 
 c. 41 (Gasworks Clauses) ; 36 & 37 Vict. 
 c: 89 (Gas and Water Works Facilities) ; 
 
 38 & 39 Vict. 0. 55, ss. 68, 161-163 
 (Public Health); 41 & 42 Vict. t. 49, 
 ss. 33, 66 (Weights and Measures) ; 
 41 & 42 Vict. c. 52, ss. 77, 80, 81 
 (Public Health, Ireland). As to water : — 
 10 & II Vict. e. 17 (Waterworks Clauses) ; 
 26 & 27 Vict. 0. 93 (Waterworks Clauses) ; 
 33 & 34 Vict. c. 70 (Gas and Water 
 Works Facilities) ; 36 & 37 Vict. c. 89 
 (Gas and Water Works Facilities) ; 38 
 & 39 Vict. c. 86, s. 4 (Breach of Con- 
 tract) ; 40 & 41 Vict. c. 31 (Eeservoirs) ; 
 48 & 49 Vict. c. 34 (Bates, Metropolis) ; 
 besides an infinity of local Acts, 
 
BOOK m.] GAS AISTD WATER COMPANIES. 999 
 
 for the purpose of enabling a local authority to supply gas, power 
 is given to construct, maintain, and continue gasworks or water- 
 works, to raise additional capital, or to amalgamate any gas or 
 water enterprises upon obtaining a provisional order thereto 
 authorizing from the Local Government Board' and without resort 
 to Parliament. This Act, however, does not apply to the Metro- 
 politan area, where the supply and regulation of gas is regulated 
 by the Metropolis Gas Act, 1 86o,° and its amending Acts, and 
 that of water by the Metropolis Water Act, 1852,^ and the 
 Metropolis Water Act, 1871,'' and their amending Acts. By these 
 Acts, and by the Metropolis Management Act, 1855, powers 
 are given to break up and restore highways,* to apportion dis- 
 tricts,' to light streets,' and to do all acts which are necessary 
 to carry out the purposes of their constitution — namely, the 
 supply of gas and water to ascertained districts.' 
 
 We are next to consider the relations of gas and water com- 
 panies, acting within the general powers of their Acts, to the 
 public at large. 
 
 As we have seen" in the case of the carrying out of works I. Eelationof 
 authorized by statute, in order to recover for damage sustained fompanies' ^"^ 
 it is necessary that negligence in doing what is thus authorized ♦^''■"^^t^"'^ 
 should be shewn, otherwise the work is protected by the statu- tory powers 
 
 , . . . . , . T to tUo public 
 
 tory powers, and any injurious consequences must be compensated, at large. 
 if at all, under the provisions of the Act, and are not matter for 
 action. 
 
 Thus, in Blyth v. Birmingham Waterworks Company,'" an Blyth v. 
 Act of Parliament directed the defendants to lay down pipes wate'rworks 
 with plugs in them as safety-valves to prevent the bursting of Company, 
 the pipes. The plugs were properly made and of proper material ; 
 but there was an accumulation of ice about one of them that 
 prevented it from acting properly. The defendants were not 
 bound to keep the plugs clear. By reason of the accumulation 
 of ice, water escaping from the neck of the main forced its way 
 
 1 36 & 37 Vict. c. 8g. SeotionB 2 to 1 1 ' 23 & 24 Vict. c. 125, a. 6, 
 
 and the schedule of this Act are repealed ' 23 & 24 Vict. c. 125, s. 22. 
 
 by 46 & 47 Vict. 0. 39. ' The Waterworks Clauses Act, 1847, 
 
 ^ 23 & 24 Vict. c. 125. Each of the was much considered in Milnes v. Miiyor 
 gas companies of the Metropolis — the &c., of Huddersfield, 11 App. Gas. 511; 
 Gas Light and Coke, the South Metro- 56 L. J. Q. B. i ; 55 L.T.617; 34W. E. 
 politan, and the Commercial — are further 761, and in Atkinsons. Newcastle Water- 
 regulated by their private Acts. works Company, 2 Ex. D. 441 ; 46 L. J. 
 
 » IS & 16 Vict. c. 84. Ex. 775 ; 36 L. T. 761 ; 25 W. E. 794. 
 
 * 34 & 35 Vict. c. 113. See Gas Light and Coke Company v. 
 
 ^ 18 & 19 Vict. c. 120, B. 110. By Vestry of St. Mary Abbotts, Kensington, 
 
 23 & 24 Vict. i;. 125, B. 54, if the local 15 Q. B. D. i ; 54 L. J. Q. B. 414; 53 
 
 authority refuses or delays consent, the L. T. 457 ; 33 W. K. 892. 
 
 Secretary of State may authorize gas » Ante, p. 200. 
 
 mains or pipes to be laid. See 10 & 11 '» 11 Ex. 781 ; 25 L. J. Ex. 213. 
 Vict. c. 15,3.6; lo&ii Vict. vi. 17,8. 28. 
 
1000 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Judgment of 
 Alderson, B. 
 
 Bipkins V. 
 Birmingham 
 and StASord- 
 sMreGasLight ^ . 
 Company. 
 
 cause or 
 
 into the house of the plaintiff, who, however, was held not entitled 
 to recover, as the Court was of opinion that the facts as proved 
 did not warrant the conclusion of negligence. " Negligence," 
 said Alderson, B. — giving the definition that is so frequently 
 quoted in cases of 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 
 sottiething which a reasonable and prudent man would not do. 
 The defendants might have been liable for negligence if uninten- 
 tionally they omitted to do that which a reasonable person would 
 have done, or did that which a person taking reasonable precau- 
 tions would not have done. A reasonable man would act with 
 reference to the average circumstances of the temperature in 
 ordinary years. The defendants had provided against such frosts 
 as experience would have led men acting prudently to provide 
 against, and they are not guilty of negligence because their pre- 
 cautions proved insufficient against the effects of the extreme 
 severity of the frost of 1855, which penetrated to a greater depth 
 than any which ordinarily occurs south of the Polar regions. Such 
 a state of circumstances constitutes a contingency against which 
 no reasonable man can provide."' 
 
 With this should be compared Hipkins v. Birmingham and 
 Staffordshire Gas Light Company." By the terms of the defend- 
 special Act they were to be liable if they " at any time 
 suffer to be conveyed or to flow into any stream, 
 reservoir, aqueduct, pond, or place for water within the limits 
 of the said Act, any washing substance or thing which shall be 
 produced by making or supplying gas." The company erected 
 a gas-tank on solid sandstone, and with proper material's, about 
 forty-five yards from the plaintiffs well. By reason of the 
 working of mines by persons unconnected either with the 
 plaintiff or defendant the floor of the tank cracked, and washings 
 flowed into and contaminated the well, for which plaintiff was 
 held entitled to recover, both in the Court of Exchequer and 
 in the Exchequer Chamber, on the ground that it had not been 
 shewn that the manufacture of gas might not be so conducted as 
 to prevent the washings from flowing into the neighbouring wells, 
 and that there was neither hardship nor improbability in consider- 
 
 ^ But though the company would not be 
 liable for the unforeseen results of an 
 extraordinary frost, if they did not take 
 reasonable care against the effects of an 
 ordinary frost, aud an extraordinary one does 
 the mischief that might have happened 
 through their insufficient precautions 
 against an ordinary one, they are of course 
 
 not discharged from liability : Steggles v. 
 New River Company, 1 1 W. E. 234 ; in 
 Exchequer Chamber, 13 W. E. 413. 
 
 ^ SH. &N. 74, in Exchequer Chamber, 
 6 H. &N. 250; 30 L. J. Ex. 60 ; 9W.B. 
 168. See Millington v. Griffiths, 30 L. T. 
 N. S. 65. 
 
BOOK III.] GAS AKD WATER COMPANIES. 1001 
 
 ing that the Legislature by using the word "suffer" meant to 
 enact that the company should carry on their works upon the terms 
 of their preventing at all events the offensive fluids which they 
 created from being a nuisance to the neighbourhood. Oockburn, Cockburn, 
 C.J., appears to lay some stress on negligence in the defendants, of the ground 
 He says' : " The injury having proceeded immediately from their ofi'^biiity. 
 works, the onus was on them to get rid of the presumption of 
 negligence." But this does not seem to have been the view of 
 the other judges. Wightman, J.,^ assumes that what happened Wightmau, 
 was " without any neglect or default," and considers the company '' ^ "^^' 
 to be liable as " insurers at all events against any contamination 
 of the water in the neighbourhood;" and the judgment of the Court 
 of Exchequer goes on the same ground. Williams, J., however, Williams, J.,'a 
 appears to prefer the ground that the Act, while not constituting ^''"'' 
 the defendants insurers, yet exacts an extraordinary degree of 
 care from them, and their failure to comply with this requisition 
 is probably the " negligence" alluded to by Oockburn, C.J., since 
 negligence " in the ordinary sense is precluded by the statement 
 in the special case that ' the tank was constructed in the usual 
 and proper manner, with proper materials, and with due care.' 
 Negligence, then, there was in a lack of that care which was 
 required in the circumstances " — that is, of the provisions of the 
 special Act ; but no negligence could be averred in the sense of 
 the definition of Alderson, B., just quoted — " the omission to do 
 something which a reasonable man, guided upon those considera- 
 tions which ordinarily regulate the conduct of human affairs, 
 would do, or something which a reasonable and prudent man 
 would not do." By this test there would have been immunity for 
 the company ; but by their special Act a higher degree of care 
 was needed, and if the company were not absolutely bound to 
 insure, they were at least bound to do the work in the best pos- 
 sible way, and to shew that the method they adopted was such 
 that the damage could not possibly have been prevented. 
 
 The liability of gas and water companies has been discussed in 
 three Nisi Frius cases — Blenkiron v. Great Central Gas Consumers' 
 Company,' Mose v. St. Leonards Gas Company,^ and Snook v. 
 Grand Junction Waterworks Company.'^ 
 
 In the first of these cases a gas company were held liable for Blenkirou v. 
 
 , . ... T 1 i 1 ■ , Great Ceutral 
 
 negligence m laymg on gas whereby there was an escape into Gas Oon- 
 premises where lights were burning, followed by an explosion which p"™y™' ^°^' 
 injured the plaintiff's premises. Cockburn, C.J., directed the jury 
 " that to allow a quantity of gas to escape into premises where 
 
 1 6 H. & N. at p. 255. ^ 4 F. & P. 324. 
 
 2 At p. 266. * 2 Times L. E. 308. 
 8 2 F. & F. 437 ; 3 L. T. N. S. 317. 
 
1002 
 
 THE LAW OP NEGLIGENCE. 
 
 [book uu 
 
 Mose V. 
 Hastings and 
 Bt, Leonards 
 Gas Company. 
 
 Snook V. 
 Grajid Junc- 
 tion Water- 
 works Com- 
 pany. 
 
 Consideration 
 of the cases. 
 
 lights are burning was necessarily attended with danger of ignition, 
 and must have been known to be so, and those who carry on 
 operations dangerous to the public are bound to use all reasonable 
 precautions — all the precautions which ordinary reason and ex- 
 perience might suggest to prevent the danger. It is not enough 
 that they do what is usual if the course ordinarily pursued is 
 imprudent and careless, for no one can claim to be excused for 
 want of care because others are as careless as himself. , On the 
 other hand, in considering what is reasonable, it is important 
 to consider what is usually done by persons acting in a similar 
 business." 
 
 In the second case, Mose v. Hastings and St. Leonards Gas 
 Company,' where an explosion took place between the discovery 
 of the locality of an escape of gas and the arrival of the means 
 to remedy it, though discovery of the escape might have been 
 made earlier, Pollock, O.B., in summing up, said " it was the 
 duty of all gas companies to use due and reasonable care to 
 prevent mischief from the escape and explosion of gas," and " it 
 was for the jury to say whether the not sending any one for 
 several days, during which, according to the evidence, the escape 
 of gas and the danger of an explosion was discoverable, was such 
 reasonable care as the companies were bound to keep up." 
 
 The third case was a water company case,° where the plaintiff's 
 premises were flooded with water, which was ultimately discovered 
 to have escaped from a fracture in the defendant's water-main. 
 For the plaintiff, the mere fact of the fracture was relied on as 
 jprimd facie evidence of negligence, and that there was no system 
 of inspecting and testing the pipes by the company. On the 
 part of the defendants a theory was set up, and supported by 
 evidence, that the fracture was occasioned by the sudden con- 
 traction of the pipe, due to the difference in temperature between 
 the incoming water and the iron of the receiving pipe. Huddle- 
 ston, B., directed the jury that, " if they accepted that evidence, 
 it was clear that the accident was inevitable, and the defendants, 
 therefore, were not liable for it." There was a verdict for the 
 defendants.' 
 
 Between this case and Blyth v. Birmingham Waterworks Com- 
 pany there are some points of distinction, and the rule in the two 
 cases is not precisely, though it is nearly, the same. In Blyth's case 
 the duty was to act " with reference to the average circumstance 
 
 1 4 F. & F. 324. 
 
 ^ Snook V. Grand Junction Waterworks 
 Company, 2 Times L. E. 308. 
 
 ' With these cases compare Holly v. 
 Boston Gas Light Company, 74 Jlilaas, 
 
 123, -where several positions are advanced 
 that would not at all hold in English law, 
 and where several more are advanced thai 
 would only hold in a qualified degree. 
 
BOOK III.] GAS AND WATER COMPANIES. 1003 
 
 of the temperature in ordinary years," and the cause of the damage 
 was " the extreme severity of the frost of 1855, which penetrated 
 to a greater depth than any which ordinarily occurs south of the 
 Polar regions '' — in short, an extraordinary natural event, the occur- 
 rence of which was not to be inferred ;^ while in Snook's case the 
 injurious agency arose from the ordinary workings of forces of 
 Nature which could be anticipated, but not guarded against with- 
 out an incommensurably greater expense and inconvenience than 
 the damage that want of safeguarding against them might cause. 
 The duty was to take ordinary reasonable care. " They were not 
 bound to ransack science in the hope of discovering some scientific 
 specific against possible accident ; they were only bound to exercise 
 reasonable care." In the one case, the cause of damage being 
 extraordinary, premunitions against it were not required, from the 
 fact that the occurrence was without the range of events of legal 
 contemplation. In the other, reasonable care was to be used to 
 prevent damage from an occurrence which scientific investigations 
 could forecast as not unlikely. To constitute negligence, defect 
 in the exercise of the normal amount of care would have had to 
 be found.'' In Blyth's case no care was needed, because the 
 extraordinary force that caused the damage in that case was 
 without the range of those that by law are to be guarded against ; 
 while in the other case care was needed, but not more than 
 reasonable care. The proposition of Huddleston, B., as reported 
 in that case, that water companies are only bound to use a similar 
 kind of pipe to those in general use, is, perhaps, not exactly 
 accurate, though it sums up what is the practical eflect of the 
 duty imposed on water companies. It would clearly not be suffi- 
 cient if all water companies by design or unconscious coincidence 
 were to use water-pipes in fact inefficient for the ordinary pur- 
 poses of water-pipes. But, on the other hand, the invariable use 
 of a given description of pipe by all companies raises an almost 
 irresistible presumption that the pipe so used was ordinarily and 
 reasonably fit and proper, and, in the absence of any special and 
 exceptional degree of diligence being required from the company, 
 as was requii'ed in Hipkins's case, the providing the description 
 in general use would be a sufficient discharge of their duty to the 
 public, and was probably what Huddleston, B., meant to express. 
 
 ' Per MelHsh, L.J., Nictols v. Mars- lordship, "he stated that all other water 
 
 land, 2 Ex. D. 5 ; 46 L. J. Ex. 174 ; 35 companies vsed the same material for 
 
 L. T. N. S. 725; 25 W. K. 173. their pipes as the defendants. Mr. 
 
 ^ Mr. Eraser, the defendants' engineer, Baron Huddleston : That answers your 
 
 was recalled at the request of the jury, question ; it is clearly not negligent of the 
 
 and stated that the pipes were cast iron, defendants ; they are only bound to use 
 
 and not wrought ; the latter would be im- what are in general use " : 2 Times L. E, 
 
 proper, and rapidly decay. In reply to his 310. 
 
1004 THE LAW OF NEGLIGENCE. [book in. 
 
 Cases com- The duty cast on the defendants in Mose v. Hastings and 
 
 P*"^" ■ St. Leonards Gas Company differed from that on the defendants 
 
 in Snook v. Grand Junction Waterworks, or rather the manifes- 
 tation of it did, though the duty was the same. In Snook's 
 case the defendants were held discharged because they had used 
 ordinary and reasonable care in the providing of instruments. 
 In Mose's case the defendants were held liable because they 
 had not in addition guarded against deterioration. Indeed, 
 that case can be readily brought under the principle on which 
 Tarry v. Ashton,' or Murphy v. Phillips,^ was decided — the 
 company would be bound to know that things like their pipes 
 will ultimately, get out of order, and there is consequently a duty 
 cast upon them from time to time to prevent the consequences of 
 natural decay or deterioration ; while Blenkiron v. Great Central 
 Gas Company' is a case of positive negligence. Whereas in Mose's 
 case the state of the pipes seems to have been allowed to become 
 dangerous, in Blenkiron's there was an actual user of dangerous 
 agencies in a dangerous way— ythat is, in too close proximity to 
 lights. Those using the lights were entitled to the uninterrupted 
 enjoyment of their own property. It therefore behoved the gas 
 company to safeguard their operations from the dangers incident 
 to them from the lawful user of the neighbouring property. This 
 they failed to do ; hence the accident. Yet, as is pointed out by 
 the Lord Chief Justice, the duty on them was no higher than the 
 duty of the company in Snook's case ; indeed, it is precisely the 
 same — they were to use those precautions which ordinarily prudent 
 and careful people appreciating the danger would use in a similar 
 business. The point which is not prominent in Huddleston, B,,'s 
 remarks, which have just been quoted, is brought out by the Lord 
 Chief Justice when he says, " It iS not enough that they do what is 
 usual if the course ordinarily pursued is imprudent and careless." 
 But he goes on to shew " that, in considering what is reasonable, 
 it is important to consider what is usually done by persons acting , 
 in a similar business." Use, that is, is not the standard by which 
 negligence or diligence is to be tested ; but prudent use raises an 
 almost irresistible presumption in any individual case. 
 Leakage. It has been contended* that the principle illustrated by 
 
 Fletcher v. Eylands* applies to leakages from water or gas pipes. 
 That is, that the companies are bound to keep the water in their 
 pipes, and that it is therefore not necessary to prove negligence 
 
 1 I Q. B. D. 314 ; 45 L. J. Q. B. 260 ; pany, L. E. 10 Q, B. 453 ; 44 L. J. Q. B. 
 34 L. T. N. S. 97 ; 24 W. K. 581. 139 • 33 L. T. N. S. 475. 
 
 2 35 L. T. N. S. 477 i 24 W. K. 647. ^ L. R. i Ex. 265 ; 3 H. of L. 330 ; 37 
 
 3 2 F. & F. 437. L. J, Ex. 161 i 19 L. T. N. S. 220. 
 ■• Cattle V, Stockton Waterworks Com- 
 
.BooKiii.J GAS AND WATER COMPANIES. 1005 
 
 against them when it is shewn they have not done so. Touching 
 on this point in Cattle v. Stockton Waterworks Company, Black- 
 hum, J., said': "If it were necessary to decide this, we should BUckbum, j., 
 require further time to consider, as we are not as yet quite Stockton ' 
 agreed on the principle of law applicable to such a case." The Waterworks 
 
 °_ , r r ^ rr ^ Company. 
 
 point is not, therefore, definitely decided. It may, however, 
 be pointed out that in Fletcher v. Rylands the bringing of the 
 water on land was a conscious and voluntary act of the defendant ; 
 while in Humphries v. Cousins" "the plaintiff was bound to 
 receive sewage from the defendant's land through the old drain, 
 but not otherwise." " Further, as the plaintiff was the occupier 
 of a servient tenement, he was clearly not bound to repair the 
 drain on any of the dominant tenements." The case of gas and 
 water pipes, not merely authorized, but often required to be 
 placed by statute, comes rather under the principle which we 
 have before lengthily considered in several connections — that where 
 the Legislature authorizes the construction of a work or the use 
 of a particular thing for a particular purpose, the permission 
 carries with it impliedly an exemption from responsibility for any 
 damage arising from the construction and the contemplated use 
 without negligence.^ And negligence has been defined " absence 
 of care according to the circumstances."* The point does not 
 appear to have been raised in Snook's case. 
 
 The point actually decided in Cattle v. Stockton Waterworks Actual point 
 Company* is of interest as putting a limit on what would otherwise cattie v. 
 have been a most indefinite and onerous liability. The owner of ^y°terworks 
 land on both sides of a road contracted with the plaiatiff to make Company. 
 a tunnel under the road for an agreed sum. When the plaintiff 
 went to work, he found that there was a leak in the defendants' 
 main in the road, by which the plaintiflF's expense in executing the 
 contractual work was increased. The Court, as may be gathered 
 from what has been already said, declined to decide whether the 
 mere escape of water from a main would import liability — that is, 
 whether, had the action been brought by the landowner, he could 
 have recovered — but decided that the plaintifi" would have no action 
 because his contract was rendered less profitable than it would 
 have been had the existing state of things been different from 
 what it actually was, though the existing state would have been 
 
 ' L. E. 10 Q. B. at p. 457. N. S. 238 ; 18 W. R. 12 ; GedJisw. Bann 
 
 2 2 C. P. D. 239 ; 46 L. J. C. P. 438 ; Commissioners, 3 App. Cas. 430 ; .Tack- 
 36 L. T. 180 ; 25 W. B. 371. son v. Carshalton Gas Company, 5 Times 
 
 3 The King v. Pease, 4 B. & Ad. 30; L. B. 69. 
 
 Vaughan v. Taff Vale Eailway Company, ""^ Per Willes, J., Vawghan v. Taff Vale 
 
 5 H. & N. 679 ; 29 L. J. Ex. 247 ; 2 L. T. Railway Company, Exchequer Chamber, 
 
 N. S. 394 ; 8 W. R. 594 ; Hammersmith S H. & N. 679, at p. 688. 
 
 Eailway Company v. Brand, L. E. 4 H. ^ L. R. 10 Q. B. 453. 
 of L. 171 ; 38 L. J. Q. B. 265 ; 21 L, T. 
 
1006 THE LAW OF NEGLIGENCE. [book in. 
 
 different but for the defendants' water escaping. If the Court 
 had given effect to this contention, " we should," said Blackburn, 
 J., " establish an authority for saying that in such a case as 
 that of Fletcher v. Ey lands' the defendant would be liable, not 
 only to an action by the owner of the drowned mine and by such 
 of his workmen as had their tools or clothes destroyed, but also 
 to an action by every workman and person employed in the 
 mine who, in consequence of its stoppage, made less wages than 
 
 he would otherwise have done It may be said that it is 
 
 just that all such persons should have compensation for such a 
 loss, and that, if the law does not give them redress, it is im- 
 perfect. Perhaps it may be so. But, as was pointed out by 
 Coleridge, J., in Lumley v. Gye,^ Courts of justice should not 
 ' allow themselves, in the pursuit of perfectly complete remedies 
 for all wrongful acts, to transgress the bounds which our law, in 
 a wise consciousness, as I conceive, of its limited powers, has 
 imposed on itself of redressing only the proximate and direct 
 consequences of wrongful acts.' In this we quite agree."' 
 Liability for The Hability of gas and water directors for the acts of their 
 
 aotsofser- servants is, of course, conterminous with the liability by the 
 general law of master and servant. The case of The King v. 
 Medley,* as a gas case, may be cited. There the chairman and 
 directors of a gas company were indicted for a nuisance in so 
 polluting a river as to kill the fish therein. The evidence was 
 that the directors did not know of what had been done till the 
 discovery was made which was the ground for action; and the 
 contention was that the directors were therefore not criminally 
 liable. Denman, C.J., however, summed up : " It is said the 
 directors were ignorant of what had been done. In my judg- 
 ment, that makes no difference ; provided you think that they 
 gave authority to Leadbeter to conduct the works, they will be 
 answerable. It seems to me both common sense and law that, 
 if persons for their own advantage employ servants to conduct 
 works, they must be answerable for what is done by those 
 servants. 
 II. Relation of The relations of gas and water companies with their customers 
 companies* ^^ present little calling for notice here. As gas and water com- 
 thdr^tatu-^ panies are regulated by Act of Parliament, the price they may 
 tory powers charge their customers for their commodities, the means by 
 customers. which they may supply them, the liabilities they are subject to, 
 
 ^ L. E. I Ex. 265 ; 3 H. of L. 330 ; 37 works Company, 6 H. & N. 241, turns on 
 
 L. J. Ex. 161 ; 19 L. T. N. S. 220. the liatility of the company to repair fire- 
 
 ^ 2 E. & B. 216, at p. 252 ; 22 L. J. plugn under a local Act as against the local 
 
 Q. B. 463. board. 
 
 ' Bayley v. Wolverhampton Water- * 6 C, & P. 292. 
 
BOOK III.] GAS AND WATER COMPANIES. 1007 
 
 and the remedies they have at their disposal, are to be found in 
 the various gas and water Acts, and do not belong to our subject. 
 
 The case of Holden v. Liverpool New Gas and Coke Company,' i-ioWen v. 
 however, illustrates a curious point of contributory negligence. nb^'^Gm' 
 The defendant company supplied gas to a house belonging to the "ifd cioke 
 plaintiff. The last tenant, on quitting, gave notice to the com- 
 pany that he would not require a further supply, and one of their 
 workmen removed a chandelier from one of the rooms, leaving 
 the end of the pipe secured. Whilst the house remained unte- 
 nanted, the gas, by some unexplained means, escaped, and an 
 explosion took place, by which the house was damaged. The 
 only means of shutting the gas off was a stop-cock within the 
 house, which was the property of the plaintiff. The plaintiff 
 brought an action, but was nonsuited, on the ground that he 
 " must be responsible for not taking care that the stop-cock 
 inside the house was properly turned." And on the argument 
 of a rule for a new trial this decision was sustained, the Court 
 being of opinion that the plaintiff was himself wanting in the 
 ordinary care of seeing that the stop-cock in the inside was 
 ■ closed, which would have effectually prevented the gas from 
 escaping. 
 
 This case was cited in Burrows v. March Gas and Coke Bun-ows v. 
 Company,^ for the proposition that the conduct of the defend- and Coke 
 ants in that case was too remote to subject them to lia- Company, 
 bility. The action was brought on a contract that the defend- 
 ants should supply the plaintiff with a gas-pipe from the main 
 to a meter under the plaintiff's staircase. The mischief arose 
 tlius : — The pipe, having been laid down, required testing, and, to 
 test it, gas was laid on and the pipe filled, without notice to the 
 gasfitter. No one was sent from the gas company to test the 
 pipe ; but, an escape of gas being perceived, the servant of the 
 gasfitter went with a lighted candle to examine the work, not to 
 test the pipe, when an explosion occurred, doing the damage for 
 which the plaintiff sued the gas company. The damage was 
 caused by the concurrence of the two causes — the inefficient pipe 
 and the negligent introduction of the lighted candle. The de- 
 fendants practically stated their case in the form of a dilemma — 
 either the action was for contract, then the damage was too 
 remote ; or for tort, and then there was contributory negligence. 
 On the latter supposition, however, Holden's case is very distin- 
 guishable, since there the control of the regulating agency — the 
 stop-cock — was exclusively in the plaintiff's possession ; while, in 
 
 3 C. B. I ; IS L. J. C. P. 301. ber, L. E. 7 Ex. 96; 41 L. J. Ex. 46 
 
 L. R. 5 Ex. 67 ; in Exchequer Cham- 26 L. T, N. S. 318 ; 20 W. R. 493. 
 
1008 THE LAW OP NEGLIGENCE. [book in. 
 
 the present case the plaintiff merely employed an independent 
 contractor, whose servant was negligent, to which the plaintiff 
 could not be considered contributory. On the former, the con- 
 tract was " to supply a pipe reasonably sufficient for the purpose 
 for which it was used." Having failed in this, " the consequence 
 — ^the natural and necessary consequence — was that the gas 
 escaped ; and, having so escaped, a further natural consequence 
 was that an accident might be expected to result." Cockburn, 
 0. J., who delivered the judgment of the Exchequer Chamber, put 
 their liability also on a further ground. Besides supplying a de- 
 fective pipe, they were in default " in sending gas through it in 
 quantities calculated to produce the catastrophe which occurred." 
 A remark of Martin, B.,'s in the Court of Exchequer requires 
 notice to guard agaiast a misconception that might arise. He 
 says' : " Even if Sharratt had been a servant of the plaintiff, his 
 negligence would not have exonerated the defendants from sub- 
 stantial liability for their breach of contract." This remark is to 
 be taken in connection with the learned Baron's previous holding, 
 that there was " a clear breach of contract on the part of the 
 defendants, for which, I think, they are liable." On the ground 
 of tort, on a similar assumption that " Sharratt had been a servant 
 of the plaintiff," the result must have been otherwise."^ The con- 
 lannen v. verse case is treated in the New York case of Lannen •;;. Albany 
 Light Com- Gas Light Company.' There an escape of gas having occurred 
 pany. jn plaintiff's father's house, the defendant company sent a man to 
 
 see about it, who struck a Hght and caused an explosion ; hence 
 the action. " The casualty," says the judgment of the Supreme 
 Court, " was the direct and immediate consequence of the explo- 
 sion, and this was caused by the negligent act of the defendant's 
 agent in lighting a match in the midst of a large quantity of 
 inflammable and explosive gas." It had, however, been urged in 
 argument that the defective pipe was one belonging to the 
 plaintiff, and not to the gas company, and that the allowing gas 
 to escape from it was an act of contributory negligence which ' 
 disentitled the plaintiff to maintain the action. This argument 
 the Court treated as follows* : — " Whether, if there was negligence 
 in this respect, it was of that direct and proximate character 
 which may be said to have contributed to the catastrophe, is not, 
 to my mind, entirely clear. Assuming that the house belonged 
 to, and was in the possession of, the plaintiff and her father, 
 perhaps they would have a right, as incident to that property 
 and that possession, to have gas in their cellar, if it were not 
 
 1 L. E. S Ex. at p. 72. s 46 Bavb. 264. 
 
 2 See Bartlett v. Boston Gas Light * At p. 268. 
 Company, 117 Mass. 533. 
 
BOOK III.] GAS AND "WATER COMPANIES. 1009 
 
 dangerous to other persons. Perhaps we ought not to presume 
 that fire or light would be permitted to come in contact with it, 
 especially by persons aware of the presence of the gas and the 
 danger of its contact with fire. Many an article of an inflam- 
 mable or esrplosiye character is permitted to be kept in inhabited 
 dwellings by law. The danger arises from some other material 
 being brought in proximity to or contact with it. It is hence 
 a question of some difficulty whether the act of permitting the 
 gas to escape, which in itself was not the cause of the explosion, 
 can be said to have contributed to it in any such direct or 
 proximate manner as to justify the imputation of such negligence 
 as should defeat a recovery for damage consequent upon the 
 explosion." This decision appears conformable with principle 
 where damage is caused by the negligence of another man's 
 servant on the plaintiff's property ; where, however, the negli- 
 gence of the plaintiff's servant makes operative the negligence 
 of a third party on the plaintiff's premises, otherwise quiescent, 
 but that can be detected by the use of reasonable prudence ; then, 
 as the employer " has put the agent in his place to do that class 
 of acts," " he must be answerable for the manner in which the 
 agent has conducted himself in doing the business which it was 
 the act of his master to place him in.'" Had the master himself 
 done the act, he would most clearly have been guilty of con- 
 tributory negligence ; and he is not less so that his servant does 
 it in his stead. 
 
 Where the liability does not attach, the explanation is due to 
 the force of the principle thus stated in Brown and Brothers v. 
 nUus" : — " In those cases where the negligence of the complainant 
 is a complete legal excuse for that of the defendant, we always 
 find that the injury is the product to some extent of the co- 
 operation of causes set in motion by both parties, and is due in 
 some measure to the combined negligence of both." 
 
 1 . Apart from statutory enactment there is no power enabling Summiiry. 
 gas and water companies to lay down pipes in public highways.^ 
 
 2. Where a gas or water company proceeds to lay down pipes 
 in a public highway, it is liable to indictment, even though the 
 sanction of the highway authority has been given to the doing of 
 the work." 
 
 3. The Court of Chancery will not intervene to prevent dealings 
 with a highway in respect of which legal process is available, 
 
 ' Per Willes, J., Barwiok d. English Cox, C. C. 317; The Queen v. Train, 2 
 
 Joint Slock Company, L. E. 2 Ex. 259, B. & S. 640 ; 9 Cox, C. C. 180 ; 31 L. J. 
 
 at p. 266 ; 36 L. J. Ex. 147. M. C. 169 ; 10 W. R. 539 ; at Nisi Prius, 
 
 2 27 Conn. 84, at p. 92. 3 F. & F. 22. 
 
 " The Queen v. Longton Gas Company, •* Hawkins v. Eobinson, 37 J. P. 662. 
 2 E. & E. 651 ; 29 L. J. M. C. 118 ; 8 
 
 3S 
 
1010 THE LAW OF NEGLIGENCE. [book in. 
 
 unless it is shewn that the injury being perpetrated is irre- 
 parable, and so continuous as likely to become grievous and 
 intolerable.' 
 
 4. A private person in whom the soil beneath the highway is 
 vested may do all acts of ownership not inconsistent with the 
 easement of the highway; and, amongst others, may lay pipes 
 under the highway if he can do so without a disturbance of 
 the soil.^ 
 
 5 . A private person in whom the soil beneath the highway is 
 vested may prevent the doing of all acts causing interference with 
 the soil and not necessary to or involved in the rights attaching 
 to the enjoyment of the highway.' 
 
 6. Gas and water companies with statutory powers, and acting 
 within the limits of those powers, are not required to guard 
 against accidents arising from extraordinary natural events,'' 
 unless obliged thereto by the special terms of their Act.' 
 
 7. Gas and water companies with statutory powers, and 
 acting within the liinits of those powers, are required to guard 
 against accidents arising fromthe ordinary operations of Nature ; 
 but they are required to use no more than reasonable and ordi- 
 nary care." 
 
 8. What constitutes reasonable and ordinary care is a question 
 for the jury, and should be decided by reference to the standard 
 of what is usually done by ordinarily careful and prudent persons 
 acting in similar circumstances.' 
 
 9. Eeasonable and ordinary care includes not merely the 
 original construction of any work of which the tendency may 
 be to deteriorate, but also the taking of such preventive or 
 reparative measures from time to time as the course of experience 
 of ordinarily prudent and careful people shews to be necessary to 
 prevent deterioration.' 
 
 10. It has not been definitely decided as to what is the 
 principle under which the liability of gas and water companies 
 
 * Attorney-General v. Sheffield Gas ^ Hipkins v. Birmingham and Stafford- 
 Consumers' Company, 3 De G. M. & G. shire Gas Light Company, J H. & N. 74, 
 304 ; Attorney-General v. Camhridge 6 H. & N. 250 ; 30 L. J. Ex. 60 ; 9 W. B. 
 Consumers' Gas Company, L. E. 4 Ch. 168. 
 
 App. 71 ; 38 L.J. Ch. 94 ; 17 W. E. 145. " Snook v. Grand Junction Waterworks 
 
 2 Goodtitle v. Alker and Elmes, i Burr. Company, 2 Times L. E. 308 ; Mose -v. 
 
 133; Cattle V. Stockton Waterworks, Hastings and St. Leonards Gas Company, 
 
 L. E. 10 Q. B. 453 ; 44 L. J. Q. B. 139 ; 4 F. & F. 324 ; Blenkiron v. Great Cen- 
 
 33 L. T. N. S. 475. tral Gas Consumers' Company, 2 F. & F. 
 
 5 Goodson V. Eichardson, L. E. 9 Gh. 437. 
 
 App. 221 ; 43 L. J. Ch. 790 ; 30 L. T. ' Blenkiron v. Great Central Gas Con- 
 
 N. S. 142 ; 22 W. E. 337. Bumers' Company, 2 F. & F. 437 ; Snook 
 
 * Blyth V. Birmingham Waterworks v. Grand Junction Waterworks Company, 
 Company, 11 Ex. 781 ; 25 L. J. Ex. 212 ; 2 Times L. E. 308. 
 
 Nichols V. Marsland, 2 Ex. D. ; 46 L. J. * Mose v. St. Leonards Gas Company, 
 
 Ex. 174 ; 35 L. T. N. S. 725 ; 25 W. E. 4 F. & F. 324. 
 
 173- 
 
BOOK in.J GAS AISTD WATER COMPANIES. 1011 
 
 for an escape of gas or water without negligence is to be ranged,' 
 but the general rule applicable in similar cases is, that where 
 the Legislature authorizes the construction of a work, or the use 
 of a particular thing for a particular purpose, the permission 
 carries with it impliedly an exemption from responsibility for 
 any damage arising from the construction and the contemplated 
 use, without negligence.^ 
 
 1 1 . Gas and water directors are liable for what is done by 
 their servants in the course of their employment." 
 
 12. When a gas or water company have a contract with a 
 customer, and damage accrues through the negligence of the 
 company or their servants, only through the negligence of a third 
 person co-operating, the company is not thereby discharged." 
 
 13. A gas or water company entering into a contract to 
 supply pipes for the conveyance of gas or water are bound to 
 supply pipes reasonably sufficient for the purpose for which they 
 are intended to be used.^ 
 
 14. Negligence which becomes the occasion of damage only 
 through the existence of antecedent negligence is not thereby 
 exempted from responsibility;" e.g., a man may be negligent on 
 his own property, and can recover, if through the negligence of 
 some third person his own negligence is made actively injurious, 
 and he sustains damage. 
 
 1 Cattle V. Stockton Waterworks, L. E. = The King v. Medley, 6 0. & P. 292. 
 10 Q. B. 453; 44 L. J. Q. B. 139; 33 ^ Burrowa v. March Gas Company, 
 L. T. N. S. 475. L. E. 5 Ex. 67, L. E. 7 Ex. 96 ; 41 
 
 2 The King v. Pease, 4 B. & Ad. 30 ; L. J. Ex. 46 ; 26 L. T. N. S. 118 ; 20 
 Vaughan v. Taff Vale Eailway Company, W. E. 493. 
 
 5 H. & N. 679 ; 29 L. J. Ex. 247 ; 2 L. T. ^ Burrows v. March Gas Company, 
 
 N. S. 394 ; 8 W. E. 594 ; Hammersmith L. E. 7 Ex. 96. 
 
 Railway Company o. Brand, L. E. 4 H. " Lannen v. Albany Gas Light Cora- 
 
 of L. 171 ; 38 L. J. Q. B. 265 ; 21 L. T. pany, 46 Barb. 264. 
 
 N. S. 238; 18W.E. 12. 
 
CHAPTER VI. 
 
 HIGHWAYS, TURNPIKES, CANALS, ETC. 
 
 Deflnition, 
 
 I. Highways. 
 
 In this coimection we are not concerned with the law of highways 
 to a greater extent than is necessary to investigate the liabilities 
 for negligence arising in the construction, maintenance, or user 
 of highways ; and therefore for the general law we must refer to 
 the special and recognized treatises on the subject.' 
 
 A highway in English law^ is the largest expression to designate 
 a public way, and includes all roads, bridges (not being county 
 bridges), carriage-ways, cartways, horseways, bridle-ways, foot- 
 ways, causeways, churchways, and pavements,' and is a way open 
 to all the King's subjects, and not to a limited number only.* 
 
 ^ Mg., Glen, Law of Highways ; Kus- 
 sell, Crimes, Nuisances to Highways, vol .'i. 
 p. 444. DoTastbn v. Payne, 2 Sm. Lead. 
 Cas. 9t1i edit. p. 154. 
 
 = S & 6 Will. IV. c. scf, s. 5. 
 
 ° By the common law the inhabitants 
 of the county were bonnd to repair all 
 public bridges : The King v. Inhabitants 
 of Eccleefield, i B. & Aid. 348. 
 
 * The King«. Richards, 8 T. E. 634. 
 In law, public rivers are highways : Mayor 
 of Colchester b. Brooke, 7 Q. B. 339 ; 15 
 L. J. Q. B. 59. As to placing a permanent 
 obstruction, Sastem Counties Bail way 
 Company v. Dorling, J C. B. N. S. 821 ; 
 28 L. J. C. P. 202 ; Bex a.Lord Grosvenor, 
 2 Stark. 511. A railway is a public high- 
 way to be used in a particular mode. A 
 footway can be used only for foot passen- 
 gers and not by others, yet it is certainly 
 a public highway: per Holroyd, J., The 
 King V. Severn and Wye Railway Com- 
 pany, 2 B. & Aid, 646, at p. 648. In Gib- 
 bon, Law of Dilapidations, p. 298, it is 
 said ; " A way merely leading to a church, 
 a village, or a private house, and therefore 
 not useful to the public generally, is not a 
 highway." For this proposition Austin's 
 case, I vent. 189, is cited. " An indict- 
 ment was found against her that she vi 
 et armis a certain part of the King's 
 
 highway leading from Shoreditch Church 
 to Stoke Newington, through Hogedon, 
 postibm et fepagvUa iTichisit, &c." The 
 true bearings of the proposition, however, 
 appear clearly in Thrower's case, i Vent. 
 208 : "He was indicted at the sessions of 
 the peace at Ipswich for stopping cont- 
 'Trrnnem viam pedestrem ad ecdesiam de 
 Withy." Haje, C. J.,'s' judgment is xi- 
 ported as follows : " If this were alleged 
 to be co/mmuniamapedestris ad ecdesiam 
 pro parochianie, the indictment would not 
 be good, for then the nuisance would 
 extend no further than the parishioners, 
 for which they have their particular suits, 
 but for ought appears this is a common 
 footway, and the church is only the ter- 
 minus ad quern, and it may lead further ; 
 the church being expressed only to ascer- 
 tain it, and it is said ad commune nocur- 
 mentwm ; " but see the deflnition in 5 & 6 
 Will. IV. c. 50, set out in the text. Ai 
 to what a " street " is, and how it differs 
 from a highway under the Pnblic Health 
 Act, see per Jessel, M.E., Taylor v. Old- 
 ham Corporation, 4 Ch. D. 395 at p. 408 ; 
 46 L. J. Ch. los ; 35 L. T. N. S. 696 ; 
 25 W. R. 303 ; Maude v. Baildon Local 
 Board, 10 Q. B. D. 394 ; 48 L. T. 874 ; 
 Robinson v. Barton Eccles Local Board, 8 
 App. Cas. 798 ; 53 L. J. Ch. 226 ; 50 L.T. 
 
BOOK III.] HIGHWAYS, TUENPIKES, CANALS, ETC. lOiS 
 
 We have seen' that by an Act in the time of Queen Mary 
 the care of highways was entrusted to two surveyors for every 
 parish. This Act was made perpetual,^ and continued in force 
 till 1767.' The Act at present in force by which the powers 
 and duties of surveyors of highways are defined and regulated 
 is the Highways Act, 1835.'' In the Metropolis, however, the 
 district boards and vestries have the powers of surveyors conferred 
 on them.* By the Public Health Act, 1875," every urban autho- 
 rity is to be the surveyor of highways in its district ; and by the 
 Highways Act, 1862,' in highway districts the powers of surveyor 
 of highways are in the highway boards. But in the cases where 
 the powers of the surveyor vest in local authorities the surveyor 
 appointed by the Board is the officer to perform the duties' that 
 attached to the surveyor under the Highways Act, 1835. 
 
 We have also seen' that an action does not lie for an injury Action for 
 arising merely from the non-repair of a highway, because the ^"u not He. 
 liability was in the parish, and at common law no action could 
 be maintained against it.'" 
 
 But an indictment might be preferred against the inhabitants 
 of a parish or township for non-repair of a highway, or against 
 the inhabitants of a county for the non-repair of a bridge," though 
 it does not lie against their officers.'^ 
 
 Formerly justices of assize and of the peace might have pre- Presentment 
 sented highways which were out of repair, but now, by 5 & 6 out S rlpafr 
 Will. IV. c. 50, s. 99, it is not lawful to take any legal proceed- '"■I'oiisiied. 
 lags by presentment against the inhabitants of any parish or 
 other person on account of any highway being out of repair. 
 
 Section 94 of the same Act substitutes another method, by which, s&e Will. IV. 
 on the oath of a credible witness before a justice of the peace, a "' ^°' ^' ''' 
 summons may be issued requiring the surveyor or other person 
 chargeable with the repairs to appear before the justices at 
 special highway sessions; the justices may then either them- 
 selves inspect the highway or appoint some competent person 
 to do so, and may" on the hearing of the summons convict the 
 
 57 ; 32 W. E. 249 ; Mayor of Portsmouth ' 25 & 26 Vict. c. 61. 
 
 V. Smith, 10 App. Cas. 364 ; 54 L. Q. B. ' 25 & 26 Vict. c. 61, s. 16 ; 19 & 20 
 
 473 ; S3 L. T. 394. Vict. c. 120, s. 62 ; 38 & 39 Vict. c. 55, 
 
 1 Ante, p. 216. 8. 189. 
 
 2 29 Eliz. c. S, 8. 2. " Supra, p. 212. 
 
 ' 7 Geo. III. c. 42, 8. 57. " See per Lord Kenyon, Eussell v. Men 
 
 ^ 5 & 6 Will. IV. 0. 50, section 6 of of Devon, 2 T. E. 667, at p. 672. 
 
 which provides for surveyors being elected " i Hawk. P. C. c. 77, s. 3 ; The Queen 
 
 by the inhabitants ; and section 1 1 for v. Birmingham and Gloucester Eailway 
 
 their appointment by justices. As to the Company, 3 Q. B. 223. 
 
 attendants with which this power in jus- 12 The King v. Dixon, 12 Mod. 198. 
 
 ticesmuHt he exercised, see Eeginav. Best "The justices may, notwithstanding 
 
 and others, 5 Dowl. & L. 40. the report, exercise a discretion whether 
 
 ' 18 & 19 Vict. c. 120, s. 96. to convict or not : Eegina v. Lord Eadnor, 
 
 6 38 & 39 Viot. >;. 55, 8. 144. 
 
1014 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Indictment. 
 
 Information, 
 
 Definition of 
 nuisance. 
 
 Kindersley, 
 V.O., in Soltau , , 
 V. De Held. the 
 
 surveyor or person chargeable in any penalty not exceeding £^, 
 and such further sum as would defray the estimated expenses 
 of putting the highway in repair, to which purpose it is to be 
 applied. 
 
 By the following section, if the obligation to repair is disputed, 
 a bill of indictment may be preferred. 
 
 There is also the mode of proceeding by information. This 
 is in the discretion of the Queen's Bench Division, wliich will 
 never give leave to file an information for not repairing a high- 
 way unless it appear that the grand jury have been guilty of 
 gross misbehaviour in not finding a bill. A reason why this 
 method should be resorted to but rarely is that the fine set on 
 conviction upon an information cannot be expended in the repair 
 of the highway, whereas on an indictment it is always so ex- 
 pended.^ 
 
 It seems necessary, however, that the condition of a highway 
 should be such as to constitute a nuisance at law before the 
 remedy by indictment is available. A nuisance has been defined 
 as being an ofience against the public, either by doing a thing 
 which tends to the annoyance of .all the King's subjects, or the 
 neglecting to do a thing which the common good requires.'' 
 Kindersley, V.O., in Soltau v. De Held,' is more lengthy, but to 
 same effect. He says : "To constitute a public nuisance 
 the thing must be such as in its nature or in its consequences 
 is a nuisance — an injury or a damage to all persons who come 
 within the sphere of its operation, although it may be so in a 
 greater degree to some than it is to others. For example, take 
 the case of the operations of a manufactory in the case of which 
 operations volumes of noxious smoke or of poisonous effluvia are 
 emitted. To all persons who are within the reach of those 
 operations it, is more or less a nuisance in the popular sense of 
 the term. It is true that to those who are nearer to it it may 
 be a greater nuisance, a greater inconvenience, than it is to 
 those who are more remote from it; but still to all who are 
 at all within the reach of it it is more or less a nuisance or 
 inconvenience." 
 
 It has been said that it is a nuisance to suffer ditches along a 
 
 . highway to be foul;'' to suffer boughs of trees growing near the 
 
 highway to overhang it so as to incommode the passage,' to 
 
 4 Jul'. 460, B. c, nom ; Beginn v. Jusiices 
 of Wilts, 8 Dow P., C. 717. 
 
 ^ Bac. Abridg. tit. Highways, H ; Eex 
 V. Steyning, Sayer 92. Miindamus will 
 not lie : The Queen v. Trustees of OxfoiJ 
 and Witney Turnpike Roads, 12 A. & E. 
 427. 
 
 2 I Hawk. P. C. c. 75, s. i. 
 
 ' 2 Sim. N. S. 133 at p. 142 ; 21 L. J. Ch. 
 153. See Benjamin v. Storr, L. R. 9 C. P. 
 400 ; 43 L. J. C. P. 162 ; 30 L. T. N. S. 
 362; 22 W. R. 631. 
 
 * I Hawk. P. 0. c. 76, s. 147. 
 
 5 Ibid. See 5 &. 6 Will. IV. u. 50, 
 
teooK iii.j HIGHWAYS, TURNPIKES, CAJSTALS, ETC. 1015 
 
 dig a ditcli or make a hedge across a liigliway, or to do any 
 act whatever that renders it less commodious to the public ;' 
 so, too, is every contracting or narrowing of a highway," and 
 generally any act or omission whereby the convenience of the 
 way becomes lessened.' 
 
 Though the authority exercising the duties of surveyor of high- statutory 
 ways is not liable for nonfeasance, the immunity from liability to Tc^Jmrnon" 
 action for nonfeasance may be taken away by the provisions of J?^^"™" 
 special Acts ;^ while the fact that an act importing liability in itself 
 has been done or allowed to happen by a body which, along 
 with its special functions, in respect of which the actionable 
 wrong arises, happens also to be the highway authority (and in 
 that capacity not liable for nonfeasance), does not exonerate from 
 the liability which would otherwise have attached to it.° 
 
 The common law liability with regard to highways by which, 
 whenever it pleased the owner of land to dedicate land as a high- 
 way to the public, it became the duty of the parish to maintain 
 it, has been limited by 5 & 6 Will. IV. c. 50 ; for by section 23° 
 no road made by a private person or corporation, or set out as a 
 private drift-way or horse-path by the award of inclosure commis- 
 sioners shall be deemed a highway repairable by the parish unless 
 three months' notice be given to the surveyor of the intention 
 to dedicate, and unless the road so proposed to be dedicated be 
 substantially made to his satisfaction and that of two justices, 
 who are to view and certify, and their certificate is to be en- 
 rolled at the next sessions. The surveyor, on receipt of the 
 notice, is to call a vestry, and, if they deem the new road not of 
 sufficient utility, the question is to be determined by the next 
 special sessions for the highways.' Save in this way no liability 
 can arise to charge the parish, though the road may be used by 
 the public' 
 
 s. 72 ; Walker v. Homer, i Q. B. D. 4 ; L. T. S69 ; 30 W. E. 740 ; Kent v. Wortli- 
 
 45 L. J. M. C. 34; 33 L. T. N. S. 601. ing Local Board, 10 Q. B. D. 118 ; 52 
 
 1 I Hawk. P. C. c. 76, SB. 144, 145. L. J. Q. B. 77 ; 48 L. T. 362 ; 31 W. R. 
 
 ^ I Russell, Crimes, Sth edit. p. 474; 583- 
 
 but now see 27 & 28 Vict. c. loi, a. 51. " This section is not retrospective. 
 
 3 Wellbeloved, Highways, p. 440. ' The Queen v. Justices of Derbyshire, 
 
 * Harlnall v. Eyde Commissioners, 4 El. Bl. & El. 6g ; 27 L. J. M. C. 189 ; 
 
 B. & S. 361 ; 33 L. J. Q. B. 39 ; 11 W. E. The Queen v. Bagge and another, 44 
 
 763 ; Ohrby v. Ryde Commissioners, 5 B. L. J. M. C. 45 ; 31 L. T. N. S. 585 ; 23 
 
 & S. 743 ; 33 L. J. Q. B. 296 ; 12 W. R. W. E. 165. 
 
 1079, as explained in Gibson v. Mayor of * The King v. Inhabitants of Leake, 5 
 
 Preston, L. E. S Q. B. 218 ; 39 L. J. Q. B. B. & Ad. 469 ; The King v. Wright, 3 
 
 131 ; 22 L. T. N. S. 293 ; 18 W. E. B. & Ad. 681 ; The King v. Mellor, i B. 
 
 689 ; 32 L. T. N. S. 460 ; 23 W. E. & Ad. 32 ; Grand Surrey Canal Company 
 
 651. V. Hall, I M. & G. 392 ; Roberts i: Hunt, 
 
 ^ White V. Hindley Local Board, L. E. 15 Q. B. 17 ; Kawcett v. York and Norlh 
 
 10 Q. B. 219 ; 44 L. J. Q. B. 114; Black- Midland Eailway Company, 16 Q. B. 
 
 more v. Vestry of Mile End Old Town, 9 610 ; Tlie Queen v. Thomas, 7 E. & B. 
 
 Q. B. D. 451; 51 L. J. Q. 13. 496; 46 399. 
 
1016 THE LAW OF NEGLIGENCE. [book iii. 
 
 LiabOity of The liability of a surveyor of highways under 5 & 6 Will. IV. 
 
 h%hw^s°^ c. SO is thus stated by Pollock, C.B., in Young 1;. Davis' :— 
 
 2Hi??'^Ji*^ " Readins: the Act section by section, would anybody believe that 
 
 Will. IV. 0. so. . , ° . . „ , •' ^ . ' J 1 ~ 
 
 it was the intention of the Legislature to make surveyors of 
 
 highways personally responsible for any accident to a traveller 
 ' from a road being out of repair ? A positive obstruction of 
 or nuisance on a road, whether caused by a surveyor of highways 
 or any other person, would no doubt render responsible the per- 
 son who caused the obstruction or nuisance ; but, looking at the 
 statute and course of legislation, I am clearly of opinion that the 
 Legislature never intended to make a surveyor of highways per- 
 sonally responsible at the hazard of a jury finding him guilty or 
 not guilty of negligence in not repairing the road." 
 
 The local authority, then, exercising the office of surveyor of 
 highways, or the surveyor of highways himself where the provi- 
 sions of the Highways Acts are not modified by later legislation, 
 are liable for their own acts or the acts of their servants in the 
 execution of the duties which belong to the office of surveyor of 
 highways, subject to the general rules of law that are to be 
 observed in questions arising between master and servant.' 
 
 The distinction between a Surveyor appointed by an urban 
 sanitary authority under section 189 of the Public Health Act, 
 187s, and the surveyor of highways appointed under the High- 
 ways Act, 183 J, must be borne in mind, for it is only in respect 
 of ministerial acts that the former officer can act as surveyor of 
 highways, and the real surveyor of highways is the urban sanitary 
 authority which appoints him. 
 Foreman v. Blackbum, J., in his judgment in Foreman v. Mayor of Oan- 
 
 Canterbury. terbury,' distinguishes between the surveyor of highways under 
 S&Mn''uiBhfs' *^® Highways Act, and the surveyor to the local authority who 
 between the are made surveyors of highways by the Public Health Act. He 
 highways says : " Mr. Denman correctly stated the law when he said that 
 ffighVaysAot ^^^J* would not be liable simply because they were surveyors of 
 and the sur- highways ; but there is nothing in the Act which would relieve 
 local autho- them, merely because they were surveyors, from liability which 
 made bot° ^"^ ^^^J would otherwise incur. In an ordinary case,* where the sur- 
 
 waysbythe ' (1862) 7 H. & N. 760, at p. 771; Act, 1848. See Adams ». Laieman, El. 
 
 Public Health Exchequer Chamber, 2 H..& 0. 197; 9 Bl. & El. 615; 27 L. J. M. C. 307, as to 
 
 Act. L. T.N. S. 14s; II W. E. 735. non-liability of an assistant surveyor, 
 
 " Alston V. Scales (1832), 9 Bing. 3, under section 18 of S & 6 "Will. IV. u. 50, 
 
 under the Act 13 Geo. III. c. 78. See to a penalty under section 44 on the ground 
 
 S & 6 Will. IV. c. 50, s. 73, by -which that such liability attaches only to the 
 
 a surveyor cannot remove an obstruction statutory surveyor of highways. Tucker 
 
 ■without an order in writing from a justice: v. Axbridge Highway Board, 5 Times 
 
 Keane v. Eeynolds, 2 E. & B. 748, L. E. 26. 
 
 ' L. E. 6 Q. B. 214, at p. 216; 40 * I.e., the Local Board of Health. 
 
 L. J. Q. B. 138; 24 L.T.N. S. 385; 5 7.e., under the Highways Act. 
 1*9 W. E. 719, under the Public Health 
 
BOOK HI.] HIGHWAYS, TUENPIKES, CANALS, ETC. 1017 
 
 veyor of highways is acting for a township or parish, he would bo judgment of 
 
 clearly liable for any act of his own personal negligence. There ^'*'='^''"™' •'• 
 
 is nothing to reheve him from that. If he had left the stones in 
 
 such a way as has been described,^ he would be personally liable 
 
 for the negligence. If he was himself the master of the servants, 
 
 he would be equally responsible for their negligence ; but in fact 
 
 and in practice the surveyor never is the master of the persons 
 
 who are employed on the roads. There is no matter of law 
 
 which would prevent him being so. If he, by any arrangement 
 
 made with the parish, took upon himself to do the work by his 
 
 servants, he would be responsible for those servants, though he 
 
 was surveyor of the highways. But, that being an unusual and 
 
 uncommon state of things, it would require distinct proof to shew 
 
 that the persons who left the stones in that position were his 
 
 servants, they generally being the servants of the parish, and 
 
 the parish being a body which cannot be sued. But when it 
 
 is a local board who are acting as surveyors,' the state of things 
 
 is in general the other way. The persons who are employed as 
 
 labourers to mend the highway are in general servants of the 
 
 local board ; although the local board of health are a body who 
 
 might very well contract with a contractor, yet they are a body 
 
 who generally do the work themselves — that is, by their servants, 
 
 and pay those servants. Therefore, generally speaking, as a 
 
 matter of fact, those who actually do the work, when it is done 
 
 by a local board of health as surveyors, are servants of the local 
 
 board of health The 3 7th section of the PubHc Health Act, 
 
 1848, requires the local board of health to appoint a surveyor 
 and other persons named as oflBcers and servants ; and at the end 
 of the section it is said that they may dismiss at pleasure all the 
 oiEcers and servants except the surveyor, and the surveyor is not 
 to be dismissed without the approval of the General Board of 
 Health. That being so, it would be a question to consider whether 
 the surveyor whom they are thus required to appoint, and whom 
 they are not allowed to dismiss, is in the relation of servant to 
 them in such a way as that, if the matter were being done by 
 the surveyor, and the cause of the mischief were the negligence 
 of the surveyor, the local board of health would be responsible 
 for his negligence."^ The extract is lengthy, but it points out 
 clearly a distinction of considerable importance in the consideration 
 of the liability attaching in the respective cases. 
 
 Pendlebury 1;. Greenhalgh'' and Taylor v. Greenhalgh, arising pendlebury c. 
 
 Greenhalgh, 
 1 By the side of a road without light. ^ See District of Columbia v. M'EUigott, ^^ ^t^'I^u"" 
 
 = 7.1, under the Public Health Act, 117 U. S. (10 Davis) 621. 'Greenhalgh. 
 
 or under the Metropolis Management * (1875) i Q. B. D. 36 ; 45 L. J. Q. B. 
 
 Acts. 3 ; 33 L. T. N. S. 472 ; 34 W. E. 98. 
 
1018 THE LAW OP NEGLIGENCE. [book nl. 
 
 out of the same accident and on identical facts, with decisions 
 pointing different ways, are yet on examination reconcilable and 
 consistent with Foreman v. Mayor of Canterbury and with each 
 other. An assistant surveyor under section 1 8 of 5 & 6 Will. IV. 
 c. 50 had neglected to fence and to light a road during the 
 alteration of the level of the highway, and an accident occurring 
 through a positive act of negligence, an alteration being Inade in 
 the condition of the road without proper precautions to render it 
 safe, he was held liable' by the Court of Appeal in Pendlebury v. 
 Greenhalgh. It was on this fact of " personal interference " that 
 the case was discriminated from Taylor v. Greenhalgh^ in the 
 Court of Queen's Bench; Lord Cairns saying, in Pendlebury /y, 
 Greenhalgh : " Although the conclusion at which this Court has 
 arrived does not agree with that of the Court of Queen's Bench, 
 the difference is not so much a difference on any point of law as a 
 difference between the view taken by the Court of Queen's Bench of 
 the facts, and the view which this Court takes of the facts as stated 
 in the case." Taylor v. Greenhalgh was decided on the authority 
 of Foreman v. Mayor of Canterbury,' because "the defendant 
 did not personally interfere in doing the work, or in directing the 
 road to be left in such a condition as it was left ; " and, on 
 that ground, the defendant was held not liable by the Court of 
 Queen's Bench. The principle underlying these cases is the 
 recognition of the distinction between the liability of a surveyor 
 appointed to carry out the ministerial duties of the surveyor of 
 highways, and the highway authority itself. The one is, primd 
 facie, liable only for his personal acts or defaults ; the other, for 
 all acts done in the exercise of its powers by those to whom it 
 has entrusted them under the ordinary limitations existing in 
 the law of master and servant or contractor and contractee. 
 The surveyor, acting under the orders of a highway board, who ' 
 does an act which is unlawful cannot justify it because it was 
 done by the orders of the highway board,* but he is personally 
 liable for his act;' and, on the other hand, he is absolutely pro- 
 tected when conforming to any orders of the Board within the 
 scope of their duties." 
 Eeido. Eeid ■;;. Darlington Highway Board' deserves notice only 
 
 Highway" ^s pointing the other aspect of the matter to that which was 
 
 1 Stephens v. Elwall, 4 M. & S. 259. wrong if the inference could he drawn. 
 
 ■' L. E. 9 Q. B. 487 ; 43 L. J. Q. B. ' L. E. 6 Q. B. 214 ; 40 L. J. Q. B. 
 
 168 ; 31 L. T. N. S. 184 ; 23 W. E. 4 138 ; 24 L. T. N. S. 385 ; 19 W. E. 719. 
 reversed 24 W. E. 311, as indistinguish- ■• Stephens v. Elwall, 4 M. & S. 259. 
 
 able from Pendlebury v. Greenhalgh. The ^ Mill v. Hawker, L. E. 9 Ex. 309 ; 
 
 effect of this reversal was that, in the L. E. 10 Ex. 92, at p. 95 ; 44 L. J. Ex. 
 
 opinion of the Court of Appeal, the distin- 49 ; 33 L. T. N. S. 177 ; 24 W. E. 348. 
 guishing inference of fact could not in " 25 & 26 Vict. c. 61, s. 16. 
 
 fact be drawn, not that the decision was ' Only reported 41 J. P. 581. 
 
 Board. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1019 
 
 most prominent in Pendlebury v. Greenhalgh. There a high- 
 way board instructed their surveyor to employ a certain con- 
 tractor to do work, which work was accordingly imdertaken 
 by the contractor, and carried on without further intervention 
 of the surveyor. On an accident happening, it was held that 
 there was no evidence to fix the surveyor with liability.' Had 
 the surveyor been the statutory officer under the Highway 
 Act, or had the action been brought against the urban authority 
 under the Public Health Act, 1875, s. 144, the mere fact 
 of non-intervention otherwise than to set in motion some other 
 agency would not have been sufficient to have exonerated from 
 the presumption of responsibility. It would then have been 
 necessaiy, for the exoneration of the defendant, that the work 
 should have been let out to a contractor, and that there should 
 have been no duty on the defendants to see that reasonable care 
 and skill were used in the execution of the work, or that, there 
 being such duty on them, it was discharged." " By whom,'' said 
 Lord Cairns, " was the fencing and lighting to be supplied ? 
 The defendant, no doubt, might have stipulated that the man 
 supplying the labour should supply the light or fencing. The 
 contract, we are informed, was not in writing, and we must 
 take it that the labour alone was contracted for. If the defend- 
 ant did not contract for the fencing or lighting, then the duty 
 of fencing and lighting remained in the defendant, for which he 
 remained responsible." 
 
 Akin to this portion of the subject are the cases of Hyams v. Hyams v. 
 Webster' and Smith v. West Derby Local Board.' In the former '^''^^^^^■ 
 case an action was brought against a contractor under the 
 Metropolitan Board of Works for that, having under his contract 
 opened a highway for the purpose of constructing a sewer, he 
 had so negligently done the work that, the plaintiff's horse 
 stumbling in a hole, the plaintiff sustained injury. The jury 
 found that the hole was a natural subsidence, thus negativing 
 negligence in the filling in. The Court of Queen's Bench' found 
 that, as between the defendant and the public, the defendant's 
 obligation ceased as soon as he had properly reinstated the 
 road, and that it then became the duty of the parish authori- 
 ties' to look after its subsequent repairs, whether its defective 
 
 ' A case with very similar circum- 21 ; 17 W. R 232. 
 
 stances brought against the contractor is ' 3 C. P. D. 423. 
 
 Blake v. Thirst, 2 H. & C. 20 ; 32 L. J. Ex. ■* Considerable stress was laid in the 
 
 189; 8L. T. N. S. 251 ; 11 W. E. 1034. course of the case upon 18 & 19 Vict. 
 
 Hughes V. Percival, 8 App. Cas. 443 ; c. 120, ss. no, in, 135, and on 25 & 26 
 
 52 L. 3. Q. B. 719 ; 49 L- '^- 189 ; 31 Vict. c. 102, n. 33. 
 
 W. E. 725. " •^•^•i tl"5 survej'ors of highways, apart 
 
 ' L. R. 2 Q. B. 264, in Exchequer from any spec 
 
 Chamber, L. R. 4 Q. B. 1 38 ; 38 L. J. Q. B. local statutes. 
 
1020 
 
 THE LAW OF NEGLIGENCE. 
 
 [book ni. 
 
 Smith 4'. 
 West Derby 
 Local Board 
 
 Decision 
 considered. 
 
 condition arose from subsidence or from ordinary wear and tear. 
 And this was upheld in the Exchequer Chamber, on the ground 
 that all responsibility to the public in excess of that of properly 
 reinstating the road at the completion of the work was on the 
 parish. 
 
 In Smith v. West Derby Local Board,' the action, on similar 
 facts, was brought against the local board either as the sewer 
 or as the highway authority. To the objection that " How the 
 subsidence was caused is not known," it was answered : " We 
 cannot go into the quantum of evidence, but I think there were 
 facts from which negligence might, and ought to, hare been 
 inferred. The trench was so improperly filled in that a sub- 
 sidence of from 1 2 to 15 inches took place — a thing not likely 
 to occur by fair wear and tear if the earth had been properly 
 consolidated." 
 
 The mode of expressing the reasons for this decision is 
 certainly not Idgical. The question to be solved is whether the 
 admitted existence of a certain condition of things was more 
 probably to be referred to an artificial, and by consequence 
 negligent, antecedent, or, on the other hand, to the mere 
 operations of Nature, and, therefore, to a not negligent ante- 
 cedent. The solution is, because the condition arises from the 
 artificial antecedent — " the trench," says the learned judge, " was 
 so improperly filled " — therefore, " there was evidence that the 
 work of filling in the trench had been negligently and improperly 
 done." That is, by assuming an effect due to negligence, neg- 
 ligence in the cause is more probable than absence of negli- 
 gence. But the whole difficulty of the case was the absence of 
 material to make this induction of negligence from. But in the 
 substance of the decision there is no doubt, and it is in accord- 
 ance, moreover, with other authorities.^ The law being that a 
 statutory duty is imposed on the highway authority to see to the 
 maintenance of the highway, the highway authority is liable for 
 any falling short in the discharge of this statutory duty. Where, 
 then, a trench is made in a roadway and filled in, but subsequently 
 a subsidence shews itself in the very place where the excavation 
 had been made, and not accounted for by any other theory, a 
 state of things has arisen from which it is fair to draw an 
 inference that the cause was the interference with the highway, 
 rather than a mere unaccountable operation of Nature, and the 
 jury, or, in the case in point, the county court judge, must say 
 whether the inference will be drawn.' If the jury or the judge will 
 
 L. .T. Q. B. 26s"; n L. T. N. S. 569; 
 13 W. E. 257. 
 
 1 3 C. P. D. 423 ; 47 L. J. G. P. 607 ; 
 38 L. T. 716 ; 27 W. E. 137. 
 " Gray ». Pullen, 5 B. & S. 970 ; 34 
 
 Oompare Blackburn, J., charge to the 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1021 
 
 draw tlie inference, then a state of facts is presented that points 
 to misfeasance, an imperfect execution of a work that must be 
 perfectlj- carried out, and not mere nonfeasance, the gradual and 
 natural decay of a highway whose want of repair is merely the 
 effect of user and of the operations of the forces of Nature." 
 
 The real ground of appeal from the decision of the county Notice of 
 court judge in Smith i\ AYest Derby Local Board was on a ''°''°"- 
 point as to whether a notice of action (under 1 1 & 1 2 Vict. c. 63, 
 s. 1 39) that specified the cause of action to be tliat the defendants 
 did " negligently, carelessly, and improperly leave a certain 
 portion of the highway in an insufficient and improper state of 
 repair " was a sufficient intimation tJaat an act of misfeasance was 
 to be charged against the defendants. The Court held that the 
 notice was fairly capable of being read so as to extend beyond 
 a mere suffering the road to become out of repair. This brings 
 us to the consideration of certain formalities with which actions 
 against highway authorities are regulated. 
 
 By 5 & 6 Will. IV. c. 50, s. 109, actions against the surveyor 5&6Wiii.iv. 
 of highways for acts done under the Highways Act are to be " 
 brought within three calendar months, and tweuty-one days' notice 
 in writing is required to be given to the person against whom 
 such action is intended to be brought. 
 
 By the Public Health Act, 1S4S, s. 139, whose language issS&sQVict. 
 adopted by the Public Health Act, 1875, s, 264. a six months" '"' ■'^^" 
 limit was imposed, and a month's notice was requii-ed to be given ; 
 and this is also the case under the Metropolis Local ^Management 
 Amendment Act, 1862, s. 106, 
 
 In Tavlor r. iXIeltham Local Board'- it was sought to maintain Taylor r. 
 the shorter limit for all acts done by a local boai-d in their b<Lxi!^ "^ 
 capacity of sm-veyors of highways. The Court, however, was of 
 opinion that, whether the act done was by the exercise of the 
 powers given by the 5 it 6 Will. IV. c. 50, or by the exercise of 
 powers given by the Public Health Act, there should in all cases 
 be a six months' limitation of action ; and Kay r. Atherton Local Kay «. Ather- 
 Board' is a similar decision under the Public Health Act, 1875, b^uj? 
 But in Burton r. Corporation of Salford,^ Cave, J., drew a dis- Bmton i-. 
 
 Oorporation 
 
 jiirr in Hall r. Bristol I :M:\vor on, L. E, wavs Compan}-, 12 Q. B. D. 16; 53 ol Salford. 
 
 2C.P,:!2-V ;!oL. .T. C. F."iio;i5L.T. L. '.1 . Q. B. :; i : 50 L. T. 99 32 W. E, 
 
 X, >; ^'-j; in ^V. E. 404; EhoJes v. 24S, with the remarks upon it by Lord 
 
 Aireil:ili-' Draiuiisje Ooiunii.<sionoi-s. I Eslier, M.E., Stew.ird v. Nortli Ml■ll^^- 
 
 C. P. D. 402: 45 L •!, C. r. Soi ; 35 politan Tnxmways Company, 16 Q. B, 1>. 
 
 L. T. X. S. 40 . 24 AV. R. 1053. >-''" ■,?-\ ^- ^- ^- ^- '>" • "54 ^- T. 35 ; 
 
 ' Barrows r. Commissiorers of Si»wers 34 W, K. 316, 
 
 of the City of London, 4 Times L. E, ^ 47 L. .1. C. P. 12. 
 
 262. As to the effect of a contract between ^ 42 .T. P. 792. 
 
 the highway authority and a tramway com- * 1 1 Q. B. I\ 2S6 : 52 1.. .T. Q, B. 66S ; 
 
 pain- liable under their Ait for non-ivpair 49 L, T. 43 : 31 W. lu S15. 
 of a" road, sec Howitt r. Nottingham Tram. 
 
1022 
 
 THE LAW OF NEGLIGENCE. 
 
 [book ni. 
 
 Tests applied 
 to determine 
 the class of 
 acts protected 
 by the require- 
 ment of notice 
 of action. 
 
 Eoberts v. 
 Orchard. 
 
 Cann v, 
 Clipperton. 
 
 Arnold v. 
 Hamel. 
 
 tinction between the case before bim and Taylor v. Meltham Local 
 Board, on the ground that the Public Health Act, 1875,' provides 
 that, where within the district of a local authority any local Act is 
 in force providing for purposes the same as or similar to the pur- 
 poses of the Act, proceedings may be instituted, at the discretion 
 of the authority or person institutiug the same, either under the 
 local Act or the Public Health Act, or both, and, as the statement 
 of defence seemed to contaiu an allegation that the corporation 
 were acting under the local Act, the judge declined to assume, ia 
 the absence of proof, that they chose to act under the Public 
 Health Act, with the consequence of increasing the duration of 
 their liability from three months to six. 
 
 With regard to what class of acts can secure the protection 
 afforded by notice of action, two tests have been contended for — 
 one, that it was not necessary that the person acting should 
 believe that he was acting under an authority conferred upon 
 him by law, so long as he believed in good faith that he was 
 acting according to law ; the other, that the person acting should 
 honestly believe in the existence of those facts which, if they had 
 existed, would have afforded a justification under the statute. 
 
 In Eoberts v. Orchard,^ in the Exchequer Chamber, in which 
 case " the law on this subject was quite settled,"^ the latter pro- 
 position was laid down to be the law, with the explanation that it 
 is not necessary that the person seeking protection should know 
 of the existence of the particular enactment,^ while, on^the other 
 hand, he is not protected if he bond fide believes himseK to be an 
 officer entitled to protection, though in fact he was not such an 
 one.* WUliams, J., who delivered the judgment in Eoberts v. 
 Orchard, had previously in Cann v. Clipperton ° thus expressed 
 himself : — " It would be wild work if a party might give himself 
 protection by merely saying that he believed himself acting in 
 pursuance of a statute, for no one can say what may possibly come 
 into an individual's mind on such a subject. Still, protecting 
 clauses like that before us would be useless if it were necessary 
 that the person claiming their benefit should have acted quite 
 rightly. The case to which they refer must lie between a mere 
 foolish imagination and a perfect observance of the statute."' 
 
 In Arnold v. Hamel,^ dealing with the question to whom the 
 determination of the matters involved in a notice to treat should 
 
 1 Section 340. 
 
 2 2 H. & C. 769 ; 33 L. J. Ex. 65 ; 9 
 L. T. N. S. 727 ; 12 W. E. 253. 
 
 s Chamberlain v. King, L. E. 6 C. P. 
 474, at p. 478. 
 
 * Read v. Coker, 13 C. B. 850; 22 
 li. J. 0. P. 201 ; S. P. Danvers v. Mor- 
 
 gan, I Jur. N. S. 1051. 
 
 ^ Hnghes v. Buckland, ij M. & W. 
 346 ; Lidster v. Borrow, 9 A. & E. 654. 
 
 « 10 A. & B. 582, at p. 589. 
 
 ' Agnew V. Jobson, 47 L. J. M. C. 67. 
 
 ' 9 Ex. 404, at p. 409 ; 23 L. J, Ex, 
 137- 
 
BOOK III.] HIGHWAYS, TUKNPIKES, CANALS, ETC. 1023 
 
 be referred,' Parke, B., said, with the concurrence of Alderson and 
 Martin, BB. : "In general in cases of this kind it is a question 
 for the jury whether the defendant acted bond fide and under a 
 reasonable belief that he was acting in pursuance of his office." 
 But by the terms of this section it is the province of the judge to 
 decide whether notice of action is required, and, in order to enable 
 him to determine that, he must either hear a statement from the 
 plaintiff's counsel, pledging himself to the facts, that the defendant 
 was an officer of the Customs, and was acting by reason of his 
 office, or the judge must hear evidence on both sides as to those 
 facts. Then, after he has heard sufficient evidence to enable him 
 to judge for what the action is brought, and whether the defendant 
 was an officer of the Customs, and acting by reason of his office, 
 the question whether notice of action is necessary will be decided 
 by him." The words of the section are : " That no plaintiff in any 
 case when an action shall be grounded on any act done by the 
 defendant shall be permitted to produce any evidence of the 
 cause of such action except such as shall be contained in the 
 notice." This decision is of importance, as the words in the 
 sections relating to notice in the Metropolis Management Amend- 
 ment Act, 1862,' and the Public Health Acts, 1848 and 1875,^ 
 are in similar words. 
 
 The next question is. Who are entitled to notice of action ? Who are 
 The answer to this depends on the particular wording of the notice of 
 statute under the provisions of which notice is required. Two '''=''°"' 
 decisions, however, may be cited to shew the limits within which 
 the requirements fluctuate. 
 
 By the Public Health Act, 1848, the protected persons were, 
 among others, " the local board of health or any member thereof, 
 or the officer of health, clerk, surveyor, inspector of nuisances, 
 or other officer or person whomsoever acting under the direction 
 of the said local board," and under these provisions Lord Campbell 
 held that a contractor "was emphatically a person acting under 
 the direction of the Board."* A change occurs in the wording of 
 the corresponding clause of the Public Health Act, 1875,° the 
 words being " any local authority, or any member thereof, or any 
 
 ' As to this see Hazeldine o. Groyo 123 ; 24 L. J. Q. B. 337. In respect of 
 
 (Justices) 3 Q. B. 997 ; Cox v. Eeid what acts, see Whatman v. Pearson, L. E. 
 
 (Oame Act), 13 Q. B. 558 ; Horn v. 3 C. P. 422, on the one hand, and Cham- 
 
 Thornborougii (Malicious Trespass Act), bers u. Eeid, 13 L. T. N. S. 703, on tho 
 
 3 Ex. 846 ; Gosden v. Elphick (Constable), other ; also Poulsum v. Thirst, L. E. 2 
 
 4 Ex. 445'; Eoberts v. Orchard (Coinage C. P. 449 ; 36 L. .T. C. P. 225 ; 16 L. T. 
 Act), 2 H. & C. 769; Chamberlain v. N. S. 324; 15W. E. 766. With the first 
 King (Larceny Act), L. E. 6 C. P. 474. of these cases compare Edwards v. Vestry 
 
 2 8 & 9 Vict. c. 87, ss. 117 and 118. of St. Mary, Islington, 22 Q. B. D. 338; 
 
 3 25 & 26 Vict. c. 102, a. 106. 58 L. .1. Q. B. 165. 
 
 * Sections 139 and 264 respectively. " 38 & 39 Vict. c. SS, s. 264. 
 
 5 "Nowton V. Ellis, 5 E. & B. ns, at p. 
 
1024 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 To what acts 
 done in pur- 
 suance of Btatn- 
 tory powers 
 the provisions 
 with regard 
 to notice 
 apply. 
 Flower v. 
 Local Board 
 of Low 
 Layton. 
 
 Wilson V. 
 Mayor, &c., of 
 Halifax, 
 
 officer of a local authority, or any person acting in his aid." On 
 these words the Common Pleas Division' held that, " although a 
 contractor would have been a person entitled to notice under the 
 words of the Public Health Act, 1 848 ''.... these words had 
 been purposely restricted and altered in the later Act so as to 
 exclude contractors." The words of the Metropolis Management 
 Amendment Act, 1862': "Board or their clerk, or any clerks, 
 surveyor, contractor, officer, or person whomsoever."* 
 
 And, finally, we must consider to what acts the provisions for 
 notice apply. 
 
 Jessel, M.E., in the Court of Appeal, in the case of Flower v. 
 Local Board of Low Layton,^ said : " I think it is impossible to 
 hold that the 264th section of the Public Health Act applied to a 
 bill in Chancery for an injunction to restrain a serious or irrepar- 
 able injury requiring the intervention of the Court. The section 
 was intended to apply to an action at law for damages, and its 
 object was to give an opportunity to a local authority to make 
 payment or tender of compensation for the damage sustained. It 
 could not be intended to apply to a case where the local authority 
 was improperly pulling down a house, for instance, or stopping up 
 a sewer. If that were so, it would amount to a licence to every 
 local board to do what injury they pleased while the month's 
 notice was running." ° 
 
 And in Wilson v. Halifax (Mayor, &c., of),' which was followed 
 by the Court of Common Pleas in Jolliffe v. Wallasey Local Board,' 
 Kelly, C.B., said : " It is now settled by authority that an 
 omission to do something that ought to be done in order to the 
 
 1 Grove and Lopes, JJ. 
 
 " Stringer v. Barker, W. S. 1879, p. 
 127. 
 
 ' 25 & 26 Viot. c. 102, 8. 106. 
 
 * The corresponding words in the Me- 
 tropolitan Building Act, 1855, l8_& 19 
 Viot. 0. 122, s. 108, are, "any district 
 surveyor or other person," under which 
 words, in an unreported case, Thair v. 
 ]i)dwards, before Denman and Hawkins, 
 JJ. (decided Dec. 21, 1886), on appeal 
 from the decision of the county court judge 
 of Clerkenwell, a builder acting under a 
 dangerous structure notice, though, em- 
 ployed by the house-owner, was held an 
 " other person," and entitled to notice, in 
 affirmance of the county court .judge, and 
 distinguishing Williams v. Golding, L. R. 
 I C. P. 69; 3S L.J. C.P.I ; 13 L.T. 
 N. S. 291 ; 14 W. B. 60, on the ground 
 that tbere the defendant was not only 
 not authorized by the district aurveyor to 
 do the work from which the injury re- 
 sulted, but was expressly warned and for- 
 bidden to proceed with it. 
 
 6 s Ch. D. 347, at p. 352 ; 46 L. J. Ch. 
 
 621 ; 36 L. T. 236 ; 125 W. R. 545. The 
 cases of Waterhonse v. Keen, 4 B. & C. 
 200 ; Kent v. Great Western Railway 
 Company, 3 C. B. 714; Selmes v. Judge, 
 L. R. 6 Q. B. 724; Midland Railway 
 Company v. Withington Local Board, 1 1 
 Q. B. D. 788, though technically framed 
 in contract for the recovery back of money 
 paid uoder mistake, are ih substance to 
 obtain redress for a wrongful act done. 
 In Attorney-General v. Hackney Local 
 Board, L. R. 20 Eq. 626 ; 44 L. J. Ch. 
 545 ; 33 L. T. N. S. 244, it was held to 
 be unnecessary to serve the notice required 
 by 25 & 26 Vict. c. 102, 8. 6, where an 
 injunction was sought to restrain the con- 
 tinuation of a nuisance. 
 
 * rietoher v. Greenwell, 4 Dowl. 166 ; 
 Davics V. Swansea (Corporation of) 8 Ex. 
 808 ; 22 L. J. Ex. 297 ; Foat o. Margate 
 (Mayor, &c., of), 1 1 Q. B. D. 299 ; 52 L. J. 
 Q. B. 711. 
 
 'L. R. 3 Ex.117; 37 L- J- Ex.44; 
 17 L. T. N. S. 666; 16 W. R. 707. 
 
 8 L. E. 9 C. P. 62 ; 43 L. J. C. P. 41 ; 
 29 L. T. N. S. 582. 
 
BOOK III,] HIGHWAYS, TURNPIKES, CANALS, ETC. 1025 
 
 complete performance of a duty imposed upon a public body- 
 under an Act of Parliament, or the continuing to leave any such 
 duty unperformed, amounts to an act done or intended to be done 
 within the meaning of those clauses requiring notice of action for 
 the protection of public bodies acting in the discharge of public 
 duties under Acts of Parliament." And in Selmes v. Judge,' a Seimea v. 
 case under the Highways Act, 1835,^ s. 109, Blackburn, J., said : ^^^^^' 
 " It has long been decided that such a provision as that contained 
 in this section is intended to protect persons from the consequences 
 of committing illegal acts which are intended to be done under 
 the authority of an Act of Parliament, but which by some mistake 
 are not justified by its terms, and cannot be defended by its pro- 
 visions."^ And this was adopted and followed by the Court of 
 Appeal in Midland Railway Company v. Witherington Local 
 Board.' 
 
 The amount of repair that is required to be done to a highway Amount of 
 may vary. The earliest case on the point is Eegina v. Cluworth.'' ^^^ '^^ 
 As reported in Salkeld, the proposition is laid down that the 
 inhabitants of a parish are not bound to put the road in a better 
 condition than it had been time out of mind ; but that they are 
 bound to put it in such condition as it had usually been in when 
 at its best. But in Modern Reports and in Holt the proposition 
 is limited to one bound to repair by prescription. In that case 
 it is evident that the liability arising from custom must be 
 limited by custom ; and that the proposition was so limited may 
 be inferred from Rex v. Henley," where Patteson, J., ruled at the 
 trial that it was not enough that a road was as good as ever it 
 was or as it usually had been, but, if the necessities of the public 
 required it, the parish were bound to convert it from a green 
 road to a hard road ; and this direction was afterwards upheld by 
 the Queen's Bench. 
 
 h The case of Manley v. St. Helens Canal and Railway Com- Maniey v. 
 pany,' though on a somewhat different point, contains observa- oana/and^ 
 tions which are absolutely inconsistent with the narrower view, S^j^™^^ 
 and go to impose a liability ever growing with the exigencies 
 of circumstances. Martin, B., said : "I agree with the Lord 
 Chief Baron that, if we were now discussiug what kind of 
 bridge it ought to be, I should say a bridge suitable to the 
 present state of society. I have no doubt that, when the 
 
 ^ L. K. 6 Q B. 724; 40 L. J. Q. B. 49 L. T. 489. The case of Lea w. Facey, 
 287; 24 L. T. N. S. 905; 19 W. R. 17 Q. B. D. 139; 55 L. J. Q. B. 371, con- 
 mo. tains a judgment of Wills, J., on the effect 
 
 ^ 5 & 6 Will. IV. c. 50. of the Public Health Act on local Acts. 
 
 ' HollandiJ.NorthwichHighway Board, ^ Salk. 359; 6 Mod. 163; Holt 339. 
 
 34 L. T. N. S. 137. ^ 10 L. T. no. 
 
 * iiQ. B,D. 788; S2L.J. Q. B.689; ' 2H. &N. 840; 27L. J. Ex. 159. 
 
 3 T 
 
1026 THE LAW OF NEGLIGENCE. [book iii. 
 
 bridge was built, the place near it was a small village ; now it 
 has thousands of inhabitants, and to hold that the same bridge 
 which would suflGice formerly will do so now, when the place 
 has become a great manufacturing town, would be utterly con- 
 trary to reason and good sense. Courts of law must look at 
 these matters with reason and common sense, and these tell us 
 that undertakings of this sort must be conducted so as to meet 
 the exigencies of society. Is it fitting, then, that in the town of 
 St. Helens there should be a bridge which, when opened, as it 
 may be, at any hour of the day or night, shall leave a gulf in the 
 highway entirely without protection ? That is a question for the 
 jury, and all persons would concur that the only verdict they 
 could have found was that which they have found. Had they 
 found the contrary, I should have dissented from their verdict, 
 and thought it a fit one to set aside." These remarks were made 
 in a case where the liability of a commercial company was being 
 considered. But it will not readily be supposed that the state of 
 repair which the authorized highway authorities are. to maintain 
 throughout their jurisdictions would be formed on a laxer prin- 
 ciple than that which governs with commercial companies in 
 progressive neighbourhoods. 
 The King v. The King V. Inhabitants of Devon' is only apparently in opposi- 
 v^eym^'^^ °^ ^^°^ *° *^^^ decision. There an indictment alleged that a bridge 
 was so narrow that the King's subjects could not pass without 
 danger, the distinction, as pointed out by Abbott, C.J., being that 
 to do so would be " adding to the bridge something which did not 
 exist before." " And," he goes on to say, " if we should lay down 
 the law to be that the inhabitants of a county may be compelled 
 to widen a bridge, I am utterly unable to see why we should not 
 be called upon to say that the inhabitants of a parish are bound to 
 widen a pubHc high road ; and the inconvenience arising from 
 such a rule is obvious. The inhabitants of a parish, as such, have 
 no power, except by Act of Parliament, to purchase at their 
 own expense land for the purpose of widening a road ; and, 
 if they could be compelled to buy land for such a purpose, 
 I do not see why they should not also be compelled to buy 
 houses." 
 EexB. In- Ndther is it inconsistent' with Rex v. Inhabitants of Lan- 
 
 Landuiph.- dulph,^ where Patteson, J., directed the jury that, if they 
 
 ^ 4 B. & C. 670. This case seems to bound to repair it : Begina v. Inhabitants 
 
 have come before the Court by reason of a of Stretford, 2 Ld. Bayni. 1 169. 
 dictum of Lord Kenyon, in Hex v. Inbabi- ^ 1 M. & Bob. 393 ; in the note to this 
 
 tants of Cumberland, that, if a bridge had report several cases on the law are coj- 
 
 becpme of insufficient width, the burden lected. 
 of widening it must be homo by those 
 
BOOK iii.J HIGHWAYS, TUENPIKES, CANALS, ETC. 1027 
 
 thouglit it proved by the evidence that the want of repair arose 
 from the nature of the spot over which the alleged road passed, 
 it would be absurd to require the parish to do repairs which 
 from the nature of things must always be ineffectual. 
 
 "We have hitherto considered the position, with reference to Negligence 
 negligence in carrying out his statutory duties, of the surveyor r^ghway. °* 
 of highways or those exercising his functions. But any member 
 of the public can be negligent in respect of the user of high- 
 ways, as well as the authority charged with their maintenance ; 
 and it is now necessary to consider those heads of negligence 
 which refer specially to the user of highways, and which occur 
 independently of the statutory duties of surveyors of high- 
 ways. 
 
 It was very early determined that no action would lie for hin- No action for 
 dering a personpassing along a highway. The reason for this was p™sou pass- 
 that the natural effect would be to indefinitely multiplv suits. In i°g along * 
 
 hignway. 
 
 lieu of action, the remedy was by indictment.' In order to en- 
 title a plaintiff to maintain an action he must shew a particular 
 damage suffered by himself over and above that suffered by the 
 other subjects of the realm." 
 
 For this an early and leading authority is Iveson v. Moore,' Iveson v. 
 where the plaintiff, who was the owner of a colliery, was obliged ''^°°'^''- 
 to take carts and waggons along a highway almost daily, but by 
 reason of the highway being obstructed he personally sustained 
 pecuniary damage. The King's Bench was divided, Holt, C.J., 
 and Rokeby, J., being of opinion no action would lie, because 
 the plaintiff sustained no more particular damage than any 
 other of the King's subjects, who all had the same right to 
 pass this way; but Gould, J., was of opinion that the action 
 would lie, "though he agreed that an action would not lie 
 for a public nuisance without special damage for avoiding multi- 
 plication of suits, and therefore, in this case if the plaintiff had 
 concluded only per quod his carts or carriages could not pass, it 
 would not have lain nor have been maintainable, yet he was of 
 opinion that some special damage appears to be done to the 
 plaintiff by this stoppage of the way which is not common to the 
 
 ' Pain V. Patrick, 3 Mod. 289 ; S.C. don, L. R. 15 Eq. 376 ; 28 L. T. N. S. 336. 
 Paine v. Partrich, Carthew 191 ; S.C. ^ I Ld. Raym. 486; Maynell v. Salt- 
 Payne )'. Partridge, Sliower 256. marsh, i Kel. 847, was cited, where it was 
 
 ^ Eicket V. Metropolitan Railway helJ sufficient special damageto shew that, 
 
 Company, 5 B. & S. 149, at p. 156; by reason of the defendant's obstruction of 
 
 34 L. J. Q. B. 257; in the^ House away, the plaintiff was prevented carrying 
 
 of Lords, L. R. 2 H. of L. 175 ; 38 his corn, whereby it was injured by rain. 
 
 L. J. Q. B. 205 ; 16 L. T. N. S. 542 ; See, too, Blagrave v. Bristol Waterworks 
 
 15 W. R. 937. As to consequential Company, i H. & N. 369 ; 26 L. J. Ex. 
 
 damage, see Bigg v. Corporation of Lon- 57 ; Sampson v. Smith, 8 Sim. 272. 
 
V. 
 
 1028 .■ THE LAW OF NEGLIGENCE [book in. 
 
 rest of the King's subjects ; aad this appears in the per quod, 
 the business of which is to close the action and shew the cause 
 of it." Turton, J., based his opinion on the consideration that, 
 the application being to arrest judgment, the defect, if any, was 
 cured by verdict. No decision could be pronounced, but the case 
 was subsequently argued before all the justices of the Common 
 Pleas and barons of the Exchequer,' and they were all of opinion 
 that the action lay. 
 
 Of these two last-cited cases, the one limits the liability to 
 what has been dedicated, the other to works that will be 
 beneficial. 
 Winterbottom In Winterbottom 1). Lord Derby ^ the subject was carefully 
 er y. considered, and Kelly, O.B., said : " I am of opinion that the 
 true principle is that 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 obstruc- 
 tion. To say that they could would really in effect be to say 
 that any of the Queen's subjects could." 
 What inter- The principle, then, under which only an action can be brought 
 
 law regards, being reasonably clear, the next inquiry must be to ascertaru the 
 various interferences with a highway which in law are held to 
 create obstructions.' To this end it will be necessary to 
 notice the chief cases decided with reference to indictments 
 for obstructing highways, not, however, neglecting the caution 
 that, in order to maintain an action, special damage, as 
 pointed out in Iveson v. Moore, must be shewn to have been 
 incurred ; and, further, that, in so far as obstruction is caused 
 by a wilful act, and not a negligent act, it is outside the pro- 
 vince of our inquiries. Or, as succinctly stated by Brett, J.^: 
 " To maintain an action for damage caused by that which is a 
 
 ' 12 Mod. 262, nnder name of Jeveson only in so far as his interference was 
 
 V. Moore ; Greasly ». Codling, 2 Bing. neoessaiy for the purpose. And we agi'ee 
 
 263- with the Court below that in abating a 
 
 " L. E. 2 Ex. 316; 36 L. J. Ex. 194; nuisance, if there be two ways of doing 
 
 '^? Vr ^ v ''^' i '^ ^" ^' "S- % that way must be chosen by which the 
 
 ' If there be annisance in a public high- lesser mischief will be done. We are also 
 
 way, a private individual cannot of his agreed that where, in the alternative way 
 
 own authority abate it, unless it does him of abating a nuisance, there may be some 
 
 a special injury ; and he can only interfere wrong done to the property of an innocent 
 
 with it as far as it is necessary to exercise person or to the public, that mode cannot 
 
 his right of passing along the highway. be adopted." See Dimes v. Petley, 15 
 
 In Roberts v. Eose, L. E. i Ex. 82; 35 Q. B. 276; 19 L. J. Q. B. 449 ; Bagshaw 
 
 L. J. Ex. 62 ; 13 L. T. N. S. 471 ; 14 w. Buxton Local Board of Health, i Ch. D. 
 
 W. E. 225, m the Exchequer Chamber, 220; 45 L. J. Ch. 200; 34 L. T. N. S. 
 
 Blackburn, J., said: "Where a person 112; 24 W. E. 231. 
 seeks to justify his having interfered ■• Benjamin ». Storr, L. E. 9 C. P. 400, 
 
 with the property of another for the pur- at p. 407 ; 43 L. J. C. P. 162 ; 30 L. T. 
 
 pose of abating a nuisance, he may be N. S. 362 ; 22 W. E. 631. 
 justified if the other be a wrongdoer, but 
 
BOOK III.] HIGHWAYS, TUilNPIJECES, CANALS, ETC. 102& 
 
 public nuisance, the damage must be particular, direct, and sub- 
 stantial."^ 
 
 A distinction must first be pointed out that runs through all the 
 cases. The right of a frontager to access to his property from the Eight of a 
 highway is a totally different right, and, as far as it is a right of a aTcetsf ' *° 
 man to step on his own land, a higher right than that of a mere 
 passenger to pass to and fro on a highway." An obstruction of 
 
 ^ Nuisance may be thus divided : — 
 
 Nuisance 
 I 
 
 Wilful Not wilful 
 
 Pure Act done Pore accident — Negligent — i.e., wheel 
 
 trespass. in assertion i.e.,wheeloomingoif coming off a cart, which 
 
 of a right. a cart, where all rea- had not been properly 
 
 sonable precautions seen to, and blocking the 
 
 have been adopted, highway. 
 
 and blocking the 
 
 highway. 
 With the whole class of " wilful" nuisances we have nothing to do ; and of the " not 
 wilful " our concern with the species " inadvertent " is merely incidental. Our inquiry 
 is with those acts which are " negligent " in the proper meaning of the term — where, 
 that is,_ there is absence of some care that ought to have been taken. Obstructions, it 
 is manifest, may be common to all these four ; though the proper scope of a treatise on 
 Negligence is to consider any act done without the amount of care required in the class 
 of acts of which it is a case, or any act omitted to be done in a class where an obliga- 
 tion to act is imposed. 
 
 2 The Queen v. Pratt, 4 B. & B. 860, at p. 865 ; Lade v. Shepherd, 2 Str. 1004 ; 
 Blundell v. Catterall, 5 B. & Aid. 268— right of going over land to bathe in the sea. 
 The celebrity of the decision in Blundell v. Catterall, and the discussion it has under- 
 gone, may perhaps warrant a note on the subject, though it is not strictly germane 
 to the present treatise. The plaintiff in that case was the lord of a manor bounding 
 on one side by the Kiver Mersey, and by grant from the Crown held the shore to low- 
 water mark. The defendant was a servant at an hotel fronting the shore, the pro- 
 prietor of which kept bathing machines. The plaintiff sued for trespass in driving one 
 of these machines across the foreshore with a visitor at the hotel for the purpose of bath- 
 ing. The defendant's case was that there was a common law right for all the King's 
 subjects to bathe on the seashore, and to pass over it for that purpose on foot, and with 
 horses and carriages. Abbott, C.J., Holroyd and Bay ley, J J., held that the plaintiff 
 could recover ; Best, J., dissented. His dissent was based on three separate lines of argu- 
 ment. First, on authority. Bracton was cited for the proposition — Miparum etiam 
 tisuspMicus est de jure gentium sicut ipsius fluminia. The majority of the Court de- 
 nied this authority, on the ground that Bracton had not (juoted merely, but inter- 
 polated his doctrine from the civil law, with which, they said, the law of England did 
 not agree. Secondly, that as the sea was the highway of the world, free access to it 
 was of great importance. To this the answer in substance was, admittingit to be true, 
 it was irrelevant, since the question at issue was not the importance of getting to the 
 highway of the sea, but the right of traversing the plaintiff's land without his permis- 
 sion. Thirdly — and on this point the very words of Best, J., must be given: "By 
 bathing, those who live near the sea are taught their first duty — namely, to assist 
 mariners in distress. They acquire by bathing confidence amidst the waves, and learn 
 how to seize the proper moment for giving their assistance." This argument "of 
 public convenience " the majority of the Court met with the rejoinder that the greatest 
 public convenience is that the rights of private property should be assured, though it is 
 obvious that the proposition laid down by the learned dissentient judge was somewhat 
 wide and vague as applied to the case of an hotel visitor bathing from a machine. 
 In Hall's Essay on the Rights of the Crown in the Seashores of the Eealm a vigorous 
 rally is made to support the judgment of Best, J., and to question the decision. His 
 argument may be summarized: First, the books are silent. When that happens it may 
 be from the clearness of the right which has never been disputed. The case of bathing 
 is one of these cases. Secondly, the right was a customary right. Thirdly, the 
 
1030 THE LAW OF NEGLIGENCE. [book iii. 
 
 access to premises is in itself actionable, as being tbe infringement 
 of a right in property ; and it is therefore not necessary to shew 
 special damage, which, we have seen, is required to be proved 
 where the action is for the obstruction only of a public highway.' 
 The owners of a " roadside property," to adopt the term used by 
 Wood, V.O., in Attorney-General v. Conservators of the Thames,^ 
 have the public right of passing and repassing along the high- 
 way possessed by all subjects of the realm who have occasion to 
 use the highway ; but they have, in addition to these public rights, 
 a right to enter their houses from a highway,' and " a reasonable 
 right of access, they have a reasonable right of stopping, as well 
 The King «. as of going and returning in the use of the highway."^ But as 
 EuBseU. ^^ jg^^ ^^^^ ^y. ^j^g -^^g^ Beach, in The King v. Eussell,* " the 
 
 authority of Braoton, joined with the known habits of men to bathe and swim long prior 
 to written codes, should have been held to establish the right. Fourthly, though Boman 
 and English law do differ on some points, there was no evidence that this was one ; and, 
 as fishing and bathing are analogous, and they agree in that, there is an inference that 
 they agree in the common right of bathing. To this it may be answered : First, that 
 the case of bathing is not one of the cases from the silence of the books as to which the 
 right may be presumed ; and that, if a reason were needed, because the existence bf 
 such a right would presume a limitation to private ownersbip (Fitch v. Sawling, z H. Bl. 
 393). Secondly, that a general custom cannot exist ; a local custom was shewn not 
 to exist ; and a common law right, without positive evidence of its existence, is not 
 to be presumed. Thirdly, that " the known habits of men to bathe and swim long 
 prior to written codes " was not proved, and it is doubtful if it could be proved ; but, could 
 it be proved, would be irrelevant, even with the authority of Bracton, which is con- 
 fessedly drawn from the civil law, while the land laws of England are based on the 
 feudal law — ^an antagonistic system. Fourthly, there is no more similarity between a 
 right to bathe and a right to fish than between a right to kill wild animals not game 
 and a right to exercise oneself on a man's close. And a right of fishing in the sea, 
 or a right of taking shell fish, does not necessarily involve a right to cross a man's 
 land, while a right to go across it to bathe does ; and the only authority adduced, " that 
 fishers who fish in the sea may justify their going upon the land a^'oining to the sea; 
 because such fishing is for the commonwealth and for the sustenance of all the kingdom " 
 (Fitssh. Barre, 93 ; Year-book 8 Edward IV. 19), makes it clear that there is a diSerenco 
 between the right to bathe and the right to fish, by the reason it gives for the good- 
 ness of the right of fisheiy ; that it is for the commonwealth and for the sustenance of 
 all the kingdom ; a reason not applicable according to the ordinary use of language to 
 a claim of a right to bathe. Further, this passage was interpreted by Holroyd, J., to 
 refer to a particular custom ; and in JBtooke's Abridg. tit. Custom, it appears that the 
 doctrine laid down was on a question which arose from a custom. But, apart alto- 
 gether from reasoning, the decision in Blundell v. Catterall exists, has been acted on, 
 and is generally regarded as settling the law ; which, did not the decision settle it, 
 would probably have to be settled, as it is, on reasoning similar to that of the majority 
 of the Court. 
 
 ^ " It is well established law that, where ^ Lyon v. Fishmongers' Company, I 
 
 there is a public highway, the owners of App. Cas. 662, at p. 675 ; The Queen v. 
 
 land adjoining thereto have a right to go Metropolitan Board of Works, L. R. 4 Q. B. 
 
 upon the highway from any spot on their 358 ; 38 L. J. Q. B. 201. 
 
 own' land": per Blackburn, J., Marshall * Original Hartlepool Collieries Com- 
 
 V. Ulleswater Company, L. K. 7 Q. B. pany 1;. Gibb, 5 Ch. JD. 713 ; 46 L. J. Ch. 
 
 i65, at p. 172; 41 L. J. Q. B. 41 ; 25 311 ; 36 L. T. 433. 
 
 L. T. N. S. 793; 20 W. E. 144 ; Rose v. » (1805) 6 East 427, at p. 430. Regina 
 
 Grroves, 5 M. & G. 613 ; Lyon w. Fish- v. Chittenden, case of a traction engine, 49 
 
 mongers' Company, i App. Cas. 662; 46 J. P. 503 ; 15 CoxC. C. 725. See Brown 
 
 L. J.Ch. 68; 35 L. T. N. S. 569; 25 j). Eastern and Midland Railway Company, 
 
 W. R. 165, reversing the Court of Appeal, 5_Times L. E. 284, where a heap of rub- 
 
 L. R. 10 Ch. App. 679. bisli was placed on defendants' land ; the 
 
 * I E. & M. I. Court of Appeal held evidence admissible 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 103 1 
 
 primary object of the street was for the free passage of the public, 
 and anything that impeded that free passage without necessity 
 was a nuisance. That, if the nature of the defendant's business 
 (in the case before the Court, that of a waggoner) was such as 
 to require the loading and unloading of so many more of his 
 waggons than could conveniently be contained within his own 
 private premises, he must either enlarge his premises or remove 
 his business to some more convenient spot." Lord Ellenborough Kex «. Cross, 
 reiterated this statement of the law in Rex v. Cross,' which was 
 an indictment for causing coaches to remain an unreasonable 
 time in the public highway near Charing Cross, saying : " Every 
 unauthorized obstruction of a highway to the annoyance of the 
 King's subjects is an indictable offence. Upon the evidence 
 given, I think the defendant ought clearly to be found guilty. 
 The King's highway is not to be used as a stable-yard. It is im- 
 material how long the practice may have prevailed, for no length 
 of time will legitimate a nuisance." And on the following day, in 
 a subsequent case, he said^ : "If an unreasonable time is occupied 
 in the operation of delivering beer from a brewer's dray into the 
 cellar of a publican, this is certainly a nuisance. A cart or 
 waggon may be unloaded at a gateway, but this must be done 
 with promptness. So as to the repairing of a house : the public 
 must submit to the inconvenience occasioned necessarily in repair- 
 ing the house ;^ but if this inconvenience is prolonged for an 
 nm-easonable time, the public have a right to complain, and the 
 party may be indicted for a nuisance. The rule of law upon 
 this subject is much neglected, and great advantages would arise 
 from a strict and steady application of it." 
 
 Benjamin v. Storr* was very like these earlier cases. There, Benjamin «. 
 by reason of the access to plaintiff's premises being obstructed 
 for an unreasonable time and in an unreasonable manner by the 
 defendants constantly loading and unloading goods into and from 
 vans at their premises, the plaintiff's customers were prevented 
 
 that many otlier horses than the plaintiff's also Towns Improvement Clauses Act, 
 
 had shied at it, with a view of shewing 1847 (10 & 11 Viot. c. 34), s. 80; Eegina 
 
 that it was a nuisance. v. Commissioners of Sewers, 22 L. T. N. S. 
 
 ' 3 Campb. 224. 582; Metropolis Management Act, 1855, 
 
 - Rex V. Jones, 3 Campb. 230. (18 & 19 Viot. c. 120), s. 121 ; Hoare v. 
 
 ^ Herring v. Metropolitan Board of Kearley, i Times L. K. 426 ; and see per 
 
 Works, 19 C. B. N. S. 510 ; 34 L. J. M. C. Denman, C.J. , Eex v. Ward, 4 A. & E. 
 
 224. There is a custom in the City of 384, at p. 404; and per Crompton, J., 
 
 London authorizing the Lord Mayor to Eegina v. Eichmond, 2 L. T. N. S. 373. 
 give licence for the erection of hoardings "* (1874) L. E. 9 Q. B. 400; 43 L. J. 
 
 during rebuilding for a reasonable time : C, P. 162 ; 30 L. T. N. S. 362 ; 22 W. E. 
 
 Bradbeeu. Mayor, &o., of London, 5 Scott 631. Mott «. Slioolbred, L. E. 20 Eq. 
 
 N. E. 79 ; S.C. under name of Bradbee v. 22 ; where a public street was improperly 
 
 Christ's Hospital, 4 M. & G. 714 ; Davey used as a stable-yard, it was held by 
 
 «. Wame, I4M.&'W'. 199 — a ladder placed Jessel, M.E., that the nuisance to the 
 
 against iv house for whitewashing is not neighbouring houses was not bo permanent 
 
 ft hoard. See 57 tteo. III. t. 29, s. 75 ; as to entitle a reversioner to an injunction. 
 
103^ THE LAW OF NEGLIGENCE. [book in. 
 
 from coming to his coffee-shop, and he suffered a material dimi- 
 nution of trade, and it was held that he could maintain an action 
 on the ground that he had sustained a particular damage beyond 
 the general one to the public, and that such damage ■was direct 
 and substantial. The case was argued and decided on the basis of 
 a public nuisance, and private injury resulting therefrom, and on 
 the authority of the cases of Iveson v. Moore' and Winterbottom 
 V. Lord Derby." But on the principle approved by Lord Oairns, 
 0., in Lyon v. Fishmongers' Company' — ^that iuterferenoe to a 
 private right is in itself a ground of action, even though not a 
 public nuisance accompanied by particular damage — ^the decision 
 could no less securely have been maintained. The summing up 
 of the learned judge at the trial was that the jury were to say 
 whether or not the obstruction of the street was greater than was 
 reasonable in poiut of time and manner, taking into consideration 
 the interests of all parties, and without unnecessary inconvenience ; 
 telling them that they were not to consider solely what was con- 
 venient for the business of the defendants. This question of 
 what was reasonable must depend upon the circumstances, and 
 Judgment of with 'regard to that the observations of Jessel, M.R.,^ are strongly 
 esse, . . jjj point; as, indeed, they also are with regard to the rights 
 inherent in private property to its reasonable enjoyment : " You 
 cannot lay down d p7"iori what is reaspnable. You must know all 
 the circumstances. It would be clearly reasonable, for instance, 
 if a wheel came off an omnibus in the middle of a highway, for a 
 blacksmith to be sent for to put the wheel on the omnibus, if that 
 were the easiest mode of moving it out of the way ; and the 
 omnibus might lawfully stop there ilntil the wheel was put on, 
 in order to take it out of the way, if that were the best mode 
 of taking it out of the way, and a reasonable and usual mode. 
 Nobody would deny that if the blacksmith chose to carry on his 
 trade of repairing omnibuses immediately opposite his own house, 
 and for that purpose, not "keeping any one omnibus more than a 
 reasonable time for his work, he ■ kept omnibuses opposite his 
 house or shop or smithy door for that purpose, that would be an 
 obstruction of the highway, and would be a nuisance. You must 
 look at the circumstances. So, again, it is perfectly reasonable 
 that A. shall put his carriage before his house door, even although 
 it may overlap his neighbour's door. For instance, take the 
 houses which have been divided — houses in Portland Place — that 
 is a familiar instance to me, and I dare say to most of us — where 
 
 1 I Ld. Baym. 486. 35 L. T. N. S. 569 ; 25 "W. E. 165. 
 
 = L. E. 2 Ex. 316 ; 36 L. J. Ex. 194 ; * Original Hartlepool Collieries Com- 
 
 16 L. T.N. S. 771 ; 16 W. E. 15. pany v. Gibbs, S Ch. D. 713, at p. 721 ; 
 
 • 8 I App. Qbs. 662 ; 46 L. J. Cb. 68 ; 46 L. J. Ch. 311 ; 36 L. X. 433. 
 
BOOK iii.j HIGHWAYS, TURKPIEES, CAISTALS, ETC. 1033 
 
 two doors immediately adjoin. It is impossible to draw up a 
 carriage to the one without overlapping the other. There is no 
 doubt that it is quite a reasonable thing to stop a carriage there 
 for the purpose of taking up and setting down, or even for the 
 purpose of waiting there a reasonable time. But suppose the 
 neighbour's carriage comes up and wants either to take up or to 
 set down, it would be monstrous to hold that the coachman of the 
 first carriage should not move out of the way. It would then 
 become unreasonable. When he sees the neighbour's carriage 
 coming up he is bound to get out of the way, and he commits a 
 private nuisance to his neighbour, in the nature of a public nuisance, 
 by stopping before his door and preventing his coming up, he not 
 requiring to stop there. In that case, therefore, if he persisted in 
 doing this day after day, I have no doubt that his neighbour 
 might bring an action against him, and get, no doubt, nominal 
 damages ; but nominal damages would establish the right and 
 carry the costs. In the same way it is not unreasonable that 
 your neighbour should give an evening party occasionally, and 
 that there should be a file of carriages running across your door 
 or opposite your door. But it would be very unreasonable if 
 anybody did not break the file to allow your carriage to come 
 to your own door, and still more unreasonable if, instead of 
 giving parties occasionally, as people do, your neighbour were to 
 turn his house into an assembly room, or for some private purpose, 
 in consequence of which a file of carriages came every day and 
 obstructed the carriage-way to your house. I only give these as 
 illustration. The law is quite clear. The question of reason- 
 ableness has been said to be a question for a jury. It must be 
 reasonable user and nothing else."' 
 
 The case of Fritz v. Hobson' was decided in strict accordance Fritz «• 
 with the principles thus illustrated, although Original Hartlepool 
 Collieries Company v. Gibb,' in which they occur, was not referred 
 to either during the argument or in the judgment. Defendant 
 was engaged in building operations, to get to which there were 
 three accesses — one down a narrow court, which was the most 
 convenient, and which the defendant largely engrossed for the 
 conveyance of building material, thus causing damage and loss 
 to the plaintifi", who had a shop in the court. The defendant 
 asserted " an unqualified and absolute right to approach the area 
 of building operations which he was carrying on by the nearest 
 
 1 See a judgment of Lord Cranworth, = j^ c]j j) ^^^ ; 49 L. J. Ch. 321 ; 42 
 
 C, in Attoraey-General v. Sheffield Gas L. T. 225 ; 28 W. E. 459. 
 
 Consumers' Company, 3 Do G. M. & G. '5 Ch. D. 713 ; 46 L. J. Ch. 311 ; 36 
 
 304, at p. 339, where the law is laid down L. T. 433. See Bell v. Corporation of 
 
 in the same manner, and with almost Quebec, 5 App. Cas. 84; 49 L. J. P. C. i. 
 identical illustrations. 
 
1034 
 
 Begina v, 
 Hathias, 
 
 Hani's V. 
 Mobbs and 
 Wilkins v. 
 Bay. 
 
 How primd 
 facie right to 
 the width of 
 the whole 
 road may be 
 limited. 
 
 THE LAW OE NEGLIGENCE. [book m. 
 
 road, to any extent, for any materials, for any time, and without 
 regard to the plaintiflf's convenience or inconvenience." Fry, J., 
 negatived this claim, on the ground, first, that the private right 
 of the owner of a house adjoining a highway to access from his 
 house to the highway must not be interfered with by an un- 
 reasonable use of the highway ; and, secondly, on the ground of 
 the decision in Benjamin v. Storr,^ that there was a public 
 nuisance, with particular, direct, and substantial damage to a 
 private individual. In Eegina v. Mathias," Byles, J., directed 
 the jury that " the use of a public footway includes the use of 
 a perambulator as a usual accompaniment of a large class of 
 foot-passengers, but it must be of a size and weight not to incon- 
 venience other passengers, and not to injure the soU." 
 
 There remain two cases, Harris v. Mobbs' and Wilkins v. Day,^ 
 very similar in their facts. In each of these cases an obstruction 
 was left on the roadside, but not (except to the extent of a few 
 inches in one case) on the metalled part, and in each case the 
 person authorizing the placing the obstruction was held liable 
 to a person who sustained particular damage, on the ground that 
 " in the case of an ordinary highway, although it may be of 
 a varying and unequal width, running between fences on each 
 side, the right of passage or way primA facie, unless there be ' 
 evidence to the contrary, extends to the whole space between 
 the fences, and the public are entitled to the use of the entire of 
 it as a highway, and not confined to the part which may be 
 metalled or kept in order for the more convenient use of carriages 
 and foot-passengers.'" 
 
 The right to the whole width, we see, is not absolute, but 
 primd facie only. It remains to consider in what respect 
 this primd fa^ie right may be limited. The general rule of 
 
 1 L. E. 9 c, P. 400; 43 L. J. C. P. 
 162 ; 30 L. T. N. S. 362 ; 22 W. E. 631. 
 
 ' 2 F. & F. S70. 
 
 ' (1878) 3 Ex. D. 269; 39 L. T. 164 ; 
 27 W. E. 154, reported on motion for 
 judgment before Denman, J. 
 
 * (1883) 12 Q. B. D. 112; 49 L. T. 
 399; 32 W. E. 123. 
 
 * Per Martin, B., summing up in Eegina 
 V. The United Kingdom Electric Tele- 
 graph Company (Limited), 9 Cox C. C. 
 137, at p. 144, and adopted by Crompton, 
 J., delivering the considered judgment of 
 the Queen's Bench on motion for a new 
 irial. Eegina B. United Kingdom Electric 
 Telegraph Company (Limited), 9 Cox 
 C. C. 174, where the cases are collected ; 
 Eegina v. Train, 9 Cox C. C. 180 ; Cover- 
 dale V. Charlton, 4 Q. B. D. 104; 48 
 L. J. Q. B. 128, explained by James, L.J., 
 in Eolls V. Vestry of St. George South- 
 
 wark, 14 Ch. D. 785 ; 49 L. J. Ch. 691 ; 
 43 L.T. 140 ; 28 W. R. 867, to mean " that 
 the Board had only the surface, and with 
 the surface snch right below the surface 
 as was essential to the maintenance and 
 occupation and exclusive possession of the 
 street, and the making and maintaining 
 of the street for the nse of the public " ; 
 Wandsworth District Board of Works v. 
 United Telephone Company, 13 Q. B. D. 
 904 ; 53 L. J. Q. B. 449 ; SI L. T. 148 ; 
 32 W. E. 776; Nicol V. Beaumont, 53 
 L. J. Ch. 853; SO L. T. 112, Kay, J. 
 See the whole law collected in the 
 American case, M'Cormick v. District of 
 Columbia, S4 Am. E. 284, and note at 
 p. 290 ; and Pierce v. Drew, 136 Mass. 
 7S ; 49 Am. E. 7, and note at p. 14 ; 
 Bobbins v. Jones, 15 C. B. N. S. 221, at 
 p. 243 ; 33 L. J. C. P. I ; 9 L. T. N. S. 
 523 ; 12 \V. E. 248. 
 
BOOK III.] HIGHWAYS, TUENPIKES, CANALS, ETC. 1035 
 
 law applicable is laid down by Blackburn, J., delivering the 
 considered judgment of the Court of Queen's Bench' in the 
 "leading" cases of Fisher v. Prowse and Cooper r. "Walker, Fisher «. 
 "which explained and overruled several out of which vague ■^"^^''®' 
 notions of liability have sprung up"": "The law is clear that 
 if, after a highway exists, anything be newly made so near to it 
 as to be dangerous to those using the highway — such, for instance, 
 as an excavation : Barnes v. Ward" — this will be unlawful and 
 a nuisance ; as it also is if an ancient erection, as a house, is 
 suffered to become ruinous so as to be dangerous : Eegina ». Watts ^; 
 and those who make or maintain the nuisance in either case are 
 liable for any damage sustained thereby, just as much as if the 
 nuisance arose from an obstruction in the highway itself ; but the 
 question still remains, whether an erection or excavation already 
 existing, and not otherwise unlawful, becomes unlawful when the 
 land on which it exists, or to which it is immediately contiguous, 
 is dedicated to the public as a way, if the erection prevents the 
 way from being so convenient and safe as it otherwise would be ; 
 or whether, on the contrary, the dedication must not be taken to 
 be made to the public, and accepted by them subject to the 
 inconvenience or risk arising from the existing state of things. 
 We think the latter is the correct view of the law.'' It is of 
 course not obligatory on the owner of land to dedicate the use of 
 it as a highway to the public. It is equally clear that it is not 
 compulsory on the public to accept the use of a way when offered 
 to them. If the use of the soil as a way is offered by the owner 
 to the public under given conditions, and subject to certain reser- 
 vations, and the public accept the use under such circumstances, 
 there can be no injustice in holding them to the terms on which 
 the benefit was conferred. On the other hand, great injustice 
 and hardship would often arise if, when a public right of way had 
 been acquired under a given state of circumstances, the owner of 
 the soil should be held bound to alter that state of circumstances 
 
 ' 2 B. & S. 770, at p. 779; 31 L. J. 86 ; the judgment in which was the case 
 
 Q. B. 212 ; 6 L. T. N. S. 711 ; Mercer v. put in Bobbins v. Jones, 15 C. B. N. S. 
 
 Woodgate, L. E. 5 Q. B. 26 ; 39 L. J. M. C. 221, and determined in accordance with 
 
 21 ; 21 L. T. X. S. 458; 18 W. E. Ii6 ; the opinion there intimated: "We may 
 
 Arnold w. Blaker, in the Exchequer Cham- refer, by way of illustration only, to the 
 
 her, L. E. 6 Q. B. 433 ; 40 L. J. Q. B. case of one of the squares, where the fool. 
 
 185; 19 W. E. 1090— where a way is way on one side consists of large flags 
 
 dedicated subject to a right of ploughing reaching from the outer wall of the area to 
 
 the way up, the surveyor may not repair the outer wall of the cellar. There the 
 
 the road with hard material so as to pre- upper part of the flags forms the way, 
 
 vent its being ploughed. and the lower part of the same flags forms 
 
 ^ 9 C. B. 392; 19 L. J. C. P. 195. as we are (old, the ceiling of the cellar. 
 
 ' 1 Salk. 357. Who is to maintain and repair the flagged 
 
 * Hamilton v. Vestry of St. George way ? We apprehend the public, who 
 
 Hanover Square, L. E. 9 Q. B. 42 ; 43 walk upon it and wear it out, without 
 
 L. J. M. C. 41 ; 29 L. T. 428 ; 22 W. E. which it might last an indefinite time," 
 
1036 
 
 THE LAW OF IfEGLlGENCE, 
 
 [book III. 
 
 Bobbins v. 
 Jones. 
 
 Propositions 
 of Willes, J. 
 
 to his own disadvantage and loss, and to make further concessions 
 to the public altogether beyond the scope of his original intention." 
 The greater part of this passage just extracted was incorporated 
 in the judgment delivered by Erie, C.J., in Bobbins v. Jones' — 
 " The Waterloo Bridge Case." There, by reason of the construc- 
 tion of the bridge, a high causeway was made as an approach, so 
 that the level of the roadway tvas considerably above the old 
 road. A row of houses stood on the original level of the ground, 
 running parallel to the causeway and road leading to the bridge, 
 but leaving a space of more than seven feet between the houses 
 and the retaining wall of the causeway. In consequence of the 
 construction of the causeway, the houses were divided into two 
 distinct dwellings, having one door opening upon the causeway, 
 and connected with it by flagstones resting afc one end upon the 
 walls of the houses, and on the other upon the retaining door of 
 the causeway, and having at intervals gratings fastened into the 
 flags, the whole forming one continuous footway, which had be- 
 come dedicated to the public, and used as a part of the highway 
 for foot-passengers. The door of the lower portion opened on the 
 old road. A crowd having collected on the flagstones and grating, 
 a portion gave way, and about thirty persons were thrown down 
 to the lower level. The plaintiff's husband was killed, and she 
 brought an action under Lord Campbell's Act (9 & lo Vict. c. 93) 
 against the owner, who had under- let^ The judgment of the Common 
 Pleas, though delivered by Brie, C. J., was prepared by Willes, J.' 
 (who presided at the trial), and establishes nine propositions, which, 
 though not all of them altogether pertinent to the subject we are 
 now discussing, cannot without loss be omitted. They are — 
 
 1 . If the flagstones and grating were considered a private way 
 to the houses, the reversioner was not liable, but the occupier.' 
 
 2. If they constituted a public way, then the hole was not 
 made by the defendant, but was a consequence of the construction 
 of the way.* 
 
 1 (1863) IS C. B. N. S. 221 ; 33 
 L. J. C. P. I ; 9 L. T. N. S. 523 ; 12 
 W. E. 248. 
 
 2 At p. 223. 
 
 ' This on the ground that, fraud apart, 
 there is no law against letting a tumble- 
 down house, and the tenant's remedy (if 
 any) is on the contract. Coupland v. 
 Hardingham, 3 Campb. _ 398, first, was 
 the case of a hole adjoining a highway ; 
 second, was a nuisance ; and therefore it 
 was the duty of the occupier to fence it. 
 " If the landlord at the time of the demise 
 knows of the defect, and does nothing to 
 cause it to be remedied, he may be liable 
 too. But I doubt very much whether, if 
 
 the burthen of repair is cast upon the 
 tenant, the duty of the landlord does not 
 altogether cease " : per Brett, J., Gwin- 
 nell V. Eamea, L. R 10 C. P. 658, at p. 
 661 ; 32 L. T. N. S. 83s. 
 
 * In Barnes v. Ward, 9 C. B. 392, the 
 hole was made by defendant. The cir- 
 cumstances of America have brought the 
 liability of the road authority to guard 
 against dangers adjoining the highway to 
 a greater extent than that of the adjoining 
 owner. Thus Gray, C.J., in Puffer v. 
 Orange, 122 Mass. 389, says: "A town 
 is bound to erect barriers or railings where 
 a dangerous place is in such close prox- 
 imity to the highway as to make travelling 
 
BOOK m.] HIGHWAYS, TUENPIKES, CANALS, ETC. 1037 
 
 3. If they constituted a public way, the public has to repair, 
 since that liability is attached to the public user, not to the quan- 
 tum of benefit attaching to the frontage. 
 
 4. The flagging and grating were not used by the occupier of 
 the house, but as one of the public, and were therefore not repair- 
 able by him. 
 
 5 . The more or less artificial character of the flagging or grating 
 did not make it more or less a way to be repaired by the parish.' 
 
 6. A cellar flap differs because it is worn out for the benefit of 
 the occupier of the cellar to which it is the door. 
 
 7. A ruinous buUding adjoining a highway differs because what 
 is insufficient here is the highway itself.^ 
 
 8. A concealed danger difiers — 
 
 {a) Because the existence of the gulf must have been known 
 to all passers. 
 
 (6) It would not have been a danger had the parish main- 
 tained and repaired the flagging and grating. 
 
 (c) The defendant did not erect, and, as it was a highway, 
 
 could not have removed, the structure. 
 
 (d) In the absence of fraud a highway may be dedicated 
 
 with a dangerous obstruction on it. 
 
 9. The grant of a way casts on the grantee the duty to 
 maintain and repair, with a right to enter on the grantor's land to 
 do all acts necessary.' 
 
 Then, again, the primd fade right to the whole width is further Subject to the 
 limited to the right of passage over the whole width of land so sa|e, the 
 dedicated, and the owner continues in the possession of all other °^"|^^^ay°^ 
 rights of ownership not inconsistent therewith.'' This is clearly remains un- 
 
 & i ! 
 
 on the highway unsafe. But it is not England the local authority would not be 
 
 bound to do so to prevent travellers from liable for the nonfeasance, 
 straying from the highway, although ' "The exceptions to the liability of the 
 
 there is a dangerous place at some dis- parish have been known. They are ous- 
 
 tance from the highway, which they may torn, prescription, tenure, and inclosure 
 
 reach bv so straying." And in Warner while it lasts. Have we authority to add 
 
 V. Holyoke, 112 Mass. 392, it is said: flagging and grating ? " 
 " The law has nowhere undertaken to ^ E.g., there is a power to remove the 
 
 define at what distance in feet and inches building, but not the highway, 
 a dangerous place must be from the high- ' The authorities are collected Gale, 
 
 way in order to cease to be in close prox- Law of Easements, Gibbon's edit. pp. 528 
 
 imity to it. It must necessarily be a et seg., citing, inter alia, Pomfret v. 
 
 practical question to be decided by the Eycroft, 1 Wms. Saund. 322 a; I Notes 
 
 good sense and experience of the juiy." to Saunders, 566; Taylor v. Whitehead, 
 
 And in another case (Drew v. Town of 2 Doug. 745: Bell u. Twenty man, i Q. B. 
 
 Sutton, 45 Am. E. 644) the law is laid 766 ; Lord Egremont v. Pulman, M. & M. 
 
 down to be that the injured person is to 404. 
 
 shew that the defect tliat caused the ^ Li The King u. Russell, 6 B. & C. 566, 
 
 injury existed either in the highway, or the judge at the trial charged the jury 
 
 60 near to it as to make it dangerous to that if they thought an erection on a 
 
 travel on the highway itself. We thus highway — in this case the Eiver Tyne — 
 
 see that the law in America as against was for a public pui'pose and produced a 
 
 highway authorities is the same as in public benefit, aud if the erections were 
 
 England against adjoining owners. In in a reasonable situation, and a reasonable 
 
 ■hway 
 Ins 11 
 affected. 
 
1038 
 
 THE LAW OP NEGLIGENCE. 
 
 [book III. 
 
 Vestry of St. shewn by Vestry of St. Mary Newington v. Jacobs.' The re- 
 ton «. ja*o^b°f ' spondent was the owner of premises contiguous to Newington 
 Causeway, to whom the vestry had refused permission to take up 
 the flags and make a proper paved carriage-way across the side 
 pavement to his premises, which premises he was in the habit of 
 using for storing up machinery of a very heavy kind. The re- 
 spondent first conveyed the machinery across the flagged footway 
 by means of rollers and levers, but this method was objected to 
 OS an obstruction of the thoroughfare. Thereupon he adopted the 
 means of conveying his machinery to and from his premises in 
 trolleys or waggons : the result was to break the flags through the 
 extraordinary weight of the machinery. The respondent was then 
 summoned, under 5 & 6 Will. IV. c. 50, s. 72, for causing injury 
 or damage to be done to the highway. The magistrate considered 
 
 space was left for the passage of vessels 
 on the river, they should acquit the defend- 
 ants. On motion for a new trial, Holroyd, 
 J., was of opinion the direction was 
 good, and Bayfey, J. , who tried the case, 
 adhered to the opinion he had expressed 
 to the jury at the tiial ; hut Lord Tenter- 
 den, O.J., dissented. In the subsequent 
 case of The King v. Ward, 4 Ad. & E. 384, 
 the Queen's Bench unanimously, and with 
 the concurrence of Littledale, J., who had 
 refrained from the previous decision, dis- 
 sented from The King v. Bussell, which had 
 been previously reflected on in The King v. 
 Peasp, 4 B. & Ad. 30, and thus The King 
 V. AVard may be considered to establish 
 the case. In Welsh v. Wilson, 54 Am. 
 E. 698, defendant, for the purpose of re- 
 moving merchandise from his store in the 
 city of New-OTork, laid skids from a truck 
 across the sidewalk to the steps. Plaintiff 
 attempted to pass round them, but fell and 
 was injured. Judgment having been 
 given for defendant, was affirmed on appeal, 
 Earl, J., saying : "The defendant had the 
 right to place ^he skids across the side- 
 walk temporarily for the purpose of remov- 
 ing the cases of merchandise. Every one 
 doing business along a street in a populous 
 city must have such a right, to be exercised 
 in a reasonable manner so as not to un- 
 necessarily encumber and obstruct the 
 sidewalk. When the plaintiff found this 
 obstruction in her pathway, ' she had the 
 option either to wait a couple of minutes, 
 or to cross the street and pass upon the 
 other sidewalk, or to pass round the truck 
 in the street, or to take the way she 
 selected. The defendant was under no 
 obligation to furnish her a safe passage way 
 around the obstraction." This case was 
 quoted in the later case of Jochem v. 
 Eobinson, 57 Am. B. 298, where the lead- 
 ing English cases were also cited and 
 approved. In the judgment, which was 
 
 on facts not dissimilar from those in the 
 case just cited, it was said : "The primaiy 
 object of a public street in a city is for 
 public travel. The same is true of a 
 public sidewalk. Neither may be always 
 wholly restricted to such use. Business 
 men and their employees must have access 
 to and from their places of business, and 
 so must their customers. Dealers, and 
 especially wholesale dealers, in the crowded 
 portion of a great city, as here, must 
 moreover have an opportunity for receiving 
 and shipping goods more or less bulky 
 and ponderous, and often in the original 
 packages. Such reception and shipment 
 of goods must necessarily at times more 
 or less ■ hinder or obstruct travel upon 
 public sidewalks and even npon public 
 streets. The right to so hinder or obstruct 
 is by no means absolnle or continuous. It 
 is at most temporary. It depends upon 
 the necessity, and the necessity may 
 depend upon the size and weight of the 
 packages handled, the duration of the 
 obstruction, and perhaps other circum- 
 stances. i?his necessity need not be 
 absolute ; it is enough if it be reasonable. 
 If the law required an absolute necessity, 
 but few could escape liability. It follows 
 from what has been said that whenever 
 such dealer so hinders or obstructs public 
 travel npon such sidewalk or street, he 
 thereby takes upon himself the burden of 
 shewing the obstruction to have been 
 reasonably necessary and temporary. 
 Failing to do so, he is responsible for any 
 injury therefrom to a traveller upon such 
 street or sidewalk in the exercise of 
 ordinary care." As to obstructions by 
 tramcars : Pittsburgh Southern Eailway 
 Company v. Taylor, 49 Am. E. 580; 
 Mahady ». Bushwick Eailroad Company, 
 43 Am. E. 661. 
 
 1 L. E. 7 Q. B. 47 ; 41 L. J. M. 0. 
 72 ; 25 L. T. N. S. 800 ; 20 W. B. 249. 
 
BOOK m.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1039 
 
 that tlie injury or damage was not wilfully done to tlie highway ; 
 that the freehold property in question could not be reasonably 
 enjoyed without access across the existing footway ; and that the 
 rights of ownership and of the public might be jointly exercised 
 there quite consistently with the general welfare, and dismissed 
 the summons. On appeal to the Queen's Bench there was judg- 
 ment for the respondent, on the ground that " the owner who 
 dedicated to public use as a highway a portion of his land parts 
 with no other right than a right of passage to the public over the 
 land so dedicated, and may exercise all other rights of ownership 
 not inconsistent therewith ; and the appropriation made to, and 
 adopted by, the public of a part of the street to one kind of pas- 
 sage, and another part to another, does not deprive him of any 
 rights as owner of the land which are not inconsistent with the 
 right of passage by the public." 
 
 This is merely a statement of what had, with one doubtful ex- Decision in 
 ception,' always been regarded as the law. Thus, as early as ^Xthedd 
 RoUe's Abridgement^ {circa 1 660) it is distinctly laid down '*'^- 
 with regard to a highway " that the King has nothing but the 
 passage for himself and his people, but the freehold and all 
 profits belong to the owner of the soil." And Lord Mansfield, 
 in giving judgment in Goodtitle -v. Alker and Blmes,^ where Goodtitie v. 
 the question was whether ejectment would lie by the owner ^ejjt''of''Loi?d 
 of the soil for land which is subject to passage over it as *i™sfi^'<^> <^-''' 
 the King's highway, said: "It [i.e., the highway] is like the 
 property in a market or fair. There is no reason why he [the 
 owner] should not have a right to all remedies for the freehold, 
 subject still, indeed, to the servitude or easement. An assize 
 would lie if he should be disseised of it ; an action of trespass 
 would lie for an injury done to it." And in Cattle v. Stockton Cattle v. 
 Waterworks, Blackburn, J., speaking of the right of the owner waterworka. 
 of the soil to deal with a highway, said*: "This, as owner of the 
 soil, he had a perfect right to do, provided he did not interfere 
 with the road above him,* or with the defendants' rights acquired 
 under their act to keep their pipes there." There is another case 
 which may be treated as a limitation of a highway authority's 
 unrestricted use of a highway, and that is where there are statu- 
 tory powers of laying pipes conferred on some other body, most 
 often a gas or water company. It was contended by various high- 
 way authorities that, despite the presence of pipes in the soil of 
 
 1 Sir Bouchiei- Wray v. Fors, in 8 Geo. " L. E. 10 Q. B. 453, at p. 455 ; 44 
 II., cited I Burr. 140, but denied by Lord L. J. Q. B. 139 ; 33 L. T. N. S. 475- 
 Mansfield to be an authority. " Sec Goodson v. Eicbardson, L. I? 
 
 2 Chimin Private, 392 (B), A que le 9 Ch. App. 221, allnding to the special 
 soile et les choses sur ceo appertient. work in the case mentioned. 
 
 3 I Burr. 133, at p. 143- 
 
1040 THE LAW OF NEGLIGENCE. [book iii. 
 
 the highway that might be seriously injured by various methods 
 of repair that might be adopted for the highway, it was their right 
 and diity to repair the roads in what was for them the most 
 economical and best way, and to avail themselves of all improve- 
 ments, regardless of their effects on such pipes or sub-soil con- 
 structions. This pretension was, however, negatived by the Court 
 Gas light of Appeal in Gas Light and Coke Company v. Vestry of St. Mary 
 ^mpanyu. Abbotts, Kensington,' where the priuoiples to govern in these 
 M^^'^^bbott ^^^^^ were, in effect, summed up by Lindley, L.J,, in two propo- 
 
 Kensington. sitionS : 
 
 Propositions I • The light of gas and water companies to lay their pipes 
 
 by^mdiey, ^^^ j^^^^g them uninjured is subordinate to the right of the 
 public to use the streets and to have them kept in repair. 
 
 2. But the statutory right of gas and water companies to lay 
 their pipes under a highway imposes on the highway authority 
 a duty to repair their highways only in such a manner as shall 
 not injure the pipes authorized by statute so caused to be 
 placed. 
 Obstruction is It is not merely an actual physical impediment that consti- 
 
 notrestrioted . ■' „.i. i • • i- i 
 
 to the placing tutes an Obstruction, but, " ii a place is situate near a highway, 
 
 hnpe'^iment ^^^ ^^^ defendant do that which causes the persons passing to 
 
 on a highway, jjg prevented from passing as they, ought to do, and besides this 
 
 people are annoyed in the occupation of their houses, this is a 
 
 nuisance, for which the party is indictable." The law was thus 
 
 Eex V. Oariiie. laid down by Park, J., in Eex v. Carlile,'' where defendant 
 
 exhibited two scandalous and libellous pictures in a shop window 
 
 in Fleet Street, whereby the highway was greatly obstructed by 
 
 idle and disorderly persons, to the common nuisance. In the same 
 
 Summing-up Bumming-up the same learned judge is reported as laying down 
 
 ' " the law : " There is no doubt that a tradesman may expose his 
 
 wares for sales, but he must do it in such a way as not by so 
 
 doing to cause obstruction in the public streets." 
 
 Display of That there is a point beyond which the exposure of wares for 
 
 shop. sale in a shop window would amount to an indictable nuisance may 
 
 be admitted. But it is not conceivable that any interference with 
 
 the public convenience caused merely by the display of wares for 
 
 bond fide sale in a shop window, or any ordinary arts of attracting 
 
 public attention with a view to secure a market for goods, or, again, 
 
 any temporary rush of customers intent to supply themselves with 
 
 some attractive novelty, would subject the tradesman displaying 
 
 his goods or merchandise to the penalties of the law because they 
 
 prove so attractive as to command an unusual share of attention 
 
 1 IS Q. B. D. I ; 54 L. J. Q. B. 414 ; 53 L. T. 457 ; 33 W. B. 892. 
 
 2 60. & P. 636, at p. 648. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1041 
 
 and admiration. Perhaps, however, the best security for the 
 equal enjoyment of the rights of the public and the rights of the 
 shopkeepers lining the highway is the recognition of a definite 
 rule of law, which, however, is only enforced in those flagrant 
 cases where the public rights are not merely infringed upon, but 
 positively outraged. 
 
 This is the case with the user by costermongers and stall- Costermoogers 
 keepers of the sides of highways for the carrying on of their ^ee m"" 
 businesses. 
 
 The law relating to the existence of obstructions on the 
 public highway applies to them with no less force than to 
 other cases. The highway is for the passage to and fro of her 
 Majesty's subjects going about their business. But no one has 
 a light to engross or appropriate any portion of the highway. 
 Besides these general provisions of the law, there are special 
 Acts, like the Metropolitan Police Act' and the Metropolitan 
 Street Act," or the Towns Police Clauses Act, 1847,^ whereby 
 every person who, by means of any cart, carriage, sledge, truck, 
 or barrow, or any animal or other means, wilfully interrupts any 
 public crossing, or wilfully causes any obstruction in any public 
 footpath or other public thoroughfare, can be dealt with. Yet 
 in many cases they are tolerated, and do not cause inconvenience ; 
 but, when any incommodity arises from their congregating, the 
 law is distinct, and enables them to be dealt with either under 
 the summary provisions of the Police Acts or by the more 
 cumbrous process of indictment for creating an obstruction. 
 
 There is, further, a duty, which will be discussed more in Duty to yre- 
 detail presently,^ on those whose property abuts on a highway to JdjoinSf thJ 
 see that persons lawfully using the highway are not ieopardized Mgtway 
 
 1 , T . » 1 T . ■) ir jeopardizing 
 
 by the condition of the property adjoinmg the highway. To the user of 
 
 specify exactly the rule that is to be observed is a matter of some ^ '^ '^'^^' 
 
 difficulty. The test, however, proposed by Blackburn, J., in 
 
 Binks V. South Yorkshire Railway and River Dun Company,^ and Binks v. South 
 
 approved by Willes, J., in Hadley v. Taylor," is, whether a person jjaii^ay '^ 
 
 may be injured through an accident happening to him on the high- Oompauy. 
 
 way, or whether he must wander from the highway before he is 
 
 in danger ; but subject to this consideration there is no general 
 
 duty on an owner of land adjoining a highway to fence it from 
 
 the highway.' Again, there is some indistinctness in the law of 
 
 what is a proper user of a highway. 
 
 ^ 2 & 3 Vict. c. 47, s. 54, sub-s. 6. " L. E. i C. P. 53, at p. 55 ; 13 
 
 2 30 & 31 Vict. c. 134, s. 6. L. T. N. S. 368 ; 14 W. E. 59. 
 
 ' 10 & II Vict. c. 89, 8. 28. ' Coruwell v. Metropolitan Comniis- 
 
 ^ Post, p. 1089. sioners of Sewers 10 Ex. 771 ; 3 C. L. R. 
 
 5 3 B. & S. 244 ; 32 L. J. Q. B. 26 ; 417. 
 7L. T. N. S. 350; II W. E. 56. 
 
 3 u 
 
1042 
 
 THE LAW OP NEGLIGENCE. 
 
 [book in. 
 
 American 
 decisions. 
 
 English law 
 otherwise. 
 
 Jewson V, 
 
 Gatti. 
 
 Day, J., 
 nonsuits. 
 
 In America it Las been decided tHat children injured while 
 using a highway as a playground, and not for mere purpose of 
 going to and fro, by a defect' in a highway which rendered it 
 unsafe for travellers, could yet maintain no action, on the ground 
 that their user of it was an improper one;^ and that a town is 
 not liable to one who, while stopping in the highway for the 
 purposes of conversation, leans against a defective railing and is 
 injured by reason of its insufficiency, Bigelow, C.J.,' drawing 
 a distinction between the case of a person without fault or negli- 
 gence forced against a railing, or taking hold of it to aid him in 
 his passage, or falling against it by accident, or having occasion 
 to use it in the furtherance of his rights as a traveller, and the 
 case of persons leaning against a railing for " a place of rest 
 while they stop in the highway to lounge, or to recover from 
 fatigue, or to engage in conversation. If a person uses them for 
 such purposes he does it at his own risk." 
 
 The English law, however, is otherwise. The head-note to 
 Gwinnell v. Eames* runs: "At the time of the accident [i.e., 
 the accident which constituted the cause of action in the case] 
 A. was not passing along the way, but was standing on the 
 grating to talk with a person at the window above it : — Held, 
 that A. was not making an improper use of the grating," but 
 there is no reference to this ground of decision in the report. 
 
 In the case of Jewson v- Gatti* the question of what rights 
 are comprehended under the user of a highway in an ordinary and 
 usual manner formed the subject of discussion. There an open 
 cellar abutting on a footway was protected by a bar, which was 
 insecurely fastened. The plaintifiF, a child of ten, went up to the 
 bar and leant upon it, when it gave way, and the plaintiff fell 
 into the cellar. At the trial, Day, J., nonsuited, substantially 
 on the ground taken by Bigelow, C.J., in the American case. 
 " Persons who are not using a thoroughfare in an ordinary and 
 usual manner," said he, " that is, not using it for what it was 
 intended, choose to wander about it and to lean against any 
 erection that might be lawfully erected upon some one's premises 
 abutting on such street, could not, if they came to harm, make 
 that person liable for any such mishap. Had the child been 
 jostled, or had she slipped up while passing along the pavement 
 in an ordinary way and had so fallen against the bar, which, 
 from being insecurely fastened, had given way, and so caused 
 
 ^ An ingiifiBoient railing. 
 2 Stinson v. City of Gardiner, 42 Me. 
 248. 
 = Stickney v. City of Salem, 85 Mass. 
 
 374- 
 
 ^ L. E. 10 C. P. 658 ; 32 L. T. N. S. 
 83s. ' 
 
 ° Reported only in the Times L. E. 
 vol. i. p. 635, and vol. ii. pp. 381, 441. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1043 
 
 the accident, her position -would have been different, and she 
 would have had a right of action." But this view was overruled Overruled in 
 both in the Divisional Court and in the Court of Appeal, and a ^ " ■^''"^i™''^ 
 new trial was ordered, Lord Esher, M.E., saying: "This was a '^« Court of 
 case of premises on the highway in a street where hundreds of Judgment 
 persons and many children were passing up and down, and the EsUer Ve, 
 area was left unprotected, without any due regard to the safety 
 of the public, and that of itself might be suflScient to sustain a 
 case for the plaintiff. But there was more than that, for there 
 was painting going on in the cellar, and it must have been known 
 that this would attract children ; and then a bar was put up, 
 ostensibly for the purpose of protection, against which children 
 would naturally lean while looking down into the cellar where 
 the painting was going on." There seems a tendency in the 
 judgment of the Master of the Eolls to put the case on the 
 ground of a special duty owing to children, though this is not 
 distinctly stated. The broader and more substantial ground 
 seems to be that there was a dangerous hole next the highway 
 which there was an obligation on the defendants to guard, and 
 if they chose to guard it by a bar, that bar must be suflBcient, 
 not merely to resist the casual and inevitable pushings of people 
 travelling along the highway, but such acts as ordinary experi- 
 ence shews might be reasonably expected from people using the 
 highway. 
 
 It follows from the cases we have been considering that the Highway 
 highway must be used only in the ordinary and accustomed way. "he ordinary 
 Any other user by which the highway was injured would be a to^g'd way 
 nuisance, and indictable'; and consequently, if special damage 
 were caused to an individual, actionable. But by the Highways Highways and 
 and Locomotives (Amendment) Act, 1879," s. 23, the local (-^^^^^^jn 
 authority may recover in a summary manner from any person ■^'^'i "^^79- 
 causing damage to the highway " by excessive weight passing 
 along the same or extraordinary traffic thereon." A variety of 
 cases have been decided on this section, principally with regard 
 to the use of traction engines on agricultural roads, which has 
 been repeatedly held to bring the persons using or responsible' 
 for the use of them within the terms of the section. 
 
 ^ Egerly's case, Sayer 98 ; 3 Salk. nuisance " : Comyns, Dig. Chimin (A) 3. 
 
 183— information setting forth that no = 41 & 42 Vict. 0. 77. 
 
 waggon ought to carry more than 2000 ' Williams v. Davies, 44 J. P. 347 ; 
 
 weight, and that the defendant used a Northumberland Whinstone Company r. 
 
 waggon with four wheels, " et cvm inusi- Alnwick Highway Board, 44 J. P. 360 ; 
 
 iato n«m«roe2«on(JB," in which he carried Barnet «. Hoo Highway Board, 46 J. P. 
 
 3000 or 4000 weight at one time, by 805. In Lapthorn v. Harvey, 49 J. P. 
 
 which he spoiled tne highway. The in- 404, 709, a sub-contractor was held alone 
 
 formation was held good, despite various liable, to the exoneration of the contractor 
 
 objections, " because it was the excessive under the ordinary rule, 
 weight which he carried that made the 
 
1044 
 
 Extraordinary 
 
 traffic. 
 
 Pickering 
 
 Xythe East 
 
 Highway 
 
 Board v. 
 
 Barry. 
 
 \ 
 
 THE LAW OF NEGLIGENCE. 
 
 The Queen v. 
 Ellis. 
 
 [book III. 
 
 As to what constitutes extraordinary traffic there has not been 
 a clear consensus of judicial opinion. In Pickering Lythe East 
 Highway Board v. Barry ' Grove and Lopes, L. JJ., held that a . 
 person carrying materials for building a house over a highway was 
 not liable for damage to the highway; and Lopes, J., said: "I 
 think the Legislature intended something unusual in weight or 
 extraordinary in the kind of traffic, either as compared with what 
 is usually carried over roads of the same nature in the neighbour- 
 hood or as compared with that which the road in its ordinary 
 and fair use may be reasonably subject to. It would not be 
 sufficient to compare the weight and traffic complained of with 
 traffic usually carried on the particular road." But Bowen, J., 
 in the later case of The Queen v. Ellis, said^ : "I have had occa- 
 sion to consider this passage in the judgment of my brother Lopes, 
 and I cannot adopt it to its full extent;" while Field, J., 
 giving the judgment of himself and Bowen, J., said : " If the 
 question whether it is extraordinary traffic is an inference of law 
 from the facts, we must consider the point the authorities having 
 already decided^ that the word ' ordinary ' must be interpreted 
 with reference to the road in question ; " and, after having dis- 
 cussed the facts of the case with reference to the user of traction 
 engines as an ordinary incident of agricultural industry, he con- 
 cludes : " Having regard to the character of this road and to the 
 mode in which it was generally used, it is impossible to hold that 
 the use of such engines was an ordinary incident of the traffic 
 upon it." 
 
 This decision seems more in accord with the law previously 
 to the Act than the earlier decision. The parish is not bound 
 to repair all its roads in the same way, or judged by the 
 same standard, but with reference to the ordinary uses respec- 
 tively made of the roads.'' If this be so, what would be ordinary 
 user of one road in a district might be exrtraordinary in another, 
 and the test would seem to be rather what the user of the par- 
 ticular road was than what the circumstances of the neighbour- 
 hood might be. Traffic, however, resulting from the carrying on 
 the ordinary and recognized trade of a district is not within the 
 
 1 8Q. B. D. 59; 51 L. 
 " ~ ' ) W. E. 246. 
 
 .. , ^ J. M. C. 17; 
 45 L. T. 6ss ; 30 W: E. 246. 
 
 2 8 Q. B. D. 466, at p. 469 ; 30 W. E. 
 613. 
 
 " " It appears to me that those words 
 [' excessive weight,' ' extraordinary traffic '] 
 must mean excessive and extraordinary 
 with reference to the ordinary nse and 
 frafEc upon and over the road. It is the 
 ordinary nature of the traffic over the 
 
 road which is to be the standard : " per 
 Lindley J., Lord Aveland 0. Lucas, S 
 C. P. D. 211, at p. 223 ; C. A. 391 ; 49 
 L. .1. C. P. 643 ; 42 L. T. 788 ; 28 
 W. E. 571 ; and Wallington w. Hoskine, 
 6 Q. B. D. 206 ; so L. J. M. C. 19 ; 
 43 L. T. 597 ; 29 W. E. 152. 
 
 * Staffordshire and Worcestershire 
 Canal Company u. Hallen, 5B. & C. 317 ; 
 9 D. & E. 266. 
 
BOOK III.] HIGHWAYS, TUENPIKES, CANALS, ETC. 1045 
 
 enactment,' and this though it is greater than the other traffic on 
 the road, and is not continuous." 
 
 1. A highway is a way open to all the King's subjects.' Summary. 
 
 2. Non-repair of a highway does not import liability to private 
 action, but is the subject for an indictment.^ 
 
 3. The immunity from liability to an action at the suit of a 
 private person for nonfeasance may be taken away, and, there- 
 fore, in each case the Act constituting the body charged with 
 the repair of a highway should be consulted.* 
 
 4. There is a distinction between the surveyor of highways 
 under the Highway Act, 1835, and the surveyor to the local 
 authority who are constituted surveyors of highways under the 
 Public Health Acts.° The one is an independent officer, charge- 
 able as master according to the rules of law governing where 
 the relation of master and servant is constituted. The other 
 is a subordinate officer, and chargeable according to the rules 
 of law governing where the act of a common superior is carried 
 out through an intermediary by servants.' 
 
 5. Work done on a highway, the natural result of which 
 would be to cause a subsidence, succeeded by a subsidence un- 
 accounted for by any cause, and in the very place where the 
 work had been done, warrants an inference that the doing of 
 the work was the cause of the subsidence.^ 
 
 6. Though a highway authority is not liable in the absence 
 of special legislation for nonfeasance, yet it is liable for the 
 imperfect execution of a work it is empowered perfectly to 
 carry out, even where the deterioration causing accident arises 
 from the forces of Nature and not directly from the imperfect 
 execution of the work." 
 
 1 WalliDgton v. Hoskins, 6 Q. B. D. B. & S. 361 ; 33 L. J Q. B. 39 ; 11 W. E. 
 
 206; 50 L. J. M. C. 19; 43 L. T. 597; 763 ; Gibson u. Mayor of Preston, L. R. S 
 
 29 W. E. 152. Q. B. 218 ; 39 L. J. Q. B. 131. 
 
 - Raglan Highway Board v. Monmouth " Foreman v. Mayor of CMUterbury, 
 
 Steam Company. 46 J. P. 598. The six L. R. 6 Q. B. 214 ; 40 L. J. Q. B. 138 ; 
 
 months withiu -which proceedings must be 24 L. T. N. S. 385 ; 19 W. R. 719. 
 taken under this section runs from the ^ Stone v. Cartwright, 6 T. E. 411 ; 
 
 sui-vevor's certificate, and not from demand Taylor v. Greenhalgh, L. E. 9 Q. B. 487 ; 
 
 of payment : Pool and Forden Highway 43 L. J. Q. B. 168 ; 31 L. T. N. S. 184 ; 
 
 Board 0. Gunning, 51 L. J. M. G. 49; 23 W. R. 4; reversed 24 W. E. 311 ; 
 
 see, however. White v. Colson, 46 J. P. Pendlebury v. Greenhalgh, i Q. B. D. 36 ; 
 
 565. 45 L- J. Q. B. 3 ; 33 L. T. N. S. 472 ; 
 
 * Mayor, &o., of Colchester v. Brooke, 7 34 W. E. 98 ; Mill v. Hawker, L. E. 9 
 
 Q. B. 339; IS L. J. Q. B. 59 ; 5 & 6 Ex. 309, 10 Ex. 92 ; 44 L. J. Ex. 49; 
 
 Will. IV. c. 50, 8. S. 33 L. T. N. S. 177 ; 24 W. R. 348. 
 
 ■* Russell V. Men of Devon, 2 T. E. » Qr^y v. PuUen, 5 B. & S. 970 ; 34 
 
 667; Parsons 1;. Vestry of Bethnal Green, L. J. Q. B. 265; 11 L. T. N. S. 569 ; 
 
 L. E. 3 C. P. 56 ; 37 L. J. C. P. 62 ; 17 13 W. E. 257 ; Smith v. West Derby Local 
 
 L T. N S. 211 ; 16 W. E. 81 ; Gibson v. Board, 3 C. P. D. 423 ; 47 L. J. C. P. 
 
 Mayor, &c., of Preston, L.E. 5 Q.B. 218; 607; 38 L. T. 716 ; 27 W. E. 137. 
 39 L. J. Q. B. 131; 22 L. T. N. S. ' Burrows w. Commissioners of Sewers 
 
 293 ■ 18 W. E. 689. of the City of London, 4 Times L. E, 
 
 s Hartnall v. Ryde Commisbioners, 4 262. 
 
1046 THE LAW OF NEGLIGENCE. [book m. 
 
 7. Persons acting tinder the Highway Act or any of the 
 Local Government Acts are entitled to notice of action for all acts 
 done by them while so acting.' 
 
 8. To obtain the protection of this notice of action it is neces- 
 sary that the person acting (i) should honestly believe in the 
 existence of those facts which had they existed would have afforded 
 a justification under the statute f (2) should have done some 
 illegal act not justified by the terms of the Act of Parliament.' 
 
 9. The highway authority is bound so to repair a highway 
 that it is suited to the ordinary and average purposes for which 
 the highway is used, even though from the increased user of the 
 highway a progressively more expensive method of repair is 
 needed to maintain it in good condition.^ 
 
 I o. Obstruction of a highway is indictable by any member of 
 the public, and, if special damage is caused to any individual, 
 actionable by him." 
 
 11. Any user of the highway by which it is rendered less 
 commodious to pass to and fro along" is an obstruction, subject, 
 however, 
 
 (i) To the right of property owners to load goods on or off 
 their premises from the highway in a reasonable 
 manner;' 
 
 (2) To the general right of stopping for a reasonable time 
 on the highway.' 
 
 12. There is a, primdfacie right in the public to the enjoy- 
 ment of the whole width of the highway, and not of the metalled 
 portion obly.° 
 
 13. This primd facie right may be limited — 
 
 (i) By the highway being dedicated subject to an obstruc- 
 tion." 
 
 1 5 & 6 Will. IV. c. 50, B. 109 ; the Jones, 3 Campb. 230 ; Benjamin v. StoiT, 
 
 Public Health Act, 1875 (38 & 39 Vict. L. R. 9 C. P. 400 ; 43 L. J. C. P. 162; 
 
 c. 55), 8. 264; the Metropolis Management 30 L. T. N. S. 362; 32 W. E. 631; 
 
 Amendment Act, 1862 (25 & 26 Vict. c. Harris v. Mobbs, 3 Ex. 1). 269 ; 39 L. T. 
 
 102), s. 106. 164; 27 W. E. 154; Wilkins v. Day, 12 
 
 ^ Eoberts v. Orchard, 2 H. & C. 769 ; Q. B. D. 1 12 ; 49 L. T. 399 ; 32 W. E. 123. 
 
 33 L. J. Ex. 65 ; 9 L. T. N. S. 727 ; 12 ' Vestry of St. Mary Newington v. 
 
 W. R. 25 ; Chamberlain v. King, L. E. Jacobs, L. E. 7 Q. B. 47 ; 41 L. J. M. C. 
 
 6 C. P. 474; 40 L. J. C. P. 273; 24 72; 25 L. T. N. S. 800; 20 "W. E. 249; 
 
 L. T. N. S. 736; 19 W. E. 931. Fritz v. Hobson, 14 Ch. D. 542; 49 
 
 s Selmes v. Judge, L. E. 6 Q. B. 724 ; L. J. Ch. 321 ; 42 L. T. 225 ; 28 W. K. 
 
 40 L. J. Q, B. 287 ; 24 L. T. N. S. 905 ; 459 ; Original Hartlepool Collieries Com- 
 
 19W.E. mo. panyB. Gibb, sCh. D. 7i3;46L. J.Ch. 
 
 ^ Manley v. St. Helens Canal and 311; 36 L. T. 433. 
 
 Eailway Company, 2 H. & N. 840 ; 27 » Jewson v. Gatti, Times L. E. yol. i. 
 
 L. J. Ex. 159. p. 635, vol. ii. pp. 381, 441. 
 
 « Paini). Patnck, 3 Mod. 289 ; Iveson v. " Eegina «. United Kingdom Electric 
 
 Moore, iLd. Eaym.486; Winterbottomw. Telegraph Company, Limited, 9 Cox 
 
 Lord Derby, L. E. 2 Ex. 316 ; 36 L. J. C. C. 174. 
 
 Ex. 194; i6L. T. N. S. 771 ; 16 W. E. 15. i» Fisher v. Prowse, Cooper «. Walker, 
 
 " Eexw. Cross, 3 Campb. 224; Rex». 2 B. & S. 770 j 31 L. J. Q. B. 212; 6 
 
BOOK iii.J HIGHWAYS, TITRNPIKES, CANALS, ETC. 1047 
 
 (2) By the right of the owner of premises abutting on the 
 highway to use the highway for all purposes neces- 
 sary for the enjoyment of his property and not 
 inconsistent with the right of passage over the 
 highway.' 
 
 14. But the owner of property abutting on a highway may 
 not so use his property as to cause people to congregate in the 
 streets to the extent of causing an obstruction. " 
 
 1 5 . Those whose property abuts on a highway have a duty 
 to see that persons lawfully using the highway are not jeopard- 
 ized by the condition of their property abutting on the high- 
 way.' 
 
 16. A person using the highway is jeopardized only when his 
 right on the highway is impaired, and the test is whether he is 
 injured while on the highway or whether he must be off the 
 highway before he is endangered.* 
 
 17. Under the statutory provisions regulating the liability of 
 persons usiug a highway for extraordinary traffic or for excessive 
 weights, regard must be had only to the user of the road as to 
 which complaint is made.' 
 
 II. Turnpikes. 
 
 A turnpike road is a public highway established by public Definition. 
 authority, and is to be regarded as a public easement. The 
 only difference between this and a common highway is that, 
 instead of being made at the public expense in the first in- 
 stance, it is authorized and laid out by public authority with 
 funds raised in some other way than by taxation, and the cost 
 of construction and maintenance is reimbursed by a toll levied 
 on passengers, or on some classes of passengers, by public authority 
 for the purposes of reimbursement.* 
 
 L. T. N. S. 711 ; Bobbins v. Jones, 15 398; Barnes v. AVard, 9 C. B. 392; 19 
 
 C. B. N. S. 221 ; 33 L. J. G. P. I ; 9 L. J. C. P. 195. For American law see 
 
 L. T. N. S. 523 ; 12 W. E. 248. As to Haughey v. Hart, 49 Am. R. 138. 
 the principles involved in that case see * Biiiks v. South Yorkshire Railway 
 
 p. 1036. Company, 3 B. & S. 244 ; 32 L. J. Q. B. 
 
 1 Vestry of St. Mary Newington i\ 26 ; 7 L. T. N. S. 350 ; 11 W. R. 56 ; 
 Jacobs, L. B. 7 Q. B. 47 ; 41 L. J. M. C. Hadley v. Taylor, L. R. i C. P. 53 ; 13 
 72 ; 25 L. T. N. S. 800 ; 20 W. R. 249. L. T. N. S. 368 ; 14 W. R. 59. 
 
 2 Rex V. Carlile, 6 0. & P. 636. A i* 41 & 42 Vict. c. 77 ; Lord Aveland 
 different standard would probably apply v. Lucas, 5 C P. D. 211 ; 49 L. J. C. P. 
 where the crowd collected tor the pui-pose 643:42 L. T. 788; 28 W. R. 571; 
 of seeing novelties displayed in the way 'Wallington v. Hoskins, 6 Q. B D. 206 ; 
 of trade, and where they were gathered in 50 L. J. M. G. 19; 43 L. T. 597 ; 29 
 the manner in the case cited. Now, pro- W. R. 152 ; The Queen v. Ellis, 8 Q. B. D. 
 bably, proceedings would be taken under 466; 30 W. B. 613. 
 
 the Police Acts (2 & 3 Vict. c. 47 ; 10 & " Somewhat altered from what is said 
 
 II Vict. c. 89). liy Shaw, C.J., Commonwealth v. Wilkin- 
 
 5 Coupiand v. Hardingham, 3 Campb. son, 15 Pick. 175. 
 
104^ 
 
 TKte LAW OF ifEGLIGENCi!. 
 
 [book III. 
 
 Turnpikes 
 regulated by 
 statutory 
 enactment. 
 
 The case of turnpike roads is governed either by general Acts 
 or by tlie particular Acts constituting the trust.' As far as the 
 liability is not regulated by statute it differs nothing from that 
 of the case of an ordinary highway. But though " the trustees 
 are liable," so is the parish.^ The distinction we have formerly 
 seen to exist in American law between the liability of a Board 
 charged with duties merely and the liability of a corporation 
 with rights as well as liabilities holds good in the case of a turn- 
 pike trust, who have a right to be compensated by means of 
 tolls from all who use the road, as compared with a mere high- 
 way board, on whom is imposed the duty of repairing without 
 any means of profit. The former is bound to respond to the 
 person paying his toll by way of damages as an equivalent by 
 way of analogy to a railroad ; but not so the latter, who . is only 
 liable to the extent marked out by the statute under which he 
 acts. 
 
 But since Gribbs ■;;. Mersey Docks Trustees' no such distinction 
 has been recognized in England, and the liability of turnpike 
 trustees presents no special feature. 
 
 Definition. 
 
 Webster's 
 deflnitiou 
 criticized. 
 
 III. Canals. 
 
 We have next to consider any special relations that may be 
 raised by the existence or user of canals. 
 
 A canal has been defined to be an artificial highway by water, 
 constructed for the benefit of the public by adventurers authorized 
 by the Legislature to take tolls for its use as a compensation for 
 their risk and labour in the undertaking.^ This as a definition 
 is obviously very unsatisfactory. A canal need not be a high- 
 way, for it may possibly be private property for private purposes ; 
 it need not be constructed for the benefit of the public, but for 
 that of a private person merely. It need not be authorized by 
 the Legislature, for there is no law to prevent a man making a 
 canal on his own land. There need be no tolls, for there is 
 nothing in morals or in law to prejvent a man being a disinter- 
 ested benefactor of his kind. And, lastly, there is nothing in 
 
 ^ Mg., 48 & 49 Vict. 0. 37; 38 & 
 39 Vict. 0. SS; 37 & 38 Vict. 0. 95 ; 
 36 & 37 Vict. c. 90; 3 Geo. IV. c. 
 126 ; 4 Geo. IV. 0. 95, and many more. 
 The principal recent cases with reference 
 to turnpikes are West Eiding Justices v. 
 The Queen, 8 App. Cas. 781 ; 53 L. J. 
 M. C. 41 ; 32 W. B. 253 ; 49 L. T. 
 368 ; 32 W. E. 65 ; Justices of Lanca- 
 shire V. Eoohdale, 8 App. Cas. 494 ; 53 
 L. J. M. C. 5; Newton-in-Makerfield 
 
 Improvement Commissioners v. Justices 
 of Lancashire, 11 App. Cas. 416; 56 
 L. J. M. C. i7;ssL. T.6is;3S W. B. 
 i8s. 
 
 == The Queen v. Kitchiner, L. B. 2 
 C. C. E. 88, per Blackbni'n, J., at p. 93 ; 
 43 L. J. M. C. 9 ; 29 L. T. N. S. 697 ; 
 22 W. E. 134. 
 
 3 L. B. iH. ofL. 93. 
 
 * Webster, Law of Canals, p. i. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1049 
 
 the nature of things — whatever may be the probabilities against 
 the adoption of such a course — to prevent the Legislature 
 authorizing the construction of a canal out of public funds, or in 
 a manner in which neither risk nor recompense should be en- 
 tailed. But as a summary of certain prominent facts most fre- 
 quently connoted by the notion of a canal it may pass muster. 
 Excluding the sense in which canal is used to indicate a mere Suggested 
 conduit, a canal is an artificially constructed water-way which "^^^^^i™- 
 admits of being used for purposes of passage, and, when made 
 by public authority, becomes a highway with a right of tolls 
 attached.^ 
 
 If a canal were constructed on private property, and by agree- 
 ment amongst the proprietors, setting aside questions of ab- 
 stracting water from streams or rivers, the liabilities incurred 
 would not differ from those incurred by the owners of a 
 reservoir.^ 
 
 In so far as canals are constructed under the sanction of Par- Canals cou- 
 liament, the rights and liabilities affecting them are mostly regu- sSutOTy""'^^' 
 lated by the Act to which they owe their construction,^ though of powers. 
 course they are bound even irrespectively of statute to keep their 
 banks in such repair that the water cannot escape ; and where 
 they have failed in this duty they have even been held disentitled 
 to recover when clay-pits were dug in the neighbourhood of the 
 canal into which the water of the canal escaped, on the ground 
 that, if they had performed their obligation and kept proper 
 banks, it was a question for the jury whether the water would have 
 escaped.^ 
 
 Even before the decision in Gibbs v. Mersey Docks Trustees,^ 
 companies working a canal were held liable for negligence on the 
 distinction before adverted to — that they were not mere trustees for 
 public purposes, but commercial adventurers undertaking an enter- 
 prise for a profit. Thus Tindal, C. J., said, delivering the judgment Judgment of 
 of the Exchequer Chamber in Lancaster Canal Company «. Parnaby": in lauca'^'tei' 
 " We concur with the Court of Queen's Bench in thinking that a ^*°*i <^°™- 
 duty of this nature [i.e., to take precautions against negligence] is Pamaby. 
 imposed upon the company, and that they are iresponsible for the 
 breach of it, upon a similar principle to that which makes a shop- 
 
 1 The King v. Inhabitants of Kent, 13 Railway Company, 36 Ch. D. 639 ; 57 
 East 220 ; The King v. Inhabitants of L. J. Ch. 153, at p. 158 ; 57 L. T. 198 ; 
 the Parts of Lindsay, 14 East 317 ; The 36 W. E. 331. 
 
 King V. St. Mary, Leicester, 6 M. & S. ■* Staffordshire and Worcestershii-e 
 
 400; The King v. Chelsea Waterworks, Canal Company v. Hallen, 6 B. & C. 
 
 5 B. & Ad. 156 ; The King v. Inhabitants 317. 
 
 of Woking, 4 A. & E. 40. ^ l. E. 1 H. of L. 93. 
 
 2 Ey lands v. Fletcher, L. E. 3 H. of L. « 11 Ad. & El. 223 ; Manley v. St. 
 330. Helens Canal and Eailway Company, 3 
 
 '^ E.g., Evans v. Manchester, &c., H. & N. 840 ; 27 L. J. Ex. 159. 
 
1050 
 
 THE LAW 01? NEGLIGENCE. 
 
 [book III. 
 
 Board v. Pen- 
 hallotr. 
 
 keeper who invites the public to his shop liable for neglect in 
 leaving a trap-door open without any protection, by which his 
 customers suffer injuries." As long as they induce the public 
 to use their canal they are liable for damage for neglect to 
 keep it in repair; yet it would be unreasonable to require of 
 them perpetually to sound and drag the length of their canal to 
 instantly learn what obstructions might lie at the bottom, or to 
 keep guards going along the banks to prevent the injuries 
 inflicted by idlers. The rule to be applied in such a case is 
 stated in the same judgment of the Court of Exchequer Chamber,' 
 and is adopted by the Court of Exchequer Chamber in Mersey 
 Mersey Docks Docks Board V. Penhallow'' : "The common law imposes a duty 
 upon the proprietors, not perhaps to repair the canal, or abso- 
 lutely to free it from obstruction, but to take reasonable care, 
 so long as they kept it open for the public u8e of all who may 
 choose to navigate it, that they may navigate it without danger 
 to their lives or property." 
 
 When created by statute, canal companies must take care 
 strictly to observe the obligations imposed on them. This is 
 by force of the general rule that where a special ' authority is 
 delegated by Act of Parliament to particular persons to take 
 away a man's property and estate against his will it must be 
 strictly pursued ;' and where the words of the Act are ambiguous, 
 every presumption is to be made against the company.* 
 
 Thus, in The Queen v. Bradford Navigation Proprietors,' a canal 
 company were empowered by Act of Parliament to take the water 
 of certain brooks and to use it for the purposes of their canal ; 
 the water was pure at the time of the passing of the Act, but 
 it afterwards became polluted before it reached the canal, and 
 when in the canal became a public nuisance. It was sought to 
 justify under the authority of The King v. Pease," but the Queen's 
 Bench held that when statutory powers are conferred in circum- 
 stances in which the powers may be exercised innocently, but 
 subsequently the powers can only be exercised in a manner 
 causing a nuisance, there is no justification for creating the 
 nuisance ; and the case differs from that where there is an ex- 
 press statutory authorization to do a certain act which cannot 
 be done without certain consequences attaching. Although this 
 case is decided on the ground of the relationship existing be- 
 tween the grantee of powers and the public, the same principle, 
 
 The Queen v. 
 Bradford 
 Navigation 
 Proprietors. 
 
 1 II Ad. &E1. 223. 
 
 2 7 H. & N. 329, at p. 339. 
 
 « Per Lord Mansfield, Bex v. 
 Cowp. 26, at p. 29. 
 
 * Scales o. Pickering, 4 Bing. 448, at 
 p. 452. 
 Croke, 6 6 B. & g. 631 ; 34 L. J. Q. B. 191 5 
 
 35 L. J. Ch. 619. 
 
 6 4 B. & Ad. 30; 2 L. J. M. G. 26, 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1051 
 
 it is obvions, obtains where private and not public detriment is 
 caused.^ 
 
 The rule we have before noted, limiting the right of action to Eight of action 
 cases where there is special and pecuhar damage, is, however, 'vh^cf there 
 to be observed. This is illustrated by two American cases. ^ In ^^ special 
 the former the canal proprietors were held liable for constructing 
 their canal of a less width than they were authorized to do by 
 their charter to the owner of a raft who was unable to pass the 
 canal with it without his raft grounding and being detained and 
 a portion of it lost. In the latter case the owner of a barge 
 using a canal resisted payment of the tolls, on the ground 
 that the canal had never been constructed in the manner required 
 by the plaintiffs'" Act of incorporation, and the defendant offered 
 to prove that he had suffered great inconvenience and injury in 
 consequence of the canal not being constructed as it ought to have 
 been, and that his profit would have been greater if the terms of 
 its incorporation had been observed. He was, nevertheless, held 
 liable, since by using the canal he was estopped to deny their 
 right to the payment of toll, and that if the company failed in 
 their duty it was a failure by which the defendant suffered no 
 special damage peculiar to himself, but one which could be re- 
 dressed by a public prosecution only. The construction of the 
 canal is only authorized on the terms prescribed, but, if con- 
 structed in a less onerous manner, those using it are not exempted 
 from liability to pay for the use they make of it ; while, if they 
 suffer special damage by reason of the non-observance of the 
 conditions of the incorporation, they can recover; and in any 
 event the public means of redress subsists. 
 
 Again, if a canal company have power to cut through a public 
 highway, their duty is to furnish a substitute to the public by means 
 of a bridge, for it will never be held that any public right is to be 
 taken away unless the conclusion clearly appear.^ 
 
 The existence of a canal raises many points of difficulty in the Eelations of 
 relations that it constitutes with the neighbouring proprietors — panl^es'wit'h 
 more especially in the mining districts. But in nearly all cases neighbom-mg 
 these have to be decided with reference to the terms of the Acts 
 under which the companies are constituted, and not under the 
 terms of the common law. The opposite limits of these deci- 
 sions are marked respectively by Dudley Canal Navigation Com- 
 pany v. Grazebrook* (approved by the Exchequer Chamber in 
 
 ' Henly v. Mayor of Lyme, S Bing. 91 ; ^ Kiddie v. Proprietors of Lccka and 
 
 in error, Mayor, &c. , of Lyme Regis v. Canals, &c., 7 Mass. 169 ; Quincy Canal 
 
 Henley, 2 CI. & F. 331 ; M'Kinnon v. 0. Newcomb, 48 Mass. 276. 
 Penson, 8 Ex. 319, 9 Ex. 609; 23 ^ The K.ing v. Kerrieon, 3 M. & S. 
 
 L. J. M. C. 97 ; Shand v. Henderson, 526. 
 z Dow H, of L. Ca.'i. 519. ^ i B. & Ad. 59. 
 
1052 
 
 THE LAW OF NEGLIGElCOE. 
 
 [book lit. 
 
 Dudley Canal 
 Navigation 
 Company v. 
 Grazebrook. 
 
 Iiancashire 
 and Yorkshire 
 Eailway 
 Company v. 
 Knowles. 
 
 Dunnp. 
 Birmingham 
 Canal Com- 
 pany. 
 
 Stourbridge Oanal Company v. Eari of Dudley/ and by the House 
 of Lords in Great Western Eailway Company v. Bennett^ and by 
 Lancashire and Yorkshire Eailway Company v. Knowles.^ 
 
 The former class of cases decided that where a clause in an 
 Act of Parliament points to a restriction on the right of getting 
 minerals within any specified distance of a canal company's 
 cutting, yet gives the mine-owner no power to compel payment of 
 compensation where his operations cannot be carried on without 
 damage to the canal, but only a power to go on with his mining 
 operations unless he is compensated, the canal company cannot 
 maintain an action against the owner of the minerals for an 
 injury arising from his working the minerals in the usual way if 
 they do not choose to act as they are empowered by their Act. 
 
 The cases, on the other hand, under the class of Lancashire 
 and Yorkshire Eailway Company v. Knowles^ determine that where 
 the Act under which the canal is constituted contains a provision 
 to compel payment of compensation, and not merely a right on 
 the part of the owner of the soil to go on with the working, 
 unless he is compensated, there, if in any case the mine-owner 
 works his mine, he must do so without injuring the canal ; and if 
 he does injure it he will have to pay for the injury ; since his 
 appropriate and only remedy is under the compensation sections 
 of the Act by which either the company or the mine-owner may 
 take proceedings for the assessment of compensation. 
 
 In this connection must be cited the case of Dunn v. Bir- 
 mingham Canal Company,' where, the canal company not ex- 
 ercising their powers of purchase, the mine-owner worked the 
 minerals, but was flooded by the water from the canal, and in 
 consequence brought his action. It was then decided in the 
 Exchequer Chamber, upholding the decision of the Queen's 
 Bench, that there was no negligence in his doing so, inasmuch as 
 it was not an unlawful thing to bring the water into the canal, 
 as the defendants had the absolute power to construct the canal 
 and keep it filled with water under their Act ; neither were they 
 bound to plirchase, though they had the option to ; neither were 
 they bound to draw off their water — ^that is, to render their canal 
 
 But often some particular jurisdiction is appointed under 
 canal Acts to determine all questions that may arise respecting 
 things to be done in pursuance or in execution of the Act. Then, 
 
 1 30 L. J. Q. B. 108. 
 
 ? L. E. 2 H. of L. 27 ; 36 L. J. Q. B. 
 133 ; 16 L. T. N. S. 186 ; 15 W. E. 647. 
 9eo Fletcher v. Great Western Eailway 
 Company, in the Exchequer Chamber, 
 29 L. J. Ex. 253 ; 8 W. E. 501. 
 
 » 20 Q. B. D. 391 ; 57 L. J. Q. B. 
 150 ; Cromford Canal Company v. Cutts, 
 5 Eailway Cas- 442. 
 
 * 20 Q. B. D. 391. 
 
 5 L. E. 8 Q. B. 42, 42 L. J. Q. B. 34 ; 
 L. E. 7 Q. B. 121, 41 L. J. Q. B. 121, 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1053 
 
 if tlie canal proprietors do anything not in strict accordance 
 with the terms of their Act, the House of Lords decided in a 
 Scotch case' that anything not done in exact conformity with 
 the powers is not a thing done in pursuance and execution 
 of the Act, and the ordinary remedy in the courts of the 
 country is not taken away. It follows that this right is reciprocal ; 
 and therefore, if any infringement is made on the statutory rights 
 of companies, they are entitled to the ordinary remedies at law ; 
 in the words of Erie, J.,^ " such a company [i.e., a canal company] 
 has all the rights and remedies which an individual owner of 
 property has unless the statute contaias some provision to take 
 them away ; " and this is manifest on principle, since such com- 
 panies are grafts on the common law, and not governed by 
 independent laws, at least not to a greater extent than is indi- 
 cated. 
 
 As to the effects of a company exceeding its statutory powers, Exceeding 
 the Lord Chancellor, in Ware v. Eegent's Canal Company,^ powers?' 
 said : " Where there has been an excess of the powers given by ^'^ent's 
 an Act of Parliament, but no injury has been occasioned to any Oanai Com- 
 individual, or is imminent and of irreparable consequences, I " " 
 apprehend that no one but the Attorney-General on behalf of 
 the public has a right to apply to this Court to check the 
 exorbitance of the party in the exercise of the powers confided 
 to him by the Legislature. If an individual has sustained no 
 damage, and there is no reason to apprehend that he will sus- 
 tain damage, notwithstanding his being nearer to the possible 
 cause of injury than the rest of the public, he has no peculiar 
 position or claim to entitle him to become the redresser of a public 
 grievance, or to complaia of the disregard of the provisions of 
 an Act of Parliament. The language of Lord Bldon ia Blake- 
 more V. Glamorganshire Canal Company" certainly appears to 
 sustain the proposition of the plaintiff" to its full extent, but I 
 adopt the interpretation of Lord Eldon's meaning by Alderson, 
 B., in Lee v. Milner,' and with him I say ' that these Acts of 
 Parliament ought to be treated as conditional powers given by 
 Parliament to take the land of the different proprietors through 
 whose estates the works are to proceed. Each landholder, there- 
 fore, has a right to have the powers strictly and literally carried 
 into effect as regards his own lands, and has a right also to 
 require that no variation shall be made to his prejudice in carry- 
 ing into effect the bargain between the undertakers and any one 
 
 1 Shand v. Henderson, 2 Dow H. of ^ (1858) 3 De G. & J. 212, at p. 228. 
 L. Cas. 519. MMy. &K. 154. 
 
 2 Rochdale Canal Company v. King, ° 2 Y. & C. Ex. 611, at p. 618. 
 14 Q. B. 122, at p. 136. 
 
1054 
 
 THE LAW OF NEGLIGENCE 
 
 [book III. 
 
 Duty of canal 
 companies as 
 ti) water in or 
 coming to 
 their canals. 
 
 Nield V. 
 London and 
 North-West- 
 ern Kailway 
 Company. 
 
 else.' The words ' to his prejudice ' are emphatic, and mean not 
 merely to his possible, but to his actual prejudice." 
 
 The duty of canal companies with regard to the water in 
 or coming to their canals is made plain by three cases — 
 Harrison v. Great Northern Railway Company,^ Boughton v. Mid- 
 land Great Western Railway of Ireland^ in the Irish Exchequer 
 Chamber, and Nield v. London and North-Western Railway 
 Company.' In the first of these the defendants undertook the 
 maintenance of a cut for carrying off water, but the banks were 
 insuflBcient to resist the water they could contain, though 
 sufficient for what they ordinarily did. By the wrongful con- 
 duct of third parties, more water was forced into the cutting 
 than would have gone there otherwise, aaid, the banks being 
 insufficient, damage was caused to the plaintiff. The defendants 
 were held liable, since the proximate cause of the damage was 
 their defective bank.^ 
 
 In the second case the defendant company constructed an 
 open cut parallel with their canal to carry off water from the 
 overfalls of the canal in time of flood. This was properly con- 
 structed and amply sufficient to carry off the water it would be 
 required to do. But owing to an obstruction in a sewer into 
 which the cut flowed, and which was under the exclusive care 
 and control of the Corporation of Dublin, water from the drain 
 was stopped and flooded the premises of the plaintiff, who had 
 opened a communication between his. house drain and the canal 
 drain. The Court held the plaintiff could not recover, " for the 
 discharge of the surplus waters of the canal by this drain of the 
 company was lawful by statute, and therefore, in the language 
 of Chief Justice Cockbum in Dunn v. Birmingham Canal Com- 
 pany, ' it is impossible to say that what is thus expressly legalized 
 can be made the ground of an action of tort.' " And it was on 
 the analogy afforded by Dunn v. Birmingham Canal Company 
 that the case was mainly decided.^ 
 
 The third case is that of Nield v. London and North-Western 
 Railway Company,' where the owners of a canal, being threatened 
 
 1 (1864) 3 H. & C. 231 ; 33 L. J. Ex. 
 266 ; 10 L. T. N. S. 621 ; 12 W. E. 1081. 
 
 2 (1873) Ir. E. 7 C. L. 169. 
 
 3 (1874J L. E. 10 Ex. 4 ; 44 L. J. Ex. 
 15 ; 23 W. E. 60. 
 
 * In Barber ii. Nottingliam Canal Com- 
 pany, 15 C. B. N. S. 726, the remedy was 
 by compensation for water flowing " over 
 or through the banks." Under the special 
 Act this was apparently not so in Cock- 
 bnrn v. Erewash Canal Company, 11 
 W. E. 34. 
 
 ^ SeeEeginaw. Delamcre,i3W.K. 757: 
 
 trustees had altered the bed of a river, 
 and damage resulted to the claimant, who 
 was held entitled to compensation. 
 
 « L. E. 10 Ex. 4 ; 44 L. J. Ex. 15 ; 
 23 W. E. 60. The subsequent case of 
 Thomas v. Birmingham Canal Company, 
 49 L. J. Q. B. 851 ; 43 L. T. 435 ; the 
 act done, the opening of sluices, wasforthe 
 protection of the neighbourhood, and also 
 for the protection of the banks of the 
 canal. The defendants were not called on, 
 and Nield v. London and North- Western 
 Eailway does not appear to have been 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETO. 1055 
 
 with flood from a neighbouring river, erected a barricade across 
 the canal so as to prevent more water than the canal would 
 securely hold from coming into it and flooding warehouses they 
 had on the banks of the canal ; by doing so the water flowed 
 on and injured the plaintifEs' premises, doing more damage than 
 it would have done had it not been backed up by the boards. 
 The plaintiffs were held not entitled to recover, on the ground 
 that, except in defending themselves against the water, the de- 
 fendants had nothing to do with bringing the water to the place 
 where it did the injury complained of. The only right they had 
 against the defendants was " not to be injured by the defendants 
 bringing water there without giving it a sufiicient means of 
 escape."' 
 
 These three cases have this in common, that damage is done to Cases oom- 
 third persons by an overflow of water from causes over which the considered, 
 companies had no control. In the last case, the company were 
 merely using means to protect themselves against a sudden and 
 extraordinary casualty, and the Court decided that a property 
 owner had by common law what Bramwell, B., described as " a 
 kind of reasonable selfishness in such matters." "The law," he 
 continued, " let every one look out for himself, and protect his 
 own interest ; " and he who puts up a barricade against a flood is 
 entitled to say to his neighbour who complains of it, ' Why did 
 not you do the same ?' " In the second case, the defendants did 
 no more than they were authorized by statute to do ; and it was 
 decided that, since the statute enabled them to act as they did, 
 the intervention of an independent agency, by which their statu- 
 tory action was turned to an injury, could impose no limitation 
 of their parliamentary powers, negligence being out of the ques- 
 tion ; also that their mere doing what Parliament had empowered 
 them to do could not be negligence. This was no more than 
 following the decision in Dunn v. Birmingham Canal Company. 
 
 The first case difiers from the other two since in this the 
 ingredient of actual negligence on the part of the defendants is 
 found. The company had not merely constructed works of the 
 capacity they needed, but of a greater capacity, and, considering 
 
 cited. The decision was that, if nothing arcendse) ; these passages "have reference 
 had been done the case would have been to accidental and e.ttraordinary casualties 
 within Nichols' v. Marsland, 2 Ex. D. I. from the flood suddenly bursting forth. 
 But though something was done as the and they go to this, that, in such a case, 
 case fdund that thereby the damage to the the parties may, even to the prejudice of 
 plaintiffs was not increased, consequently their neighbours, for the sake of self- 
 it was injuria absque damno, and not a preservation guard themsplves against the. 
 ground of action. consequences." See The King m. TrafP.rd, 
 1 See Menzies v. Breadalbane, 3 Bli. I B. & Ad. 874; in Exoheqner Chamber, 
 N S 414 per Lord Eldon, C, citing D. I M. & S. 401 ; 8 Bing. 204; 2 C. & J. 
 
 39, 
 
 3 I, §§ li 2 (I'e aqua et aquse pluvise 265. 
 
1056 
 
 THE LAW OF NEGLIGENCE. 
 
 [book lit. 
 
 Whalley i'. 
 Lancashire 
 and Yorkshire 
 Eailway 
 Company. 
 
 Principle 
 distinguished 
 from Nield v. 
 London and 
 Morth-West- 
 ern Eailway 
 Company. 
 
 that greater capacity — ^but in that respect only — of insufficient 
 strength. Had it not been for this negligent act in providing a 
 receptacle for forces greater than the receptacle could safely con- 
 tain, the injury would not have happened ; hence they were liable, 
 when the capacity of the receptacle they contrived became tested, 
 not because they did not make the full provision required by their 
 parliamentary powers, but because, having elected to make greater, 
 they did not carry out their work efficiently. Had the defendants 
 in Harrison v. Great Northern Eailway Company' merely buUt 
 their canal for the normal accommodation needed in the event of 
 a flood, they would have been no more liable than the defendants 
 in Nield v. London and North-Westem Railway Company^ were 
 held. 
 
 With these cases Whalley v. Lancashire and Yorkshire Railway 
 Company' must be noticed. The defendants were the owners of 
 a railway standing at the place in question upon a slight embank- 
 ment, which they were authorized to construct by Act of Parlia- 
 ment. An extraordinary storm of rain flooded the neighbouring 
 land, and the water, being stopped by the embankment, caused 
 an amount of pressure dangerous to its stability. The defend- 
 ants, to relieve the pressure, cut trenches in the embankment, ■ 
 through which the water passed to the plaintiff's land in a way 
 different from what it would otherwise have done, and thereby 
 caused injury. In its more important aspect this case is con- 
 sidered in another connection. Here it is important only to 
 distinguish the principle under which it was decided from that 
 which was found to govern in Nield's case. In Nield's case the 
 works were erected to prevent the aggression of a common enemy, 
 and the decision was that the natural right of a landowner to act 
 for his own protection was not taken away because he had 
 constructed an artificial watercourse on his land. The case of 
 Whalley v. Lancashire and Yorkshire Railway Company differed 
 in that " an extraordinary misfortune happened. It fell upon the 
 defendants, and, if they had allowed things to remain as they 
 were, they would have been the sufferers ; but, in order to get 
 rid of the misfortune which had happened to them, and which, 
 rebus sic stantibus, would not have injured the plaintiff, they did 
 something which brought an injury upon the plaintiff."'' There 
 was all the difference between the mere averting of a threatened 
 mischief, irrespective of where it should else fall, and the com- 
 mission of a new and positive wrong. To take an illustration 
 
 1 3H. &C.23i;33L.J.Ex.266; 10 
 L. T. N. S. 621 ; 12 W. E. 1081. 
 
 2 L. B. 10 Ex. 4. 
 
 3 13 Q. B. D. 131 ; S3 L. J. Q. B, 285 ; 
 SoL. T. 472; 32W. E.711. 
 « Per Brett, M.E., p. 138. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC, 1057 
 
 from the squib case.' There was the difference between hurling 
 it away in its course to prevent suffering mischief, and taking it 
 from the ground when it was at rest and starting it on a fresh 
 course. 
 
 Duties also are raised to the public generally where the course Duty to the 
 of the canal comes into connection with public highways or places nectton with" 
 over which people have a right to pass. Thus, in Manley r. St. highways. 
 Helens Canal and Railway Company," a canal company were held 
 liable for not taking reasonable precautions to make a bridge they 
 had over their canal safe for persons passing along the road after 
 dark, whereby a man fell into the canal and was drowned. The 
 bridge provided was a swivel bridge, which opened when the canal 
 was beiag used, and was not lighted at night. Martin, B., said : 
 • • If I were asked what kind of a bridge they ought to provide, I 
 should say an ordinary stone bridge, such as is found on all 
 canals ; but these persons for their own profit will not incur the 
 expense of making one." But they are not bound to fence their 
 premises, even when they are alongside a public footway, unless, 
 indeed, they be not '-substantially adjoining," and "this is a 
 question for the judge. "^ The towing-path by a canal is to be 
 used onh" by horses employed in towing vessels, yet it is a 
 common highway for that purpose,^ and consequently the canal 
 companies do not owe any duty to persons other than those 
 using the towing-path as a highway for the purposes of navi- 
 gation to keep it in repair, " except, possibly, where they have 
 appropriated a part of the public highway for their use as such."^ 
 
 1 . A canal as concerned with the law of highways is an arti- Summary. 
 ficially constructed waterway which admits of being used for 
 purposes of passage, and when made by public authority becomes 
 
 a highway, with a right of tolls attached." 
 
 2. Canal proprietors are liable for negligence on a similar 
 principle to that by which shopkeepers who invite people to their 
 shops are bound — that is, as long as they keep the canal open to 
 the public they are to take reasonable care that the public may 
 use it without danger either to person or property.^ 
 
 ^ Scolt ?•. Shepherd, i Sm. Lead. Cas. and Wye E.ailway Company, 2 B. &Ald. 
 
 gth edit. 480. 646, at p. 648. 
 
 ^ 2 H. & y. 840; 27 L. J. Ex. 159; " Shearman and Kedfield, Law of Xegli- 
 
 Witherley r. Regent's Canal Company, 12 gence, 4th edit. § 403. 
 
 C. B. N. S. 2 ; 6 L. T. X. S. 255 ; 3 F. & " The Kiiig r. Inhabitants of Kent, 
 
 F. 61 ; Griffiths ),'. East and West India 13 East 220; The King r. Trent and 
 
 Dock, 5 Times L. R. 43. Mersey Canal, 2 D. & R. 752 ; The 
 
 " Binks r. South Yorkshire Railway King v. Irdaabitants of Woking, 4 Ad. & 
 
 Company, 3 B. & S. 244 ; 32 L. J. Q. B. El. 40 ; The King v. Aire and Calder 
 
 26 ; 7 L. T. N. S. 350; II W. R. 56; Navigation, 2 T. R. 600; The KItic; v. 
 
 Gautret'r. Egerton, L. R. 2 C. P. 371 ; Mersey and Irwell Navigation, 4 M. & 
 
 36 L. J. C. P. 191 ; 16 L. T. N. S. 17 ; R. 84. 
 
 15 W. R. 638. ' Lancaster Canal Company I'. Parnaby, 
 
 •* Per ijayley, J., The King v. Severn 11 Ad. & El. 223. 
 
 3X 
 
1058 THE LAW OF NEGLIGENCE. [book iii. 
 
 3. Canal proprietors acting under statutory powers are not 
 liable if, witliout negligence, water escapes from their canal and 
 does injury to property.' 
 
 4. Canal proprietors injured by the subtraction of water from 
 their canal by reason of the working of mines cannot recover fi-om 
 the mine-owner for injury done to their canal from the natural user 
 of his property where they have a power to purchase but decline 
 to exercise it, while he has no statutory method of forcing the 
 assessment of compensation.' 
 
 5. Canal proprietors injured by water subtracted from their 
 canal, by reason of the working of mines can recover from the 
 mine-owner for injury done to their canal from the natural user 
 of his property where they have a power to purchase bat decline 
 to exercise it, while he has a statutory method of forcing the 
 assessment of compensation.' 
 
 6. Statutory work carried out without negligence, but resulting, 
 in injury, does not affect with liability those acting in the way 
 wherein they are by statute authorized.'' 
 
 7. Where a canal company have provided works sufficient for 
 the ordinary purposes to which they were bound by their Act, but 
 insufficient for the purposes to which such works might be put, 
 and, through the imperfection of the additional works, injury, 
 arises, they are held liable for damage arising from their defi- 
 ciency to answer the purpose for which the works are actually 
 constructed, even though the works rendered necessary by their 
 Act are constructed and without negligence.' 
 
 8. Where there is negligence in the carrying out a statutory 
 work, there is liability.* 
 
 9. Canal companies cutting highways are bound to afford 
 bridges reasonably fit for passage,^ and to protect them so that 
 the user of those rightfully on the highway shall not be abridged 
 of their rights.* 
 
 1 Dunn V. Birmingham Canal Company, 7 C. L. 169 ; Dunn v. Birmingham, L. E. 
 
 L. R. 8Q. B. 42; 42L. .T. Q. B. 34; 27 8 Q. B. 42; 42 L.J. Q. B. 34: 27L T 
 
 L. T. N. S. 683 ; 21 W. E. 266. N. S. 683 ; 21 W. R. 266; Cracknell v. 
 
 = Dudlpy Canal Company «. Graze- Mayor of Thetford, L. E. 4 C. P. 629 ; 38 
 
 brook, : B. & Ad. 59 ; Stourbridge Canal L. j. C. P. 353, as to erection of stanches. 
 
 Company v. Earl of Dudley, 30 L. .T. s Harrison v. Great Northem Railway 
 
 Q. B. 108 ; 3 L- T. N. S. 449 ; 9 W. E. Company, 3 H. & C. 231 ; 33 L. J. Ex 
 
 158 ; Great Western Eailway v. Bennett, 266 ; 10 L. T. N. S. 621 ; 12 W. R. 1081. 
 
 ^- ?■ ^„^x°l!^- ^7 ' 36 L- J. Q. B. 133 ; See also Hodgson v. Mayor of York, 28 
 
 16 L. T. N. S. 185 ; 15 W. R. 647. See L. T. 836. 
 
 also Fletcher v. Great Western Eailway « Brine w. Great Western Railway Corn- 
 Company, 29 L. J. Ex 253 ; 8 W. E. SOI. pany, 2 B. & S. 402 ; 31 L. .T. Q. B, loi ; 
 Lancashire and Yorkshire Eailway Collins v. Middle Level Cominissioners 
 Company v. Knowles, 20 Q. B. D. 391 ; L. R. 4 C. P. 270 : •?8 L J C P 2^6 • 
 57 L. .T. Q. B. 150. 20 L. T. N. S. 442. ■ ■ ■ i ' 
 
 4 Whitehouse v. Birmingham Canal. !■ The Kings, Kerrison, 3 M. & S we 
 
 27 L J Ex. 25; Boughton v. Midland » Mariley v. St. Helens Canal Com- 
 
 Sreat Western Railway of Ireland, Ir. R, pany, 2 H. & N. 840. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1059 
 
 lO. To oust the jurisdiction of the ordinary Courts of the 
 country where a special remedy is provided by the Act incorpo- 
 rating the company it is necessary that the powers of tJie Act be 
 strictly pursued.' 
 
 IV. Bridges. 
 
 A bridge has been defined = "a building constructed over a DeHmtion. 
 river, creek, or other stream, or over a ditch or other place, in 
 order to facilitate the passage over the same." Whatever the 
 merits of this as a definition of bridge in general, as a definition 
 of what is in law a bridge it is too wide, as including viaducts 
 and causeways, which are not included in the county liability for 
 the repair of bridges.^ 
 
 "Pons," says Coke, CJ.,* " sirpiificat omne quod super aquas 
 transimus uncle ponticuhis." He seems to regard it as indispen- 
 sable to the character of bridges under 22 Hen. VIII. c. 5 that 
 they should cross a stream or watercourse, and this view was 
 adopted by the Court in The King r. Inhabitants of Oxfordshire, 
 where Lord Tenterden, C. J., said this incident of crossing a stream, 
 &c., " must be considered as virtually included in the true import 
 of the word ' bridge.' '"" 
 
 The county at large is lyrimd facie liable to the repair of all 
 public bridges within its limits, in the same manner as parishes 
 are bound to repair all public ways within their district unless 
 they can shew a legal obligation on some other persons or public 
 bodies to bear the burthen," with, however, this exception, that the 
 parish or hundred is responsible for " bridges over small streams."' 
 
 ' Shand v. Henderson, 2 Dow H. of L. for pri vate use has been determined to be 
 
 C. 519; Cockburn v. Evewash Canal, 11 an indictable nuisance, even though it is 
 
 W.K.34. In America it has been laid down so high above tlie surface as not to impede 
 
 that where land is acquired for a public the passage of ordinary vehicles : Bybee v. 
 
 purpose, as a canal, railway, or the like. State, 48 Am. li. 175. The authority 
 
 direct benefits to the owner from its con- charjied with repairing bridge.i is bound 
 
 stmction are deemed part of the considera- to rebuild if a bridge becomes destroyed : 
 
 tions paid by the corporation acquiring State ex ret. Eoundtree v. Board of Com- 
 
 the right to construct the public work ; missioners, 41 Am. E. 821, where thcEng- 
 
 and that if embankments and abutments lish cases to the same effect are examined. 
 
 essential to the construction and mainte- ■* 2 Inst. 700. He gives (at p. 701) the 
 
 nance ofacanal protect the appellant's land following derivation : Fans a penchndo 
 
 from overflow, they are to that extent a quia tniiquam in acre pendet. 
 
 benefit, and the presumption is that this ^ i B. & Ad. 289, p. 301. Compare Tho 
 
 benefit was taken into consideration, for Queen r. Inhabitants of Derbyshire, 2 Q. B. 
 
 the ordinary rule is that a contract for a 745, where it is laid down that it is not 
 
 right of way for a canal or a condemna- necessary I0 constitute a bridge that water 
 
 lion for that purpose and assessment of should flow under- it at all seasons of the 
 
 damages includes all direct benefits and year and all the year. 
 
 damages: Burk v. Simonson, 54 Am. E. "2 Inst. 700. 
 
 304. Compare Nield v. Ijondon and ' Per Blackburn, .T., The Queen v. 
 
 North-Westem Railway, L. R. 10 Ex. 4. Kitchiner, L. R. 2 C. C. 88, at p. 93 ; 43 
 
 - I Bouv. Law Diet. p. 224. L. .T. M. C. 9 ; 29 f.. T. N. S. 697 ; 22 
 
 "■ In America a bridge across a street W. E. 134. 
 
1060 THE LAW OF NEGLIGENCE. [book ni. 
 
 If a man build a bridge and dedicate it to the public, he is 
 not bound to repair it at common law/ unless rations tenurw or 
 prcBScriptionis, and if no one was bound by tenure or prescription 
 it should be repaired by the whole county.^ The remedy at 
 common law for non-repair was by presentment at the suit of the 
 King for avoiding multiplicity of suits/ either before the justices 
 of the King's Bench, or before justices in eyre or commissioners of 
 oyer and terminer, or before the sheriff by commission or writ in 
 the nature of a commission. This last remedy is, however, taken 
 away by 29 Edw. III. c. 21. 
 
 Common law The common law liability is principally regulated by 22 Hen. 
 
 la ly. VIII. c. 5, which provides that justices of the peace have power 
 
 to inquire of all nuisances arising from bridges broken in the 
 highways to the damage of the King's liege people in every 
 shire, franchise, city, or borough, and to charge the inhabit- 
 ants of each county in which they might find any decayed 
 bridges not otherwise repairable; the i Anne, c. 12, which was 
 passed because the fines for not repairing levied under the earlier 
 Act were paid into the Exchequer instead of being handed over 
 to the county treasurers to be applied in the repair of the bridges 
 as was by this Act directed; the County Bridges Act, 1803,* 
 the County Eates and Bridges Act, 1812,^ the County Bridges 
 Act, 1815,° and the County Bridges Act, 1 84 1 ,' besides numerous 
 other subordinate or partial enactments.* 
 
 ^ 2 Inst. 701 ; Cto. Car. 365. " A tended that if a parish were to huild a 
 hridge built by an individual over a public new bridge on a road within their limits, 
 highway that is useful to the public, and they would bo bound to keep it in repair 
 generally used by them, or if in the afterwards, and that the county would not 
 course of time it has become useful, and be liable, as that the trustees are in this 
 is used by the public, must be kept in Mse because the bridge is built in the 
 repair by the public, as should a patriotic turnpike road. In truth, the trustees are 
 person build a bridge at his own expense merely substituted in lieu of the parish." 
 over a public fordway it would be more And Lord Ellenborough, C.J., said: "If 
 than unjust to compel him also to keep it trastees under similar acts throw this bur- 
 in repair": ner Nelson, J., Heacock r. then generally 011 the counties, it may be 
 Sherman, 14 Wend. 58 ; Mayor of Alb.any necessary to make special legislative "pro- 
 V. Cunlift' 2 N. y . 165. _ vision in future ; but this carnot vaiy the 
 
 " But the freehold of bridges, as of the common law rule." See 5 Burr. 2594 ; 
 
 highway, is in him that has the freehold see section 5, 43 Geo. III. c. 59. 
 
 of the soil ; the free passage is for all the * 2 Inst. 701. 
 
 King's subjects. And though the bridge * 43 Geo. III. c. 59, " Lord Ellen- 
 is not specifically dedicated, but becomes borough's Act," the year following the de- 
 used to such an extent by the public as to cision in The King «. West Biding of York- 
 come to be a public convenience, the shire, 2 East 342. One effect of this Act 
 county is bound to repair it : The Queen v. is an anticipation of the Highways Act, sec- 
 Wilts, 6 Mod. 307 ; I Salk. 359; The King tion 5 providing thnt the common law lia- 
 B.WestBidingotYorkshire, 2W. Bl. 685; bility to repair should not attach to any 
 S Burr. 2594 ; The Kingv. West Riding of new bridge unless it had been erected in a 
 Yorkshire, 2 East 342; The King D.Bucks, substantial manner under the direction or 
 12 East 192. And it makes no difference to the satisfaction of the county surveyor, 
 that the bridge is built by turnpike trustees ^ 52 Geo. III. c. no. 
 in the line of their road ; for as Lawrence, ^ 55 Geo. III. c. 143. 
 J., said in The King v. West Biding ' 4 & 5 Vict. c. 49. 
 of Yorkshire, "It might as well be con- ^ ^g^ 22 Car. II. c, 12; 12 Geo. IL 
 
BOOK III.] HIGHWAYS, TUENPIKES, CANALS, ETC. 1061 
 
 By the Locomotive Act, 1861,' s. 7, if a bridge in a turnpike 
 or other road be damaged by a locomotive passing over it, the 
 owner or person iu charge is required to make good the damage ; 
 but in The Queen v. Kitchiner' this was held to be limited to the 
 case of a " body of persons liable to repair in ease of the general 
 public," and not to apply to county bridges. 
 
 The limit of the liability by common law as declared by 
 22 Hen. VIII. c. 5 Ms not confined to the structure of the 
 bridge itself, but extends a distance of 300 feet from each of 
 the ends of the bridge. But by the Highways Act, 1835,'' 
 where a county bridge has been built since 1835, the highway 
 over it is to be repaired by those who were, at law, before the 
 building of the bridge, bound to repair the highway. But by 
 section 46 of the Eailways Clauses Consolidation Act, 1845,° a 
 railway company which crosses a road must make a bridge, and 
 must metal and repair the bridge and load and approaches." The 
 Metropolis Management Act, 1855,' and the Public Health Act, 
 1875,^ enacted that the word "street" shall apply to and in- 
 clude ' ' any bridge which shall vest in the authorities under those 
 two Acts respectively." 
 
 The effect of these enactments on the sections of the Rail- lord Watson 
 ways Clauses Consolidation Act, 1 845, is stated by Lord Watson " Eastern Eaii- 
 to be this : '-The whole bridge from its foundation upwards is ^"g^'^^^P^^y 
 part and parcel of the bridge-owner's land, with the exception Board of 
 of those portions of it consisting of the carriage-way and foot- 
 paths, and the materials of which they are made, which have 
 become vested in the local authority by force of statute. The 
 bridge, with that exception, appears to me to be as much the 
 bridge-owner's property as an embankment would be constructed 
 upon land acquired for that purpose in order to carry the 
 approaches to the bridge." 
 
 The expenses of the repairs of bridges under the Inclosure 
 Act, 1833,'° are recoverable by means of rates made by the com- 
 missioners in the manner provided by that Act. 
 
 When the person or public body liable to repair a bridge is Liability 
 
 , . T .1 ^ j_ T.' J. • 1 similar with 
 
 ascertained, the same rules as to conditions 01 repair apply as t^at in regard 
 
 c. 29 ; 14 Geo. II. c. 33 ; 54 Geo. III. 0. ° North Staffordshire Railway Company 
 
 90 ; 13 & 14 Vict. c. 64 ; 33 & 34 Vict. v. Dale, 8 E. & B. 836 ; 27 L. J. M. C. 
 
 c. 73, s. 12; 38 & 39 Vict. c. 194, ss. 8, 147. 
 
 10; 41 & 42 Vict. c. 77, S3. 21, 22 ; 43 ' 18 & 19 Vict. c. 120. 
 
 & 44 Vict. c. 5 ; 45 & 46 Vict. c. 50, ss. ' 38 & 39 Vict. c. 55, s. 149. Cover- 
 
 4, 5, 6, 119, 240. dale 11. Charlton, 4 Q. B. D. 104 ; 48 L. J. 
 
 ' 24 & 25 Vict. c. 70. Q. B. 128 ; 40 L. T. 88 ; 27 W. E. 257. 
 
 ' L. R. 2 C. C. 88 ; 43 L. J. M. C. 9 ; ' Great Eastern Railway Company v. 
 
 29 L. T. N. iS. 697; 22 W. R. 134. Hackney Board of Works, 8 App. Cas. 
 
 ' Section 9. 687, at p. 692 ; 52 L. J. M. C. 105 ; 49 
 
 ■< 5 & 6 Will. IV. ^. so, s. 21. L. T. 509; 31 W. R. 769. 
 
 ^ik<3 Vict. c. 20. ^^ 3 & 4 Will. IV. c. 35. 
 
1062 
 
 THE LAW OP NEGLIGENCE. 
 
 [book III. 
 
 in tlie case of a highway, and the general law of negligence 
 supplies all tests of what constitutes negligence. 
 
 Fencing. The question as to fencing remains. This is usually provided , 
 
 for by the statute under which the bridge is erected, as the 
 Railways Clauses Acts, and by the provision of Lord Ellen- 
 borough's Act, to which we have already referred, by which be- 
 fore a bridge can be dedicated to the public the approval of the 
 surveyor is required.' But by common law no such requirement 
 was made, and there seems no reason why the dedication of a 
 bridge should be subject to any other liability than that of a 
 highway.^ 
 
 Further, from a consideration of Manley v. St, Helens 
 Canal and Railway Company,^ a case where there was a statutory 
 obligation to maintain a bridge across a canal, the common law 
 liability does not seem to admit of being more highly stated than 
 that a jury will be warranted in finding a bridge to be insuffi- 
 cient if, with reference to the state of circumstances, it is un- 
 fenced, so as to be dangerous. This, however, differs nothing 
 from the rule applicable to highways generally.'' 
 What has gone before may be summarized thus : — 
 
 Summai-y. I. A bridge under the Statute of Bridges is a building over a 
 
 stream or watercourse for the purposes of passage.^ 
 
 2. As parishes are the authorities bound to the repair of high- 
 ways, so counties are bound to the repair of bridges within their 
 limits." 
 
 3. The freehold of bridges continues in the bridge-owner, sub- 
 ject, as with highways, to the right of passage over them of the 
 public' 
 
 4. A bridge may be dedicated — 
 
 (a) subject to an obstruction ; 
 
 (&) without fences ; 
 but by statute it may only be dedicated in a way to make the 
 county liable after the approval of the surveyor.' 
 
 1 43 Geo. III. c. 59, s. 5. 
 
 2 EobWns V. Jones, 15 C. B. N. S. 
 221 ; 33 L. J. C. P. I ; 9 L. T. N. S. 
 523 ; 12 W. E. 248 ; Hamilton v. Vestry 
 of St. George, Hanover Square, L. E. 9 
 Q. B. 42 ; 43 L. J. M. C. 41 ; 29 L. T. 
 N. S. 428 ; 22 W. R. 86. 
 
 3 2 H. & N. 840 ; 27 L. J. Ex. 159. 
 
 * Hardoastle v. South Yorkshire Kail- 
 'way Company, 4 H. & N. 67 ; 28 L. J. 
 Ex. 139. 
 
 s The King v. Inhabitants of Oxford- 
 shire, I B. & Ad. 289; The Qaeen v. 
 Inhabitants of Derbyshire, 2 Q. B. 745. 
 
 ^ 2 Inst. 700. See, however, per Black- 
 burn, J., The Queen v. Kitchiner, L. E. 
 
 2 C. 0. R. 88, at p. 93 ; 43 L. J. M. C. 9 ; 
 29 L. T. N. S. 697 ; 22 W. E. 134. As 
 to American law, see White v. Commis- 
 sioners of Chowan, 47 Am. E. 534. 
 
 ' Great Eastern Eailway Company v. 
 Hackney Board of Works, 8 App. Cas. 
 687 ; 52 L. J. M. C. los ; 49 L. T. 509 ; 
 31 W. E. 769. This case was not the case 
 of a " bridge " within the Act of Henry 
 VIII. ; in the vast majority of such bridges 
 the whole structure would belong to the 
 county. 
 
 8 Bobbins v. Jones, 15 C. B. N. S. 221 ; 
 33 L. J. C. P. i; 9 L; T. N. S. 523 ; 12 
 W. E. 248; 43Geo. III. c. 59,9. 5. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1063 
 
 V. Sea-walls,' or Sewers. 
 
 The law of the liability of sea frontagers to repair sea-walls, 
 and of the extent of repairs in cases of liability, after long 
 being the subject of misconception, has recently been placed on 
 a satisfactory footing by a series of important and interesting 
 cases. These we are now to consider in their bearing on the 
 older law. 
 
 The law of the liability of frontagers arises either by pre- 
 scription and custom, or by the common law." 
 
 Though prescription and custom are often identified, there is a Prescription. 
 distinction between them that should be noticed. Prescription 
 is always alleged in the name of a persoii, and his ancestors, and 
 those whose estate he has ; a custom is always alleged in the land 
 or place, and it serves for those who cannot prescribe in their 
 own name nor in the name of any person certain, as the in- 
 habitants of a town, but a custom for all classes of persons is 
 bad." 
 
 We are now to consider what the liability by common law is. 
 
 The Crown is by the common law bound to protect the king- Cwwn bound 
 
 J o . J .- J! J. » by the common 
 
 dom Irom inundation or water.' laV to protect 
 
 This is laid down in the case of the Isle of Ely' : " It is to be J^^^°|^™. 
 known that, by the common law before the statute of 6 Hen. VI. tion. 
 c. 5, the King ought of right to save and defend his realm as 
 well against the sea as against the enemies, that it should not be 
 drowned or wasted, and also to provide that his subjects have 
 their passage through the realm by bridges and highways in 
 safety ; and therefore, if the sea-walls be broken, or the sewers 
 or gutters are not scoured that the fresh waters cannot have 
 
 ^ The locus classicus for the learning Lit. § 170, 113b; Fitch v. Eawlings, 2 
 
 on this branch of law is Callis's Reading H. Bl. 393 ; Earl of Coventry v. Willes, g 
 
 upon the Statute of Sewers. The word L. T. N. S. 384. 
 
 sewer in this connection means the " walls, * 6 Hen. VI. c. 5: Nos pro eo quod 
 
 ditches, banks, gutters, sewers, gotes, ratione dignitatis noatre regie adprovi- 
 
 calcies, bridges, streams, and other de- dendum salvationi regni nostri Anglie 
 
 fences by the coasts of the sea and niarish circumqua/jfiK sumus aatricli; 23 Hen. 
 
 ground, by rage of the sea flowing and VIIL c. 5 : "We, therefore, for that, by rea- 
 
 re-flowing, and by means of the trenches son of our dignity and prerogative royal, 
 
 of fresh waters descending and having we be bound to provide for the safety and 
 
 course by divers ways to the sea," subject preservation of our realm of Eugland, willing 
 
 to be broken or become in disrepair; see that speedy remedy be had in the premises;" 
 
 23 Hen. VIII. c. 5, s. 2. Fitzherbert, De Nalura Brevium, 113 a, 
 
 ^ Per Lord Coleridge, C.J., Hudson r. Hale's edit. vol. i. p. 112. 
 Tabor, 2 Q. B. D. 290, at p. 292 ; 46 '^ 10 Eep. 141 a ; Le Case del Eoyall 
 
 L. .T. Q. B. 463 ; 36 Ii. T. 492 ; 25 W. E. Pisoarie de la Banne, Davys 55 ; 12 Mod. 
 
 740, citing Keighley's case, loEep. 139a; 331. Also precedent quoted in 10 Eep. 
 
 The King »;. Commissioners of Sewers for 141b; Pasch. 44 Edward IIL Midd. 2; 
 
 Essex, I B. & C. 477. Henly ?7.Mayor, &g., of Lyme, S Bing. 91, 
 
 2 Gateward's case, 6 Eep. 59 b ; Co. per Best, C.J., at p. 109. 
 
1064 . THE LAW OF NEGLIGENCE. [book iii. 
 
 their direct course, the King ought to grant a commission to 
 inquire and to hear and determine these defaults." That this 
 common law power to issue commissions was exercised by the 
 early kings may be seen by a reference to the forms of the com- 
 1 missions they were in the habit of issuing set out in Fitzherbert's 
 " Natura Brevium.'" 
 
 The statutes'' superimposed on the common law relating to 
 sea-walls and sewers were but confirmatory and extending to 
 it, and by no means imported any different liability. The 
 general terms of the commissions issued in conformity with the 
 statutes obliged every one to contribute who received benefit 
 or suffered loss. But, notwithstanding the terms of the com- 
 missions, an impression seems to have been general that the 
 fact of being a frontager imposed the liability to safeguard 
 against the sea; and this proposition is adopted by CaUis in 
 his celebrated Beading on the Statute of Sewers,^ basing him- 
 self on a case from the Liber Assizorum in the 3 7 Edward III. 
 Cookburn, pi. lo. But the passage cited is shewn by Cockburn, O.J.,^ 
 oi'sm on Oaills. ^°^ ^° I'ear the meaning sought to be put upon it ; and in the 
 course of the same judgment, after a careful examination of the 
 authorities, he lays down the proposition that " the fact that the 
 owner of land fronting the sea might be liable under a com- 
 mission issued by virtue of the King's authority by no means 
 tends to shew that, independently of a royal commission, such 
 liability existed at common law;" and he adds, "We see 
 nothing to warrant our holding it to exist." The same view was 
 adopted in the Court of Appeal,^ where Lord Coleridge, O.J., 
 discussing the probable origin of a sea-wall, as to which there 
 was no authentic account, said : "In all likelihood it was first 
 erected either by the King, at the expense of those to be benefited 
 by it, assessed upon them respectively in proportion to the benefit 
 they did or would respectively receive, or by some gi'eat. land- 
 owner, for his own benefit, whose land, if it came into the hands 
 of separate owners, would be liable to no other burdens than 
 those which the law imposes upon all other land within the 
 realm. But, as we have said, we can see no reason for holding 
 that the burden sought to be imposed upon the defendant in this 
 case in respect of his frontage land is one of such burdens." 
 The law thus laid down was that there is no common law duty 
 
 ^ P. 113. 249; 24 AV. E. 579 ; Nitro-phospiiate and 
 
 == 6 Hen. VI. c. 5 ; 8 Hen. VI. c. 5 ; 4 Odam's Chemical Manure Company v. 
 
 Hen. VII. c. I ; 6 Hen. VIII. c. 10 ; 23 London and St. Katharine Docks Oom- 
 
 Hen. VIII. li. 5. See 4 Inst. 275. panv, 9 Ch. D. 503 ; 39 L. T. 433 ; 27 
 
 3 P. 115. W."R. 267. 
 
 ■• Hudson )). Tabor, i Q. B. D, 225, at ' 2 Q. B. B. 290 : 48 L. J. Q. B. 463 ; 
 
 p. 232 ; 45 L. J. Q. B. 190 ; 34 L. T. .36 L. T. 492 ; 25 ^V. It. 740. 
 
Bojiv III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1065 
 
 on the frontager, merely as frontager, to erect or maintain a sea- 
 wall for the protection of his neighbour. 
 
 In the case of Attorney-G-eneral v. Tomline' the position was Attorney- 
 advanced that the owner of foreshore in the natural user of his TomHno"" 
 property is entitled to take away the shingle and sell it, even 
 though his doing so diminishes the natural barrier against the 
 sea, and may expose his neighbours to be flooded. The case 
 differed from Hudson v. Tabor in this, that Hudson r. Tabor 
 sought to establish a liability to maintain a barrier against the 
 sea. In Attorney-General i\ Tomline a right to destroy a natural 
 bariier was advanced. From the admitted immunity to keep up 
 a sea-wall in Hudson v. Tabor it was sought to reason through the 
 equally admitted right of a man to the natural enjoyment of his 
 property to the establishment of a right to remove an existing 
 protection. Fry, J.," was inclined to hold, on the analogy of 
 Baird v. Williamson'' and Smith v. Fletcher,^ that the removing 
 of shingle from the foreshore was a natural user of land, and 
 similar in its nature to the digging of coal ; yet he did not decide 
 the case on this ground, to which, in the Court of Appeal, 
 Brett and Cotton, L.JJ.,° abstain from giving their assent — ■" the 
 only principle upon which the judgment can properly be founded " 
 — but on the ground that there is in the Crown a duty to guard 
 the shores and land adjoining the sea from being overflowed by 
 the sea ; and consequently there is an obligation on every person 
 possessed of a sea-bank to do nothing inconsistent with the pro- 
 tection of the land from the inroads of the sea. As James, L.J., 
 points out in the Court of Appeal," the existence of such a duty 
 on the part of the Crown is inconsistent with the right claimed ; 
 for the exercise of the right would be the producing a nuisance 
 indictable by the Crown, and the subject of action if special 
 damage were suffered. 
 
 The case of damage caused by an extraordinary storm and Damage 
 high tide next came before the Courts in The Queen v. Com- extraordmary 
 missioners of Sewers for Essex,^ where the prescriptive liability t^e'^e^f/™ 
 of the frontaarer to repair the sea-wall in ordinary cases was n. prescriptive 
 
 ° , r . T T • 1 ■ liability i!i 
 
 admitted ; but where it was, m addition, sought to impose a ordinary cases. 
 liability to keep in repair against the act of God. The case had comn^ssioners 
 been mooted and decided so long ago as 1609 by the Common of Sewers for 
 
 1 i2Ch. D. 214, 14CI1. D. 38; 49L. J. = Brett, L.J., 14 Cli. D. at p. 67; 
 
 Cb. 377; 42 L. T. 880; 28 W. K. 870. Cotton, L.J., at p. 69. 
 
 - At p. 228. ^ At p. 62. 
 
 3 15 C. B. N. S. 376 ; 33 L. J. C. P. ' 14 Q. B. D. 561 ; in House of Lords, 
 
 loi ; 9 L. T. N. S. 412 ; 12 W. 1!. 150. under the name Commissioners of Sewers 
 
 • 2 App. Cas. 781 ; nuh noin. Smith v. for Fobbing v. The Queen, 11 App. Cas. 
 
 Mussrave, 47 L- •^- ^^- 4 ; 37 L- 'i'- 367 I 449 ; 55 L- T. 493 ; 34 W. R. 721 
 26 AV. R. 83. 
 
1066 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Where there 
 is negligence 
 there is lia- 
 bility, though 
 damage has 
 arisen from 
 an extra- 
 ordinary 
 Etorm. 
 
 Pleas,' that " if one who is bound by prescription to repair a wall 
 contra fluxum maris, and he keeps the wall in good repair, and 
 of such height and as suflScient as it was accustomed ; and by 
 the sudden and unusual increase of water, salt or fresh, the 
 walls are broken or the water overflows the walls ; that in this 
 case the commissioners of sewers ought to tax all such persons 
 who hold any lands or tenements, or common of pasture, or 
 profit of fishing, or have, or may have, any loss, damage, or dis- 
 advantage by any manner of means in the same places, according 
 to the quantity of their lands, &c., for no fault in this case was 
 in him who ought to repair it." And on Keighley's case, among 
 others, being cited in The King v. Commissioners of Sewers 
 for Somerset, Lord Kenyon, C.J., said,^ "To be sure the law is 
 so." Again, in The King v. Commissioners of Sewers for 
 Essex, Abbott, C.J., in giving judgment, said": " Even where an 
 individual is bound by prescription or otherwise to repair, still, if 
 there be no default on his part, and damage is sustained by au 
 extraordinary flood or tempest, the whole level must bear the loss 
 and be contributory to the repairs." 
 
 On the authority of this last case it may be concluded, though 
 it is not absolutely decided there, that where the obligation to 
 repair has been neglected, even though the flood has been caused 
 by an extraordinary storm or high tide, the negligent frontager 
 would be liable, on the ground that it is impossible to apportion 
 what is due to his neglect and what in any event would have 
 happened." And in The Queen v. Leigh^ the Court made a rule 
 absolute for a new trial where the defendants were found not 
 guilty, but because the judge had not put before the jury the 
 contingency of a greater liability than to provide merely against 
 accidents of ordinary occurrence, since the liability may be carried 
 further, and may in some cases extend to guarding against extra- 
 ordinary floods or tides ; while in Commissioners of Sewers for 
 Fobbing v. The Queen,^ after passing in review the earlier law, 
 which we have been considering, the House of Lords adopted 
 the proposition that a frontager is not liable to repair the 
 damage caused by an extraordinary, storm, unless the evidence 
 establishes as against him something more than the ordinary 
 liability of a frontager bound to repair; and, further, following 
 The King v. Commissioners of Sewers for Somerset,' that the 
 
 ' Keighley's case, lo Eep. 139 a. 
 
 = 8 T. E. 312, at p. 313. 
 
 => iB. &C. 477, at p. 484. 
 
 * See Staffordshire Canal Coippany v. 
 Hallen, 6 B. & C. 317 ; Harrison v. 
 Great Northern Railway, 3 H. & C. 231 ; 
 33 L.' J. Ex. 266; 10 L. T, N. S. 621 ; 
 
 12 W. R. 1081 ; Collins w. Midifle Level 
 Commissioners, L. E. 4 C. P. 279 ; 38 
 L. J. C. P. 236; 20 L. T. 442 ; 17 W. K. 
 929. ^ 10 Ad. & li!. 398. 
 
 " ",^PP- Gas. 449; 55 L. T. 493; 
 34W. K. 721. 
 
 ' 8 T. E. 312. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1067 
 
 fact of the repairs, as far back as records existed, appearing to 
 have been done by tlie frontagers, and of there being no evidence 
 of repairs by the level, although there were in all probability 
 extraordinary storms in the course of time covered by the records, 
 was not evidence from which the extraordinary liability should 
 be inferred.' 
 
 The subjects of the jurisdiction of commissioners of sewers are 
 exempted from the operations of the Public Health Act, 1875," 
 by sections 13 and 327. 
 
 1. A sea-bank is made (','■ solo ci fando qnw c.i' suis 'propi'iis Summary, 
 naturis sunt cadem cum icrra super qua wdiJicafMr. A sea-wall 
 
 is " an artificial edifice, not of the materials arising of the place 
 where it standeth, but which be brought thither and built there 
 ad projoria uiicra d cosiaijia partis.''^ So that the ownership of a 
 ^vall appertains to him who is bound to repair ; of a bank, to him 
 whose grounds adjoin. 
 
 2. The Crown is bound to protect the kingdom from inunda- 
 tion of water.'' 
 
 3 . This duty the King discharged by the issue of commissions 
 of sewers, by which those benefiting by the protection were 
 charged with the cost." 
 
 4. There is no liability on the frontager merely by the com- 
 mon law to maintain sea-walls, though he may be liable (a) by 
 prescription, (j3) by ownership, (y) by custom, (S) by covenant, 
 or (e) by tenure." 
 
 5. Each frontager for himself, or the commissioners acting 
 under the commission of sewers, may erect such defences for 
 the land under their care as the necessity of the case requires, 
 leaving it to others in like manner to protect themselves against 
 the common enemy. "^ 
 
 6. The owner of land has no right to destroy a natural barrier 
 against the sea the removal of which would jeopardize the safety 
 of the boundaries of the realm,* and this on the ground that — 
 
 7. There is a duty in the Crown to guard the shores and land 
 adjoining the sea from being overflowed by it.^ 
 
 8. Where there is an obligation on the part of an individual 
 to repair a sea-wall against the ordinary waste of the sea, an 
 obligation to safeguard against the effect of extraordinary storms 
 
 1 See per Lord Herschell, C, 11 App. 25 AV. R 740. 
 
 Cas. 449, at p. 455. I* Call is, p. 115; Hudson v. Tabor, 
 
 2 38 & 39 Vict. c. 55. I Q- B. D. 225, 2 Q. B. D. 290. 
 
 3 Callis, p. 74. ' 'J^'hs King v. Commissioners of Pag- 
 ^ The case of the Isle of Ely, 10 Hop. ham, 8 B. & C. 355 ;^ Hex e. Bognor Com- 
 
 j^i a_ missinners, L. .T. 6 K. B, 338, 
 
 ^ Callis pp 24, 25, 222 ; Hudson t\ ^ Attorney-General v. Tomline, 14 
 
 Tahor, I Q. B. D. 225, 2 Q. B. D. 290; Ch. D. 58 ; 49 L. .J. Ch. 377 ; 42 L. T. 
 
 46 L. J. Q. B. 463 ; 36 L. T. 492; 880; 28 W. R. 870. 
 
1068 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III . 
 
 Sutton ». 
 Mayor, &o., 
 of Norwioli. 
 
 and floods is not to be assumed, thougt it may be shewn by 
 evidence.^ 
 
 9. The fact that the repairs appeared to have been done by 
 the frontagers as far back as records existed, and that there 
 did not appear any evidence of repairs by the level, although the 
 occurrence of extraordinary floods might be presumed, is not 
 evidence from which the extraordinary liability should be in- 
 ferred." 
 
 We have hitherto considered the subject of sewers in the 
 meaning it more especially bears in connection with the statute 
 of Henry VIII., and which has become familiar from the title of 
 Callis's celebrated treatise. It remains to consider the liability 
 for negligence arising out of the construction, maintenance, and 
 responsibility for sewers in their most usual and modem significa- 
 tion. 
 
 "The word sewer," says Kindersley, V.C., in Sutton v. Mayor,, 
 &c., of Norwich,' "comes from the word 'to sew' — that is, to 
 ' drain.' .... In the common sense of the term it means a large 
 and generally, though not always, underground passage for fluid 
 and feculent matter from a house or houses to some other locality, 
 but it does not comprise a cesspool for the purpose of retaining 
 the sewage, whether as a simple deposit, or to be converted into 
 manure or other useful purpose." 
 
 By sections 68 and 135 of 18 &ig Vict, c^ 120 (the Me- 
 ^°„t^*^^j" tropolis Management Act, 1855) the main sewers enumerated in 
 SB. 68, 135. schedule (D) to the Act, including the main sewers of the city 
 of London, are vested in the Metropolitan Board of Works ; but 
 all other sewers within the limits marked by scheduies (A) and (B) 
 are in the local bodies there enumerated. The powers conferred 
 by these sections are very similar to, and should be compared 
 with, the 96th section of the Act, by which highways are vested 
 in the vestries. 
 
 By section 13 of 38 & 39 Vict. c. 55 (the Public Health Act, 
 1875) all sewers, in the sense in which we are now considering 
 them, are vested in the local authorities ; and the authorities in 
 whom existing sewers are vested are the authorities charged with 
 the construction of new ones when such are required, 
 
 ^ The Queen v. Commissioners of Acton Local Board v. Batten, 28 Ch. D. 
 
 SewevB foi' Essex, 14 Q. B. D. 561, 11 283; 54 L. J. Ch. 251; 53 L. T. 460; 
 
 App. CaB. 449 ; SS L. T. 493 ; 34 W. E. 33 W. R. 611. As to the Metropolis, 
 
 721. _ Bateman v. Poplar District Board of 
 
 2 The King v. Commissioners of Sewers Works, 33 Ch. D. 360 ; 55 L. T. 374. A 
 
 for Somerset, 8 T. R. 312 ; The Queen drain is a sewer as soon as more than one 
 
 V. Commissioners of Sewers for Essex, house is connected with it. As a sewer 
 
 14 Q. B. D. 561, II App. Cas. 449; 55 might be "of any convenient material," 
 
 L. T. 493 : 34 W. E. 721. an iron pipe to discharge effluent water 
 
 ■* 27 L. J. Ch. 739, at p. 742. As to was held a aewer in Tottenham Board v. 
 
 the distinction of sewers and drains, see Button, 2 Times L. E. 828. 
 
 The Metro- 
 
 The Public 
 Health Act, 
 187s, s. 13. 
 
BOOK III.] HIGHWAYS, TUENPIKES, CANALS, ETC. 1060 
 
 To appreciate these enactments it is needful to consider the 
 extent of rights conferred on the local boards by the vesting 
 sewers in them, and what are the liabilities involved, as far at least 
 as they arise out of negligence. 
 
 As to the first point, Jessel, M.E.,in giving judgment in Attorney- Attorney- 
 General V. Guardians of Poor of Union of Dorking'— a case under Guardians of 
 the Pablic Health Act, 1875 — said'': " We must remember that P°°'" °^^°*°" 
 the vesting of the sewers in the local authority gives them a very 
 limited right of ownership. I am not prepared to say that they 
 are in the same position as a landowner through whose land a 
 sewer (an artificial work) runs. It by no means follows that 
 they have the same right as he has. He can stop it up without 
 asking anybody, but, as I read this Act of Parliament, I am by 
 no means prepared to say that this local sanitary board can stop 
 the sewer up, and thereby cause a most frightful nuisance to the 
 inhabitants of the district, whose drainage it is their business to 
 protect and perfect. That is the first difficulty in the way, 
 that the vesting is not an absolute right of ownership, but a 
 modified and limited right of ownership, and it does not, in my 
 opinion, give them a right to stop up the sewer." 
 
 With this must be taken into account what was said in Mayor, &<!., of 
 Mayor, &c. , of Birkenhead v. London and North- Western Railway LoVdon^and' 
 Company,^ where defendants constructed an embankment over a Nortii-West- 
 
 ^ •' ' _ _ em Eailway 
 
 sewer vested in the plaintiffs under the terms of a local Act, Company. 
 which, though making it less easy to get to it, did not prevent 
 access for the purpose of repairs, for which the plaintiffs claimed 
 compensation under section 6S of the Lands Clauses Act, 1845. 
 They were held not entitled, both in the Divisional Court, as the 
 vesting of the sewer " would not vest in the plaintiffs any title 
 to the land, or any right other than the right in equity to obtain 
 protection from disturbance by enforcement of legal right ; " and 
 in the Court of Appeal, where Brett, M.E., said : " Whether, the 
 sewer being vested in them, they have an interest in land it is 
 not necessary to decide, though I am inclined to think that the 
 sewer does give them an interest in land." And Bowen, L.J., 
 said : " The true canon of construction applicable to an enactment 
 like this, which interferes with private property, is to read into 
 it by implication only so much as is reasonably necessary to make 
 the Act of Parliament work. Therefore, one ought only to imply 
 that the statute gave the commissioners such powers as were 
 reasonably necessary for the efficient working of the sewer 
 system." 
 
 1 20 Ch. D. S95 ; SI L. J. CIi. 585 ; ^ Atp. 604. 
 
 46 L. T. 573 ; 30 W. R. 579. 3 IS Q. B. D. 573 ; 55 L. J. Q. B. 48. 
 
1070 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Bight to sup- 
 port involved 
 in the powers 
 conferred on 
 local bodies 
 with regard 
 to sewers. 
 
 An important question was the right to support that was 
 involved in the powers conferred on the local bodies with regard 
 to sewers. But as this has now become the subject of statutory- 
 enactment, it may be shortly disposed of. In Metropolitan Board 
 of Works V. Metropolitan Eailway Company I it was decided that 
 local bodies do not acquire a right to lateral support for their 
 sewers against the owners of adjoining lands, while in In re 
 Corporation of Dudley^ the Court of Appeal further held that a 
 right to lateral support " accrues the very moment that the sewer 
 is constructed."' 
 The Public These decisions have, however, been neutralized by the Public 
 
 port of Sewers) Health (Support of Sewers) Act, 1883,' passed in consequence of 
 Act, 1883. ^Q decision of the Court of Appeal in the case last referred to, 
 by which a local authority are not to acquire any right of support, 
 ' whether vertical or lateral, though the saving clause preserves all 
 rights actually acquired before the passing of the Act ; but when 
 the owner of mines or other property is desirous of working his 
 lands, the right to be paid for abstention arises. 
 
 As to the liability of the local authority where parliamentary 
 powers are given, the general proposition governing is laid down 
 in Geddis v. Proprietors of Bann Reservoir by the Lord Chancellor 
 as follows*: — " You may carry out your work to its full extent, 
 and in some cases you must carry it out to its fullest extent in 
 the manner provided by the Act, but in so doing you shall not 
 create any needless injury ; you shall use all those precautions 
 against injury to others which you would use agaiast injury to 
 yourself in carrying on a similar work ; and if we find that in 
 carrying out your powers damage has been done by you, the law 
 will say that the powers which you can exercise shall be exercised 
 for the prevention of mischief." This is supplemented by Lord 
 Blackburn": " An action does lie for doing that which the Legis- 
 lature has authorized 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." 
 
 In accordance with this principle, Stephen, J., in Fleming v. 
 
 Mayor and Corporation of Manchester,' held the defendants liable 
 
 of Manchester. ^]jej.e g, sewer burst into a cellar during a violent thunderstorm, 
 
 Liability of 
 local authority 
 where parlia- 
 mentary 
 powers are 
 given. 
 Oeddis v. 
 Proprietors 
 of Sann 
 Eeaervoir. 
 
 Pleming v. 
 Mayor and 
 Corporation 
 
 1 L. E. 3 C. P. 612, 4 C. P. 192; 
 38 L. J. 0. P. 172 ; 19 1.. T. N. S. 744 ; 
 17 W. E. 116; but see Jessel, M.R., 
 Eoderick v. Acton Local Board, 5 Ch. D. 
 328 ; 46 L. J. Ch. 802 ; 36 L. T. 328 ; 
 25 W. E. 403. 
 
 2 J. b. D. 86; 51 L. J. Q. B. 121; 
 
 45 L. T. 733. 
 
 " Normanton Gas Company v. Popp, 
 32 W. B. 134 ; 52 L. .J. Q. B. 629. 
 
 ^ 46 & 47 Vict. c. 37. 
 
 ^ 3 App. Gas. 430, at p. 450. 
 
 " At p. 455. 
 
 ' 44 L T. N. S. 517. 
 
BOOK III.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1071 
 
 on the jury finding that the injury was caused by defects in the 
 original construction of the sewer, and by the omission of the 
 defendants to take reasonable means to discover such defects ; 
 while in Dixon r. ;\retropoIitan Board of Works^ Lord Coleridge, Dixon r. 
 C.J., held the defendants not liable where they constructed a sewer, sot-d^of' ""^ 
 acting under the powers of the Metropolis Local Management Act, 'Works. 
 185s, with its outfall a little above the plaintiff's coal wharf, and 
 having water-gates that it was the duty of a person employed by 
 them to open when the water within became 8 feet deep. This 
 having been done on the occasion of an unusually heavy rainfall, 
 the rush of water carried away a portion of the plaintiff's wharf, for 
 which he sued for damages. The Lord Chief Justice found that 
 the injury was caused by the opening of the water-gates, and not 
 by the act of God, but he held the defendants discharged from 
 liability, as what they had done was no more than the perform- 
 ance of what they were authorized by Parliament to do, and 
 without negligence." And in the earlier case of Hall v. Mayor, &c., Hall r. Mayor, 
 of Batley,^ Lush, J., held the defendants liable for constructing °'' ° ■*■ ''^' 
 a drain by agreement with the plaintiff, but in so negligent a 
 manner that the front of plaintiff's mill was caused to sink ; and, 
 to the objection that the undertaking such work on the part of a 
 local body was ultra mres, he answered that "it is not like the 
 case put of the urban authority entering into a contract to build 
 a house, or a wall, or to do any other work unconnected with their 
 function as a sanitary body." 
 
 In the first of these cases the defendants were held liable 
 for not doing what they should have known ought to have been 
 done ; in the third, for doing carelessly or imperfectly what, if they 
 did it at all, which they were not obliged to, they should have 
 done with care and precaution ; in the second they were held not 
 liable, though their act occasioned damage to a third party, but 
 this was nullified by the presence of two ingredients — first, what 
 they did was within the limits of their statutory powers ; and, 
 secondly, though causing damage, it was not negligent. 
 
 In Euck r. Williams^ improvement commissioners were held Buck r. 
 liable for negligence under an Act requiring them " to make all 
 
 1 7 Q. B. D. 418 ; 50 L. J. Q. B. 772 ; In Brown v. Sargent, i F. & F. 112, 
 
 45 L. T. 312 ; 20 W. E. 83. Erie, J., held that the liability to provide 
 
 - Blyth r. Birmingham Water Com- sewers was not extended to what was 
 
 panv, II Ex. 781 ; 25 L. .T. Ex. 212. sufficient for extraordinary storms, but that 
 
 In Snook v. Grand .Junction Waterworks it was for the jury what is iin " ordinary '' 
 
 Company, 2 Times L. R. 308, held that, or "extraordinary" amount of drainage, 
 
 a water company incorporated by Act of See Meek r. Whitechapel Board of Works, 
 
 Parliament were not liable for an escape 2 P. & F. 144 ; Hammond v. St. Pancras, 
 
 of water from a fracture in their pipes L. R. 9 C. P. 316; 43 L. J. C. V. 157; 
 
 ■without some affirmative proof of ne^di- 30 L. T. N". S. 296; 22 W. R. 826. 
 
 gence. The escape of sewage would " 47 L. .T. Q. B. 148 ; 37 L. T. 710. 
 
 appear to come under the same principle. ■• 3 H. & N. 308 ; 27 L. .1. Ex, 357. 
 
1072 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Statutory 
 provisions as 
 to sanitary 
 condition of 
 
 Negligence 
 may in some 
 cases be 
 treated as 
 nuisance. 
 
 proper sewers and drains to communicate with the said intended 
 main sewers " when they thought proper to make a sewer or drain 
 communicating with the plaintiff's premises without a flap that 
 had safeguarded an old drain that they had removed, and which 
 flap, had it been continued, would have protected the plaintifE's 
 premises. " We think," said Martin, B., " that when the commis- 
 sioners thought proper to make a new sewer communicating with 
 the plaintifE's premises from the old drain, and omitted to give him 
 that protection which he had lefore, whereby there was a danger 
 immediate and consequent upon it, that was such a damage from 
 negligence as entitled him to maintain this action."' This adds 
 another ingredient to the cases we have considered. What was 
 done in the construction of the work was all right, and had the 
 drain been a new one their act would not have imported liability. 
 But they practically acted outside their powers by reducing the 
 security the plaintiff before had ; they " omitted to give him that 
 protection which he had before," while their, powers were merely 
 to make " all proper sewers and drains." 
 
 By section 19 of the Public Health Act, 1875, and by section 
 1 3 5 of the Metropolis Management Act, 1855, the local bodies 
 are to cause the sewers belonging to them to be constructed, 
 covered, ventilated,^ and kept so as not to be a nuisance or 
 injmious to health, and to be properly cleansed and emptied. 
 
 Under the Metropolis Management Act, 1855, the only remedy 
 was to proceed at law or in equity, but by section 299 of the 
 Public Health Act, 1875, provision is made for a representation 
 to the Local Government Board, who may direct an inquiry under 
 sections 293 and 296, upon which an order may be obtained, 
 though Bacon, V.C., has held that proceedings in this method are 
 not a defence to an action for a nuisance.' 
 
 In this connection the law of negligence is brought into 
 intimate association with the law of nuisance. As far as nui- 
 sance is caused by imperfect action, or omission to act, where 
 perfect (that is, not negligent) action — the action of a prudent 
 man according to the circumstances — is demanded, it may be 
 remedied indifferently as a negligent act or as a nuisance. To 
 constitute a nuisance, however, a gi-eater amount of nonfeasance 
 
 ' Soutliampton and Itohin Floating 
 Bridge v. Eocal Board of Health for 
 Southampton, 8 E. & B. 801 ; 27 L. J. Q. B, 
 128, decided, on demurrer, that action 
 for negligence, and not proceedings for 
 compensation, was the proper proceeding 
 for want of due and proper care in the 
 construction, management, and direction 
 of a sewer. Other oases on the liability 
 for negligence with regard to sewers are 
 
 Lloyd V. Wignefy, 6 Bing. 489 ; Ward v. 
 Lee, 7 E. & B. 426 ; Hyams v. Webster, 
 L. K. 2 Q. B. 264; 36 L. J. Q. B. 166 ; 
 affirmed, L. R. 4 Q. B. 138 ; 38 L. J. Q. B. 
 21. 
 
 ^ This word is only in the Public 
 Health Act. 
 
 * Whitefleld v. Newquay Losal Board, 
 Law Times newspaper, March 18, 1882, 
 P- 349- 
 
BOOK iTi.] HIGHWAYS, TURNPIKES, CANALS, ETC. 1073 
 
 01- misfeasance would in some cases be requisite to obtain an 
 injunction or a conyiction than is at law required to constitute 
 actionable negligence. As, however, the cases of pollution of a 
 stream most frequently involve infringements of public rights,' 
 the more usual course of proceedings for their abatement has 
 been against the nuisance rather than by action for negligence. 
 
 As to the general considerations of law applicable there is no General mio 
 dispute. Public bodies, and d fortiori private persons, have no °""'^^' 
 right to pour sewage into streams or watercourses so as injuri- 
 ously to affect the rights of individuals;^ much less have they a 
 right so to use streams or watercourses as to constitute a public 
 nuisance.^ And, with the limitation we have before noticed," 
 this prohibition is not confined to streams and watercourses, but 
 extends to the whole of the class of neglects comprehended within 
 the maxim. Sic uterc tuo ut alienum non Icedas. But the detailed 
 consideration of the cases comes more conveniently under the 
 law of nuisance. 
 
 1. A sewer is a large and generalh', though not always,, Summary, 
 underground passage for fluid and feculent matter from a house 
 
 or houses to some other locality.^ 
 
 2. An action lies for doing that which the Legislature has 
 authorized to be done if it be done negligently ; and if by a 
 reasonable exercise of statutory powers injury or nuisance could 
 be prevented, the absence of such exercise of powers is negligence, 
 and imports liability." 
 
 3. Injury caused by no more than the performance of what is 
 authorized by statute and without negligence does not import 
 liability.' 
 
 ^ Blaokburne v. Soniers, 5 L. E. Ir. C. L. L. .J. Ch. 630. 
 
 I : Bucoleugh v. Cowan, 2 App. Cas. 344. ■* Snook v. Grand Junction Waterworks 
 
 2 Attorney-General v. Birmingham, 4 Company, 2 Times L. R. 30S, citing 
 
 K. & J. 528 ; Attorney-General v. Rich- Freemantle v. Great Northern Railway 
 
 mend, L. R. 2 Eq. 306 ; 35 L. J. Ch. 597 ; Company, not reported. 
 
 Attorney-General 15. Colney Hatch Lunatic ' Per Kindersley, V.C., Sutton v. 
 
 Asylum, L. R. 4 Ch. 146 ; 38 L. J. Ch. Mayor, &c., of Norwich, 27 L. J. Ch. 739 ; 
 
 265 ; Attorney-General u. Corporation of but see Bateman v. Poplar District Board, 
 
 Leeds, L. R. 5 Ch. 583 ; 39 I^- J- Ch. 254 ; 33 Ch. D. 360 ; 55 L. T. 574. 
 
 Holt i: Corporation of Eoohdale, L. R. " Geddis v. Proprietors of Bann Reser- 
 
 10 Eq. 345. voir, 3 App. Cas. 430, at p. 455. 
 
 ' Rex i>. Cross, 3 Campb. 224; Black- ' Dixonu. Metropolitan Board of Works, 
 
 burne v. Somers, 5 L. R. Ir. C. L. I ; 7 Q. B. D. 418 ; 50 L. J. Q. B. 772 ; 45 
 
 Smith r. Smith, L. R. 20 Eq. 500; 44 L. T. 312; 20 W. E. 83. 
 
 3 Y 
 
CHAPTEE VII. 
 
 DUTY OF PROPEETY OWNEES. 
 
 I. With Eegard to Tift; Condition of their Property in 
 Eelation to the Public Generally. 
 
 We have seen that in the case of a nuisance in connection with 
 
 the user of real property there is a liability upon the owner ; 
 
 what, if any, the limitations are to this liability have now shortly 
 
 to be considered. 
 
 liability at By common law the occupier and not the landlord is bound, 
 
 i'n'S^peot'rf as between himself and the public, so far to keep buildings in 
 
 real property, repair that they may be safe for the public ; and the occupier is 
 
 therefore primd facie liable to third persons for damages arising 
 
 from any defect.' 
 
 The tenant always is, the landlord may under peculiar cir- 
 cumstances be, liable for an injury sustained by a third person 
 arising from negligence.^ But if there is an express agreement 
 between landlord and tenant that T;he former shall keep the 
 premises in repair, so that in case of a recovery against the 
 tenant he would have his remedy over, then, to avoid circuity of 
 action, the party injured by the defect and want of repair may 
 have his action in the first instance against the landlord.' If, on 
 the other hand, the owners are at once otit of possession and not 
 as between themselves and their lessees bound to repair, they are 
 not liable'foj' injuries received in consequence of the neglect to 
 repair.^ Where, however, the premises are let by the owner in a 
 
 '' Beginav. Watts, I Salk. 357; 2Ld. or that he had the aubsisting legal interest 
 
 Eaym. 856 ; 3 M. Eaym. 18 ; Cheetham at the time of the ■wrong complained of, 
 
 V. Hampson, 4 T. R. 318. or that he was owner of the whole or some 
 
 ^' Coupland v. Hardingham, 3 Camph. interest as distinguished from that of the 
 
 398 ; Buttei'field v. Forrester, 11 East 60. tenant in possession ; but in any under- 
 
 ^ Payne 11. Rogers, 2 H. Bl. 35Q. Btandisg of this term there is no ohli- 
 
 * Payne v. Rogers, 2 H. Bl. 350 ; gation towards a neighbour cast by law 
 
 Chauntler v. Robinson, 4 Ex. 163, where on the owner of a house, merely as such, 
 
 it is said : " The term ' owner ' as well as to keep it repaired in a lasting and sub- 
 
 ' proprietor' is ambiguous. It may mean stantial manner ; the only duty is to keep 
 
 that the defendant has the whole legal it in such a state that his neighbour may 
 
 interest in the ' house, so that no one afso not be injured by its fall ; the house may 
 
 had an estate in possession or reversion, therefore be iu a ruinous state, proyided 
 
BooKiii.] DUTY OF PEOPERTY OWNERS. IO75 
 
 ruinous and dangerous condition, so that the damage that ultimately 
 arises is from no default of the lessee, but by the laws of Nature, 
 the owner is liable.' 
 
 A landlord who lets a house in a dangerous state is not liable where a 
 to the tenant's customers or guests for accidents happening during ^ Xn IVuV" 
 the term, for, fraud apart, there is no law against letting a s**'^- 
 tumble-down house ; and the tenant's remedy is on the contract, 
 if any.^ 
 
 The law has been thus summarized : — 
 
 First, that where property is demised, and at the time of the Summary. 
 demise is not a nuisance, and becomes so only by the act of the 
 tenant while in his possession, and injury happen during such 
 possession, the owner is not liable ; but, 
 
 Secondly, that where the owner leases premises which are a 
 nuisance, or must in the nature of things become so by their user, 
 and receives rent, then, whether in or out of possession, he is 
 liable.^ 
 
 And it has been furthermore particularly laid down" that there Two ways iu 
 are only two ways in which landlords can be made liable where j^rds cmbl 
 injury arises from the defectiye repair of premises let to tenants ^r'drfeotive 
 — First, in the case of a contract by the landlord to do repairs, ^pair of 
 where the tenant can sue him for not repairing; and, secondly, 
 ia the case of a misfeasance by the landlord. In either of these 
 two classes of cases an action would lie against the owner.* 
 
 In Ellis V. ShefEeld Gas Company" the work to be done was Where the 
 illegal, and the decision of the Court was that the shifting the done is illegal.- 
 doing an illegal act to other shoulders does not discharge the fgid Gas^"^" 
 liability. In Hole v. Sittingbourne and Sheerness Railway ^™P™y- 
 Company" the work — the building a bridge — was authorized by work is done 
 
 illegally : 
 it be shored sufficiently ; or the house may grant of the pier, and not of mere wharfage Hole v. Sitting- 
 be demolished altogether." Rich 7i. Bas- dues. Bartlett r. Baker, 3H. &C. 153; bourne and 
 tei-field, 4 C. B. 783 ; 16 L. J. C. P. 273 ; 34 L. J. Ex. 8. _ Sheerness 
 Eussell V. Shenton, 3 Q. B. 449 ; Bishop ■* Nelson v. Liverpool Brewery Com- Eailway 
 V. Bedford Charity, i E. & E. 697 ; 29 pany, 2 C. P. D. 311 ; 46 L. J. C. P. 675 ; t/ompany. 
 L. J. Q. B. 53. 25 W. E. 877. 
 
 ^ Todd V. Flight, 9 C. B. N. 8. 377 ; 30 '^ Tn the Massachusetts case of Bowe v. 
 
 L. J. 0. P. 21 ; 3 L. T. N. S. 325 ; g Hunking, 135 Mass. 380, the head-note 
 
 W. R. 145. is : "A landlord is not liable to his tenant 
 
 '■' Bobbins v. Jones, 15 C. B. N. S. 221, for a personal injury by reason of a defect 
 
 at p. 240 ; 33 L. J. C. P. I ; 9 L. T. JST. S. in a stairway in the tenement caused 
 
 523 ; 12 W. R. 248 ; Owings v. Jones, by a previous tenant, there having been 
 
 9 Md. 108, at p. 117. opportunity to examine the premises at 
 
 ^ In Taylor v. New York, 4 E. D. the time of hiring, and no warranty of 
 
 Smith 559, the Coi-poration of New York fitness and no knowledge on the landlord's 
 
 leased the right to collect wharfage, and part of any unsafeness. See note to 46 
 
 their lessee was hound to repair ; never- Am. E. 474 ; also the case of Donaldson 
 
 theless they were held liable to the plain- w. Wilson, i Am. St. R. 487, and the note 
 
 tiff for injuries sustained by reason of the at p. 489. 
 insecure condition of the wharf, because ^ 2 E. & B. 767. 
 
 they retained control over the preniises. ' 6 H. & N. 488; 30 L. J. Ex. 81 ; 3 
 
 It was intimated that the decision would L. T. N. S. 750 ; 9 W. R. 274. 
 have been otherwise had the lease been a 
 
Smith. 
 
 1076 THE- LAW OF NEGLIGENCE. [book in. 
 
 Act of Parliament, but in the course of carrying out tte contract 
 an obstruction was occasioned wMcb violated the Act of Parlia- 
 ment. The defendants sought to evade responsibility by 
 shewing that they had delegated their statutory duty to a con- 
 tractor. But it was pointed out by the Court that the company's 
 statutory duty was absolute ; they were to construct a bridge 
 and to avoid obstructing the navigation. In the course of con- 
 struction, and without negligence, an impediment was caused to 
 the navigation. For this, then, the defendants would be liable, 
 since it was directly caused by non-observance of the statutory 
 duty, of which they could not divest themselves, and was a 
 positive act done in carrying out the plan fixed upon for the 
 work, and not a merely negligent act collateral to the contract, 
 the responsibility for which would turn on a question whether the 
 relation of master and servant existed. Parliament had imposed 
 a duty on the defendants which could not be discharged by making 
 a contract with third parties, though as between contractor and 
 contractee the way of carrying out the work might no doubt give 
 rise to a claim for damages. 
 
 Piokardti. The next case — Pickard v. Smith' — raised the question 
 
 ° — ''*^ 111 • • 1 • 
 
 whether the mere situation and circumstances of property, apart 
 
 from any question of illegality or of statutory obligation, would 
 
 import a similar duty paramount to contract. Defendant was 
 
 the lessee of refreshment-rooms at a railway station, and the 
 
 entrance to the coal cellar was by a trap-door on the platform. 
 
 On the day of the accident a coal merchant by defendant's 
 
 orders was shooting coals into the cellar. The trap-door was 
 
 negligently left open and unguarded at the time. The plaintiff, 
 
 who was leaving the station ia the usual way, fell in, whereby 
 
 the injury was occasioned. The defendant contended that the 
 
 liability was either that of the railway company or of the coal 
 
 merchant.^ The Court, however, negatived the contention, holding 
 
 that it was defendant's obvious duty, if he used the hole in a way 
 
 necessaaily to create such danger, to take reasonable precautions 
 
 not to injure persons lawfully using the platform. That being so, 
 
 he was not absolved by the fact of employing the coal merchant. 
 
 The act the coal merchant was employed to do was to open the 
 
 trap for the purpose of shooting coals down it, and the defendant 
 
 ^ fl86i) loC. B. N. S. 470; 4 L. T. negligence by a servant in the scope of 
 
 ■"■ °i47?- his employment, for which the master 
 
 ^ Wilhams, J., expressed an opinion was responsible : Whiteley v. Pepper, 2 
 
 that the coal merchant would not be Q. B. D. 276 ; 46 L. J. Q. B. 436 • 36 
 
 liable. But on an action being brought L. T. 588 ; 25 W. E. 607. As to coal- 
 
 agMnst a coal merchant for the negligence cellar plate in pavement insecurely 
 
 of his carman in removing an iron plate fastened, Braithwaite v. Watson, 5 Times 
 
 in the footway, the Queen's Bench Divi- L. K. 331. 
 sion held that it was the common case of 
 
BOOK in.] DUTY OF PEOPERTY OWNERS. 1077 
 
 must have trusted him to guard against accidents while it was open, 
 and to close it up when the work was done. The act of opening was, 
 therefore, the very work to be done, and, danger being caused 
 thereby, the defendant was bound to take reasonable means to avert 
 evil consequences. " The performance of this duty he omitted, 
 and the fact of his having entrusted it to a person who also 
 neglected it furnishes no excuse either in good sense or law." 
 
 The facts were varied in Gray r. PuUen^ by the obligation being Gray i-. PuUen. 
 statutory. By the Metropolis Local Management Acts the de- 
 fendant was empowered to make a drain from his premises to a 
 sewer, but was " to cause the pavement to be reinstated and tho 
 surface to be made good in a proper and substantial manner." He 
 employed a contractor to do the work, which was executed under 
 the contractor's immediate inspection. There were heavy rains a 
 day or two before the accident, which caused the ground so to 
 sink as to make the hole into which the female plaintiff fell. 
 Blackburn, J., ruled that the evidence was that the work was done 
 by a contractor, and that there was no evidence to go to the jury 
 that the work had been done by a servant of the defendant, and 
 that defendant had authority to cause the drain to be made under 
 the statute. The case was accordingly withdrawn from the jury. 
 The Queen's Bench upheld this ruling, on the ground that there 
 was nothing to take the case out of the common doctrine that if 
 a person, in the exercise of a right, either as a private individual 
 or conferred by statute, employs a contractor to do work, and the 
 contractor is guilty of negligence in doing it, from which damage 
 results, he and not the employer is liable. 
 
 The case of Hole v. Sittingbourne and Sheerness Railway Hole i: Sitting. 
 Company^ gave the Court some difficulty to distinguish. Cock- she^ess 
 burn, C. J., sought to do this on the ground that in that case ^^^^J^ 
 " a statutory duty was imposed which was not discharged while distinguiBhed. 
 mischief resulted, and it was no answer to say that the mischief 
 arose by reason of the manner in which the duty was discharged 
 by the contractor," while in the present case all that is meant is 
 " that where persons in the exercise of the statutory power 
 interfere with a public highway, they shall as quickly as possible 
 fill up any opening they create in the surface, and make good 
 what they had temporarily interfered with ; " Crompton, J., by the 
 
 ' (1864) s B. & S. 970 ; 34 Iv..J. Q. B. place without any assignable^ cause. In 
 
 265- II L T N S 569; 13AV. R. 257. consequence the surface fell in. It was 
 
 In Smith V. West Derby Local Board, 3 held by Grove and Lindley, .TX,that_ there 
 
 C. P. D 423 ■ 47 L. J. C. P. 607 ; 38 was evidence that the work ot hlling m the 
 
 L. t'. 716; 27 W. K. 137, a contractor trench had been negligently and improvi- 
 
 was employed to construct a p'pe sewer dently done. 
 
 under a highway. Some months after it - 6 H. & N. 488 ; 30 L. J. lix. bi ; 3 
 
 was finished a subsidence of the soil took L. T. N. S. 750 ; 9 W. B. 274. 
 
1078 
 
 THE LAW OF NEGLiaENCE. 
 
 [book in. 
 
 Tarry v. 
 Ashton. 
 
 Butler V. 
 Hunter and 
 Bower v, 
 Feate. 
 
 Butler V. 
 Hunter. 
 
 suggestion that the real decision in Hole v. Sittingboume and 
 Sheemess Railway Oompany was " where anything connected 
 with the real property of a party is done in such a manner as to 
 cause a nuisance, the person who does it is liable ; " and Mellor, 
 J., by pointing out that " in Hole v. Sittingboume and Sheerness 
 Eailway Oompany there was a perpetual obligation on the de- 
 fendants. In the preseijit case I agree there is no warranty from 
 the defendant PuUen." Blackburn, J., did not attempt to give 
 a reason 'discriminating the cases. The judgment of the Queen's 
 Bench was, however, unanimously overruled by the Exchequer 
 Chamber, who confirmed Hole v. Sittingboume Railway Company 
 and Pickard v. Smith, which they treated as undistinguishable. 
 
 In the case of a lamp hanging from the front of a house over 
 the public way,' Lush, J., says : " Is it the defendant's duty to 
 maintain it in a safe state of repair, or only to employ a proper 
 person to put it in repair ? Surely the mere statement is enough 
 to shew that the duty must be in the first proposition," Black- 
 burn, J., in the same case, puts the case : "If there were a latent 
 defect in the premises, or something done to them without the 
 knowledge of the owner by a wrongdoer, suck as digging out the 
 coals underneath, and so leaving a house near the highway in 
 a dangerous condition," he answers, or evades answering, his 
 problem thus : "I doubt — at all events I do not say — whether 
 or not the owner would be liable."" 
 
 Two cases, Butler v. Hunter' a::d Bower v. Peate,'' are so 
 similar in their facts that they inay be best considered to- 
 gether. 
 
 In the earlier case the material facts were that the plaintiff's 
 and defendant's houses were adjoining. In consequence of a fire 
 it became necessary for the defendant to repair his house. He 
 employed an architect, who found it necessary to pull down and 
 rebuild the front. A contract was entered into with a builder to 
 do the work. In doing it, the worlanen removed a breastsummer 
 that was inserted in the party-wall of the two houses, in conse- 
 quence of which the plaintiff's house fell. The work might have 
 been done with safety if the plaintiff's house had been shored 
 up. To shore up the house would have been the usual method 
 
 &. 
 
 1 Tarry v. Ashton, l Q. B. D. 314, at 
 320 ; 45 L. J. Q. B. 260 ; 34 L. T. 
 
 , S. 97 ; 24 W. B. S8i. 
 
 2 Compare Welfare v. London and 
 Brighton Eailway Oompany, L. E. 4 Q. B. 
 693 ; Wilson v. Newberry, L. E. 7 Q. B. 
 31 ; Humphries v. Cousins, 2 C. P. D. 
 239. See Hughes o. Percival, 8 App. 
 Cas. 443, per Lord Fitzgerald, at p. 455 : 
 " He is not in the actual position of being 
 
 responsible for injury, no matter how occa- 
 sioned, but he must be vigilant and care- 
 ful, for he is liable for injuries to his neigh- 
 bour caused by any want of prudence or 
 precaution, oven although it may be eidpa 
 hvissima. " 
 
 = (1862) 7 H. & N. 826 ; 31 L. J. Ex. 
 214 ; 10 W. E. 214. 
 
 ^ (1876) I Q. B. D. 321 ; 45 L. J. Q. B. 
 446 ; 34 L. T. N. 8. 321. 
 
BOOK III. I DUTY OF PHOPERTY 0WNE:RS. 1079 
 
 of doing the work. It did not appear that the defendant knew 
 anything about the work or the contract. 
 
 In Bower v. Peate the facts were as follows : — The plaintiff's Bower v. 
 and defendant's houses were adjoining. The defendant, having ^^"'^' 
 determined to pull down his old house, proposed to carry the 
 foundations of the new to a lower depth than his neighbour's. 
 To do this, his neighbour's wall would have to be undei-pinned, 
 A contract was entered into by which the contractor agreed to 
 take upon himself all the risk and responsibility of shoring and 
 supporting. Owing to defective underpinning or supporting the 
 accident happened. 
 
 In Butler v. Hunter the proposition advanced was, that where Butler v. 
 a person employs a tradesman to do that which may be dangerous ^™'^''- 
 to another, he is bound to shew that he directed all care to be 
 taken, and specifically pointed out in what way the danger was 
 to be guarded against; or, at all events, to shew that he did 
 enough to exempt himself from responsibility. The Court, how- 
 ever, refused to assent to the argument addressed to them in 
 support of this proposition, and held that, as the accident had 
 arisen, not from the act itself contracted to be done, but from 
 " the improper mode in which it was done," the owner was 
 not liable. Wilde, B., said: "It seems to me that the ab- Judgment of 
 sence of a shoring is like the absence of a proper hoarding, ' ^' ' 
 or any one of the ordinary precautions which belong to the 
 careful taking down of a wall.' Then it is said that the defend- 
 ant ought to have given orders to do the work in a tradesman- 
 Hke way, or ought to have pointed out what was requisite. But 
 it seems to me that it would be unreasonable to require an 
 unskilled person to point out to a skilled person in what way the 
 work should be done. I think that if a man gives an order to 
 a tradesman to do some work, he means him to do it in the 
 ordinary and tradesmanlike way."* In Bower v. Peate the con- 
 sidered judgment of the Queen's Bench Division was given by 
 Cockburn, C.J., who affirms the proposition that a man who 
 orders a work to be executed from which, in the natural course 
 of things, injurious consequences to his neighbour must be ex- 
 
 1 Ic the course of the argument he had the present, and I am of opinion that the 
 
 asked : " Suppose a person employed a law there laid down by the Lord Chief 
 
 contractor to pull down a house, and he Justice, in delivering the considered judg- 
 
 omitted to put up a hoarding so aa to ment of the Court, is correctly stated and 
 
 prevent bricks falling on persons passing, placed upon properprinoiples." PerCotton, 
 
 who would be liable ?" (at p. 829). L.J., at p. 188: "I agree with tlie decision 
 
 ' See Blake v. Ferris, sN. Y. 48, at p. in Bower v. Peate." Per Lord Chancellor 
 
 61. Per Thesiger, L.J., in Angus v. Selborne, in Dalton «. Angus, 6 App. Cas. 
 
 Dalton, in the Court of Appeal, 4 Q. B. D. at p. 791 : " It follows from that decision 
 
 at p. 184: "It is properly admitted by [Bowers. Peate], as to the correctness of 
 
 the defendant's counsel that the case of which I agree with both the Courts 
 
 Bower V. Peate is undistinguishable from below.'' 
 
1080 . T)HE Law op negligence. [book m. 
 
 pected to arise unless means are adopted by which such conse- 
 quences 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 some one else — whether 
 it be the contractor employed to do the work from which the 
 danger arises or some independent person — to do what is neces- 
 sary to prevent the act he has ordered to be done from becoming 
 wrongful. The dividing line of the cases is indicated by the 
 Chief Justice as determined by the test whether the work is 
 such from which, if done carefully, no injurious consequences can 
 arise ; or whether it is such that injurious consequences will arise 
 unless preventive measures are adopted. It is strange that Butler 
 V. Hunter does not appear from the report to have been cited in 
 the argument, but the two cases have been treated as not con- 
 sisting well together. 
 Lord Black- In Dalton V. Angus Lord Blackburn, commenting on the cases, 
 
 orAngusf °" says^: "Ever since .Quarman v. Burnett it has been considered 
 settled law that one employing another is not liable for his col- 
 lateral negligence unless the relation of master and servant existed 
 between them. So that a person employing a contractor to do work 
 is not liable for the negligence of that contractor or his servants. 
 On the other hand, a person causing something to be done the 
 doing of which casts on him a duty, cannot escape from the respon- 
 sibility attaching on him of seeing that duty performed by dele- 
 gating it to a contractor. He may bargain with the contractor 
 that he shall perform the duty, and stipulate for an indemnity from 
 him if it is not performed, but he cannot thereby relieve himself 
 from liability to those injured by the failure to perform it : Hole v. 
 Sittingboume Eailway Company,^ Pickard v. Smith,'' Tarry v. 
 Ashton.'' I do not think that either side disputed these principles, 
 nor that in Bower v. Peate' the Queen's Bench Division thought 
 that the case of a man employing a contractor to excavate near 
 the foundation of a house which had a right of support fell within 
 the second class of cases, nor that, if correctly decided, that case 
 was decisive. But Butler v. Hunter was relied on, which case 
 the Court of Exchequer held fell within the first class of cases. 
 I am not quite sure that I understand from the report what the 
 state of the evidence was, but, assuming that the defendants are 
 right in saying that it was such as to make the case not dis- 
 tinguishable from Bower v. Peate, I think that the reasoning 
 
 1 6 App. Cas. 740, at p. 829 ; 50 L. J. Q. B. 689 ; 44 L. T. 844 3 30 W. E. 196. 
 
 » 6 H. & N. 488 ; 30 L. J. Ex. 81 ; 3 L. T. N. S. 750; 9 W. E. 274. 
 
 3 10 C. B. N. S. 470 ;• 4 L- T. N. S. 470. 
 
 'i 1 Q. B. D. 314 ; 45 L- J- Q- B- 260; 34 L. T. N. S. 97 ; 24 W. E. 581. 
 
 » I Q. B. D. 321 ; 45 L. J. Q. B. 446; 35 L. T. N. S. 321. 
 
BooKin.J DUTY OF PROPERTY OWNERS 1081 
 
 in Bowen v. Peate is the more satisfactory of the two." 
 Again, in Hughes v. Percival, Lord Blackburn,' having read the in Hughes v. 
 principle already quoted from the judgment of Cockburn, C.J., ^^"'•"™'- 
 adds : " I doubt whether this is not too broadly stated. If taken 
 in the full sense of the words, it would seem to render a person 
 who orders post-horses and a coachman from an inn bound to see 
 that the coachman, though not his servant, but that of the inn- 
 keeper, uses that skill and care which is necessary when driving 
 ' the coach to prevent mischief to the passengers." But the Court 
 of Queen's Bench had no intention, and, indeed, not being a 
 Court of error, had no power, to alter the law as laid down in 
 
 Quarman v. Burnett But it is not necessary now to 
 
 inquire how far this general language should be qualified. I 
 do not think the case of Btitler v. Hunter is consistent with 
 my view of the law ; I do not know whether the Court of Ex- 
 chequer meant to deny that such a duty was cast upon the 
 defendant in that case, or meant to say that he might escape 
 liability by employing a contractor. If either was meant by the 
 Court of Exchequer, I am obliged to diifer from them." 
 The cases may be thus summarized : — 
 
 1 . The employer cannot divest himself of Uability for damage Summai-y. 
 done in the performance of work — 
 
 (a) "Where the work contracted to be done cannot legally be 
 
 done either from its involving an interference with 
 public or private rights or when it is productive of 
 nuisance either in doing or when done ;^ 
 
 (b) Where it is done in pursuance of a statutory obligation ; * 
 
 (c) Where the work contracted to be done is of a character 
 
 to cause danger unless preventive measures are 
 adopted ; ^ 
 
 (d) Where a duty arises from the possession of property to 
 
 prevent it becoming injurious to outsiders." 
 
 2. A duty arises to outsiders where anything is placed, or 
 allowed to remain, or is done on premises which tends, unless 
 preventive measures are taken, to become dangerous or injurious.* 
 
 3. The employer does not absolutely warrant immunity from 
 
 1 8 App. Cas. 443. at p. 447. , 3 L T. N. S 7S0; 9 W. E. 274 ; Gray 
 
 = But qucere does he order a work to v. Pullen, 5 B. & b. 970 ; 34 L. J. Q. B. 
 
 be executed from which in the natural 265; 11 L. 1. >i. b. 569; 13 W. K. 
 
 course of things injurious consequences to 257. ri 13 w a 
 
 his neishbour must be expected to arise ^ Pickard v bmith, 10 G. B. N. S. 
 
 unless means are adopted by which such 470 ; 4 L. T. N. S. 470 ; Bower v. Peate, 
 
 consequences may be prevented ? i Q. B. D. 321 ; 45 L. J. Q. B. 446 ; 35 
 
 > Ellis V. Sheffield Waterworks, 2 Ell. L- T- N. S. 321. _ „ „ 
 
 & Bl. 767. " J^arry v. Ashton, i Q. B. D. 314 ; 45 
 
 * Hole V Sittingbourne Railway Com- L. J. Q. B. 260 ; 34 L. T. N. S. 97 ; 
 
 pany, 6 H. & N. 488 ; 30 L, J. Ex. 81 ; 24 "W, B. 581. 
 
1082 THE LAW 01* ISTEaLlGENCE. [book m. 
 
 danger, but is liable for eTsn the slightest want of prudence or 
 precaution in the carrying out of work to be done, or iu the per- 
 mitting danger to arise in respect of his premises.' 
 
 4. The employer remains liable notwithstanding any contract 
 to the contrary^ but a contract to safeguard the employer will be 
 valid as a contract of indemnity between the employer and the 
 contractor." 
 
 5. The injured person has a remedy either against both 
 employer and contractor,^ or they are alternatively liable to him 
 at his election.'' 
 
 6. The contractor, and not the employer, is liable where the 
 injury arises from negligence collateral to the work.' 
 
 7. Where the character of the work is such that, if it be done 
 carefully, no injurious consequences can arise, but, through any 
 act or default of the workmen employed to carry out the same, 
 injurious consequences do oAse, such injurious consequences im- 
 port a negligence collateral to the work, and the contractor, and 
 not the employer, is Hable." 
 
 8. Where the character of the work is such that injurious 
 consequences will arise unless preventive measures are adopted, 
 and either no preventive measures are adopted or such as are not 
 adequate, and an accident happens, the defaults or omissions out 
 of which such accident arises constitute intrinsic negligence for 
 which the employer cannot divest himself of the responsibility.' 
 
 II. With eegaed to Peesons eesoeting to theie Peemises, 
 
 Besides the duties already enumerated there are others which 
 fall upon occupiers of fixed property with reference to persons 
 resorting thereto, either of their own mere will or in the course 
 of business upon invitation express or implied. 
 
 I. Where the persons using premises are bare licensees or 
 volunteers. 
 
 II. Where the persons using premises go upon business which 
 concerns the occupier, and upon his invitation, express or implied. 
 
 But, before proceeding to this inquiry, certain methods of pro- 
 tecting property must be noticed which are against public policy, 
 so resort is not to be had to them, and they mark the limitations 
 
 1 Tarry v. Ashtoii, i Q. B. D. 314; * Whiteley v. Pepper, 2 Q. B. D. 276 ; 
 
 Hughes V. Percival, 8 App. Gas. 443 ; 52 46 L. J. Q. B. 436 : 36 L. T. 588 : 25 
 
 L. J. Q. B. 719; 49 L- T. 189; 31 W. R. 607. 
 
 W. R 725. « Bower v. Peate, i Q. B. D. 321. 
 
 ^ Hole «. Sittingbourne Railway Com- ^ Welfare v. Brighton Railway Com- 
 pany, 6 H. & N. 488 1 Dalton v. Angus, pany, L. R. 4 Q. B. 693 ; Bower v. Peate, 
 6 App. Cas. 740, at p. 829. i Q. B. D. 321. 
 
 3 Upton V. Townend, 17 G. B. 30. ' Bower v. Peate, i Q. B. D. 321. 
 
BOOK III.] DtJTY OF PROPERTY OWNERS. 1083 
 
 a transgression of which will enable a trespasser to recover against 
 the owner for acts done in the protection of his own property. 
 
 The first case that is to be noted in this connection is Townsend 
 V. Wathen.^ The defendant placed traps baited with flesh so near 
 the plaintiff's courtyard, where his dogs were kept, that they 
 might scent the bait without going upon the defendant's pre- 
 mises. Several of the plaintiff's dogs having been enticed into 
 these traps, and thereby injured, the plaintiff brought his action ; 
 and the Court of King's Bench held that he might recover, on 
 the ground that the defendant must be considered as having 
 contemplated the probable consequence of his act f-vg^d, his pur- 
 pose being to catch dogs, he must be held to have malice against 
 those special dogs which came into his traps. " What difference," 
 says Lord Ellenborough, C.J., " is there in reason between 
 drawing the animal into the trap by means of his instinct, which 
 he cannot resist, and putting him there by manual force ? " Bat 
 all the earlier authorities were cited and elaborately examined 
 in the somewhat unsatisfactory case of Deane v. Clayton.^ The 
 material facts, as found by a special verdict, were these : — A 
 large tract of wopdland belonging to the defendant adjoined 
 upon a piece of woodland belonging to a gentleman named 
 Townsend. A low bank or mound of earth and a shallow ditch 
 marked the boundaries of the respective estates, but was not a 
 sufficient fence to prevent dogs passing from one woodland to 
 the other. Through the defendant's woodland there were public 
 paths not fenced from the rest of the land. The defendant, for 
 the preservation of hares in his woodland, and to prevent them 
 from being killed by dogs and foxes, and for the purpose of 
 wounding and killing dogs and foxes that might come into his 
 woodland in pursuit of hares, caused several iron spikes, called 
 dog- spears, to be screwed and fastened into several of the trees 
 ni the woodland, and had them purposely placed at such a height 
 as to allow a hare to pass under them without injury, but to 
 wound and kill a dog that might happen to come against one of 
 the sharp ends. None of the spikes was at a less distance than 
 fifty yards from the public footpath. The defendant had caused 
 notices to be painted on boards outside his premises — " Take 
 
 ' (1808) 9 East 277. An attempt was made to operate beyond the limits of the 
 
 made, on the authority of this case, in defendant's property, but that there was 
 
 Stansfeld v. Boiling, 22 L. T. N. S. 799, no decision against an allurement not 
 
 to render a confectioner liable for the death calculated to act beyond the limit of the 
 
 of a dog of a customer which got behind premises. 
 
 the counter and eat some poison put for rats ^ (1817) 7 Taunt. 489; 2 Marsh. 577, 
 
 and mice. The Court, howeyer, negatived where the arguments of counsel are given 
 
 the right of action. Townsend «. Wathen which the learned reporter in 7 Taunt, 
 
 was distinguished in argument on the regrets he is unable to give ; i Moore 
 
 ground that there the enticement was 203. 
 
1084 , THE LAW OP NEGLIGENCE. [6ook m. 
 
 notice, that steel-traps and spring-guns and dog-spikes are set 
 in these woods and premises." The plaintiff, by the consent of 
 Townsend, went into Townsend's woodland, accompanied by a 
 pointer dog, for the purpose of sporting. A hare rose in Townsend's 
 grounds, and was seen and pursued by the plaintiff's dog. The 
 hare ran and was pursued over the mound into the defendant's 
 woodland, and ran against one of the sharp ends of the spikes, 
 and was thereby killed. The plaintiff endeayoured as much as 
 he could to prevent the dog from pursuing the hare into the 
 defendant's woodland, but was unable to do so. 
 Division On these facts Burroughs and Park, JJ., were of opinion the 
 
 opinion. plaintiff could recover the value of the dog ; while Dallas, J,, and 
 
 Gibbs, C.J., held an action was not maintainable. 
 Three Burroughs, J., based his judgment on three principles — First, 
 
 assertecTby that the acts of the defendant were unlawful, and that the 
 an "ap^oved' pl^'i^itifi) having Sustained an injury thereby without any default 
 by Park, J. in him, was entitled to maintain an action ; secondly, that, if the 
 plaintiff had been a trespasser, the defendant could not justify 
 the direct killing of the dog ; thirdly, that the defendant was not 
 warranted in doing indirectly what he could not do directly. 
 Park, J., followed the same lines, and added, referring to the 
 previous case : " The two things here concur which Lord Ellen- 
 borough requires to support such an action — of fault in the 
 defendant, and no want of ordinary care to avoid it on the part 
 of the plaintiff." 
 Dallas, J.,'s Dallas, J., was of a contraiy opinion to Burroughs and Park, J J. 
 
 the contrary. As to the first of Burroughs, J.,'s principles, he said : " If I place 
 a log across a public path, and injury be thereby sustained, the soil 
 being my own, but the public or individuals having a right of 
 way over it, an action will lie, because there is a right in others 
 to pass along without interruption ; but if there be no right of 
 way, I may, with any view and for any purpose, place logs on my 
 own land, and a party having no right to be there, and sustaining 
 damage by his own trespass, cannot bring an action for the 
 
 damage so sustained But no decision has established 
 
 that a trap placed by a man in his own land, and not calculated 
 to operate so as to allure beyond or even within the limit of such 
 land, would be a trap unlawfully placed." There is a broad dis- 
 tinction between what a man can do when he is present and 
 when he is absent for the protection of his property. " Presence 
 in its very nature is more or less protection ; absence is abandon- 
 ment and dereliction for the time. Presence may supply means, 
 and limit what it supplies ; but if, during absence, property can 
 only be protected by such means as may be resorted to in the 
 
BooKiii.] DUTY OF PROPERTY OWNERS. 1085 
 
 case of presence, all property lying open to inroad can have no 
 protection, at least by any act of the party himself ; for to say 
 that he can only he protected when absent by such means as he 
 could use if present is a contradiction in the nature of things." 
 As to the second of Burroughs, J.,'s principles — which of course 
 could not be controverted but so far only as it was made effectual 
 by the third — " Is it illegal," says Dallas, J., "to place spikes or 
 glass upon a wall ? And if the party climbing over be thereby 
 wounded or cut, can he bring an action ? And yet if I were to 
 see a trespasser coming down my area, or getting over the garden 
 wall, I could not drive the spike into his hand or cut him with 
 the glass. Or (to bring it home to the present case) suppose 
 that, in order to separate his property from that of his neigh- 
 bour's, the defendant had erected a wall, and put spikes and glass 
 upon it, and that the plaintiff had been wounded in attempting 
 to get over, could this action have been maintained ? If not, 
 where is the distinction between spikes on the ground, with notice 
 that they are there, or notice given by the visibility of the spikes 
 themselves?" Dallas, J., also dissented on the narrower ground 
 " that the spears having been placed for the destruction of foxes, 
 and being to that extent legal, could not become unlawful because 
 by possibility, and against the original intent, the death of a dog 
 had been induced." 
 
 Gibbs, C.J., adopted the same view as Dallas, J., that the Adopted by 
 action could not be sustained, because what was done was ' 
 '•' done on defendant's own land, and could not molest any other 
 man in the exercise of any legal right ; " and, if it was unlawful, 
 "it follows that the plaintiif must have a right to enter and 
 remove the spears, for then they are an abateable nuisance " ; 
 and further, "the true test by which to try whether such an 
 action as the present be maintainable or not is to ask whether 
 the man or animal that suffered had or had not a right to be 
 where he was when he received the hurt." 
 
 No iudgment was given, and the plaintiff did not think fit to 
 avail himself of the suggestion of Burroughs, J., who offered to 
 withdraw his judgment to enable the plaintiff to appeal. 
 
 In Ilott v. Wilkes,^ tried before Garrow, B., at the Esses iiotti-. "Wilkes. 
 Summer Assizes, 1826, the learned judge, considering that the 
 same question was involved as was under the consideration of 
 the Court of Common Pleas in Deane v. Clayton, directed the 
 jury to find a verdict for the plaintiff, and reserved to the 
 defendant liberty to move to enter a nonsuit. In that case the 
 jury found that the plaintiff had knowledge that there were 
 
 1 3B. &Ald. 304. 
 
1086 
 
 THE LAW OF NEGLIGENCE, 
 
 [book III. 
 
 Vict. 0. 100, 
 s. 31. 
 
 spring-guns in a wood, and entered the wood, not in the exercise 
 of a right, but to gather nuts, and where there was no pathway. 
 The judges of the King's Bench declined to consider the general 
 question as to the liahility incurred by placing such engines as 
 spring-guns where no notice is_ brought home to the party 
 injured, and decided the case merely on the ground that the 
 plaintiff had notice of their being on the ground, and had no 
 business to go there.' 
 7& 8 Geo. 17. By the 7 & 8 Geo. IV. c. 18 (re-enacted by 24 & 25 Vict. 
 by'24 y^r'*'* °- ^°°' *• 3O ^^^ ^se of spriag-guns calculated to destroy 
 ~ human life or to inflict grievous bodily harm with the intent to 
 
 injure trespassers was prohibited, unless for the protection of 
 a dwelling-house in the night-time. This Act rendered the 
 decision of what the common law rights of property owners with 
 regard to the setting of spriug-guns, &c., were only of importance 
 in any cases that had occurred previously to its passing. Such a 
 case, however, was Bird v. Holbrook." The facts there raised 
 the question whether it was iacumbent on a person, who had set 
 a spring-gun in a walled garden at a distance from his house, to 
 give notice of what he had done. The Court included Best, C.J., 
 counsel for the plaintiff in Deane v. Clayton, and Burroughs and 
 Park, JJ., who had given judgments in favour of the plaintifE in 
 that case ; and they took the opportunity of reiterating the con- 
 tention they had there advanced. The ground of the decision is 
 thus put by the Chief Justice : " We want no authority in a case 
 like the present ; we put it on the principle that it is inhuman to 
 catch a man by means which may maim him or endanger his 
 life, and, as far as human means can go, it is the object of 
 English law to uphold humanity and the sanctions of religion."^ 
 Another ground for the decision, and it is that on which Gaselee, 
 J., exclusively based his decision, is that it was impossible, after 
 Ilott V. Wilkes, to hold otherwise than that notice was necessary. 
 
 Bird V. Hoi- 
 brook. 
 
 Best, C.J.,'a 
 judgment. 
 
 ^ Some discuBsionmust hare taken place 
 on the question of humanity, for Best, J., 
 sajs, " Humanity requires that the fullest 
 notice should be given, and the law of 
 England will not sanction what is incon- 
 sistent with humanity ; " but Abbott, 
 C.J., answers him by anticipation: "Nor 
 are we called on to pronounce any 
 opinion as to the inhumanity of the prac- 
 tice, which in this case has been the cause 
 of the injury sustained by the plaintiff. 
 That practice has prevailed extensively 
 and for a long period of time, and although 
 undoubtedly I have formed an opinion as 
 to its inhumanity, yet at the same time I 
 cannot but admit that repeated and in- 
 creasing acts of aggression to property 
 
 may perhaps reasonably call for increased 
 means of defence and protection." 
 
 2 (1828) 4 Bing. 628 ; 6 L. J. C. P. 
 146. 
 
 ' At this time of day it may be worth 
 while to recall, though it will be needless 
 to comment on, another of the general 
 principles by which the Chief Justice 
 buttressed his judgment : "It has been 
 argued that the law does not compel every 
 line of conduct which humanity or religion 
 may require, but there is no act which 
 Christianity forbids that the law will not 
 reach ; if it were otherwise, Christianity 
 would not be, as it has always been held 
 to be, part of the law of England." 
 
BOOK III.] DUTY OF PROPERTY OWNERS. 1087 
 
 But Ilott V. Wilkes was the case where, assuming notice to have 
 been given, it was contended that, in spite of the notice, the 
 defendant was liable. The present case was not, therefore, 
 necessarily involved in the decision ; for the decision, that where 
 notice had been given of the placing of a spring-gun the defend- 
 ant was not responsible, does not decide the case whether, where 
 no notice of the placing of a spring-gun has been given, the 
 defendant was responsible. Logicians have marked the fallacy- 
 involved as a proceeding a dido secundum quid ad dictum sirnpli- 
 citer. But the judges in Ilott v. "Wilkes may have given judgment 
 on the simple question, and as to the essentiality of the notice, 
 though the facts of the case only required them to give a judg- 
 ment in a case where notice was an element, and not necessarily 
 an essential element. Abbott, O.J., says definitely : " Consider- Abbott, c.J., 
 ing the present action merely on the ground of notice, and leaving wilkes."' 
 untouched the general question as to the liability incurred by placing 
 such engines as these where no notice is brought home to the party 
 injured, I am of opinion that this action cannot be maintained." 
 Bayley, J., says: "The declaration assi^mes the law to be, not Bayiey, J., 
 that the mere act of placing these guns in a man's own ground is 'wnkel '" 
 illegal and punishable by indictment, but that a party doing that 
 act may be liable to an action provided he does not take due and 
 proper means, by giving notice, to prevent the injury which those 
 engines are calculated to produce." Holroyd, J., says : " Witho^it 
 giving any decided opinion upon that point " (i.e., whether placing 
 spring-guns on property from which injurious consequences result 
 to a trespasser without notice is a lawful act), " but assuming for 
 the present that would be so, it seems to me that a party having 
 express notice that the spring-guns were placed in a particular 
 ground, and entered upon that place as a trespasser, stands in a 
 very different situation." We may hence conclude, then, that the 
 majority of the Court did not even express an opinion upon what 
 Abbott, C.J., calls the " general question," and that the argu- 
 ment from authority used in Bird v, Holbrook was a straining of 
 the expressions in the earlier case. 
 
 The case of Jordin v. Crump ^ raised again the question in Jordinr. 
 Deane v. Clayton. The plaintiff was walking with his dog ™"^' 
 along a public footway through a coppice of the defendant's, 
 in which, to the knowledge of the plaintiff, there were dog- 
 spears. The dog broke from plaintiff's control, and, while 
 chasing a rabbit into the coppice, was injured by running 
 against a dog-spear. The Court, in a considered judgment, 
 held that the plaintiff could not recover; "and we shall merely 
 
 1 (1841) 8 M. &W. 782 ; II L. J. Ex. 74. 
 
1088 
 
 THE LAW OF NEGLIGENCE. 
 
 [book 111. 
 
 Wootton V. 
 SawkiDs, 
 
 SnmDmry. 
 
 content ourselves with saying that we take the same view of 
 the law on this subject as is taken in Deane v. Clayton by 
 Gibbs, C.J. But the present case is much stronger than that, 
 for here the plaintiff had express notice that dog-spears were set 
 in the wood ; though, were this even otherwise, our decision would 
 still be in favour of the defendant, on the short ground that the 
 setting of them was a lawful act, and that the accident occa-"^ 
 sioned by them was the act of the dog, not of the defendant, and 
 that the plaintiff was bound to keep his dog on the footpath." 
 As to Bird v. Holbrook, the Court said : " The reason of this 
 decision was that setting spring-guns without a notice was, even 
 independently of the statute, an unlawful act. The correctness 
 of that position may perhaps be questioned, but, if it be sound, 
 the decision in that case was right.'" 
 
 The subsequent case of Wootton v. Dawkins,^ which in its 
 leading features closely resembles Bird v. Holbrook, is an addi- 
 tional authority for the view taken in Jordin v. Crump. The 
 declaration alleged that plaintiff entered the defendant's garden 
 at night, and without permission, to search for a striay fowl, and 
 whilst looking into some bushes he came in contact with a wire, 
 which caused something to explode with- a loud noise, and to 
 knock him down, and to injure his face and eyes. A rule was, 
 in the first instance, moved for in the Court of Queen's Bench, 
 but was refused, on the ground that under the statute' it was not 
 enough that the instrument was one calculated to create alarm, 
 but it must be calculated to destroy human life, or to inflict 
 grievous bodily harm, of which there was no evidence ; and that 
 there was no cause of action at all at common law. The Court 
 of Common Pleas was subsequently moved, on the ground that 
 the rule had been moved in the Queen's Bench by mistake ; but 
 the Court of Common Pleas declined to grant a rule, on the 
 ground that the conclusion of the Court of Queen's Bench was 
 quite correct. Thus, the three Courts of Queen's Bench, Common 
 Pleas, and Exchequer have successively declined to follow the 
 doctrines laid down in Bird v. Holbrook, and assumed to be 
 discovered in Ilott v. Wilkes, and they must therefore be con- 
 sidered as overruled. 
 
 We may conclude, then — 
 
 First, that at common law the placing of instruments in the 
 nature of spring-guns, dog-spears, &c., on a man's land is not 
 imlawful, provided only that they were not placed so as to be a 
 
 1 The judgment was delivered by Lord AbinRer, C.B, 
 
 2 (i8S7) 2 0. B. N. S. 412. 
 s 7&86eo. IV. c. i8, s. i. 
 
BOOK III.] DUTY OF PROPERTY OWNERS. 1089 
 
 peril to the enjoymout of the rights of other persons,' or ia the 
 nature of a trap.- 
 
 Secondly, that by statute' the use of spring-guns is unlawful 
 in so far as such use of them is calculated to destroy human life 
 or inflict grievous bodily harm on trespassers not in a dwelling- 
 house and in the night-time.'' 
 
 Thirdly, that the setting up on a man's own land of dog-spears 
 and such instruments not contained in the statutory exception 
 against instruments capable of causing deadly injuries to human 
 life, where such injury will be a probable consequence of setting 
 them, is a lawful user of land. 
 
 But not only must the owner not protect his property in every 
 conceivable mode, but in those modes only which do not offend 
 against the principles of existing public sentiment ; he must also, 
 in certain cases, take positive measures for the protection, not 
 merely of those who are induced to enter upon his lands by his 
 invitation or acquiescence, but even of those who are upon his 
 land without invitation and even to his detriment. 
 
 This duty arises principally in those cases where lands are Duty where 
 adjacent to a public way. In Jordin v. Crump," Alderson, B., adjacent to 
 had said : ' ' The case is similar to that of a man who, passing in "■ l™'^'i° ™^y- 
 the dark along a footpath, should happen to fall into a pit dug in 
 the adjoining field by the owner of it. In such a case the party 
 digging the pit would be responsible for the injury if the pit were 
 dug across the road ; but if it were only in the adjacent field the 
 case would be very different, for the falling into it would then be 
 the act of the injured party himself." 
 
 In reliance on this dictuvi, the proposition was maintained Barnes v. 
 in Barnes v. Ward" that there is no common law duty upon 
 an owner of land adjoining a highway to guard or to fence a 
 ditch or area upon his own land. After consideration and re- 
 argument, the Court held that where a newly made excavation 
 adjoining the highway renders the way unsafe to those who 
 use it with ordinary care, a duty to fence it arises. The cases 
 were discriminated — first, those where the existence of a hole 
 adjoining a road is not dangerous to the persons and cattle of 
 
 1 Barnes r. Ward, 9 C. B. 392 519 = 8 M. & W. 782 ; 11 L. J. Ex. 74. 
 
 L. J. C. P. 19s ; 2 C. & K. 661. " (1850) 9 C. B. 392 ; 19 L. J. 0. P. 
 
 - Townsend w. Wathen, 9 East 277. 195; 2 C. & K. 661. Sarch v. Black- 
 
 = 24 & 25 Vict. c. 100, B. 31. Imiu, 4 C. & P. 297, was a dog case. 
 
 " If a man commits a trespass to land, There Tindal, C.J., said: "Undoubtedly 
 
 the occupier is not justified in shooting a man has a right to keep a fierce dog for 
 
 liim, and probably if tlie occupier were the protection of his property, but he has 
 
 sporting or firing at a mark on his land no right to put the dog in such a situation 
 
 and saw a trespasser and fired carelessly in the way of access to his house that a 
 
 and hurt hira, no action would lie : per person innocently coming for a lawful 
 
 Bramwell, B., Degg v. Midland Railway purpose may be injured by it," 
 Company, i H. & N. 773, at p. 780. 
 
 3Z 
 
1090 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III, 
 
 Test. 
 
 PoUoclc, C.B., 
 in Hardcastle 
 V. South York- 
 shire Eailway 
 and Eiver Dun 
 Company. 
 
 Hounsell v. 
 Smyth. 
 Binks V. 
 South York- 
 shire Eailway 
 and Eiver Dun 
 Company. 
 
 Different test 
 in Ameiican 
 cases. 
 
 those passing along ;' secondly, those where the hole may inter- 
 fere with the rights of those passing along.' 
 
 The test is not whether the plaintiif is a trespasser or not,° but 
 was the excavation so near the highway as to interfere with the 
 ordinary user of the same by the public. And this was the view 
 of the Court in Hardcastle v. South Yorkshire Eailway and Eiver 
 Dun Company, where Pollock, O.B., said^ : " When an excava- 
 tion, is made adjoining a public way so that a person walking 
 upon it might, by making a false step, or being affected with 
 sudden giddiness, or, in the case of a horse or carriage way, 
 might by the sudden starting of a horse be thrown into the 
 excavation, it is reasonable that the person making such exca- 
 vation should be liable for the consequences ; but when the 
 excavation is made at some distance from the way, and the 
 person falling into it would be a trespasser upon the defendant's 
 land before he reached it, the case seems to us to be different." 
 Hounsell v. Smyth,* which was the case of an excavation on a 
 waste between two roads, and Binks v. South Yorkshire Eailway 
 and Eiver Dun Company," which was the case of a canal twenty- 
 four feet from a pathway, which twenty-four feet had been 
 trampled down identical with the pathway, were decided by 
 adopting the earlier cases as authorities. 
 
 In some of the American cases a somewhat different test is 
 prescribed. In Connecticut, for example, the defendant's liability 
 is made to depend upon the dangerous condition in which an 
 
 1 Blithe V. Topham, i Boll. Abr. 88 ; 
 Si A. seisie dun wast adjacent at un 
 haut cliemin fade unpit en le waet deins 
 36 pees del ait chemin et le mare de £, 
 escape en le dit wast et decade en lepit et 
 la morvM, uncore B. n'avera ascun action 
 vers A., pur ceo que le feaans del pit en le 
 wast et nemy en le liaidt cliemin nefidt 
 aseun tort al B. mes ceofuit le default de 
 B. mesme qiie son mere escape en le wast : 
 Pasch. 5 Jac. B. E. ; Jordin v. Crump, 8 
 M. & W. 782. 
 
 ^ Coupland v, Hardingham, 3 Campb. 
 398 ; Jarvis v. Dean, 3 Bing. 447, where 
 it was assumed as a matter beyond dis- 
 pute that the action was well founded, 
 supposing the road was shewn to have 
 been a pubh'o one : per Pollock, C.B., 
 Firmstone v. Wheeley, 2D. & L. 203, at 
 p. 208. 
 
 ' " A trespasser is liable to an action 
 for an injury which he does ; he does not 
 forfeit his rieht of action for an injury 
 sustained " : Barnes u. Ward, 9 C. B. at 
 p. 420. 
 
 * (1859) 4 H. & N. 67, at p. 74 ; 28 
 L. J. Ex. 139 ; 32 L. T. 297 ; 7 W. R. 
 326. Stone V. Jackson, 16 C. B. 199 ; 
 
 Pearson «. Cox, 2 C. P. D. 369 ; 36 L. T. 
 495. Plaintiff's servant, while driving 
 plaintifTs horses along a road not dedi- 
 cated to the public, drove into a trench dug 
 for the purpose of making drains, and 
 unlighted. Held, no duty on the o\s;ner 
 to protect any one using the road without 
 licence : Murley v. Grove, 46 J. P. 360. 
 Murphy v. Smith, 23 Sc. L. E. 709, was 
 the case of a sliding gate, of ordinary con- 
 struction, falling into the street through 
 being meddled with by a ti'espasser, and 
 so injuring a passer by. The Scotch 
 Court held that the proprietor's duty was 
 discharged on it being shewn that the 
 gate was in good and safe condition for a 
 gate of such constrnction. 
 
 « (i860)' 7 C. B. N. S. 731 ; 29 L. J. 
 C. P. 303; 8 W. E. 277. 
 
 8 3 B. & S. 244 ; 32 L. J. Q. B. 26 ; 
 7L. T. N.S. 350; II W. E. 66. Hadlev 
 V. Taylor, L. R. i C. P. 53 ; 13 L. T. N. S. 
 368, was the case of a " hoist-hole " 
 within fourteen inches ot the public way, 
 and unrenced. Willes, J., referred with 
 approval to the ruin laid down in Binks 
 V, South Yorkshire Eailway Company. 
 
BOOK III.] DUTY OF PROPERTY OWNERS. lOgi 
 
 excavation is left, rather than upon any question of distance from 
 the street. " Whether the excavation could, with a due regard 
 to the rights of passengers on the street, be left unguarded 
 or could not, depended upon the question whether, being un- 
 guarded, it endangered the travel or not ; if it did not, no matter 
 how near it was to the line of way ; if it did, no matter how far 
 it was removed.'" 
 
 The duty of the owner of land near a highway to fence the Duty where 
 land for the protection of people using the highway where there ^j^^ TY ^^ 
 is a dangerous place, either on the highway or so near thereto as 
 to be substantially the same thing, is at the root of the obligation 
 of those who, in the exercise of statutory power, divert a highway 
 to take effectual care that ordinary passengers should not stray 
 at the point of diversion. This duty is, however, not the same 
 duty as that to fence, but arises from the accustomed user of the 
 old way being likely to mislead persons ; so that, though there 
 would be no obligation to fence the place if the road were an old 
 way, yet the likelihood of travellers being misled must be the 
 measure by which the question, of whether a duty to fence in the 
 changed circumstances is imposed, must be determined. It has 
 accordingly been laid down that there is a duty cast upon those 
 who exercise a statutory right to divert to take reasonable care to 
 protect passengers who use the new footpath from straying, and 
 whether in any particular case such care had been used would be 
 a question for the jury." 
 
 In a Canadian case the action was for injuries sustained by the Canadian case 
 plaintiff through ice and snow falling from the roof of the de- from roof o7 
 fendant's house and injuring the plaintiff while walking on the '^°"^''- 
 highway. The evidence was that before the accident happened 
 the defendant was warned of the dangerous state of the roof, but 
 took no measures to remedy it. There was, further, a bye-law 
 proved requiring people to keep their roofs clear of snow and ice. 
 At the trial the plaintiff was nonsuited, but the nonsuit was set 
 aside and a new trial granted, on the ground that the facts dis- 
 closed evidence for a jury.^ 
 
 In Scotland it was sought, on the authority of a passage in Attempt to 
 Addison on Torts" and the Scotch case of Beveridge v. Kinnear," fi^y°ijy*f ^^ 
 
 ^ Norwich v. Breed, 30 Conn. 535, at Hurst f. Taylor clearly shewn that there owner of pro- 
 
 p. 547 ; Crogan v. Schiele, 53 Conn. 186. is a duty on the defendants to furnish pro- porty adjoin- 
 
 See Mistier v. O'Grady, 132 Mass. 139. tection for people using an extremely dan- ;"g "■ highway 
 
 - Hurst V. Taylor, 14 Q. B. D. 918 ; gerous place on a dark night "—is either ™ ocotiima. 
 
 54 L. J. Q. B. 310; 33 W. R. 582. an inaccurate view of Hnrst V. Taylor, or 
 
 The case of Evans r. Hhymney Local shews that Hurst v. Taylor is inaccurate : 
 
 Board, 4 Times L. E. 72, followed Hurst Hounsell v. Smyth, 7 tl. B. N. S. 731 ; 
 
 V. Taylor, but is so implicated with its 29 L. J. C. P. 303; 8 W. E. 277. 
 
 particular facts as not to furnish any ^^ Landre ville a Gouin, 6 Ontario R. 455. 
 
 authority on a question of principle. One * 5th edit. p. 456. 
 
 statement as reported— " The decision in = iiR. 387. 
 
1092 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Duty where 
 ownership of 
 the surface is 
 separated from 
 ownership of 
 the minerals, 
 Williams v. 
 Groucott. 
 
 Willes, J.,'s 
 summing tip 
 in Wettor v. 
 Dunk. 
 
 to assert a general obligation on owners of property abutting on a 
 street to keep their property, not merely in such a condition that 
 injury should not result from its natural condition, but also that 
 it should not become daugerous through the intervention of 
 trespassers.' A trespasser on a building yard wishing to open a 
 sliding gate of ordinary construction, the groove of which was 
 somewhat clogged, forced it so that the gate fell into the street 
 and upon a passenger, who sued the owner of the gate for the 
 injury. The Court was of opinion he could not recover, and, 
 though there is some uncertainty in some of the expressions as 
 reported, the general scope of the judgment appears to discri- 
 minate between an unsafe condition which is made injurious by a 
 mischievous or thoughtless act, and a condition which is safe as 
 against all usual and ordinary acts, but which may be made un- 
 safe and injurious by wilful trespassers. 
 
 Any modifications that are necessary in the case of young 
 children or those under incapacity are discussed under Contribu- 
 tory Negligence.' 
 
 Williams v. Groucott' raised a somewhat different point. It 
 was whether, when a mine has been severed from the owner- 
 ship of the surface soil with licence to the owner of the mine to 
 sink a shaft through the surface, it is incumbent on him to pro- 
 tect the owner of the surface against injury to his cattle by reason 
 of the shaft, or whether it rests with the owner of the surface to 
 protect them against it himself. The Court held that this was the 
 duty of the owner of the mine, and that, " when a party alters 
 things from their normal condition so as to render them dangerous 
 to already acquired rights, the law casts on him the obligation of 
 fencing the danger, in order that it shall not be injurious to those 
 rights."" 
 
 Willes, J., has further held at Nisi Priiis^ that where an ex- 
 cavation is so near a highway as to create or to increase danger 
 to the public, and an accident happens thereby, the person making 
 the excavation is liable, even though a statutory obligation to fence 
 the highway is imposed on other persons who have neglected to 
 do so. 
 
 In Williams v. Groucott' the law was laid down with reference 
 
 ' Murphy v. Smith, 23 Sc. L. E. 709. 
 
 2 Ante, p. 141. 
 
 5 4 B. & B. 149 ; 32 L. J. Q. ,B. 237 ; 
 8L. T. N. 8.458; II W. R. 886. 
 
 •• Sybray v. White, i M. & W. 435. 
 The law as stated in the text " was taken 
 for granted in the declaration and also by 
 the parties at the trial, as well as after- 
 wards by the counsel in tlie argument 
 and the Court in giving judgment. It is 
 
 perfectly true that the point may have 
 passed without consideration, but still the 
 case is so far ah authority ; and veiy 
 eminent judges sat in the Exchequer at 
 that time " ; per Blackburn, J., 4 B. & S. 
 at p. 158. 
 
 ^ Wettor ». Dunk (1864), 4 F. & F. 
 298 ; Hawken ■o. Shearer, 3 Times L. E. 
 SS7 ; Haughey v. Hart, 49 Am. R. 
 138, 
 
BOOK in.] DUTY" OF PROPERTY OWNERS. 1093 
 
 to an interference with the natural condition of property ; the 
 converse case had previously been decided in a group of cases, of pisher v. 
 which Fisher v. Prowse and Cooper -v. Walker' may be taken as ooo^e^r t*'"^ 
 the chief. The law was clear that, when a highway exists, any- Walker, 
 thing placed subsequently so near the highway as to be a nuisance, 
 or to impair the safe enjoyment of the highway, would be unlaw- 
 ful, just as if there was an actual obstruction of the highway .- 
 There was, however, no decision as to whether an erection or ex- 
 cavation already existing, and not otherwise unlawful, became 
 unlawful when the land on which it existed or to which it was 
 immediately contiguous was dedicated to the public as a way, 
 supposing the erection or excavation prevented the way from 
 being as safe and commodious as it otherwise would have been ; 
 or whether the dedication must not be taken to be made to the 
 public and accepted by them subject to the inconvenience or risk 
 arising from the existing state of things. The latter was decided 
 to be the law in Cooper v. Walker,' a case where stone steps pro- 
 jected into a street to an extent that rendered them dangerous 
 to passengers by night ; and the Queen's Bench, following the 
 decision of the Exchequer in Cornwell v. Metropolitan Commis- Cornweil !•. 
 sioners of Sewers,^ in which an attempt was made to impose an commssioners 
 obligation to fence an ancient tidal sewer, held that the user of »* Sewers, 
 the way was taken subject to the risk. In the Exchequer case 
 Alderson, B., said : " Suppose there is an inclosed yard with 
 several dangerous holes in it, and the owner allows the public to 
 go through the yard, does that cast on him any obligation to fill 
 up the holes under these circumstances caveat viator ? " And 
 Parke, B., says: "This is not the case of a new sewer, and 
 therefore we may dispense with the consideration of what the 
 commissioners are bound to do when they make a sewer. This is 
 an ancient sewer, which has existed with the highway time out of 
 mind, and therefore the public has only a right to the highway 
 subject to the sewer."' 
 
 This decision involved the overruling of the decision of Lord 
 EUenborough in Coupland v. Hardingham,' which, "being only 
 a ruling at Msi Frius, though by a very great judge, must yield 
 in point of authority to a judgment in hanc."^ 
 
 A case of Jarvis v. Dean,' which it was also contended con- Jarvis v. 
 
 Dean. 
 
 ' (1862) 2 B. & S. 770 ; 31 L. J. Q. B. circumstances fall on persons using the 
 
 212; 6 L. T. N. S. 711. highway. 
 
 " Thus in Daniels v. Potter and others, ■* 2 B. & b. 770. 
 
 4 C. & P. 262, it was held that the duty * 10 Ex. 771. 
 
 of one placing a cellar flap upright against ^ 3 Ca^pb. 398. « „ „ . 
 
 a wall in the public highway during the ^ Per Blackburn, J., 2 B. & b, at p. 
 
 timethecellarwasbeinglawfuUyused.waB 782. 
 
 to so secure it that it would not in ordinary ' 3 Bing. 447. 
 
1094 
 
 THE LAW OF NEGLIGENCE. 
 
 [book in. 
 
 Firth ;■. 
 Bowling Iron 
 Company. 
 
 SinJun V. 
 London and 
 North-West- 
 ern Kailway 
 Company, 
 
 flicted with the decision, but which was not cited in Comwell 
 V. Metropolitan Commissioners of Sewers, was distinguished on 
 the ground that " the report leaves it uncertain whether the area 
 in that case existed before the dedication of the way or not. As 
 it is stated to have belonged to an unfinished house, it probably 
 had not been long in existence, and, as Best, C. J., states in his 
 judgment' that the way had been a public thoroughfare for many 
 years, it seems that the way must have been more ancient than 
 the area, and that the present point could not therefore have been 
 raised. It certainly does not appear to have been raised, and no 
 opinion is given on it."^ 
 
 The case of Firth v. Bowling Iron Company,' so far as it is 
 not determined on its own peculiar facts — the death of an 
 animal caused by swallowing fragments of rusted iron dropping 
 from a fence which the defendants were bound to maiutain — seems 
 to point a principle that, where an obligation exists to fence for 
 the benefit of a neighbour, the fencing must be done in such a 
 way as not to cause injury to the neighbour, not only while the 
 fencing is efficient, but from the natural efiects of decay ; and 
 such a principle is undoubtedly a sound one. 
 
 In this connection may be noted the case of Simkin ■;;. London 
 and North- Western Railway Company,^ a case, in the principle 
 it involved, not peculiar to railway law, though the fact of 
 the defendants being a railway company was doubtless a main 
 ingredient in the original inception of the action. The principle 
 sought to be established in this case may be formulated as the 
 assertion of a duty on occupiers of property to take every possible 
 precaution against danger arising from their mode of using 
 property, and not merely reasonable precautions. The plain- 
 tiffs' horse, drawing a waggonette in which plaintiffs were 
 seated, was frightened by seeing or hearing a locomotive engine 
 blowing off steam at a station where the roadway leading to 
 the station was not fenced or screened from the station. The 
 horse bolted, and the plaintiffs were thrown out of the waggon- 
 ette and injured. The allegation of breach of duty was, " the 
 defendants' line' of railway at the station was not properly and 
 sufficiently screened from the roadway forming the approach to 
 the railway." The case manifestly has nothing to do with such 
 a case as Indermaur v. Dames,^ as the condition of things was 
 
 1 At p. 448. 
 
 ^ In Morant v. Chamberlin, 6 H. & N. 
 541 ; 30 L. J, Ex. 299, the point is 
 touched on. In Sicketts v. East and West 
 India Docks, &o., Company, 12 C. B. 160, 
 it was held that the duty of a railway com- 
 pany to fence is no greater than their com- 
 
 mon law liability, and was limited to the 
 protection of the adjoining owners. 
 
 3 3 C. P. D. 254; 47 L- J- C. P. 358 ; 
 38 L. T. S68 ; 26 W. K. 558. Bush v. 
 Brainard, i Cowen 78. 
 
 *2iQ. B.D.453; sgL. T.797. 
 
 " LK. 2C. p. 3h. 
 
BOOK III.] DUTY OF PROPERTY OWNERS. 109j 
 
 perfectly obvious ; and the case can be considered as the case of 
 property abutting on the highway. Then, if the duty to screen 
 existed, it was a common law and not a statutory duty, since 
 any statutory provision imposing the duty on the railway is not 
 even averred. That being so, the assertion of the existence of 
 such a duty would have had very widespreading consequences. 
 For example, practising military signalling would have to be 
 carried on under rigidly restrictive conditions lest the waving of 
 flags should startle horses on the highway. So, too, the working 
 of windmills, and, except in extreme loneliness, games of football 
 and cricket. The Court, however, held there was no such duty ; 
 the only duty was " to provide a reasonably safe mode of leaving 
 their station having regard to the business they carried on at 
 their station." 
 
 Fry, L.J., in assenting reluctantly to the decision, states the Fry, li.J.,'3 
 question as being " whether this danger would have been °" ' 
 lessened by placing a screen as suggested," and thus gives an 
 apparent sanction to a mode of estimating liability greatly wider 
 than has usually been accepted. The work of the railway 
 being carried on vmder statutory authorization, the company 
 were entitled to carry on their business under conditions that 
 would otherwise be a nuisance, if they are necessary to the 
 adequate conduct of their enterprise.^ Neither are they obliged 
 to adopt every possible means of obviating danger or incon- 
 venience that ingenuity could suggest or boundless resources 
 supply.^ There must be a proportion between means and ends. 
 If that be so, the question is not as proposed by Fry, L.J., but, Considered, 
 rather, whether the placing of a screen could be regarded as a 
 reasonable precaution for a railway company to take, having 
 reference as well to the outlay necessary, the benefit likely to 
 be derived, the means of the company, and the existing public 
 sentiment on the matter. In the case before the Court there 
 was some indistinctness in the evidence as to, whether it was the 
 sight or the sound that frightened the horse. In the latter 
 event a duty to shut out the sounds of railway operations would 
 impose such an excessively onerous, if not impossible, obligation 
 on a railway company as to come within the principle — that, 
 operations carried on in accordance with statutory authorization, 
 are exonerated from liability for what would be otherwise actionable. 
 But it is doubtless possible, at enormous expense, to shut out the 
 sight of railway engines from the highway. The question then 
 
 ' London and Brighton Eailway Com- - See ante, p. 663 ; Hanson v. Lan- 
 
 pany v. Truman, 1 1 App. Cas. 45 ; 55 cashiro and Yorkshire Eailway Company, 
 
 L. J. oil, 354 ; 54 L. 'E 44 ; 34 W. E. 20 W. E. 297 ; Fordw. London and South- 
 
 201. Western Eailway Company, 2 F. & F. 730, 
 
1096 THE LAW OF NEGLIGENCE. [book in. 
 
 becomes one of general law : Is there an obligation so to use 
 premises that animals traversing the highway should not be 
 frightened or offended ? Is a hosier to abstain from the display 
 of vermilion-coloured hosiery, a cook-shop proprietor from the 
 einission of steam, a hairdresser from the display of possibly dis- 
 quieting figures, a lamp vendor from the shew of brilliantly revolv- 
 ing lamps ? These and other cases may be put which do not seem 
 at all to difier in principle from what was sought to be established 
 in this case. Fry, L.J., states the case as being that of an 
 " engine which was blowing off steam, and which also presented 
 a hideous and terrifying aspect." But this appalling vision 
 must be tempered by circumstances of time and place. An 
 Indian in full war paint, plumed, scalp-decked, and armed with 
 the lethal weapons of his tribe would doubtless be a most dis- 
 quieting apparition in the streets of a sleepy English country 
 town. But some years ago, at any rate, such a vision in a,' 
 remote Western settlement would not necessarily have bred much 
 observation. So, too, with a steam-engine and its habits. To 
 the contemporaries of Oliver Cromwell it might have brought 
 suggestions of the nether world. To the ordinary sane English- 
 man of to-day it is too familiar to excite more than the most 
 cursory regard. With the change of habits and modes of life 
 comes a change of legal liabilities — especially in such a branch 
 of the law as negligence ; what would have been held foolhardy 
 a hundred and fifty years ago, to-day is the mere encountering 
 an ordinary risk. 
 
 If such is the operation of civilization on the relations of 
 Should an ex- human beiugs, is a.n exception to be made with regard to the 
 general rule " Susceptibilities of animals ? Setting aside the uncertainty of 
 the'ra^e 0^ their dispositions that would make any safeguards the least 
 animals ? secure, there is a plain ground of policy that forbids the subor- 
 dinating improvements in the mode of living to the wayward 
 dispositions of those animals whose presence amongst us is regu- 
 lated by their utility to us. To say that a human being could 
 reasonably be e^xpected to be terrified by the blowing off of steam 
 from a locomotive engine is absurd ; to require a railway company 
 to encounter the enormous expense of averting the chance glance 
 of a horse from their operations seems scarcely less so when a 
 comparison is made between the existing risk and the probable 
 benefit resulting from a change. As property adjoining to a spot 
 on which the public have a right to carry on traffic is liable to 
 be injured by that traffic,' so traffic carried along a spot where 
 
 1 Per Lord Blackburn, Eiver Wear 743, at p. 769 ; 47 L. J. Q. B. 193 ; 37 
 Comniissioners v. AdaniBon, 2 App. Cas. L. T. 543. 
 
BOOK III.] DUTY OF PROPEETY OWNERS. 1097 
 
 the rights of private property are exercised is liable to be injured 
 by the exercise of those rights — where, that is, that exercise 
 does not exceed what is ordinary and accustomed. 
 
 The following propositions are accordingly suggested as sum- Summary. 
 marizing this head of the law : — 
 
 1 . A duty arises so to use property as not to interfere with the 
 ordinary user of the highway.' 
 
 2 . There is an interference with the ordinary user of a highway 
 when, by the construction of works or of excavations in immediate 
 proximity to the same, in the case of any sudden casualty arising — 
 as, e.g. , from the giddiness of a foot-passenger or the starting of a 
 horse — the safety of passers along the highway is rendered less 
 than it would otherwise have been." 
 
 3. There is no interference with a highway where obstructions 
 which existed previous to the dedication of the same are continued 
 uninterruptedly at the time of the dedication and subsequently 
 thereto.' 
 
 4. A duty arises to prevent injury in all cases where a parti- 
 cular user of property involves a departure from the normal order 
 of things.'' 
 
 5. Where a duty arises to maintain property in any condition, 
 there the person liable is bound not only to the discharge of the 
 duty, but also to foresee and prevent the natural and probable 
 consequences of deteriorated condition in the works he is bound 
 to maintain.* 
 
 II. The duty of owners of property with regard to persons II. Duty of 
 not upon the property having already been considered, we are p^ty to those 
 now to ascertain what duty is owing by owners of property to "P^gJ'j^ 
 those who are injured while upon the property, and to this end 
 to consider — 
 
 1. "What the duty of an owner of property is to licensees on i. Duty to 
 
 , . , mere licensees. 
 
 his property. 
 
 The first case under this head was Corby v. Hill." The action Corby v. Hill, 
 was brought against a builder for having negligently placed certain 
 slates on a private road without notice or warning of the obstruc- 
 tion by light or other signal, by reason whereof the plaintiff, who 
 was driving his horse along the ibad, drove him against the stones, 
 
 1 Barnes v. Ward, 9 C. B. 392; 19 L. T. N. S. 711. 
 
 L J C. P. 195. ■* Williams v. Groucott, 4 B. & S. 449 ; 
 
 - Hardcastle c;. South Yorkshire Kail- 32 L. J. Q. B. 237 ; 8 L. T. N. S. 458 ; 
 
 way Company, 4 H. & N. 67 ; 28 L. J. 11 W. R. 886 ; Wetter v. Dunk, 4 F. & 
 
 Ex. 139 ; Hounsell v. Smyth, 7 C. B. N. S. F. 298. 
 
 Til ■ 20 L. J. C. P. 303 ; 8 W. K. 277. " Firth v. Bowling Iron Company, 2 
 
 See, 'too, Neill v. Byrne, 2 L. K. Ir. C. L. C. P. D. 254 ; 47 L. J. C. P. 358 ; 38 
 
 287 : Stone v. Jackson, 16 C. B. 199. L. T. 568 ; 26 W. E. 558. 
 
 3 Fisher v. Prowse, Cooper v. Walker, " 4 C. B. N. S. 556 ; 27 L. J. C. P. 
 
 2B. & B. 770; 31 L. -T. Q- B. 212; 6 318. 
 
1098 
 
 THE LAW OF NEGLIGENCE. 
 
 [book in. 
 
 Bolch V. Smith 
 Statement of 
 the law by 
 Wilde, B. 
 
 and the horse was injured. The plea was that the obstruction 
 had been placed on the ground by licence of the proprietors of 
 the soil. But the Court was of opinion that, "having, so to 
 speak, dedicated the way to such of the general public as might 
 have occasion to use it for that purpose, and having held it out as 
 a safe and convenient mode of access to the establishment, with- 
 out any reservation, it was not competent to them to place 
 thereon any obstruction calculated to render the road unsafe 
 and likely to cause injury to those persons to whom they had 
 held it out as a way along which they might safely go." Neither 
 could " a third person acquire the right to do so under their 
 licence or permission." 
 
 In the succeeding case of Bolch v. Smith' Wilde, B., thus 
 expressed his view of the law : — " If A. gives B. permission 
 to cross his yard, in which there are several ways, and there 
 is a pit in the yard which is usually covered, but on a particular 
 night, it being uncovered, B. falls into it, I can understand 
 that A. would be liable. But if the hole has always been 
 uncovered, and B. in broad day walks into it, would A. be 
 liable ? " Bolch ■;;. Smith was a case where men were employed 
 under conditions that they were not to leave their work for 
 the day, and water-closets were built for their use, to reach 
 which they had permission to use certain paths which crossed 
 the dockyard. The defendant had been permitted to build a 
 mortar-mill on the side of one of the paths. The plaintiff had 
 gone along this path to one of the water-closets, and on return- 
 ing had stumbled, and, in endeavouring to save himself, his left 
 arm had been caught by the shaft, and so injured as to require 
 amputation. There were two other paths to the water-closet, 
 but the one the plaintiff used was the most convenient. The 
 Corby r. Hill Coiirt held that - he could not recover ; and distinguished Corby 
 V. Hill on the ground that there the injured man had a right 
 to use the road, but in the present case plaintiff had only per- 
 mimon, which, said Martin, B., "involves leave and licence, but 
 
 dlstinguiEhed. 
 
 1 7 H. & N. 736 ; 31 L. J. Ex. aoi ; 
 10 W. E. 387. In GrriiBths v. London 
 and North-Western Eailway Company, 
 14 L. T. N. S. 797, where a "mere 
 licensee " got under a crane from which a 
 package fell and injured him, it was said a 
 railway company must be allowed to carry 
 on their business on their own premises in 
 such a way as they think fit. When the 
 company used this crane it was never 
 thought that any one would go under it ; 
 it was merely Ujsed in carrying out their 
 own mode of doing their own business ; 
 how can it be said that there was any 
 
 negligence? "The defendants had a 
 right to use the most defective slings 
 they liked as far as the conduct of their 
 own business was concerned, merely 
 compensating the owners of goods for 
 any injury done thereby to sucli goods." 
 Cawte V. Olyett, 5 Times L. R. 56, where 
 hatch of disused barge was open and 
 plaintiff fell down while crossing oarge to 
 moor his own barge to the same buoy, 
 as the evidence shewed the hatch 4iad 
 been properly fastened, and that the bar 
 had been removed without defendant's 
 knowledge— held, no duty. • 
 
BOOK III.] DUTY OF PEOPERTY OWNERS. 10013 
 
 gives no right" " I will add," says Wilde, B., " that I do not 
 mean to say that if the defendant had made a hole in the yard 
 and had covered it in a w^ay which was insufficient, but which 
 appeared to be sufficient, he would not have been liable. But 
 here there was nothing of that character. The danger was open 
 and visible ; there was nothing which could be called a trap." 
 
 It is questionable whether the distinction drawn between a right Distinction 
 and a permission explains the cases. In Corby v. Hill the slates ''°°^' ^™ " 
 were on the road unknown to the licensee, while in Bolch v. Smith 
 the engine was there before the licence to use the path had been 
 granted. In the one case, the plaintiff took subject to the right to 
 have the engine there ; in the other, the obstruction was an infringe- 
 ment on his right, or at least the placing of a dangerous substance 
 in a place that he was allowed to use without giving him warning 
 of the alteration in the state of things whereby he might be in- 
 juriously affected. In both cases, as long as the tacit permission 
 existed, there was, as against any one except the owner, a right to 
 use the paths. In neither case, had the owner taken proper steps 
 to forbid or to limit the user, was there any right as against him. 
 It seems, then, that the ground of the decision in the two cases 
 was that in one a danger had been added without means being 
 being taken to communicate the alteration in the way to the 
 plaintiff; in the other, the condition of the way was, or might 
 have been, well known to the plaintiff, and no alteration had been 
 made in it. 
 
 Cockburn, O.J., points the distinction in these cases in giving Cookbum, 
 judgment in Gallagher v. Humphrey,' a case where a passage meiit in 
 over defendant's premises was used to the knowledge of the Humptr'ey!'' 
 defendant by numbers of people, and amongst them the plain- 
 tiff. The accident from which the action originated was caused 
 by negligently lowering goods from the warehouse abutting on 
 the way. Cockburn, C.J., says: " A person who merely gives 
 permission to pass and repass along his close is not bound to do 
 more than allow the enjoyment of such permissive right under 
 the circumstances in which the way exists ; that he is not bound, 
 for instance, if the way passes along the side of a dangerous ditch 
 or along the edge of a precipice, to fence off the ditch or precipice. 
 The grantee 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 permission 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 
 
 1 6 L. T. N. S. 684 ; 10 W. R. 664. 
 
1100 
 
 THE LAW OF NEGLIGENCE. 
 
 [book IIT. 
 
 American 
 
 Gautret v. 
 EgerioD. 
 
 Judgment of 
 Willes, J. 
 
 Summary of 
 the law by 
 Pigot, O.B., 
 
 permission to use the way subject to a certain amount of risk and 
 danger ; but the case assumes a different aspect when the negli- 
 gence of the defendant — for the negligence of his servants is his 
 — is added to that risk and danger." 
 
 The American cases, however, do not go even this length ; at 
 least, where the defendant is a railway company. The principle 
 there is that, when a railway company has for years, and without 
 objection, permitted the public to cross its line at a given point, 
 not a public crossing, it owes a duty to those making use of the 
 crossing, and that it is a question for the jury to say whether this 
 duty is discharged.' 
 
 The case of Gautret v. Egerton'' was subsequent to Indermanr 
 V. Dames,^ which wUl be considered presently. The declaration 
 attempted to set up a sort of general duty on the defendants to 
 keep their land in safe condition for the benefit of any persons 
 that might go on their lands, without alleging any benefits that 
 might accrue to the defendants, or that they had been guilty of 
 any wrongfal act of commission, or anything that amounted to the 
 laying a trap.. Willes, J., giving judgment, however, negatived 
 this. Having examined the declaration and shewn that it only 
 alleged a permission to use a way, he continued : "A permission 
 to use the way must be taken to be ia the character of a gift 
 The principle of law as to gifts is, that the giver is not responsible 
 for damage resulting from the insecurity of the thing unless he 
 knew its evil character at the time, and omitted to caution the 
 donee. There must be something like fraud on the part of the 
 giver before he can be made answerable. It is quite consistent 
 with the declaration in these cases that this land was in the same 
 state at the time of the accident that it was in at the time the 
 permission to use it was originally given. To create a cause of 
 action, something like fraud must be shewn. No action will lie 
 against a spiteful man who, seeing another running into a position 
 of danger, merely omits to warn him. To bring the case within 
 the category of actionable negligence, some wrongful act must be 
 shewn, or a breach of some positive duty ; otherwise a man who 
 allows strangers to roam over his property would be held to be 
 answerable for not protecting them against any danger which 
 they might encounter whilst using the licence. Every man is 
 bound not wilfully to deceive others, or to do any act which may 
 place them in danger." 
 
 The law is thus succinctly summed up by Pigot, C.B., in 
 
 ' Taylor v. Delaware and Hudson 
 Canal Company, 113 Penn. St. 162. 
 
 2 L. B. 2 C. P. 371 ; 36 L- J- C. P. 
 191 ; 16 L. T. N. S. 17 ; IS W. R. 638 ; 
 
 Keeble v. East and West India Docks, j 
 Times L. B. 312. 
 
 3 L. B. 2 0. P. 311; 36 L. 
 181 ; 16 L. T. N. 
 
 311; 36 L. J. C. P. 
 3. 293 ; IS W. B. 434 
 
BOOK m.] DUTY OF PROPERTY OWNERS. 1101 
 
 Sullivan v. Waters': — "A mere licence given by tlie owner to in SuiUvan r. 
 enter and use premises which the licensee has full opportunity '"^'''''''^• 
 of inspecting, which contain no concealed cause of mischief, and 
 in which any existing source of danger is apparent creates no 
 obligation in the owner to guard the licensee against danger." 
 
 Very like Gallagher v. Humphrey in the principle involved 
 was Burchell v. Hickisson.^ A boy of four years accompanied his Burcheii «. 
 sister, who was going on business to the defendant's house. A 2"='"^™"- 
 flight of steps, protected on either side by railings, led up to the 
 front door. One of the railings was broken, leaving a gap, across 
 which a rope had been placed, but this had worn out and had not 
 been renewed. On the day of the accident the sister went up 
 the steps, telling the child to remain below. He disobeyed, and, 
 falling through the opening, was injured. Lindley, J., in giving 
 the judgment of the Court, rested it on the alternative — " The de- 
 fendant never invited such a person as the plaintiff to come unless 
 he was taken care of by being placed in charge of others, and, if 
 he was in chai-ge of others, there was no concealed danger." Had 
 there been an invitation on business — had, for example, the sister 
 fallen through the hole — the obligation on the defendant would 
 have been different, and would probably have been expressed as 
 a duty to maintain the steps in the ordinary condition in which 
 steps for the purpose of approaching a house are ordinarily kept." 
 
 This distinction is illustrated in Ivay v. Hedges.^ Defendant ivay v. 
 was the landlord of a house let out in tenements, each of whom " ^'^ ' 
 had the privilege of using the roof to dry linen on. The roof was 
 flat, with an iron rail round the edge. This rail was, to the know- 
 ledge of the landlord, out of repair. The plaintiff, when going to 
 the roof for the purpose of removing linen, slipped and caught at 
 the rail, which gave way, and the plaintiff fell into the courtyard 
 below. The county court judge, before whom the case originally 
 came, gave judgment for the defendant, holding that there was no 
 duty on the landlord to protect such a place, and that those using 
 it used it as licensees, and not under their contract. In the 
 Divisional Court it was sought to obtain a new trial on the au- 
 
 ' 14 Jr. C. L. E. 460. It had previously ful whether even the fact that the injured 
 
 been laid down in Metcalfe w.Hetheringtoii, person was present unlawfully would 
 
 1 1 Ex. 257, that the words " negligently excuse negligence. I cannot think that 
 
 and improperly" and "contrary to tlieir Crompton, J., can have been correctly 
 
 duty " will not dispense with the necessity reported." Bednian !;. Tottenham Local 
 
 of setting forth facts that shew the duty. Board of Health, 4 Times L. R. 22. _ 
 
 See too General Steam Navigation Com- ^ Holmes v. North-Eastern Railway 
 
 pan'y I!. 'Morrison, 13 C. B. 581 ; Button Company, L. R. 4 Ex. 254; affirmed, "for 
 
 r. Powles 2 B. & S. 174, 191 ; 31 L. J. the reasons given by the Court of Ex- 
 
 Q. B. 191'. chequer," h. E. 6 Ex. 123 ; 40 L. J. Ex. 
 
 2 (1880) 50 L. J. Q. B. loi. In Mur- 121 ; 24 L. T. N. S. 69. 
 
 ley V. Grove, 46 J. P. 360, Cave, J., ■* 9 Q. B. D. 80. M'Alpin r. Powell, 
 
 says : " As to the dictum in Gallagher v. 70 N. Y. 126. 
 Humphrey, I think, too, that it is doubt- 
 
1102 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Batohelor v. 
 ForteBoue. 
 
 Summary of 
 owner of pro- 
 perty's duty 
 to more 
 
 licensees. 
 
 thbrity of a Scotcli case, M'Martin v. Hannay,* where a child was 
 killed by falling through the railing of a common stair where one 
 of the banisters was wanting. This, however, was refused, Lord 
 Coleridge, O.J., pointing out the distinction that in the Scotch 
 case the staircase, through defect in which the accident happened, 
 was a necessary part of the 'holding, which all the tenants were 
 entitled to the use of, and which must consequently be kept in 
 repair ; while in the case before the Court the roof was not a part 
 of the holding, and the tenants were merely at liberty to use it as 
 it was, and without obligation on the landlord. The plaintiff in 
 this case and the child in Burchell v. Hickisson had precisely 
 similar rights, while the legal rights of the child in M'Martin i), 
 Hannay were similar to those of the sister in Burchell v. Hickisson 
 had the accident happened to her. 
 
 The same absence of a legal duty to take care was the ground 
 of the decision in Batchelor v. Fortescae.^ The defendant, a con- 
 tractor, was carrying on his business on his own ground when the 
 deceased husband of the plaintiff (the action was brought under 
 Lord Campbell's Act), who was the watchman of neighbouring 
 property where defendant's men were working, came to look on 
 at the progress of the work, and, an accident happening, was 
 killed while there. Here there were doubts expressed whether 
 the case of the deceased could be put as high even as that of a 
 licensee, and, even if they could, he still must be taken to have 
 stood where he did subject to all the risks of his being there. 
 Tolhausen v. Davis ^ was decided on the same principle as 
 Batchelor v. Fortescue — that, because the defendant was not 
 shewn to have had any reason to suppose the injured person 
 would be where she was when injui'ed, there was no duty to take 
 precautions against her being injured. 
 
 The duty of a property owner with reference to mere licensees 
 is — 
 
 I . To caution those using the land against any known inse- 
 curity which is of a not readily discoverable character.'' 
 
 ^ 10 M. 411. 
 
 2 iiQ. B. D. 474; 49 L, T. 644. 
 
 3 58 L. J. Q. B. 98. The American 
 canes are collected in a note to Donaldson 
 V. Wilson, I Am. St. R. 487, at p. 489. 
 Walker v. Midland Eailway Company, 2 
 Times L. R. 450, was a case where a man 
 mistook the door of a service-room for 
 that of a water-closet, and, entering, fell 
 down the well of a lift and was killed. 
 It was held in the House of LnrJs that 
 there was no duty on the defendants, 
 "for the service-room was a place in 
 which no guest of the hotel had any right 
 or legitimate occasion to be, and into 
 
 which no guest was expressly or im- 
 pliedly invited to ^0." ' ' I think it," said 
 Earl Selborne, " impossible to hold that 
 the general duty of an innkeeper to take 
 proper care for the safety of his guests 
 extends to every room in his house, at all 
 hours of night or day, iiTespective of the 
 question whether any such guests may 
 have a right or some reasonable cause to 
 be there; the duty must, 1 think, be 
 limited to those places into which guests 
 may reasonably bo supposed to be likely 
 to go in the belief, reasonably entertained, 
 that they are entitled or invited to do so." 
 ■* Gautret v. Egerton, L. B. 2 C. P. 
 
BOOK III.] DUTY OF PROPERTY OWNERS. 1103 
 
 2. Not to alter the character of the land — 
 
 (ft) By placing on it dangerous obstructions ; ' 
 (6) By affecting the condition of the property whereby the 
 danger is increased without notice.^ 
 
 3. To use due diligence — i.e., not to be guilty of negligence — 
 in any work that is being carried on upon the premises, and by 
 default in which injury might arise to the licensee." 
 
 ii. Where the persons using premises go upon business which a. Persoua 
 concerns the occupier, and upon his invitation, express or im- premises by 
 
 Tjlied. invitation 
 
 rni' ■ 1 p cH express or 
 
 The question was first raised in the case of Southcote v. implied. 
 Stanley" as to the position of a visitor. The defendant was an stanie'y. "^ ^' 
 hotel-keeper, and was visited by the plaintiff, who, in leaving 
 the hotel, had to open a glass door, from which a piece of 
 glass fell, and wounded the plaintiff, who brought his action. 
 The defendant demurred. The demurrer was allowed by the 
 Chief Baron, on the ground that it followed from Priestley v. 
 Fowler^ that there could be no right of action; for not only do 
 the servants in a domestic establishment undertake to run all 
 the ordinary risks of service, but all the members of the estab- 
 lishment are included, and a visitor is in the same position 
 while he remains as any other member of the establishment ; 
 Bramwell, B., concurred, but on the ground that, no act of covi- 
 mission had been alleged. 
 
 The case may, however, be supported by the considerations Considered, 
 that apply to the class we have just been dealing with. The 
 visitor comes on the premises, and must take them as he finds 
 them, provided only there is no concealed danger known to the 
 occupier against which he is not forewarned ; that is, the case 
 is not strictly referable to the rules applicable where persons go 
 upon premises upon business ; but though, as a matter of fact, a 
 visitor goes to a house on an invitation, express or implied, his 
 rights while paying his visit differ nothing from those of the 
 first class we have considered — that of bare licensees. Had the 
 
 371 ; 36 L. J. C. P. 191 ; 16 L. T. N. S. * (1856) i H. & N. 247 ; 25 L. J. Ex. 
 
 17 ■ I? W K. 638. 339- 1" Collis v. Selden, L. R. 3 C. P. 
 
 1' Corby' w. Hill] 4 C. B. N. S. 556; 495; 37 L. J. C. P. 233,_ the declaration 
 
 27 L. J. C. P. 318 ; Sullivan v. Waters, stated that the defendant negligently 
 
 14 Ir. C. L. R. 460; Bolch i>. Smith, 7 hung a chandelier in a public-house, which 
 
 H. & N. 736; 31 L. J. Ex. 201; 10 fell on the plaintiff; but this was held not 
 
 W. K. 387, per Wilde, B. ; Gallagher v. to disclose a duty, "for it is not shewn 
 
 Humphrey^ 6 L. T. N. S. 684 ; 10 W. R. in what capacity the plaintiff was there ; 
 
 gg. ' it is merely alleged he was lawfully 
 
 2 Gallagher J). Humphrey, 6 L. T. N. S. there." Converse «. Walker, 30 Hun, 
 
 684 • 10 W. E. 664. S96, is said in the judgment, in which the 
 
 ^ White V. France, 2 C. P. D. 308 ; 46 law is carefully considered, to be " not 
 
 L J C P. 823 ; 23 W. R. 878, as fo what unlike Southcote v. Stanley," 
 is' a trap ; Cani'pbcll, L.aw of Negligence, = 3 M. & W. I, 
 
 pp. 119, 122. 
 
'^. 
 
 1104 
 
 Erie, J.,'s 
 comment in 
 Chapman v. 
 Both well. 
 
 THE LAW OF NEGLIGENCE, 
 
 [book III. 
 
 Axfoi'd V. 
 Prior: the 
 case of " a 
 gjnest " and 
 not of " a 
 visitor." 
 
 declaration stated that the plaintiff was a guest and not a mere 
 visitor, there would have been a difference, as is pointed out by- 
 Erie, J., in Chapman ih EothwelP : "The distinction is between 
 the case of a visitor (as the plaintiff was in Southcote v. Stanley), 
 who must take care of himself, and a customer, who, as one of 
 the public, is invited for the purposes of business carried on by 
 the defendant." Had, then, the plaintiff been a guest using the 
 hotel, the defendant's obligation would have been greater. He 
 would have been bound to know that things like the window 
 will ultimately get out of order, and there would be a duty from 
 time to time cast upon him to turn his attention to it. If he 
 could shew that he did investigate, and there was some latent 
 defect which he could not discover, most probably he would not 
 be liable ; but if he did not discover what he ought on investigar 
 tion to have discovered, then he would be liable for the conse- 
 quences.^ 
 
 There is at first sight some difficulty in reconciling the 
 apparent decision of the Court of Common Pleas' in Axford v. 
 Prior* with Southcote v. Stanley and Oollis v. Selden. The facts 
 proved at the trial were that plaintiff entered defendant's ion 
 without speaking to any one, and not for the purpose of ordering 
 refreshments, but to wait for a friend who had not arrived. 
 Part of the floor of the parlour of the house had been taken 
 up, leaving a hole about .four feet square, and the carpenter 
 was still at work upon it. The plaintiff walked into the parlour, 
 and fell into the hole, which he swore he did not see. At the 
 trial, before Byles, J., and a jury, the plaintiff got a verdict, 
 with i^30 damages. The Court refused a rule, saying there was 
 no ground for a nonsuit, and that, as the judge who tried the 
 case was not dissatisfied with the verdict, they would not be 
 justified in interfering with it. The declaration, however, aveiTed 
 that the plaintiff was " lawfully in the said inn as a guest," and 
 the decision of the Court probably was only that it was matter 
 for the jury to say in what capacity the plaintiff was on the 
 defendant's premises, and that they could not disturb the verdict 
 of the jury when the declaration alleged a cause of action, and 
 the judge at the trial was not dissatisfied with the finding of the 
 jury. In Southcote v. Stanley the declaration alleged that 
 defendant " invited the plaintiff to come as a visitor," thus 
 shewing no cause of action on the face of it ; while in CoUis v. 
 Selden there was no statement whatever in the declaration beyond 
 
 ' El. B. & El. i68 ; 27 L. J. Q. B. 
 315. 
 
 2 Tarry v. Ashton, i Q. B. D. 314, at 
 p. 319; 45 L. J. Q. B. 260; 34 L. T. 
 
 N. S. 97; 24W. B. 581. 
 
 ' Erie, C.J., Byles, Keatiner, and 
 Smith, .T.r. 
 
 " 14 W. E. 611. 
 
BOOKiii.J DUTY OF PEOPERTY OWNEES. 1105 
 
 the general allegation that the plaintiff was on the premises at the 
 time of the accident. 
 
 The decision in Southcote v. Stanley goes no fiirther, then, Eesoi-ting to 
 than its direct decision as to the position of a yisitor. But ^y';^'^''^ ""^ 
 before that decision — indeed, as early as the year 1839, in the p™p°^<^^- 
 well-known case of Lancaster Canal Company v. Parnaby' — the Lancaster 
 liabilities attaching to carrying on business, and the consequent ^""'^^ ^°^' 
 invitation to the public to resort to the premises where business i'amaby. 
 was carried on, were considered in the Queen's Bench, and 
 on appeal in the Exchequer Chamber. The company had a 
 canal, and took tolls on it. A boat having sunk in the canal, 
 the difficulties of avoiding it were very great. By the company's 
 Act it was lawful for the company, in the case of a boat sinking 
 in the canal, to weigh it up, and retain it for expenses, but the 
 company did not act upon its powers. By reason of leaving the 
 sunk boat in the canal Parnaby's boat navigating the canal ran 
 foul of it, and was injured. 
 
 Both Courts held that though the exercise of the statutory 
 power conferred on the canal company wa; permissive, yet the 
 company were liable on a common law prii-ciple that the owners 
 of a canal taking tolls for the navigation were bound to use 
 reasonable care in making the navigation secuie. Lord DenmaniordDfn- 
 said in the Queen's Bench : " It is the same in principle as ' ' ' 
 if they announced the carrying on of a business at premises 
 accessible only by a certain road over their land which was 
 open to the public for that purpose, but which they only, and 
 not the public, had a right to repair, and they left that road 
 in so bad a state that a peoson's leg was broken when he came 
 to transact business with them there. A more familiar ex- 
 ample, and not of very rare occurrence, is that of a shop- 
 keeper who leaves a trap-door open in his shop, and causes a 
 customer to fall down and suffer injury." And in the Exchequer 
 Chamber, Tindal, C.J., said: "We concur with the Court of Tindal, c.J., 
 Queen's Bench in thinking that a duty of this nature [i.e., to take chequer 
 reasonable care, so long as they keep the canal open for the '^''=™'t'er. 
 public use of all who may choose to navigate it, that they may 
 navigate it without danger to their lives or property] is imposed 
 upon the company, and that they are responsible for the breach of 
 it upon a similar principle to that which makes a shopkeeper, 
 who invites the public to his shop, liable for neglect on leaving a 
 trap-door open without any protection, by which his customers 
 suffer injury."" 
 
 1 1 1 A. & E. 223. steamer was secured to the pier, was let go 
 
 - In Monaghan v. Buchanan, 23 Sc. before the gangway for passengers topass 
 
 L. R. 580, the bow rope, by which a on the boat was removed, and plaintiff 
 
 4 A 
 
1106 
 
 THE LAW OF NEGLIGENCE. 
 
 [book hi. 
 
 Chapman v. 
 Eothwell and 
 Wilkinson v. 
 Fairrie com- 
 pared. 
 
 IndeiTTiaur v. 
 Dames. 
 
 Willes, J.,'s 
 judgment. 
 
 A distinction may be drawn out by the comparison of two 
 cases, Chapman v. EothwelP and Wilkinson v. Pairrie,^ of the 
 risks against which it is imperative for the occupier to take 
 heed, and those which the invitee must guard against. In the 
 former case a trap-door in the floor of a passage, along which the 
 wife of the plaintiff was passing as a customer, was left open, not 
 properly guarded and lighted, whereby she fell down and was 
 killed. In the latter, the plaintiff, going along a dark passage 
 on business, fell down a staircase. In the one case the plaintiif 
 was held entitled, in the other disentitled, to recover ; and the 
 ground of the distinction is reasonable and obvious, since ordinary 
 accidents, such as falling down stairs, are to be imputed to the 
 carelessness or misfortune of the sufferer, and accidents from 
 unusual covert danger, such as that of falling into a pit.' 
 
 The leading case, however, on this branch of the law is Inder- 
 maur v. Dames.* The position of a customer is thus summed up 
 by Willes, J. : " He, using reasonable care on his part for his own 
 safety is entitled to expect that the occupier shall on his part 
 use reasonable care to prevent damage from unusual danger of 
 which he knows or ought to know ; and that where there is 
 evidence of neglect, the question whether such reasonable care 
 has been taken by notice, lighting, guarding, or otherwise, and 
 whether there was contributory negligence in the sufferer, must be 
 determined by a jury as matter of fact." But the facts in the 
 case under discussion involved the question of the rights of a 
 person on lawful business in the course of fulfilling a contract, in 
 which both plaintiff and defendant had an interest, who, however, 
 was not a customer ; and it was held that the law imposes an 
 obligation on the occupier either to put up a fence or safeguard 
 
 was thrown off and injured. Held, 
 that "the safe practice to see the gang- 
 way withdrawn before the how rope is 
 thrown off, and the tide forces the heat's 
 head away from the pier," should have 
 heen adopted, and the plaintiff recovered. 
 Compare John v. Bacon, L. E. 5 C. P. 
 437 ; 39 L. J. C. P. 365 ; 22 L. T. N. S. 
 477; 18 W. B. 894; Timhrell 1). Water- 
 house, 6 N. S. Wales E. Com. Law, 77. 
 
 1 (1858) Ell. B.& Ell. 168. 
 
 2 (1862) I H. & C. 633 ; 32 L. J. Ex. 
 
 73;7L.1'.N.S. S99- 
 
 * In Nicholson v. Lancashire and York- 
 shire Eailway Company, 34 L. J. Ex. 84, 
 where a passenger fell over a hamper 
 taken out of the train and placed at the 
 side of the line some distance from the 
 platform, held, some evidence of a duty 
 on the part of company, there being a 
 usage to pass that way out of the station 
 on the other side, See Cornman v. 
 
 Eastern Counties Eailway, 4 H. & N. 
 781 ; 29 L. J. Ex. 94. 
 
 * (1866) L. E. I C. P. 27s ; in the Ex- 
 chequer Chamber, L. E. 2 C. P. 311 ; 36 
 L. J. C. P. 181 ; 16 L. T. N. S. 293; IS 
 W. E. 434. In Butts ». Goddard, 4 Times 
 L. E. 193, plaintiff recovered where, calling 
 upon auctioneers and estate agents, she en- 
 tered by a door, which was not the usual en- 
 trance, and, having reached a folding door, 
 which she pushed open, fell down a flight 
 of steps leading to a cellar. In Mason v. 
 Langford, 4 Times L. E. 407, plaintiff 
 was held disentitled where she went to 
 defendant's shop when the shutters were 
 down, hut the door was ajar, which she 
 pushed open and stepped in down a steep 
 flight of steps, the trap-door of which was 
 raised. See, too. Steer v. St. James's 
 Eesidential ChamJoers Company, 3 Times 
 L. B, 500. 
 
BOOK iii.J DUTY OF PROPERTY OWNERS. IIO7 
 
 to prevent the incurring of danger, or else to give a reasonable 
 notice to enable any person so on premises to take care and avoid 
 danger. 
 
 Some difficulty would doubtless arise as to ^vhat kind of Precautions 
 precautions should be taken in individual instances ; the dis- bQ''ado'"ted^ 
 criminating line, however, was indicated in Grafter v. Metropolitan Crafter v.^ 
 Railway Company' to be ■' between suggestions of possible pre- Ea^iiway"'" 
 cautions and evidence of actual negligence such as ought reason- ^'""P*"^- 
 ably and properly to be left to a jury." In Smith v. London Smith v. 
 and St. Katharine Docks Company/ when the duty to take care st° Katharine 
 had arisen, it was further held to exist independent of privity. ^""^^ ^°™- 
 There the company were the owners of docks, and they under- 
 took to, and did, provide not only berths and dock accom- 
 modation, but access by means of gangways to the vessels. The 
 plaintiff, going on a vessel for business, saw the gangway, and, 
 proceeding upon it, fell into the water. The defendants were 
 held liable, "for, the gangway being placed there as the means 
 of access to all persons having business on board the ship, it 
 amounts to an invitation to persons having business on board the 
 ship to go upon it." Thus, the rule may be extended, that persons 
 inviting others not only on their own premises, but upon any 
 premises, are answerable for anything in the nature of a trap in 
 the provision they afford for going upon such premises.^ The 
 test of " an act done for the mutual interest of the parties ' was Test to dis- 
 subsequently, in Holmes v. North-Eastern Railway Company,'' used ucelTsoe from 
 to discriminate a licensee from a person on premises to whom y ™''™ 
 a duty to take care is owing: "As soon as you introduce the 
 element of business, which has its exigencies and its necessities, 
 all idea of mere voluntariness vanishes." 
 
 In Lax -v. Corporation of Darlington,^ Bramwell, L.J., thus lax r. Cor- 
 expressed the duty of the owners of premises to those using their Darlington. 
 premises for reward, and where injury arose from their dangerous ^0^^"^!™' 
 condition : — " If the place was not safe, if there was danger to duty. 
 that was not obvious to any person coming there, that person 
 ought to have been warned against it, and it should have been 
 said : ' If you come, you must come and take the place as you 
 find it, for the situation of things is such that there is. danger 
 there.' The defendants did not warn the plaintiffs, and the jury 
 
 '' L. J!. I C. P. 3CK); 35 L. J. C. P. 132 ; nature of a person barely licensed, but 
 
 14 W. it. 334; Longmore ?;. Great West- wben seeing his friend oifis "on lawful 
 
 ern Railway Company, 19 C. B. N. S. 183. business in which the passenger and the 
 
 ^ L. E. 3 C. P. 326 ; 37 L. J. C. P. company have both an interest." 
 
 217. * L. B. 4 Ex. 254, in Exchequer Cham- 
 
 2 In Watkius v. Great Western Eail- ber, L. E. 6 Ex. 123 ; 40 L. J. Ex. 121 ; 
 
 wav Company, 46 L. J. Q. B. 817 ; 37 24 L. T. N. S. 69. 
 
 L. T. 193 ; 25 W. E. 905, Denman, J., ^ 5 Ex. D. 28 ; 49 L. J. Ex. 105 ; 41 
 
 held that a passenger's friend is not in the L. T. 489 ; 28 W. E. 221. 
 
1108 
 
 THE LAW OF NEGLIGENCK 
 
 [book in. 
 
 White V. 
 France. 
 
 Scotcli case : 
 Brady v. 
 Parker. 
 
 Mansfield v, 
 Baddeley. 
 
 have found that the place was dangerous, and, therefore, there is, 
 in my opinion, a primd facie case against them, not upon any- 
 ground of negligence or misfeasance, but simply upon the ground 
 that they have not done their duty, to their customer in apprising 
 him that there was danger in his accepting their invitation and 
 allowing him to come on their ground for a profit to themselves." 
 This case, which was as to the liability of the lord of a market 
 for the death of a cow injured by jumping a dangerous railing in 
 the market place, is noteworthy from an examination by Bram- 
 well, L.J. — not necessary for the decision of the point before the 
 Court — of Olayards v. Dethick,^ and as to which the other 
 members of the Court refrain from expressing an opinion. On 
 the main point, however, the Court was unanimous, Brett, L.J., 
 summarizing his opinion : "I am of opinion that the defendants 
 were under the liability jorimd facie at all events of affording 
 a reasonably safe place for the standing of cattle. The finding 
 of the jury is that they did not do so ; " therefore, in my opinion, 
 the defendants are liable." Cotton, L.J., concurred. 
 
 White V. France^ raised for decision, not what the duty to a 
 person invited on premises is — ^for that was made clear by the 
 earlier cases — but what circumstances outside express invitation 
 will confer upon a person the rights of a licensee. A licensed 
 waterman out of employment saw that defendant's barge was in 
 charge of one man only, and not of two, as required by the rules 
 of the Thames Conservancy Board. Accordingly, he went on the 
 defendant's premises to point out the omission, and to get 
 , employment. He was referred to the foreman, who he was told 
 would be on the premises the next day. When the plaintiff 
 returned the next day to see the foreman he was injured by the 
 fall of a bale of goods from a warehouse trap-door. The Court 
 held that he was on the premises " on lawful business in which 
 both the plaintiff and the defendant had an interest," and so 
 could recover. A similar decision was given in a Scotch case, 
 where a dealer in firewood visited premises on a dark evening 
 for the purpose of buying tar-barrels for firewood, and was 
 referred by one of the workman to a clerk who told him that 
 they did not sell them; and on his way off the premises he 
 fell down an open hatchway and was killed." ^ 
 
 The case of Mansfield v. Baddeley'' is one very close to the 
 
 ^ 12 Q. B. 439. Compare Pittsburgh 
 Southern Eailway Company v. Taylor, 
 104 Penn. St. 306, where the Supreme 
 Court of Pennsylvania, Paxson, J,, de- 
 livering the judgment, took a view similar 
 to that of Bramwell, L.J. The Court of 
 Maine decided the same way, in Merrill 
 
 V. North Yarmouth, 78 Me. 200, where a 
 man unnecessarily drove his waggon across 
 a flooded highway. 
 
 2 2 C. P. D. 308; 46 L. J. C. P. 823 ; 
 23 W. E. 878. 
 
 ' Brady v. Parker, 24 So. L. R. 561. 
 
 * 34 L. T. N. S. 696. 
 
BOOK HI.] DUTY OF ^HOPEIITY OWNEKS. Il09 
 
 line. The head-note states the facts as follows : — The plaintiff 
 was employed by the defendant as a dressmaker. It was no part 
 of her duty to go down into the kitchen, but on one occasion she 
 went there, at the request of the defendant, to fetch something 
 up. As she was leaving the kitchen, a savage dog, which was 
 generally tied up, rushed from under the table and bit her leg. 
 Plaintiff was aware that a dog of this kind was kept on the 
 premises. The county court judge nonsuited, on the ground that 
 the plaintiff was a servant and knew the disposition of the dog. 
 The Court held the nonsuit wrong, as the risk " was not incidental 
 to the service." But if the plaintiff sustained the injury as a Considered, 
 servant, it was undisputed that she knew of all the surroundings ; 
 there was no concealed danger, and no circumstances known, or 
 that ought to have been known, to the defendant of which the 
 plaintiff was ignorant ; while, if she did not sustain the injury as 
 a servant, the question of whether the risk was incidental or not 
 could not arise.' Cleasby, B., lays stress on the "fact that the 
 dog was generally tied up " — i.e., that the dog was sometimes 
 loose, but more often tied up ; still, the dog could not always be 
 tied up, and, being savage, certainly could not be let run in the 
 street ; it, therefore, must of necessity sometimes be loose on the 
 premises. That the dog was generally tied up also seems greatly 
 to have weighed with Grove, J., who, however, considered that 
 the going down to the kitchen, was a " mere good-natured act," 
 and " something ultra her service." The duty of the occupier 
 of the premises is, then, to protect the invitee from all unusual 
 risks ; ^ but from the undisputed facts it is evident the plaintiff 
 knew of the existence of the dog and the savageness of its dis- 
 position. The possibility of the dog's being loose could not be 
 called an unusual risk, for it was distinctly alleged that the 
 plaintiff had knowledge of what the practice with regard to it 
 was, that it was generally tied up. The law applicable to the case 
 was thus stated by Bowen^ L.J., in Thomas v. Qaartermaine': — 
 "Where the danger is one incident to a perfectly lawful use of 
 his own premises neither contrary to statute nor common law, 
 where the danger is visible and the risk appreciated, and where 
 the injured person, knowing and appreciating both risk and 
 danger, voluntarily encounters them, there is, in the absence of 
 further acts of omission or commission, no evidence of negligence 
 
 ' But qncere must not the plaintiff he Fairrie, I H. & C. 633 ; 32 L. J. Ex. 73 ; 
 
 held to take not merely the risks incidental 7 L. T. N. S. 599 ; Wmith -0. London and 
 
 to the service "but all the faowre risks" St. Katharine JDooks Company, L. E. 3 
 
 on the defendant's premises : Brooks v. G, P. 326 ; 37 L. J. C. P. 217. 
 
 Courtney, 20 L. T. N. S. 440. = 18 Q. B. D. 685, at p. 697 ; 56 L. .J. 
 
 ' Chapman v. Eothwell, El. Bl. & El. Q. B. 340 ; 57 L. T. 537 ; 35 W. E. 
 
 168 ; 27 L. J. Q. B. 315 ; Wilkinson v. 555. 
 
1110 THE LAW 01* NEGLIGENCE. [book iil. 
 
 on the part of the occupier at all." On the principle of the 
 decision of Mansfield v. Baddeley it would be difficult to avoid a 
 general conclusion that the owner of a dog known to bite is liable 
 to the same extent to the members of his household, with full 
 knowledge of the dog's disposition, as to the world at large ; or, 
 at least, the alternative conclusion that a dog known to bite must 
 at all times and in all, circumstances be confined, on penalty of 
 SmiiHe ». Boyd inflicting liability on his owner. The case is not the same as 
 abie™^"'^ ' Smillie v. Boyd,' since there the dog was shut up while the 
 pursuer was on the premises, where she was by the permission 
 and on the invitation of the defender's wife. But the dog was 
 let out before the pursuer had left the premises, and bit her. The 
 only point here is whether the pursuer's licence had terminated 
 before she was bitten, or the dog had been released while her 
 licence was yet uneicpired. The latter having been found as a 
 question of fact, the liability of the defender followed. 
 Proposition A proposition of the Lord Justice Clerk's in this case may be 
 
 Justice Clerk's, noted. "If a dog is known to be vicious," said the learned 
 judge, " there is an obligation on the owner of the dog to keep it 
 in proper restraint. But knowledge that he is a vicious dog does 
 not impose an obligation on the friends and acquaintances of 
 the owner to stay away from his premises. They are bound to 
 exercise a reasonable amount of precaution, but that is all." 
 Whatever the law of Scotland may be, this dicticm does not 
 accurately state the laifr of England, or of those systems based on 
 the common law. The keeping a ferocious dog on one's premises 
 is not illegal.' And there is no authority that the attentions or 
 importunities of a man's friends impose on him a greater duty 
 than he is under to an ordinary licensee, with knowledge of the 
 risk and an appreciation of it, when the rule just enunciated by 
 Bowen, L.J., applies.' 
 
 Srmfning -^^ ^^^ P^^"® ^^^ ^® ^otod two cases which specify the general 
 
 what risks rule for determining what species of risks will be held within the 
 
 tobe -Jrithia Contemplation of those brought into connection with danger by 
 
 the oontem- their own acts. 
 
 plation of those 
 
 iriToiYedin Morgan V. Vale of Neath Eailway Company'' and Lovell v. 
 
 Mo^an'i). Howell* are cases of risk arising from the negligence of fellow- 
 
 ]8airw°4^^"'*^ workmen, but the principle applied ma,y be of wider application. 
 
 Company. This is laid down in the earlier case by Blackburn, J., adopted by 
 
 Blackbum.J.j's -r^ t ri t • ^i -rt ^ ,~n ■. . 
 
 judgment. Jirie, O.J., m the Lxchequer Chamber m the following terms : — 
 
 1 24 So. L. E. 148. ^ S B. & S. 736 ; L. E. 1 Q. B. 149; 
 
 ^ Jordin v. Cmmp, 8 M. & W. 782; 35 L. J. Q. B. 23 ; 13 L. T. N, S. 564; 
 
 Saroh v. Blackbum, 4 C. & P. 297. 14 "W. E. 144. 
 
 » Thomas v. Quartermaine, 18 Q. B. U. " 1 C. P. D. 161 ; 45 L. J. C. P. 387 ! 
 
 685, at r. 697. 34 L. T. N. S. 183 ; 24 W. E. 672. 
 
BOOK ni.] DUTY OF PBOPERTY OWNEES. 1111 
 
 " There are many cases where the immediate object on which one 
 servant is employed is very dissimilar from that on which the 
 other is employed, and yet the risk of injury from the negligence 
 of the one is so much a natural and necessary consequence of the 
 employment which the other accepts that it must be included in 
 the risks which are to be considered in his wages. I think that, 
 whenever the employment is such as necessarily to bring the 
 person accepting it into contact with the traffic of the line of a 
 railway, risk of injury from the carelessness of those managing 
 that traffic is one of the risks necessarily and naturally incident 
 to such an employment, and within the rule." And in the latter 
 case, Archibald, J., thus expressed the rule: — "When a man lo veil «, 
 enters into the service of a master, he tacitly agrees to take upon ?°T^b Sj t . , 
 himself to bear all ordinary risks which are incident to his em- judgment, 
 ployment, and, amongst others, the possibility of injury happening 
 to him from the negligent acts of his fellow-servants or fellow- 
 workmen. The question is whether the injury to the plaintiff in 
 this case did not in some sense arise from one of those ordinary 
 risks of the service he was engaged in, which must, or ought to 
 have been, in his contemplation when he entered into it.'' 
 
 These cases, it is true, were cases where the particular risk was Test whetlici' 
 the result of the default of servants engaged in a common work, aifa^necessary 
 and thus come under an exception — that with regard to fellow- consequence." 
 servants, they undertake a risk in this respect greater than that 
 incurred by those outside the limit of the employment. But, 
 admitting this exception, the considerations that determine what 
 are risks which persons upon premises are held to agree to en- 
 counter are determined by the same reference to the standard of 
 '•' a natural and necessary consequence," or to the " ordinary risks 
 which are incident," that we have seen to be the test proposed 
 where the mischief is, not from the condition of things, but arises 
 from the negligence of persons in the same employment. The 
 one, however, only covers the risks which are the normal condition 
 of things, but the other, in reckoning the default of a fellow- 
 servant amongst the risks of an employment, disentitles the 
 recovery of compensation. Even for actual negligence, when it 
 arises from a fellow-servant, the master — that is, in this special 
 case — is no more liable for the act of an intelligent agent under 
 his control than he ordinarily is for the act of an unconscious 
 agent where there is no duty and no negligence. 
 
 The following propositions are collected from what has pre- Summarj-. 
 ceded : 
 
 I. There is a duty on the occupiers of premises who give an 
 invitation, either expressed or implied, to persons to transact 
 
11 ig tTiE LAW Oe NEGLIGENCE. [book iil. 
 
 business on their premises to use due and reasonable care to 
 safeguard persons induced thereby to enter their premises from 
 injury occasioned by the unsafe condition of the premises or the 
 access to them and which is known to the proprietors, and not to 
 those who enter on their invitation, and which they have negli- 
 gently suffered to exist, and have not given proper notice of.' 
 
 2. "Due or reasonable care" is care with a reference to his 
 actual rights to whom an invitation, expressed or implied, is ex- 
 tended (e.g., an owner or occupier cannot create hazard and, on 
 an accident happening in consequence thereof, escape liabihty by 
 imputing notice of the same), and is for the jury." 
 
 3. Those who come upon premises for the purpose of doing 
 any act for the mutual advantage of themselves and the occupier 
 are persons who are invited on the premises, and to whom a duty 
 to take care is owing greater than that in the case of a mere 
 licensee.' 
 
 4. All members of the establishment and visitors, although on 
 the premises by invitation, must take the risk of the condition 
 of premises as they find them, provided only that there is no 
 concealed danger known to the occupier against which they are 
 not forewamed.* 
 
 5. In the case of a person on premises for the purpose of 
 business, there is a duty on the occupier to use due diligence to 
 discover defects and dangers, in default of using which he is 
 liable for accidents which might have been prevented by diligent 
 observation.^ 
 
 6. The occupier of premises is liable to a person on the 
 premises for the purpose of business, even though that business 
 is conducted in an unusual manner, provided there is an assent 
 so to transact business." 
 
 7. The occupier of premises is bound to guard against persons 
 
 ^ Oarleton v. Pranoonia Iron Company, ^ Holmes v. North-Eaatem Railway 
 
 99 Mass. 216; Parnaby 13. Lancaster Company, L. E. 4 Ex. 254, 6 Ex. 123; 
 
 Canal Company, 11 Ad. & B. 223; 40 L. J. Ex. 121; 24 L. T. N. S. 69. 
 
 Sweeny v. Old Colony and Newport Bail- The business which will justify an entry 
 
 way Company, 92 Mass. 368 ; Elliott «. upon premises in the absence of an express 
 
 Pray, 92 Mass. 378 ; Mersey Docks Trus- invitation or an engagement for services 
 
 tees ». Gibbs, L. E. i H. of L. 93; 35 must be the ordinary business of the ooou- 
 
 L. J. Q. B. 225 ; 14 L. T. N. S. 677 ; 14 pant, not that of the plaintiff: Bigelow, 
 
 W. E. 872 ; Thompson v. North-Eastem Leading Cases on the Law of Torts, p. 
 
 Eailway Company, 2 B. & S. 106 ; 31 705. 
 
 L. J. Q. B. 194; 6 L. T. N. S. 127 ; 10 < Southcote v. Stanley, i H. &N. 247; 
 
 W. E. 404 ; Lax V. Corporation of Dar. 25 L. J. Ex. 339. 
 
 lington, 5 Ex. D. 28 ; 49 L. J. Ex. 105 ; ^ Tarry v. Ashton, i Q. B. D. 314 ; 45 
 
 41 L. T. 489 ; 28 W. R. 221. L. J. Q. B. 260 ; 34 L. T. 97 ; 24 W. R. 
 
 ' Indermaur v. Dames, L. E. i C. P. 581. 
 
 275, 2 C. P. 311; 36 L. J. C. P. 181; " Holmes v. North-Eastem Railway 
 
 16 L. T. N. S. 293 ; 15 W. E. 434 ; Cla- Company, L. E. 4 Ex. 254, 6 Ex. 123 ; 40 
 
 yards v. Dethiok, 12 Q. B. 439. See Ap- L. J. Ex. 121 ; 14 L. T..N. B. 69, 
 pendix B, Smith, Law of Negligence, 2nd 
 edit. 
 
BOOKIII.J DITTY OF PROPERTY OWNERS. 1113 
 
 on the premises by his invitation being exposed to unusual risks 
 the existence of which common experience would not necessarily 
 suggest, but is not bound to use precautions against accidents 
 happening from the construction of premises, and which ordinary 
 caution would teach him to guard against.' 
 
 8. The occupier of premises holding out an invitation to per- 
 sons to come on his premises is bound to guard against unusual 
 risks, not merely for those having business with him, but also for 
 those transacting business with other people by means of the 
 facilities he is bound to supply or does supply with reference to 
 that busiaess.^ 
 
 9. " Usual risks" are those attendant on the ordinary condition 
 of premises, machinery, or work, and which may be looked to as 
 the natural and necessary results arising from proximity to the 
 same.'* 
 
 A great diversity of opinion was caused by the case of Woodley Woodley y. 
 V. Metropolitan District Eailway Company, which must be studied District Eaii- 
 in close connection with Indermaur v. Dames.'' ^'^"^ Company. 
 
 The facts, as stated by Cockbum, C.J., in the Court of Appeal, Facts, 
 were as follows : — The plaintiff was a workman in the employ of 
 a contractor engaged by the defendants to execute certain work 
 on a side wall on their line of railway in a dark tunnel. Trains 
 were passing the spot every ten minutes, and the line, being there 
 on a curve, the workmen would not be aware of the approach of 
 a train till it was within twenty or thirty yards of them. The 
 space between the rail and the wall on which the workmen had 
 to stand while at work was just sufficient to enable them to keep 
 clear of a train when sensible of its approach. The place in 
 question was wholly without light. No one was stationed to give 
 notice of an approaching train. The speed of the trains was not 
 slackened when arriving near where the men were at work, nor 
 
 1 Chapman v. Rothwell, El. Bl. & El. N. S. 696 ; Lovell v. Howell, I C. P. D. 
 
 168 ; "Wilkinson v. Fairrie, 1 H. & C. 161 ; 45 L. J. C. P. 387 ; 34 L. T. N. S. 
 
 633 ; 33 L. J- Ex. 73 ; 7 L- T. N. S. 599. 183 ; 24 W. E. 672. _ 
 
 ■' Smith V. London and St. Katharine ^ Woodley v. Metropohtan District 
 
 Docks Company, L. E. 3 C. P. 326 ; 37 Eailway Company (1877), 2 Ex. D. 384 ; 
 
 L. J. C. P. 217. " I wish to add that I 46 L. J. Ex. 521. Compare Robertson v. 
 
 reoognizeno distinction between that which Adamson, 24 D. 1231, accident arising 
 
 has been called a trap and ordinary action- from a man, who had been employed on 
 
 able negligence, except so far as the word works twenty years, falling from a hndge 
 
 trap may be used to designate a negligent within the works, which was unprotected 
 
 act which is calculated to mislead a person by any kind of parapet, and was acous- 
 
 using ordinary care and caution": per tomed to be unlighted, althoiigh there was 
 
 Lopes J, Watkins?;. Great Western Eail- a lamp ; also Clark's Administrators r. 
 
 way Company, 46 L. J. Q. B. 817, at p. Eichmorid and Danville Eailroad Com- 
 
 g22 pany, 49 Am. E. 394, where a railway 
 
 3 Morgan « Vale of Neath Eailway brakesman was killed by collision with a 
 
 Company, L. E. 1 Q. B. 149; 35 L. J. low bridge while standing on the top of a 
 
 Q. bT 23 ; 13 L. T. N. S. 564 ; 14 W. E. car at night ; Casey v. Sinclair, 23 bo, 
 
 144 ;' Mansfield v. Baddeley, 34 L. T. L. E. 305. 
 
1114 
 
 THE LAW OF NEGLIGENCE. 
 
 [book hi. 
 
 ■was any signal given by sounding the steam whistle. The service 
 on which the plaintiff was employed was one of extreme danger, 
 and, while he was reaching across the rail to find a tool he had 
 laid down, a train came upon him suddenly, and struck and 
 seriously injured him. 
 
 It appeared that on a previous occasion, when similar work 
 was being done, a look-out man had been stationed to give 
 warning to approaching trains, but this precaution had been dis- 
 continued.' 
 The case in In the Exchequer Division Kelly, O.B., and Amphlett, B., 
 
 DWiS^'^"^'' gave judgment for the plaintiff, limiting it to the particular 
 circumstances of the case, on the ground that a look-out man 
 had formerly been employed to warn the workmen of their 
 danger, and that after the accident a look-out man was again 
 employed, so that the jury might hence reasonably infer negli- 
 gence ; while Oleasby, B., " felt a great deal of difiScnlty in the 
 case, for that the plaintiff appeared to have exposed himself 
 voluntarily to a known danger," the danger being that he was to 
 work in a tunnel near to a curve where trains are passing every 
 six minutes,^ and therefore the risk which he appeared to take 
 on himself was not always being prepared to get out of the 
 way as each train came. On appeal, the judgment of the Court 
 of Exchequer was reversed by Oockburn, C.J., Mellor and Grove, 
 JJ., Mellish and Baggallay, L.JJ., dissenting. 
 
 The ^question was whether, on the facts as stated, there was 
 any evidence of negligence. Oockburn, O.J.,'s reasoning was that 
 the plaintiff was working either as a servant of the company or 
 on their premises, not only on lawful business, but by their 
 invitation ; if the former, he must be taken to have been aware 
 of the nature and character of the work and its attendant risks 
 when he entered upon it; if the latter, the plaintiff had full 
 notice of the risks, and yet chose to remain, and the accident 
 happened by want of particular care in depositing one of his 
 tools. Mellor, J., was also in favour of the defendants, and 
 Grove, J., agreed with him. They considered that there was no 
 implied obligation on the part of the company to provide a 
 look-out man, as suggested by the Lord Ohief Baron ; that, as 
 there was nothing done or omitted by the company in the 
 working of the line that varied from the ordinary way, if the 
 plaintiff thought therfe was danger of an unusual character in 
 the nature of the work, he was free to have stipulated for pre- 
 cautions or to have left the work altogether ; and that, as neither 
 
 ^ From the judgment of Cockburn, C.J., it appeared that the plaintiff bad been 
 working for a foi-tnight before the accident happened, 
 ' According to Cockbiirn, C.J,, every ten minutes. 
 
 The case 
 before the 
 Court of 
 Appeal, 
 Cookbum, 
 C.J.,'s view. 
 
 Mellor and 
 Grove, JJ.,'s 
 view. 
 
BOOK III.] DUTY OF PEOPEETY OWNEES. 1115 
 
 mismanagement or misconduct occurred, but the business was 
 conducted in the usual way, with equal means of knowledge on 
 all sides, the plaintiff could not recover. 
 
 Baggallay, L.J., expressed his dissent, on the ground that the Diaseut of 
 plaintiff was the servant of the contractor, and that the case could Memsh,*L.jj'? 
 not be distinguished from Indermaur v. Dames ; also that " the real 
 question was whether the company's train was run in such a manner 
 and with such precautions that the plaintiff was not exposed to 
 any undue risk ; and this was essentially a question for the 
 jury ; " and Mellish, L. J., on the grounds that railway companies 
 are bound to take reasonable care that the servants of contractors 
 are not injured by passing trains, and that the fact of the plaintiff 
 having worked in the tunnel for a fortnight without making any 
 objection, and without abandoning his service, was not sufficient 
 to raise a necessary inference in point of law that he consented 
 to their running their trains as usual. 
 
 It is observable that the judgments of the majority in the The case 
 Court below and of the dissentient judges in the Court of Appeal ""^"^ "'"' ' 
 proceed on quite different lines ; and it is necessary carefully to 
 examine these in order exactly to appreciate the decision. In 
 the opinion of Kelly, O.B., and Amphlett, B., the previous and 
 subsequent employment of a look-out man was sufficient to raise 
 that amount of evidence which it is necessary to submit to a jury. 
 The Lord Chief Baron is careful not to lay down that there is 
 any such duty ; he says merely thatj in this case, there having 
 been a look-out man employed, a jury was justified in inferring 
 that his retention was an element in the employment. Mellish, 
 L.J., indeed says that in the Court below it seems to have been 
 taken for granted that railway companies were under an obliga- 
 tion to take reasonable care that the servants of contractors who 
 are brought on the line for the purpose of repairing the works 
 of a railway do not suffer personal injury from the passing trains. 
 But so far from the judgments below, as reported, bearing this out, 
 they seem to assume the very contrary, and to proceed on the 
 assumption that there is not any such general duty ; only that, as 
 in this case, the company had at an earlier time provided a look- 
 out man, this was sufficient to leave the case to the jury to decide 
 whether a special obligation — not belonging to the class of cases, 
 but the peculiarity of this individual case — had been constituted. 
 Whether the general principle was assumed by the Court below, 
 as Mellish, L.J.,'s opinion asserts, or whether, as appears from the 
 report, it was assumed there was no such general principle, in 
 either event the opinions of the dissentient judges in the Court 
 of Appeal can derive not much additional strength from concur- 
 
1116 . THE LAW OF NEGLIGENCE. [book nr. 
 
 rence in a point ttat was not argued, and does not form the 
 basis of the decision. They, then, depend upon the independent 
 reasoning. 
 View of In the view of Baggallay, L.J., the case was not to be 
 
 Bi^gaUay, distinguished in principle from Indermaur v. Dames. In 
 Indermaur v. Dames, then, the rule laid down was that " the 
 occupier should use reasonable care to prevent damage from 
 unusual danger which he knows or ought to know." The whole 
 stress of the proposition lies in' the word "unusual": if the 
 proposition were — omitting the word unusual — " the occupier 
 should use reasonable care to prevent damage from danger 
 which he knows or ought to know," the case would run 
 counter to Bartonshill Coal Company v. Eeid, in the House of 
 Lords, where Lord Cranworth says : " When the workman con- 
 tracts to do work of any particular sort he knows, or ought to 
 know, to what risk he is exposing himself;" and to the whole of 
 those cases which recognize the principle laid down by Bramwell, 
 B., in Dynen v. Leach.' There is nothing legally wrongful in 
 the use by an employer of works or machinery more or less dan- 
 ' gerous to his workmen, or less safe than others that might be 
 adopted. It may be inhuman so to carry on his works as to 
 expose his workmen to peril of their lives, but it does not create 
 a right of action for an injury which it may occasion when, as 
 in this case, the workman has known all the facts, and is as 
 weU acquainted as the master with the nature of the machinery 
 and voluntarily uses it." 
 
 In Indermaur v. Dames there was an " unusual " danger in the 
 sense that the plaintiff was exposed to a risk well known to the 
 occupier of the premises, but unknown to the plaintiff, that 
 might have been made apparent, and so guarded against, but 
 which was concealed from the plaintiff, and thus turned iuto a 
 trap. But in Woodley's case there was no " unusual " danger. 
 It was assumed that the traflBc differed nothing from the ordinary 
 traffic ; and from the very nature of the business of a railway 
 company it must have been as well known to the plaintiff as 
 to the manager of the company that at certain fixed intervals 
 trains proceeded along the lines at a regulated rate of speed; so 
 that there could be nothing in the nature of a trap where the 
 danger was from a well-known and regularly recurrent hazard, 
 encountered every six or ten minutes for a fortnight, and, when 
 ultimately injurious, differing nothing from what had been 
 innocuous for a fortnight. Moreover, in Indermaur v. Dames 
 a crucial distinction was drawn ^ between workmen acquaiated 
 
 ' 26 L. J. Ex. 221. 2 See judgment in the Exchequer Chamber by Kelly, C.B. 
 
BOOK ni.] DUTY OF PROPERTY OWNERS. 1117 
 
 with the character of premises and those who are ignorant of 
 it. The plaintiff in Indermaur's case came under the former 
 class ; in Woodley's, under the latter. In Indermaur's case the 
 danger was unforeseen, because no means of knowing ; in Wood- 
 ley's, only unguarded against. No such identity, therefore, can 
 be said to exist between Indermaur v. Dames and Woodley v. 
 Metropolitan District Railway Company as necessarily to involve 
 the same legal principle. 
 
 On the same side is the unsurpassed legal acumen and View of 
 knowledge of Mellish, L.J. His main position is that every ^^^^^ ^■•^• 
 person who carries on a dangerous trade is bound to take 
 reasonable care that no other person (not being his own servant) 
 suffers a personal injury from the manner in which his trade 
 is carried on. This is the basis on which he founds his next 
 proposition — that there was a greater amount of care due 
 from the company to Woodley than from the company to their 
 immediate servants ; that, in short, Woodley stood with respect to 
 the company in no different position from that of a customer 
 invited on their premises. The judgment of Mellish, L. J., thus 
 proceeds on the assumption that there was a duty imposed by law 
 on the company either to avert the danger to which the plaintiff 
 was subject, or to give him reasonable notice of it. The question 
 then arose whether they had averted the danger or given reason- 
 able notice of it, and this was for the jury. 
 
 But it is observable that the Lord Justice assumes that, if the 
 relation between the company and the injured man is not that of 
 master and servant, it must be some relation involving a greater 
 amount of duty ; but this is precisely the point that was to be 
 established by independent reasoning, and the assumption of 
 the Lord Justice that there cannot be a third state — not that of 
 the mere relation of master and servant, and not that of the 
 relation of occupier of property and one on the property upon 
 lawful business, and not upon bare permission — though having 
 the high sanction of the Lord Justice's authority — is not sup- 
 ported by reasoning. During the performance of the work 
 under the contract, the ordinary traiEc of the railway goes on 
 uninterrupted ; the workmen are, indeed, entitled to be protected 
 from having the risks increased, but the very condition under 
 which they are there is that the company's business is to go on 
 without any intermission. 
 
 Did then Woodley possess greater rights against the company 
 than his employers ? " Suppose this case," says the Lord Justice : 
 " a man is employed by a contractor for cleansing the street, to 
 scrape a particular street, and for the space of a fortnight he has 
 
1118 THE LAW OF NEGLIGENCE. [book in. 
 
 the opportunity of observing that a particular hansom cabman 
 drives his cab with extremely little regard for the safety of the 
 men who scrape the streets. At the end of a fortnight the man 
 who scrapes the streets is negligently run over by the cabman. 
 An action is brought in the county court, and the cabman says in 
 his defence, ' You know my style of driving ; you have seen me 
 drive for a fortnight ; I was only driving in my usual style.' 
 ' Yes, but your usual style of driving is a very negligent style, 
 and my having seen you drive for a fortnight has nothing to do 
 with it.' It will not be disputed the scraper of the streets in the 
 case I have supposed is entitled to maintain his action, and, in my 
 opinion, his case does not differ from the case we have to deter- 
 mine, there being no contract between the defendant and the 
 plaintiff any more than between the cabman and the scraper of 
 the streets." 
 
 This illustration appears to be directed to shew that the fact 
 of there being no contract between the plaintiff and defendant 
 constitutes a greater liability on the part of the railway company 
 towards Woodley. In the illustration the scraper has a right, 
 independent of the hansom cabman, to be in the road; in the 
 case the plaintiff had no right, independent of the invitation of- 
 the railway company, on their line. From this it follows that 
 the hansom cabman had no right to impose terms as to the user 
 of the road, while the railway company might impose terms as to 
 the execution of works on their lines. The right of the hansom 
 cabman is merely to use the road for driving along subject to the 
 rights of all other people ; the railway company may — as far as 
 the present purpose goes — impose what terms they like on those 
 entering on their line. If, then, the style of driving of the 
 hansom cabman is negligent, each repetition is an aggravation of 
 his offence, as, apart from contract, he can have no legal justifi- 
 cation for his conduct. If the running of trains — as far as the 
 present purpose goes — is negligent, it is not, as with the hansom 
 cabman, a tortious act in itself, but it may be with reference to 
 the acquired rights of licensees upon the company's premises. 
 If that were the position of Woodley, there is no doubt the com- 
 pany were bound to use greater precautions, and, failing to do so, 
 were liable ; and, in that event, either the contract with Woodley's 
 employer was that he should perform the work, the company in 
 the meanwhile either refraining from working their line in the 
 ordinary way or by the adoption of additional safeguards ob- 
 viating any dangers that might exist, or, in the alternative, 
 Woodley possessed greater rights against the company than his 
 employer. 
 
BOOK III.] DUTY OF PEOPEETY OWNEES. 1119 
 
 But what ground is there for assuming that the company's con- 
 tract with their contractor contained implied terms that are never 
 suggested as expressed ? The course of conduct on both sides — 
 the uncomplaining working of the men with such hazardous 
 accompaniments, the ordinary conduct of their business by the 
 company — indicates a contract to do the work during the continu- 
 ance of the ordinary risks arising from the traflSc. The contractor 
 might very reasonably contract to perform the work without im- 
 peding the work of the railway, and would receive an extra 
 payment for the difficulties and risk that he had thereby to 
 encounter, and the engagement of the men would presumably be 
 subject to the same limitations, since legally it could be, and it 
 would be useless unless the men were included in its terms. The 
 position of the railway company is, then — they admit workmen 
 to their lines to do work there on the condition that the ordinary 
 traffic is not to be interfered with. If there is actual negligence 
 in runnilig the trains, there is a breach of the condition. But if 
 the contractor does not communicate the condition under which 
 he undertook the work to the men, have they any greater rights ? 
 Assuredly not, in the absence of unusual danger — that is, unusual 
 danger for the character of the work, since the contract is with 
 reference to the work. The legal principle on which the liability 
 of the master for the acts of the servant as they affect persons 
 without the limits of the employment, and his non-liability for 
 the acts of the servants within the limits of the employment, is 
 based, is that a person without the limits of the employment sus- 
 taining injury has a right to say, " I was not a party to your act. 
 If you chose so to do or cause to be done, I must look to you 
 for redress ; " for, as a large portion of the ordinary acts of life are 
 attended with some risk to third persons, and no one has a right 
 to involve others in risks without their consent, where there is no 
 submission to such risks no disability from obtaining redress for 
 injury can arise. Within the limits of the employment the 
 principle of the master's exemption from liability is that the 
 workman knows to what risks he is exposing himself; if want 
 of care should occur, and evil result, he cannot say he does not 
 know who is to blame ; neither can he say that the master need 
 not have engaged in the work, for he himself is a party to its 
 being undertaken.' 
 
 The question, then, comes to this — to which of these classes is 
 the liability of the company in Woodley's case to be referred ? 
 Admitting he is not the servant of the company, yet, as regards 
 
 ^ Per Lord Cranworth, in Bartonshill Coal Company 7'. Beid, 3 Macqueen, at pp. 
 283, 284. 
 
1120 THE LAW OP NEGLIGENCE. [book iii. 
 
 knowledge of the danger and acquiescence in it, he cannot well 
 loe put in the same class as the injured plaintiff in Indennaur v. 
 Dames ; and it is submitted it is more consistent, both with the 
 facts of the case and also with legal principle, to hold that the 
 contract was to do the work under the conditions of the ordinary 
 traffic of the line, than to assume a legal obligation to guard the 
 workman against manifest and regularly recurrent danger, just as 
 if he stood on the footing of a stranger. If that were the con- 
 tract made with the contractor, the workman entered on the work 
 under the same conditions as those on which the work was let 
 out, and there was no liability on the railway company. 
 
 But it is also urged that the plaintiff could not be looked on 
 as a volunteer. " I think," says the Lord Justice, " assuming 
 that he did understand what the risk was which he was running, 
 he is entitled to say, ' I know I was running great risk, and did 
 not like it at all, but I could not afford to give up my good place, 
 from which I get my livelihood, and I supposed that if I was 
 injured by their carelessness I should have an action against the 
 company, and that if I was killed my wife and children would 
 have their action also.' " 
 
 The plaintiff, it might be said, was entitled to say this, either 
 by_ virtue of the existence of a duty towards him on the part of 
 the railway company, or else on the ground that, the master's duty 
 being to afford reasonably safe means of working, he could not 
 be called on to throw up a good place because the master had not 
 done his duty. The latter of these meanings would be directly 
 contrary to the tenor of the cases.' The applicability of the former 
 would depend entirely on the main principle of the Lord Justice's 
 opinion — the duty to take extra precautions to guard against the 
 risks to which the plaintiff was exposed — being established. But, 
 assuming this to be established, the opinion would still seem 
 contrary to the case of Butterfield v. Forrester,^ approved in 
 CasweU v. Worth,' where it is held that the want of ordinary care 
 in avoiding an injury disentitles the party injured from suiag. 
 The man knew that every ten minutes trains passed; was he 
 discharged from acting on the knowledge? Suppose him to 
 intermit his precautions, was not his own shortcoming the cause 
 of the accident, and not any default of the defendants ? 
 Oookburn, Oockbum, C.J., postulates as the basis of his judgment that the 
 
 ment '" ^ railway company were not merely morally negligent, but legally 
 so — that is, assuming any duty to exist, they had not taken on 
 themselves to discharge their duty. If, then, Woodley is to be 
 
 1 E.g., Assop V. Tates, 2 H. & N. 768; 27 L. J. Ex. 156; Griffith v. Gidlow, 
 3 H. & N. 648 ; 27 L. J. Ex. 404. 2 ,1 jjast 59. ' 5 E. & B. 849. 
 
BOOK in.] DUTY OP PEOPEETY OWNEES. 1121 
 
 looked at as a servant, there being no concealment, and the risks 
 of the employment being obvious and not aggravated during the 
 employment, he could not call upon the company in any way to 
 mitigate the dangers to which he engages to expose himself. 
 But if Woodley was not a servant, he still cannot recover, for the 
 true antithesis is not between servant and not servant, as Mellish, 
 L. J., assumes as a basis of his judgment, but between a stranger 
 lawfully resorting to premises in ignorance of the existence of 
 danger and a person resorting to premises unregarding the 
 presence of danger. As he knew the danger to which he was 
 exposed, so he cannot pass to others the responsibility for the 
 consequences to which he knowingly exposed himself. 
 
 The judgment of Mellor and Grove, JJ., though it coincides in Meiiorand 
 the results to which Cockbum, O.J., arrives, does so by a different j^Tgment''^ 
 process, involving some contrary assumptions. It is to be noted 
 that it identifies Woodley with the contractor, thus assuming the 
 point that Woodley could have no greater rights than he. And 
 also it assumes that Woodley was better able to judge than either 
 contractor or railway company whether the work could safely be 
 performed without additional precautions. This brings the judg- 
 ment in direct conflict with what was said by Mellish, L.J. : "It 
 is by no means certain that the plaintiff, an ordinary bricklayer's 
 labourer, understood at all what the extent of the risk was which 
 he was running, or what the precautions were which were reason- 
 ably necessary. In the next place, assuming that he did under- 
 stand what the risk was which he was running, it would be 
 extremely unjust to hold that he was obliged either at once to 
 quit his master's employment or else to lose his right of action." 
 Mellor and Grove, JJ.', appear to have been of opinion that the 
 law was completely settled' so as not to admit of considerations 
 of justice or injustice in the abstract, and settled in the way 
 that Mellish, L.J., was of opinion it would be unjust to hold. 
 As to whether the contractor had done anything that made him 
 liable to the plaintiff they were not concerned to decide, as the 
 action was against the employer of the contractor, and his negli- 
 gence would not render his employer liable. 
 
 As to whether there was negligence there is an apparent dis- Judgment of 
 crepancy between the judgment of the Lord Chief Justice and that c.J., con-' 
 of Mellor and Grove, JJ. tho^judgmenta 
 
 The Lord Chief Justice says : "In my view, so far as the of Meiiorand 
 
 •' - "^ , , . , Grove, JJ. 
 
 question of neghgence was concerned, not only was there evidence 
 
 to go to the jury, but the verdict was in this respect perfectly 
 
 1 SeeAssopw. Yates, 2 H. & N. 768; 2 H. & N. 213; 26 L. J. Ex. 319; 
 27 L. J. Ex. 156 ; Saxtou v. Hawkswortli, Gallagher v. Piper, 16 C. B. N. S. 669 ; 
 26 L. T. N. S. 851; Eoberts v. Smitji, 33 L.:J. 0. P. 329. 
 
 4B 
 
1122 THE LAW OF NEGLIGENCE. [book iii. 
 
 right ; " while Mellor and Grove, JJ., say : " The defendants can 
 only be made liable on proof of some negligent conduct, and we 
 can discover none." The Lord Chief Justice was probably view- 
 ing the case in that larger aspect where there had first been a 
 look-out man employed, then an intermission, then a re-employ- 
 ment, as shewing a consciousness on the part of the company of 
 an obligation that they had never allowed to mature into an 
 obligation -to Woodley; while Mellor and Grove, JJ., were re- 
 garding the narrower view that concerned merely the company's 
 legal relations to Woodley. As to that narrower view, and taking 
 the case in its pure legal bearings, there was no difference of 
 view amongst the majority of the Court. 
 
 The case is indeed a difficult one, made more difficult by this 
 contrariety of opinion, yet, if the preceding examination is sound, it 
 results that the weight of reason joins with the weight of authority, 
 and Woodley v. Metropolitan District Railway Company may be 
 considered to maintain and enforce a correct legal principle.^ 
 Thrusseii v. In Thrussell V. Handyside,^ again, at first sight very similar in 
 Handyside. jj.^ ^^^^^ HawMns, J., distinguished Woodley v. Metropolitan 
 District Railway Company.' The facts proved were that a work- 
 man was directed by his employer to work in a particular place. 
 The defendants were contractors working above the place where 
 the plaintiff was engaged at his work. For some time the de- 
 fendants' work was carried on in a manner that obviated danger 
 of injury, but subsequently the plaintifE's employers required the 
 safeguard which protected the plaintifi" to be removed so that they 
 might more speedily accomplish their own work on which the 
 plaintiff was engaged. No other safeguards were substituted, 
 Plaintiff complained to the defendants' foreman of the danger 
 from their operations to which he was exposed, but without result, 
 though it was proved that satisfactory precautions could have been 
 easily taken if desired. Plaintiff was injured by the falling of an 
 iron bolt fi'om the work carried on by the defendants above where 
 he was placed, and brought his action. On appeal by the de- 
 fendants from the county court to the Divisional Court, for one 
 ground it was contended that Woodley v. Metropolitan District 
 Distinguished Railway Company was in point.' Hawkins, J., however, pointed 
 
 from Woodley , .i . • -vm- n > ■■ , . .~. . . -, ■, , 
 
 B.Metro- out tfiat m Woodley s case the plaintiff was injured through a 
 SiiMct regularly recurrent danger, which the exercise of foresight would 
 
 Eanway have obviated ; while in Thrussell's case the danger was intermit- 
 
 tent, and not to be avoided consistently with a continuance of the 
 employment. In addition to this, it may be pointed out that in 
 1 Compare Casey v. Sinclair, 23 Sc. L. E. 305. 
 
 3 ('|8»)^^° §• ^- ?v3S9 ; 57 L. J. Q. B. 347 ; 58 L. T. 344. 
 3 2 Ex. D. 384 ; 46 L. J. Ex. 521. 
 
BOOK III] DUTY OF PROPERTY OWNERS. 1123 
 
 Woodley's case the running of tlie trains was in the ordinary- 
 course, and the duty sought to be imposed was to put upon the 
 railway company the duty of taking extra precautions to secure 
 the safety of the workman ; while in Thrussell's case an ordinary 
 means of doing the work — " in order to do this work and to hoist 
 the plates a large stage had been erected which was called a 
 gantry" — in safety had been abandoned for other means not 
 safe. The removal of the workman in Woodley's case is not 
 paralleled by the alteration in the mode of doing the work, since 
 the cessation of extra precautions diifers widely from the abandon- 
 ment of ordinary ones. Neither does the fact that the abandon- 
 ment of the first mode of working was at the request of the 
 plaintiff's employers affect the nature of his claim except as it 
 may be evidence of his voluntarily incurring the risk, for every 
 man carrying on business is bound to use all reasonable and 
 ordinary precautions in carrying it on not to injure others, and 
 not the less so because his work is done in conjunction with 
 others with whom he has no direct relation. That a workman's 
 employer has for his own purposes made arrangements with third 
 persons without reference to his workman cannot, in the absence 
 of special circumstances, alter the conditions of the workman's 
 employment. It remains that a dangerous method of working 
 was deliberately undertaken, with the effect of injuring some one 
 who had not contracted to encounter the risk, and who, therefore, 
 became entitled to recover in respect of his injury. In this view 
 Woodley's case has little, if any, bearing on the present. 
 
CHAPTER VIII. 
 
 WATER AND WATERCOUESES. 
 
 N 
 
 Division of 
 the subject. 
 
 I. Belations 
 raised by 
 water brought 
 on land. 
 
 II, Belations 
 raised by 
 water coming 
 upon land. 
 Distinction, 
 
 The collection, distribution, and user of water on a man's estate 
 raise questions of difficulty more proper to the law of easements 
 than to that of negligence. The subject, however, cannot wholly 
 be passed over ; and we have therefore to consider here the 
 relations raised — I. By water brought on land ; II. By water 
 coming upon land. 
 
 The distinction between these two classes of cases consists in 
 the intervention of an artificial agency, or the operation of 
 natural causes merely, by which the presence of water is pro- 
 cured. Under the first class a distinction will have to be con- 
 sidered between water brought on land with reference to the 
 right of the landowner bringing it there alone, and water 
 brought on land where a contractual relationship has been 
 constituted between him and others liable to be affected by the 
 bringing of water there. Under the second class of cases we 
 shall consider, first, water running in defined channels, whether 
 natural or artificial, and that respectively as it is surface water 
 or subsoil ; and, secondly, water not running in any defined 
 channels; and this also under the two heads of surface water 
 and subsoil water. 
 
 Principle 
 involved not 
 confined to 
 ■water. 
 
 The inquiry 
 whether 
 the duty is 
 
 I. Water brought on Land. 
 
 Water brought on land is, we have just seen, to be distin- 
 guished from water naturally coming there. And the principle 
 involved is thus much wider than that which is limited to the 
 case of water alone ; since whatever material is brought or stored 
 on land, and which . is likely to be dangerous or mischievous, 
 comes under the same principle, and may be dealt with in con- 
 sidering the cases of water. 
 
 The duty of a man to take care to keep in what he has 
 brought upon land and stores there so that it may not escape 
 
BOOKiu.] WATER AND WATEHCOtJESES. 1125 
 
 and damage his neighbours has been admitted on all hands, absolute or 
 both here and in America. But whether this duty is an feasonVbie"'" 
 absolute duty, or no more than a duty to take all reasonable P^oautiois. 
 and proper precautions to keep in what has been brought upon 
 land, has been the subject of very considerable controversy. 
 
 The first view requires that the person who brought anything 
 dangerous on his land and failed to keep it in is responsible for 
 all the natm-al consequences of its escape. The second limits his 
 responsibility to the case of actual negligence, and exonerates 
 him from the consequences of an escape arising from any latent 
 defect not to be detected by ordinary prudence and skill. 
 
 The rule that has been laid down as expressing this second Eeasoning 
 view is that the plaintiff must come prepared with evidence to ^aTty' 
 shew that the intention was unlawful, or that the defendant was^^''''iy*°"^« 
 in fault ; for, if the injury was unavoidable and the conduct of the precautions. 
 defendant was free from blame, he will not be held liable.' And 
 this has been supported by reasoning drawn from the nature of 
 civil society, by which a principle of cession of natural rights and 
 compensation for their surrender runs through the whole of the 
 legal system of civilized States. " I may not place or keep a 
 nuisance upon my land to the damage of my neighbour, and 
 I have my compensation for the surrender of this right to use 
 my own as I will by the similar restriction imposed upon my 
 neighbour for my benefit. I hold my property subject to the : 
 
 risk that it may be unavoidably or accidentally injured by those 
 who live near me, and as I move about upon the public highways 
 and in all places where other persons may lawfully be, I take the 
 risk of being accidentally injured in my person by them without 
 fault on their part." 
 
 This reasoning, however, has not been adopted in the law of Not adopted 
 England, which draws a distinction between those cases where EDgiand?'^ ° 
 injury is done to personal property, or even to the person, by col- 
 lision, and that description of damage ; and those cases where in- 
 jury results from the collecting anything on land likely to do 
 mischief if it escapes, and which does escape, and without negli- 
 gence. 
 
 It is agreed by those authorities holding both sets of views 
 above alluded to that traffic on the highways, whether by land 
 or sea, cannot be conducted without exposing those whose persons 
 or property are near it to to some inevitable risk ; and that 
 being so, those who go on the highway, or have their property 
 adjacent to it, may well be held to do so subject to their taking 
 upon themselves the risk of injuiy from that inevitable danger ; 
 
 ' Brown v, Kendall, 60 Mass. 292 ; Los3o v. Buchanan, 51 N. Y. 476. 
 
1126 
 
 The law op negligence. 
 
 [book III, 
 
 The law dis- 
 cussed and 
 settled in 
 Fletcher v, 
 Bylands. 
 
 Eule fomiii- 
 lated by 
 Blackburn, 
 J., in the 
 Exchequer 
 Chamber 
 adopted in 
 the House of 
 Lords. 
 
 and persons who, by licence of the owner, pass near to ware- 
 houses where goods are being raised or lowered, certainly do so 
 subject to the inevitable risk of accident. In neither case there- 
 fore can they recover without proof of want of care or skill 
 occasioning the accident'"; and Blackburn, J., in delivering his 
 celebrated judgment in the Exchequer Chamber in Fletcher v. 
 Eylands,' suggests that " all the cases in which inevitable accident 
 has been held an excuse for what primd facie was a trespass 
 can be explained on the same principle — ^viz., that the circum- 
 stances were such as to shew that the plaintiff had taken that 
 risk upon himself." 
 
 The law, as to what the duty of a man is, who has brought 
 any thing on his land, was fully discussed and finally settled in 
 the case of Fletcher v. Eylands.' In that case, the plaintiff was 
 damaged by his property being flooded by water, which, without 
 any fault on his part, broke out of a reservoir constructed on 
 defendants' lands by defendants' order, and maintained by the 
 defendants. The majority of Court of Exchequer* were of opinion 
 the plaintiff could not recover ; Bramwell, B., dissented. On 
 appeal the Exchequer Chamber upheld his opinion, and gave 
 judgment for the plaintiff; and this was sustained in the House 
 of Lords, Lord Cairns, C, and Lord Cranworth, who delivered 
 opinions in the House of Lords, adopting the rule laid down by 
 Blackburn, J., in delivering the judgment of the Exchequer 
 Chamber, as follows: — "We think that the true rule of law is, 
 that the person who, for his own purposes, brings on his land 
 and collects and keeps there anything likely to do mischief if it 
 escapes, must keep it in at his peril ; and iE he does not so, is 
 primd facie answerable for all the damage which is the natural 
 consequence of its escape. He can excuse himself by shewing 
 that the escape was owing to the plaintiff's default ; or, perhaps, 
 that the escape was the consequence of ins major or the act of 
 God ; but, as nothing of this sort exists here, it is unnecessary to 
 inquire what excuse would be sufficient. The general rule, as 
 above stated, seems on principle just. The person whose grass 
 or corn is eaten down by the escaping cattle of his neighbour, 
 or whose mine is flooded by the water from his neighbour's 
 reservoir,* or whose cellar is invaded by the filth of his neigh- 
 bour's privy," or whose habitation is made unhealthy by the fumes 
 
 ^ Per Blackburn, J., Tletcher v. By- 
 lands, L. E. I Ex. 265, at p. 286 ; 35 
 L. J. Ex. 154; 14 L. T. N. S, 523 ; 14 
 W. R. 799. 
 
 " L. E. I Ex. 265. 
 ' 3 3 H. & G. 774; L. E. I Ex. 265 ; 
 h. E. 3 H. of L. 330; 37 L. J. Ex. 161 ; 
 
 19 L. T. N. S. 220. 
 
 * Pollock, C.B., and Martin, B. 
 
 " Harrison v. Great Northern Eailway 
 Company, 3 H. & C. 231 ; 33 L. J. Ex. 
 266 ; 10 L. T. N. S. 621 ; 12 W. E. 1081, 
 
 " Tenant w. Goldwin, i Salk. 21, 360; 
 2 Ld. Baym, 1089. 
 
BOOK III.] WATEU AND WATEECOUHSES. 1127 
 
 and noisome vapours of his neighbour's alkali works,' Is damnified 
 without any fault of his own ; and it seems but reasonable and 
 just that the neighbour who has brought something on his own 
 property (which was not naturally there) harmless to others, so 
 long as it is confined to his own property, but which he knows 
 will be mischievous if it gets to his neighbour's, should be obliged 
 to make good the damage which ensues if he does not succeed in 
 confining it to his own property. But for his act in bringing it 
 there no mischief could have accrued, and it seems but just that 
 he should at his peril keep it there, so that no mischief may accrue 
 or answer for the natural and anticipated consequences. And 
 upon authority this, we think, is established to be the law, whether 
 the things so brought be beasts,'' or water,' or filth,^ or 
 stenches."^ 
 
 This being the rule, it will be noted that its generality is Rule limited 
 limited by four exceptions — exceptions : 
 
 I. Where the damage to the plaintiff has occurred in the damage^anses 
 natural user of land — a user, that is, for which it might in the from the 
 
 • j-iTi T natural user 
 
 ordinary course of the en]oyment oi land be used. of laud; 
 
 II. Where the damage to the plaintiff was caused by his own Jaio^eTs^ 
 
 d^f^^it- .^ , tTdtfiStof 
 
 III. Where the damage to the plaintiff was the consequence the sufferer ;■ 
 
 of vis majw or the act of God. damage is the 
 
 IV. Where the damage was the consequence of accumulation °°^^^^^f}^^. 
 for public purposes under the express authority of a statute. iv. Where 
 
 These cases we shall now proceed to consider ; and is the result 
 
 I. Where the damage to the plaintiff has arisen from the °f ^^*j»^»*^°^y 
 natural user of land. I. Damage 
 
 ^ n-n- ansing from 
 
 The "natural user of land is stated by ±Jramwell, ±5., m the natural 
 Bamford i;. Tumley' to mean "those acts necessary for the '^'^^^f"*^^*"'*- 
 common and ordinary use and occupation of lands and houses," Tumley. 
 and which may be done, if conveniently done, without subjecting 
 those who do them to an action. In Wilson v. WaddelH the ^l^^^^ 
 House of Lords decided that " the owner of the minerals has a 
 right to take away the whole of the minerals in his land, for such 
 is the natural course of user of minerals;" and, by consequence, 
 
 1 St. Helens Smelting Company w. Tip- 2 Ld. Eaym. 1089 ; 6 Mod. 311. 
 
 ninff II H. L. C. 642; 35 L. J. Q. B. « Bamtord w. Tmnley, 3 B. & S. 62 ; 
 
 66?I2 L T N. S. 776 ; 13 W. K. 1083. 31 L- J- Q-^B. 286 ; Tipping .St. Helens 
 
 2 May B. Burdett, 9 Q. B. loi ; 16 L. J. Smelting Company, 4 B. & S. 609 ; 11 H. 
 Q. B. 64: Cox V. Bmbidge, 13 C. B. L. C. 642. ^ ^ „ ^ 
 n:s 430 32L.J.C.P.89! iiW.E. «3B.&S.62,atp.83;3iL.JQ.B. 
 Alt, ■ I Hale, Pleas of the Crown, p. 430. 286,overruhng Hole«.Barlow,40. B.N.S. 
 
 » Baird V. Williamson, 15 C. B. N. S. 334 5 27 L- J- C. P. 207 ; at NisiPnvs 
 
 lie • ^^ L J C. P. loi ; 9 L. T. N. S. 2 h\ & F. 231. See Cavey v. Ledbitter, 
 
 412- 12 W. E. ISO-, Smith D. Kenrick, 13 C. B. N. S. 470 ; 32 L. J. C. P. 104; 
 
 7 C 'b «5 ■ 18 L. J. C. P. 172. 6 L. T. N. S. 721 ; 10 W. E. 803. 
 
 I'Temmt i. Goldwin, I Salk. 21, 360; '2 App. Cas. 95; 35 L. T. N. S. 639. 
 
ii^8 
 
 ¥HE law of NEGLl^EljfCE. 
 
 [book. III. 
 
 Company. 
 
 when the minerals are removed, lie is not liable for the accelerated 
 passage to his neighhour's land of water naturally coming to his 
 Hurdmans. own. But in Hurdman v. North-Bastern Railway Company' the 
 RaUw^y^'*'™ Statement of claim alleged that the surface of the defendant's 
 land had been artificially raised by earth placed thereon, and that, 
 in consegmnce, rain-water falling on defendant's land made its way 
 through defendant's wall into the house of the plaintiff adjoining, 
 and taused substantial damage. This was held on demurrer to 
 constitute a good cause of action, on the ground that the heap 
 on the defendant's land must be considered an artificial work; 
 and the eifect of this being to cause water, even though arising 
 from natural rainfall only, to pass into his neighbour's land, and 
 thus substantially to interfere with, his enjoyment, rendered him 
 liable. The point of this decision was that the act of the defend- 
 ant had caused water to flow on the neighbour's property that 
 otherwise would not have gone there. 
 
 In West Cumberland Iron and Steel Company v. Kenyon' 
 the dealing with the water was exclusively on the defendant's 
 land ; when the water left the defendant's land it would all naturally 
 have found its way down to the plaintiff's levels, and the 
 defendant's dealings with it did not cause any greater burthen to 
 the plaintiff. That being so, the Court of Appeal decided that 
 defendant had a right to say, " What is it to you what I have 
 been doing on my own land ? The same quantity of water leaves 
 my land, and leaves my land through exactly the same aperture, 
 
 West Cum- 
 berland Iron 
 and Steel 
 Company v, 
 Kenyou. 
 
 into your field in exactly the same way, as it did 
 
 and gets 
 before." 
 
 1 3 C. P. D. i68 ; 47 L. J. C. P. 368 ; 
 38 L. T. 339 ; 26 W. E. 489. Barkley 
 V. Wilcox, 86 N. Y. 140, is a somewhat 
 similar case, where a different decision 
 was come to. There, by the building of the 
 defendant, water was prevented naturally 
 flowing from the plaintiff's land, and 
 flooded his cellar. Held, that " to adopt 
 the principle that the law of nature must 
 be observed in respect to surface drainage 
 would, we think, place undue restriction 
 upon industry and enterprise, and the con- 
 trol by an owner of his property." 
 
 " II Ch. D. 7 82 ; 4$ L. J. Gh. 793 ; 40 
 L. T. 703. The American and English 
 cases on what is the natural and lawful 
 use of land are collected in Pennsylvania 
 Coal Company v. Sanderson, 113 Penn. 
 126, at p. 162, where it was held that 
 one -working a coal mine in the usual 
 manner may discharge the percolating 
 water into a stream which naturally drains 
 the land. This is not, however, univer- 
 sally recognized in America: Red Eiver 
 Holler Mills4H^rif{ht, 44 Am. B. 194; 
 and is not t^ -luw in England. See 
 
 Aldred's case, 9 Eep. S7 b, where it is said 
 that " if a man has a watercourse running 
 in a ditch from the river to his house for 
 his necessary use, if a glover sets up a 
 lime-pit for calf-skins and sheep-skins so 
 near the said watercourse that the corrup- 
 tion of the lime-pit has corrupted it, for 
 which cause bis tenants leave the said 
 house, an action on the case lies for it, as 
 it is adjudged in 13 Hen. VII. 26 b ; and 
 this stands with the rule of law and I'eason : 
 8C. Proliibetur ne quis faciat in mo qiwd 
 nocere possit alieno. JSt sic utere tuo vt 
 alienum non Icedas; vide in Ihe Book of 
 Entries, tit. Nusanoe, 406 b ; " Wood v. 
 Sutoliffe, 2 Sim. N. S. 163. See, too, 
 Goldsmith v. Tunbridge Wells Improve- 
 ment Commissioners, L. R. i Eq. 161, at 
 p. 169 ; L. R. I Ch. App. 349 ; 35 L. J. 
 Ch. 382; 14 L.T.N. S. 154; 14W. E. 
 512 ; Crossley v. Lightowlei', L. E. 2 Ch. 
 App. 478 ; 36 L. J. Ch. 584 ; 15 W. R. 
 801 ; Pennington v. Brinsop Lead Com- 
 pany, 5 Ch. D. 769 ; 37 L. T. 149 ; 25 
 W. E. 874. . . 
 
fiooKiii.] WATER AND WATEHOOURSES. 1129 
 
 This it is which constitutes the distinction between this case and Whailey v. 
 Whalley ■U.Lancashire and Yorkshire Railway Company,' where the and Yorkshire 
 works constructed by the defendants on their land were such that J^aiiway 
 
 T n -1 Company. 
 
 m a time of extraordinary flood a greater amount of injury was done 
 to the plaintiff than would have been done by the passage of the 
 water, which was the injurious agency, in its ordinary course. 
 The total amount discharged was not greater than it would have 
 been, but the manner of its discharge was more burthensome, and 
 the defendants had no right to impose this greater or different 
 obligation on their neighbours. The circumstances of that case — 
 the statutory authorization to construct the embankment — would 
 very probably have justified the defendants in the case of damage 
 occurring through the penning up of waters by the embankment. 
 The defendants' liability was based on their having aggravated 
 the result that would £ave naturally arisen on the existing state 
 of things in an endeavour to lighten the burthen on their own 
 property. 
 
 In Ballard v. Tomlinson" an additional factor, that of contam- Ballard v. 
 ination, was introduced. The defendant used a well on his land 
 for the reception of sewage, whereby filth percolated through into 
 a well of his neighbour's — the plaintiff's — on a lower level. The 
 case would appear to be exactly covered by what is said in Tenant v. 
 Goldwin^: " He whose dirt it is must keep it that it may not tres- 
 pass ;" and was decided by Cotton and Lindley, L.JJ., on grounds 
 applicable to that case. Brett, M.R., however, was of opinion Judgment of 
 that the shaft of the well was an " artificial thing," and " that the '"'^^ ' 
 defendants therefore collected a quantity of sewage into an 
 artificial reservoir." 
 
 But after the decision in Rylands v. Fletcher,'' recognizing Considered. 
 the authority of Tenant v. Goldwin, whether the constructing a 
 well were a natural or a non-natural user of land, in either case 
 the fact of an escape of things brought on land, "whether the things 
 so brought be beasts, or water, or filth, or stenches,"* raises a legal 
 obligation to compensate for the damage done thereby ; and the 
 question of the property in the percolating water is, in any event, 
 immaterial, if, as is on authority undoubted, the plaintiff has a 
 right to have his land and the enjoyment of it free from the 
 defendant's filth ; since, if the percolating water as befouled is the 
 property of the defendant, he is bound to retain it. If it is not 
 his property, he has, at any rate, no greater right with it than if 
 
 1 n Q- B. D. 131; S3 L. J. Q. B. 6 Mod. 311. 
 
 285 ; so L. T. 472 ; 32 W. K. 711. " L. R. 3 H. of L. 330. . , , ^ 
 
 2 29 Ch. D. IIS; 54 L- J- Ch. 4S4; ^ Ber Blackburn, J., cited by Lord 
 52 L. T. 942 ; 33 W. R. 533- Cairns, C, Rylands v. Fletcher, L. R. 3 
 
 s i Salk. 21, 360; 2 Ld, Raym. 1089 ; H. of L. 330, at p. 340. 
 
1130 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 What is a 
 natural user ? 
 
 Smith V. 
 
 EletoUer. 
 
 it were his "property. The right of action is therefore undoubted, 
 irrespective of where the defendant might store his sewage, or 
 whether he stored it at all. The digging of a well is not, then, 
 a relevant fact to the founding of the action ; it is but a circum- 
 stance in the development of the injurious agency. In Hurdmaa 
 V. North-Bastem Eailway Company,' for instance, the placing of 
 the heap — ^the thing itself — was the cause of A greater flow of 
 water to the plaintiff's property than would otherwise have gone, 
 and therefore actionable. But in this case the right of action is, 
 not the well — the thing itself — ^but a particular user of it — ^for 
 sewage — that is actiouable. It is not increase of quantity, but 
 difference in kind — filth, not water — ^that is brought on the 
 plaintiff's property. There was an absolute duty to prevent filth 
 anyhow — ^whether by well or how els6 is not essential — flowing into 
 the neighbour's land. That filth flowed by the well was an acci- 
 dent only — the essence of the wrong was the flowing at all — not 
 afiected by whether the having a well was a natural or non-natural 
 user of the land. Then, is a well an " artificial thing " so as to be 
 excluded from the class of purposes mentioned by Lord Gainis' 
 " for which it might in the ordinary course of the enjoyment of 
 land be used." If it be excluded, then water naturally filtering 
 into a well, and so percolating to a neighbour's property, would 
 lay the foundation for an action by him ; if it be not excluded, then 
 no right of action could accrue. But it has been decided in 
 Chasemore v. Richards' that a landowner has a right to take sub- 
 terranean water even to the detriment of his neighbour. Then 
 may he not dig for it ? And in Wilson v. Waddell,^ also iu the 
 House of Lords, it was decided that the digging mines for minerals 
 is a natural use of land within Lord Oairns's exception. It seems 
 impossible to draw a distinction between the consequences of 
 digging for water to which a man has a right and digging for 
 minerals to which he has a right; and, if the digging for 
 minerals is a "natural purpose" in the ordinary course of the 
 enjoyment of land, there is no reason apparent why digging for 
 water should come under any other rule. 
 
 What, however, is a natural use of land must be a matter to 
 be determined in each case rather by what is customary and 
 suited to the particular circumstances of place than by any certain 
 rule of law.' This is a principal ground of the reversed of the 
 judgment of the Court of Exchequer in Smith v. Fletcher." The 
 
 1 3 C. P, D. i68 ; 47 L. J. C. P. 368 ; * 2 App. Cas. 95 ; 35 L. T. N. S. 639. 
 38 L. T. 339 ; 26 W. K. 489. 6 Turberville v. Stampe, I Salk. 13 ; 
 
 2 EylandsD. Fletcher, L. R. 3 H. of L. i Ld. Baym. 264 ; Filliter v. Pliippard, 
 338- iiQ. B. 347. "" 
 
 » 7 H, L. C. 349 ; 39 L. J. Ex. 81 ; 7 « L. K. 9 Ex. 64 ; 43 L. J. Ex. 70 ; 
 
 W. K. 685. 31 L. T. N. S. 190. See Fletcher v. 
 
EooKiii.] WATEE AND WATERCOUESES. 1131 
 
 Court of Excliequer Chamber there thought it desirable that 
 
 " the opinion of the jury should be taken as to whether what was 
 
 done by the defendants was done in the ordinary, reasonable, and 
 
 proper mode of working the mine ;" while in Crompton v. Lea' a Cromptou v. 
 
 demurrer to a bill averring that a mine which the defendants ^*- 
 
 threatened to work could not be worked without letting in a river 
 
 and flooding defendant's mine, and, through that, the plaintiff's 
 
 mine, was overruled, because the right to work the mine was not 
 
 an absolute right, but only a right to work the mine in an 
 
 ordinary, reasonable, and proper way, which must be matter of 
 
 evidence. 
 
 II. Where the damage to the plaintiff was caused by his own II. Damage 
 default. ?fj"'f •''?■«, 
 
 the plaintiff's 
 
 This is the ordiaary case of contributory negligence. The default, 
 proposition the plaintiff "has to prove in order to found a right 
 of action is that damage was caused by the defendant's act ; if it 
 is caused by his own, he has not discharged the oniis.^ 
 
 III. Where the damage to the plaintiff was the consequence of III. Damage 
 vis major, or the act of God. l^^^ 
 
 In Rylands v. Fletcher^ the position of a landowner from 
 whose land an injurious agency had been released by vis major 
 was not deteiTnined, but it was rather suggested as an exception 
 to the universality of the rule there laid down. The precise 
 point, however, very shortly afterwards came up for decision in 
 Nichols V. Marsland.'' The defendant was the owner of a series Kiohois «. 
 of artificial ornamental lakes formed by damming up a natural ^*''^'*'"'- 
 stream into pools. In consequence of a most unusual fall of rain 
 these lakes overflowed, and the water thus overflowing swept away 
 county bridges lower down the stream. The jury found that 
 there was no negligence, but that, had the flood been anticipated 
 (which it could not reasonably have been), the result might have 
 been prevented. On motion to enter the verdict for defendant, 
 the Court of Exchequer made a rule absolute to that effect, and 
 this was sustained in the Court of Appeal, where the judgment 
 was delivered by Mellish, L.J., who had been counsel in Eylands 
 V. Fletcher. It was pointed out that the ordinary rule of law 
 is that where a duty is raised by implication of law, and the 
 
 Smith, 2 App. Gas. 781, where the case, New South Wales case, M'Mahon v. Com- 
 
 after the second trial ordered by the Ex- missioner for Railways, 4 N. S. W. E. 
 
 chequer Chamber, was taken to the House 170, as to the liability for not poviding 
 
 of Lords. sufficient means to carry off rain water 
 
 1 L. R. 19 Eq. lij. which caused injury to goods deposited in 
 
 ^ Wakelin v. London and South-West- a store, 
 
 em Railway Company, 12 App. Cas. 41 ; '' L. 11. 10 Ex. 255 ; 2 Ex. D. i ; 46 
 
 $6 L. J. Q. B. 229; 55 L, T. 709 ; 35 L. J. Ex. 174; 35 L. T. N. S. 725 ; 25 
 
 W. R. 141. W. R. 173- 
 
 » L. R. 3 H. of L. 330. There is a 
 
1132 
 
 THE LAW OF NEGLiaENCE. 
 
 [book III. 
 
 Judgment of 
 MeUish, L.J. 
 
 Distinction 
 drawn by 
 BramweU, B., 
 between 
 beneficial 
 user and user 
 for purpose 
 of mere 
 amusement. 
 
 person bound is unable to perform it, without default of bis own, 
 by the act of God or the King's enemies, the law will excuse him ; 
 but where a person contracts for the performance of anything, he 
 is bound, though incapacitated to perform it by accident or 
 inevitable necessity.^ The duty to keep in water is a duty imposed 
 by law, and not one created by contract, and the wrongful act is 
 not the making or keeping the reservoir, but the allowing or 
 causing the water to escape. " If," said MeUish, L. J., " the 
 damages were occasioned by the act of the party without more — 
 as where a man accumulates water on his own land, but owing 
 to the peculiar nature or condition of the soil th? water escapes 
 and does damage to his neighbour — the case of Eylands v. 
 Fletcher'' establishes that he must be held liable. The accumula- 
 tion of water in a reservoir is not in itself wrongful, but the 
 making it and suffering the water to escape, if damage ensue, 
 constitute a wrong. But the present case is distinguished from 
 that of Rylands v. Fletcher in this, that it is not the act of the 
 defendant in keeping this reservoir — an act in itself lawful — which 
 alone leads to the escape of the water, and so renders wrongful 
 that .which but for such escape would have been lawful. It is 
 the supervening vis major of the water caused by the flood, 
 which, superadded to the water in the reservoir (which of itself 
 would have been innocuous), causes the disaster. A defendant 
 cannot, in our opinion, be properly said to have caused or allowed 
 the water to escape if the act of God or the Queen's enemies 
 was the real cause of its escaping, without any fault on the part 
 of the defendant. If a reservoir was destroyed by an earthquake, 
 or the Queen's enemies destroyed it in conducting some warlike 
 operation, it would be contrary to all reason and justice to hold 
 the owner of the reservoir liable for any damage that might be 
 done by the escape of the water." It should be noted here that, 
 in the Court of Exchequer, Bramwell, B., drew a distinction 
 between agencies set in motion by vis major in " cases of a 
 reasonable use of property in a way beneficial to the community," 
 and in cases where a dangerous agency is kept for mere amuse- 
 ment. " Oould it be said," he says, " that no one could have a 
 stack of chimneys except on the terms of being liable for any 
 damage done by their being overthrown by a hurricane or an 
 earthquake ? If so, it would be dangerous to have a tree, for a 
 wind might come so strong as to blow it out of the ground into 
 a neighbour's land, and cause it to do damage ; or a field of ripe 
 wheat, which might be fired by lightning, and do mischief." 
 And, on the other hand, " I am by no means sure that if a man 
 
 1 Parradine v. Jane, Alejn at p. 27. 
 
 = L.E. 3H. ofL. 330. 
 
BOOK III.] WATER AND "WATERCOURSES. 1133 
 
 kept a tiger, and lightning broke his chain and he got loose 
 and did mischief, that the man who kept him would not be 
 Uable." 
 
 If the keeping of a tiger were unlawful this would clearly Considered. 
 appear. But " though a person who keeps such an animal is 
 bound so to keep it that it shall do no damage,"^ the keeping 
 itself is nowhere declared to be unlawful. If not unlawful, how 
 does it differ from the keeping of water penned up for ornament 
 and amusement, the escape of which by the agency of vis major 
 might sweep off a hamlet or devastate a county? while the 
 utmost rage of a tiger thus loosened would be far less widely 
 destructive. 
 
 The keeping of water, as in Nichols v. Marsland, was not " a 
 reasonable use of property in a way beneficial to the community " 
 in any other sense than the conferring of pleasure made it so : 
 then how can it be entitled to the advantage of Bramwell, B.,'s 
 exception in its favour to the exclusion of the tiger, the inspection 
 of whom is a pleasure not different in nature from the inspection 
 of the ornamental lakes ? 
 
 Again, the storing of gunpowder under the regulations of 
 Act of ParUament is not unlawful. It may be " a reasonable 
 use of property in a way beneficial to the community " : for 
 example, when it is kept for blasting in mining operations — a 
 natural use of land ; or it may be a dangei'ous agency kept for 
 mere amusement, for making fireworks or for use in shooting. 
 Can it be contended that the obligations imposed on the owner 
 vary as his intention — maybe his secret intention — varies ? 
 
 Two classes of cases that are the subject of different con- 
 siderations seem to have become regarded as merely interchange- 
 able — viz., the class of dangerous agencies (a phrase usually 
 carrying with it some suggestion of a danger to human life) and 
 the class of things that a man, having brought on his own land, 
 is bound to keep from invading his neighbour's. 
 
 As to the former class, that of dangerous agencies, the liability 
 of the owner is dependent entirely on negligence — according 
 to the definition of Willes, J., " absence of care according to 
 the circumstances." They may be most absolutely beneficial ; 
 still, the care in guarding them must be unremitted ; yet to found 
 an action some negligence must be shewn.^ 
 
 As to the latter class, Rylands v. Fletcher' is commonly said Ground of 
 
 decision in 
 Sylands v. 
 
 1 Crowder, J., Besozzi v. Hariia, i F. Barnes, 1 1 C. B. N. S. SS3 ; 31 L. J. C. P. Fletcher 
 & F. 92. 137 ; Hutchinson v. Guion, S C. B. N. S. considered. 
 
 2 Wiliiams v. East India Company, 3 149 ; 28 L. J. C. P. 63. 
 
 East 192 ; Brass v. Maitland, 6 El. & Bl. ' L. R. i Ex. 265 ; 35 L. J. Ex. 154 ; 
 
 471 ; 26 L. J. Q. B. 49 ; Farrant v. 14 L. T. N. S. 523 ; 14 W. E. 799. 
 
1134 THE LAW OF NEGLIGENCE. [book m. 
 
 to decide that negligence is not necessary to found the action. 
 But, analysing this expression, it will be found that it is not 
 a perfectly accurate expression of the exact decision in that case. 
 Granted that the agency — in Eylands v. Fletcher the water — 
 causing the injury is rightfully where it is, there is no negligence 
 in the subsequent stages of its development into an injurious 
 agency. But the wrong — the violation of duty — is bringing it 
 where, though without negligence in any of its subsequent stages, 
 it is set on a course that produces injurious consequences. The 
 possession of it implies a duty for its retention ; yet, if injurious 
 consequences did not follow from the collection of water on land, 
 the bringing it there would be perfectly free from blame. It is 
 not, however, the bringing it, but the bringing it to a place not, 
 perhaps, antecedently known to be unfit, but which subsequently 
 proves unfit for its reception, and whence, supervening negli- 
 gence apart, and purely through the development of the ordinary 
 processes of nature, it escapes, and does damage. In Eylands 
 V. Fletcher, had geological investigations been made, the 
 character of the strata would have appeared. Had the character 
 of the strata appeared, and had the defendant still brought his 
 water there, there would have been actual negligence. If 
 the law did not impose a duty on the landowner to make inves- 
 tigations before bringing on his land that which was liable, 
 in the ordinary sequence of natural operations, to escape and 
 cause injury, it arrived at the same conclusion by rendering 
 him liable when, by undiscovered, but natural agencies, his 
 water flowed on his neighbour's land. In the ordinary course 
 of things he would be safe if he took things as they appeared. 
 ' In this case he is bound to search for latent defects ; and though, 
 from the starting-point that a man has an undoubted right to 
 have a thing on his land, there is no negligence traceable, if we 
 take for our starting-point the position that he is not to bring 
 anything on his land that may escape to his neighbour's by the 
 operation of natural agencies, then, in not placing the mobile 
 agency so that it cannot escape through the operation of natural 
 agencies, he is guilty of negligence, but in a prior stage to that 
 where it is usually sought for — ^not in the setting it in motion, 
 but in the placing it where it may be set in motion. 
 Eylands v. That this IS the nature of his obligation is made plain by Nichols- 
 
 SnsideTed ^- Marsland. " A defendant," sayg Mellish, L.J.,' " cannot, in our 
 tioi^fo Nichols °P^'^^°'^' ^® properly said to have caused or allowed the water to 
 V. Marsland. escape if the act of God or the Queen's enemies was the real cause 
 of its escaping, without any fault on the part of the defendant." 
 
 1 3 E?. P. I, at p. 5. 
 
BOOK III.] WATER A^B WATEECOURSES. 1135 
 
 That is, " she ought not to be held liable because she did not pre- 
 vent the effect of an extraordinary act of nature which she could 
 not anticipate." ' But extraordinary natural forces not bringing 
 liability, there only remains to guard against the ordinary course 
 of nature, which could be anticipated, and the intervention of a 
 third person (of which presently). The defendant's liability, then, 
 arises by placing something that natural and ordinary forces will 
 carry further. Whether this something is a " dangerous agency" 
 or something perfectly innocent, in either case the lial>ility arises, 
 and arises, not by reason of danger, but of unauthorized intrusion. 
 The danger may increase the injury when it is once operative, 
 but it has no effect on the right of action. Does, then, a 
 dangerous agency imply any greater duty than the duty that 
 arises to prevent intrusion in any natural event? In so far as a 
 dangerous agency is the subject of a special rule, it is subject to 
 the rule that the greatest possible care and caution must be used. 
 This, by hypothesis, has been used, and, in so far as it is included 
 within the wider rule binding a landowner to retain what he 
 brings on his land from transgressing on his neighbour's, it is 
 subject to the additional safeguard that all precautions that 
 accustomed prevision would suggest should be used. 
 
 The distinction between the law relating to " dangerous agen- Carter ». 
 cies '' and the wider law that regulates the non-interference with °^"^^' 
 another's rights may be illustrated by the American case of Carter 
 V. Towne.^ Defendant was licensed to sell gunpowder, and sold 
 some to a child eight years old, who injured himself by explod- 
 ing it. On an action being brought on its behalf, the defendant 
 pleaded he was a licensed seller of gunpowder. This was held no 
 defence, as in selling to the child he had been guilty of negligence. 
 Here the defendant's liability was determined by negligence or the 
 absence of it. In the case we are considering, had he been guilty 
 of no negligence, his liability would never have arisen. The 
 dangerous character of the article he sold was important as 
 affecting him with greater responsibility for care; but had this 
 duty been performed — and in varying circumstances it might be 
 of any number of different degrees, the existence of the quality of 
 negligence in every case being essential, and absence of negligence 
 in proof of the particular matter an absolute discharge — had the 
 child been injured there could have been no claim for redress at 
 the defendant's hands. 
 
 But had an explosion taken place injuring adjacent properties, 
 as soon as it was shewn that the result was from something 
 brought on his land, an altogether different inquiry would be 
 
 1 At p. 6. ^ 98 Mass. 567. 
 
1136 THE LAW OF NEGLIGENCE. [book iii, 
 
 instituted. It. would then be presumed that the defendant was 
 liable, because, irrespective of the danger or innooency of the 
 article on his land, he ought to have kept it there ; no negli- 
 gence would need to be proved in the injurious particular, neither 
 would it avail to shew that the extremest care had been exer- 
 cised from the time of the placing of the explosive material 
 where it exploded. The liability would arise from the placing it 
 where it was not able to be contained, and the only evasion of 
 responsibility would be by bringing the case within the exceptions 
 in Nichols ■;;. Marsland. Take, then, Bramwell, B.,'s chained tiger ; 
 if the keeping him is lawful (and not improbably, on argument, 
 it might be found that on grounds of public policy the keeping 
 of tigers, as of wolves formerly, is not lawful, and the difficulty 
 would be evaded), and lightning breaks his chain, it is difficult 
 to see why he should be an exception from the rule of law as laid 
 down by Mellish, L.J., that " when the law creates a duty and 
 the party is disabled from performing it, without any default of 
 his own, by the act of God or the King's enemies, the law will 
 excuse him." If not,' is a distinction to be made between the act 
 of God or the King's enemies ? And, if no distinction be made, 
 in the event of an invasion, would the Zoological Society be liable 
 if the savage beasts in their gardens were turned loose in the 
 streets by the enemy ? 
 Mischief Bramwell, B., however, also excludes the case of mischief done 
 
 thSd person. ^J ^ third person.' " It is not," says he, " the defendant who let 
 loose the water and sent it to destroy the bridges. She did indeed 
 store it, and store it in such quantities that, if it was let loose, it 
 would do, as it did, mischief. But 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 be liable. 
 That cannot be." If, however, the liability is wholly independent 
 of negligence, that is what not only would be, but what ought to 
 be. Of two people, the one injured who has the misfortune to be 
 in the neighbourhood where water escapes without negligence of 
 the proprietor, and the proprietor who brings it whence it escapes 
 by the wrongful act of the mischievous boy, the position of the 
 innocent sufferer seems distinctly better, and well within that view 
 of Ey lands v. Fletcher ° which regards it as deciding that a land- 
 owner who brings anything on his land is bound, as against his 
 neighbours, at all hazards to prevent it trespassing upon their 
 property. 
 
 1 Nicliols V. Marsland, L. R. lo Ex. 2i!i;, at p. 2i;q. 
 
 2 L. E. 3 H. of L. 330; I Ex. 265. 
 
BooKin.j WATEE AND WATERCOUESES. 1137 
 
 Probably this view of Eylands v. Tletclier is too broad a one, Suggested 
 and that decision extends only so far as is necessary to make a stands" °^ 
 defendant liable for the escape of anything brought on land and Fletcher. ' 
 which in its natural condition was not in or upon it, but which 
 in consequence of being so brought— that is, in consequence of 
 the condition of the land, or in consequence of any imperfection 
 in the mode of bringing it — in other words, by negligence in 
 its more frequent sense — comes to escape and to injure neigh- 
 bours.' The latter of these kinds is no more than the ordinary 
 case of liability — want of due care in deahng with a thing. Yet 
 the former is still negligence, if negligence of a more special class. 
 There is, indeed, a right to put what one likes on one's land, but 
 there is a duty to see that one's land will certainly contain what 
 is placed there ; and not a mere duty to take all care when a 
 thing is placed there, and with reference to the existing con- 
 ditions ; but a duty to insure that those conditions are naturally 
 adequate to safeguard the thing introduced ; and escape from any 
 cause that cannot be said to have been "caused or allowed" by 
 the defendant brings no liability. Oases there may be, though 
 probably very infrequently to be found, where the escape is from 
 a natural cause subsequently apparent, but antecedently not to 
 be discovered. And in all cases of this sort under Eylands v. 
 Fletcher there would be liability. But if the right is only to 
 bring things on land where there is an absolute safeguard against 
 their escape, in bringing them there without the absolute safe- 
 guard there is a " want of care and caution according to the cir- 
 cumstances." 
 
 This is the view taken by the Court of Session of the decision Chalmers v. 
 in Rylands v. Fletcher in Chalmers v. Dixon,^ where the Lord 
 Justice Clerk neatly states the matter thus: — "I think that 
 culpa does lie at the root of the matter. If a man puts upon his 
 land a new combination of materials, which he knows, or ought 
 to know, are of a dangerous nature, then either due care will 
 prevent injury, in which case he is liable, if injury occurs, for not 
 taking that due care, or else no precautions will prevent injury, 
 in which case he is liable for his original act in placing the 
 materials upon the ground." If so limited, the act of the mis- 
 chievous boy — an independent volition — would be excluded ; if 
 not so limited, it is diflScult to see why the person who brings 
 
 ^ See per Lord Cairns, L. E. 3 H. of L. caused by the negligence of a contractor. 
 
 330, at p. 339. In M'Cafferty v. Spuyten All the authorities bearing on Ihis wide 
 
 Duyvel and Port MorrisEailway Company, view -will there be foimd set out and ex- 
 
 6i'N. Y. 178, at p. 185, Dwight, C, dis- aminod. Coltonw. Onderdonk, 58Am. E. 
 
 senting iVom the rest of the Court, argues 556. 
 
 that the principle of Eylands v. Fletcher ^ 3 R. 461, at p. 464. 
 renders a landowner liable for an explosion 
 
 4C 
 
1138 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Box V. Jubb. 
 
 IT. Damage 
 done under 
 statutory 
 authority. 
 
 the thing where it causes injury should-- not be liable — on the 
 hypothesis, that is, that his liability is independent on any 
 negligence in parting with the thing, and arises from not keeping 
 in what it was in his option not to have brought at all. If this 
 latter hypothesis be not the correct one, but if the not taking 
 suflScient heed to the operation of the laws of nature ground an 
 action, a species of negligence must in all cases be found ante- 
 cedently to the right arising. 
 
 The subsequent case of Box v. Jubb* gives countenance to 
 this view. There, by reason of the act of a person above the 
 plaintifE's land co-operating with the act of a person below the 
 plaintiff's land, a reservoir on his land overflowed and caused 
 injury to a neighbouring proprietor. The Court of Exchequer 
 held the defendant not liable, and refused leave to appeal. The 
 ground of this decision was that the cause of the injury was vis 
 major — "the unlawful act of a stranger" — which "the defend- 
 ants could not possibly have been expected to anticipate," and 
 "the law does not require them to construct their reservoir and 
 the sluices and gates leading to it to meet any amount of pressure 
 which the wrongful act of a third person may impose." But, that 
 being so, the obligation is not to keep what is brought on land 
 at all hazards as has sometimes been stated, but no more than to 
 insure against the operation of natural laws causing injury in 
 those cases where negligence in the management of the injurious 
 agency is not alleged, and in all cases to see that the dealings 
 with the injurious agency are in all their stages free from negli- 
 gence. 
 
 IV. Where the damage was the consequence of an accumula- 
 tion for pubhc purposes under the express authority of a statute. 
 
 The principle has already been considered by us.' It is suffi- 
 cient, therefore, here merely to reproduce the statement of it by 
 Blackburn, J., in advising the House of Lords in Hammersmith 
 Eailway Company v. Brand.' " It is agreed on all hands that if 
 the Legislature authorizes the doing of an act (which if unauthor- 
 ized would be a wrong and a cause of action) no action, can be 
 maintained for that act, on the plain ground that no Court can 
 treat that as a wrong which the Legislature has authorized, and 
 consequently the person who has sustained a loss by the doing of 
 that act is without remedy, unless in so far as the Legislature has 
 
 1 4 Ex. D. 76 ; 48 L. J. Ex. 417 ; 41 
 L. T. 97 ; 27 W. E. 415. 
 
 ^ At p. 220. 
 
 ' L. E. 4 H. of L. 1 7 1 . Compare Cattle 
 V. Stockton Waterworks, L. E. 10 Q. B. 
 453 ; 44 L- J- Q- B.. I39 ; 33 L- T. N. S. 
 475 ; Dnnn v. Birmingham Canal Com- 
 
 pany, L. E. 7 Q. B. 244, L. E. 8 Q. B. 
 42 ; 42 L. J. Q. B. 34 ; 27 L. T. N. S. 
 683; 21 W. E. 266; Madras Eailway 
 Company v. The Zemindar of Cai-vetin- 
 agarum, 30 L. T. N. S. 770 ; 22 W. R. 
 865. 
 
BOOK in.] WATER AND WATERCOURSES. 1139 
 
 fctought it proper to provide for compensation to him. He is, in 
 fact, in the same position as the person supposed to have suffered 
 from the noisy traffic on a new highway is at common law, and 
 subject to the same hardship. He suffers a private loss for tho 
 public benefit." 
 
 "We are now brought to the consideration of a class of cases Water 
 that may be looked on as asserting a principle different fromp™;^^^^™ 
 that in Eylands v. Fletcher, and not merely an exception to the °y "s*"* 
 universality of what was there laid down. Rylands v. Fletcher to that of 
 was the case of water brought on premises for the use of thcinj'u^eTbyit. 
 person so bringing it, whence it escaped to other premises. In 
 the cases we are now to consider, water is brought on premises 
 by a right paramount to that of the person injured by it. 
 
 Garstairs /y. Taylor' is the earliest of these. There the plain- Carstairs». 
 tiffs were tenants of the defendant of the ground floor of a ^^^°^' 
 warehouse, the upper floors of which were occupied by the 
 defendant. The water from the roof was collected by gutters 
 into a box, from which it was discharged into the drains. 
 A rat made a hole in the box, and water thereby entered 
 the warehouse, and damaged plaintiffs' goods. The bos and 
 gutters had been properly examined by the defendant, and there 
 was no negligence. The case was argued both as a question of 
 contract and of a duty at law. As to the former ground, it 
 was answered that " one who takes a floor in a house must be 
 held to take the premises as they are, and cannot complain 
 that the 'house was not constructed differently."^ As to the 
 latter, it was pointed out that " the accident was due to vin 
 vmjor as much as if a thief had broken the hole in attempting 
 to enter thfe house, or a flash of lightning or a hurricane had caused 
 the rent ; "f that " the roof was the common protection of both, 
 and the collection of the water running from it was also for their 
 joint benefit." " The plaintiff must be taken to have consented to 
 this collection of the water, which was for his own benefit, and 
 the defendant can only be liable if he was guilty of negligence." " 
 The decision of the principle involved in Oarstairs v. Taylor was 
 therefore somewhat obscured by the fact that the case could be 
 explained on the ground taken by the Lord Chief Baron of vis 
 major ; and also because the apparatus for conducting the water 
 was there as much for the benefit of the plaintiff as of the de- 
 fendant. 
 
 In Ross V. Fedden' both these elements were eliminated. Rnssw. 
 
 Pedden. 
 
 ' L. R. 6 Ex. 217 ; 40 L. J. Ex. 29 ; * Per Bramwell, B., at p. 222. 
 
 19 W. E. 723. = L. R. 7 Q. B. 661 ; 41 L. J. Q. B. 
 
 2 Per Martin, B., at p. 222. 270 ; 26 L. T. N. S. 966. 
 
 ' Per Kelly, C.B., at p. 221. 
 
1140 
 
 THE LAW OF NEGLIGENCE. 
 
 [book hi. 
 
 Anderson v. 
 Oppenheimer. 
 
 Summary. 
 
 PlaintifE oocnpied the ground floor of a house, of which the de- 
 fendant occupied the second floor, where was a water-closet to 
 which the defendant alone had access. The valve of the 
 supply-pipe having got out of order, and the waste-pipe being 
 stopped, an overflow was caused, which damaged the portion of 
 the premises occupied by the plaintiif. There was no negligence. 
 Carstairs v. Taylor was sought to be discriminated, because there 
 was no vis major and no common interest. The Court of Queen's 
 Bench, however, held that the plaintiff could not recover, and 
 approved the reasoning of the county court judge, who said : " I 
 think that in the words of Martin, B., in the case already referred 
 to,' ' one who takes a floor of a house must be held to take the pre- 
 mises as they are.' As far as he is concerned, I think the state 
 of things then existing may be treated as the natural state of 
 things, and the flow of water through cisterns and pipes then in 
 operation as equivalent to the natural flow of water. I think he 
 takes subject to the ordinary risks arising from the use qf the 
 rest of the house as it stands ; and that one who merely continues 
 to use the rest of the house as it stands, and in the ordinary 
 manner, does not fall within the rule laid down in Rylands v. 
 Fletcher," and in the absence of negligence is not liable for the 
 consequences." 
 
 Anderson v. Oppenheimer " was an action similar to Oar- 
 stairs V. Taylor (which, however, was not cited), and was brought 
 for breach of a covenant for quiet enjoyment. There the Court 
 of Appeal was of opinion that, the water being brought on pre- 
 mises for the common benefit of the tenants, no action lay. The 
 principle we are now considering may therefore be regarded as 
 exonerating from liability on the ground indicated by Blackburn, 
 J., in Fletcher v. Rylands* — ^that the injured person had placed 
 himself in the position in which he sustained injury in such circum- 
 stances as shew that he had taken the risk upon himself ; and 
 this either by partaking of a common benefit, subject to a common 
 liability to damage, as in Carstairs v. Taylor,* or by taking an 
 interest with a liability to damage incident to it, as in Ross v. 
 Fedden." In either case his position was determined by the 
 contract into which he had entered. 
 
 I . The owners or occupiers of land may lawfully use their land 
 
 217 ; 40 L. J. Ex. 29 ; 
 
 * 1 R. 
 
 6 Ex. 217, 
 19 W. B. 
 
 ^ Carstairs ». T^lor, L. E, 
 at p. 222 ; 40 L. J. Ex. 29 : 
 723. 
 
 2 L. R. 3 H. of L. 330 ; 37 L. J. Ex. 
 161 ; 19 L. T. N. S. 220. 
 
 ~. B. D. 602 ; 49 L. J. Q. B. 708. 
 I Ex. 265, at p. 287 ; 35 L. J. 
 Ex. 154; 14 L. T. N. S. 523 ; 14 W. R. 
 799- 
 
 = L. R. 6 Ex. 
 19 W. R. 723. 
 
 » L. R. 7 Q. B. 66t ; 41 L. J. Q. B. 
 270 ; 26 L. T. N. S. 966 ; Stevens v. 
 Woodward, 6 Q. B. D. 318 ; 50 L. J. 
 Q. B. 231 ; 44 L. T. 153 ; 29 W. R. 506, 
 turns rather on scope of authority : Rud- 
 deman v. Smith, 5 Times L. R. 417. 
 
BOOK III.] WATER AND WATERCOTJESES. 1141 
 
 for any purpose for whicli it might in the natural user of the 
 land — i.e., in the ordinary course of the enjoyment of land — be 
 used.^ 
 
 2. If in the natural use of land anything naturally on the land 
 escapes, and by the operation of the laws of nature passes upon 
 other lands, the owner or occupier is not liable for such escape.' 
 
 3. The owner of the minerals has a right to take away the 
 whole of the minerals in his land, for such is the natural course 
 of user of minerals.^ 
 
 4. The question of what is an ordinary, reasonable, and proper 
 mode of working is a question of fact.' 
 
 5 . The owners or occupiers of land may lawfully use their land 
 for the purpose of introducing in or upon it that which in the 
 natural condition of the land was not in or upon it, subject to 
 the duty of preventing anything so brought passing into the land 
 of others.' 
 
 6. This duty is subject to the following exceptions : — 
 
 (a) Where the escape is the act of the person injured 
 thereby ;* 
 
 (|3) Where the escape is the result of vis major or the act 
 of God;" 
 
 (y) Where the escape is the natural result, without negli- 
 gence, of something done under statutory authoriza- 
 tion.° 
 
 7. The injured person may be disentitled to recover on the 
 ground of a special contract he has made, whereby he either — 
 
 (a) Accepts a benefit from the injurious agency ; when he 
 will be held subject to the natural liability to acci- 
 dents arising from it without negligence ;" or 
 
 (B) Acquires an interest to which the liability may be re- 
 garded as attendant.^ 
 
 1 Eylands v. Fletcher, L. E. 3 H. of L. 56 L. J. Q. B. 229 ; 55 L. T. 709 ; 35 
 ^30 ; 37 L. J. Ex. i6i ; 19 L. T. N. S. W. K. 141. , ^ „ 
 
 jju , j/ i.. « , y g Nichols V. Maraland, L. E. 10 Ex. 
 
 2 Wilson V. Waddell, 2 App. Cas. 95 ; 255, 2 Ex. D. i ; 46 L. J. Ex. 174 ; 35 
 ^? L T N S 639 ; West Oumherland L. T. N. S. 725; 25 W. E. 173 5 Box v. 
 Iron and Steel Company v. Kenyon, 1 1 Jubb, 4 Ex. D. 76 ; 48 L. J. Ex. 417 ; 41 
 
 Ch. D. 782 ; 48 L. J- Ch. 793 5 40 L- T. L- T. 97- 
 
 »Q- Hammersmith Eailway Company v. 
 
 3 Smith V. Fletcher, L. E. 9 Ex. 64 ; Brand, L E. 4 H. of L. 171 ; 38 L- J- 
 43 L. J. Ex. 70 ; 31 L. T. N. S. 190 ; Q- B. 265 ; 21 L. T. N. S. 238 ; iS 
 Crompton?;. Lea, L. E. 19 Bq. 115; 44 W^- I2- . t t! a w .,„ . 
 L J. Ch. 6g ; 31 L. T. N. S. 469 ; 23 ' Carstairs v. Taylor KE. 6 Ex. 217 , 
 WE S3 40 L. J. Ex. 29 ; 19 W. E. 723. 
 
 ^ Wakelin v. London and South-West- » EoBs v. Fedden, L E. 7 Q. B. 661 ; 
 
 em Eailway Company, 12 App. Cas. 41 ; 4i L- J- Q- B. 270 ; 26 L. T. N. S. 966. 
 
1142 
 
 THE LAW OF NEGLIGENCE. 
 
 [bqok lit. 
 
 Two heads: 
 
 I. Water in 
 defined 
 channels ; 
 
 II. Water not 
 in defined 
 channels. 
 
 1. Water in 
 defined 
 channels. 
 .■Definition of 
 a watercourse. 
 
 Waterconrpe 
 (a) natural ; 
 (6) artificial. 
 Mr. Goddard's 
 definition. 
 
 Hollrer V, 
 Porritt. 
 
 IL Water coming upon Land. 
 
 This we proceed to consider under the headings — 
 
 I. What is the position of the owners of land by or through 
 which water runs in defined channels ; and 
 
 II. What is the position of the owners of land by or through 
 which water runs not in any defined channel. 
 
 The rule of the civil law governing in all these cases is : Sic 
 enim debete qtoem oneliorem agrum suum facere, ne meini deteriorem, 
 facial} 
 
 This is followed by the Code Napol6on,' which, with its com- 
 ments, is declared by the Privy Council in Miner v. Gilmonr not 
 to difler materially from the law of England.' 
 
 I. What is the position of the owners of land by or through 
 which water runs in defined channels. 
 
 To be a watercourse, by force of the term, water must flow in a 
 defined stream. It need not always flow, but there must be a 
 stream usually flowing in a particular direction. Sometimes it 
 may even be dry ; but usually it must flow in a definite channel, 
 having a bed, sides, or banks, and most frequently discharging 
 itself into some other stream or body of water. It must not be 
 a mere surface-drainage over the entire face of a tract of land 
 occasioned by unusual freshets or other extraordinary causes; 
 neither does it include the water flowing in the hollows or ravines 
 in land which is the mere surface-water from rain or melting 
 snow, and is discharged through them from a higher to a lower 
 level, and which at other times are destitute of water.'* 
 
 Water running in a defined stream within the foregoing 
 description may be either natural or artificial. 
 
 A natural stream, says Mr. Goddard, is one which arises at 
 its source from natural causes, and flows in a natural channel. 
 An artificial stream is one that arises by the agency of man, or, 
 though arising from natural causes, flows in a channel made by 
 man.' 
 
 Holker v. Porritt' is important as shewing what considerations 
 
 1 2th edit. pp. 439, 440, set out at length 
 in Parke^]3.,'8 judgment in Embrey v. 
 
 1 De aqua et aquas pluviss arcenjje, 
 •D- 39, 3, li§;4i and see judgment of Lord 
 Denman, C.J., Mason v. Hill, 5 B. & A. 
 I, where the Roman law is much con- 
 sidered. 
 
 ^ Alts. 640, 641, 642, 643, 644. 
 
 ' Miners. Gilmour, 12 Moo. P. C. C. 
 156 ; see, too, per Pollock, C.B., Wood v. 
 
 Owen, 6 Ex. 318 ; also Tyler v. Wilkin- 
 iIJ. S. 39 
 * Per Dixon, G.J.,'Hoyt v. Hudson, 
 
 son, 4 Mason IJ. S. 397. 
 
 Waud, 3 Ex. 748, at p. 781 ; see, too, as 
 
 lity of the 
 law on this subject with the rules of 
 
 to the oonfoi-mity of the Englisih rules of 
 
 -.-ot 
 
 general jurisprudence, 3 Kent's Comni, 
 
 27 Wis. 656, cited by Wharton, Law of 
 Negligence, 2nd edit. § 935, n. 
 
 ^ Groddard, Law of Easements, 3rd edit, 
 p. 66. 
 
 " L. E. 8 Ex. 107, L. E. 10 Ex. 59 ; 
 44 L. J. Ex. 52 ; 33 L. T. N. S. 125 ; 23 
 W, E. 400. The case is called Holker v. 
 
BOOK III.] WATER AND WATERCOUESES. I143 
 
 govern in determining what is a natural stream. A natural 
 stream upon a man's land was in some way or other divided, one 
 portion of it flowing in a defined current, while another passed 
 into a farmyard, where it supplied a trough, and the overflow 
 from the trough was diffused over the ground. The owner of 
 the farmyard collected the overflow into a reservoir, and used the 
 water so collected for the purposes of a mill. A riparian pro- 
 prietor higher up obstructed the flow on the ground , that the 
 water so collected was an artificial stream, whereupon the owner 
 of the farmyard sued ; and the Court of Exchequer held that he 
 was entitled to maintain his action on the ground that the stream 
 was a natural stream, and remained a natural stream though it 
 had been turned into an artificial channel. In the Exchequer 
 Chamber, where the decision was affirmed," the judgment went on 
 a somewhat broader principle — that as the water came to the 
 plaintiff's land, it became his to do what he liked with ; and he 
 had a right to complain of any one diminishing the flow which 
 cavie to Mm as a natural stream ; that no doubt the consequences 
 to a wrongdoer were more serious by reason of the more profitable 
 use the water was put to ; but the authorities established that 
 as soon as the owner of land on a stream has appropriated the 
 water to a beneficial use, he may sue in respect of damage done 
 to him with reference to it.^ 
 
 In the Court of Exchequer, Martin, B., said: "Now, that 
 state of things [i.e., as shewn in the case] was exactly as if a 
 stream lost itself in a marsh or swamp, a haunt for snipe and 
 wild-fowl, but not turned to any agricultural purpose. And I 
 am of opinion that, if a proprietor in such a case expends his 
 labour in cutting a course for the water, he acquires a right 
 analogous to that which he would have if that course had been 
 a natural stream, and that no distinction can be made between a 
 natural stream and a watercourse made to drain land and to carry 
 down the water to its natural destination." 
 
 The test, then, to determine between a natural and an artificial Test to 
 stream would be, not the construction of the channel along which between a 
 it flows, but the consideration of the circumstances of its course — an*ar«fioiai 
 would it flow naturally at all, not would its volume be in all cir- stream. 
 cumstances the same. And a stream arising from natural causes, 
 and flowing in its natural course, continues a natural stream, though 
 it flows in a channel altogether transformed by the hand of man. 
 If this is so, the definitions above cited from Mr. Goddard's book 
 on Easements are not correct in their widest sense, and must be 
 
 Poritt in L. E. 8 Ex. and Holker v. For- ' L. R. lo Ex. 59. 
 
 ritt in the Exchequer Chamber. '' Mason v. Hill, 5 B, & Ad. i. 
 
1144 
 
 1?HE LAW Of I^EGLIGENOE. 
 
 [book III. 
 
 Natural 
 
 Btream 
 
 either 
 
 (ffl) navigable 
 
 or (6) not 
 
 navigable. 
 
 limited accordingly. Though it •would appear reasonable that 
 the fact of a natural stream having been carried along an artificial 
 channel in some part of its course should not thereby be held to 
 impose a greater obligation on those constructing the artificial 
 channel than they would haye beeto liable to had the course of 
 the stream, in 'its natural channel remained unaffected. 
 
 The only relevant questions, then, would seem to be — In what 
 condition is the water received on a man's land, and, if he is bound 
 to part with it, in what condition does it leave his ground ? While 
 upon his land he may divert it into channels or make what use of 
 it he pleases without in any way being accountable for such use, 
 provided only it leaves his land in the same condition as that in 
 which he has received it, and in undiminished volume, save so 
 far as is consistent with his right to a reasonable user of it for 
 domestic or similar purposes.' Or if the stream originated by the 
 agency of man, then an inquiry may be instituted whether rights 
 had been acquired to the use of the stream, which, though origi- 
 nally artificial, may have become affected with the rights and 
 duties attaching to natural streams.^ 
 
 A natural stream may be either navigable or not navigable. 
 
 A navigable stream is one over which the public has a right 
 of navigation,^ which is identical with a right of way over a land 
 highway.^ 
 
 In navigable rivers that are tidal rivers the soil as high as the 
 sea flows or reflows belongs to the King, and the King has the 
 same property therein as in the deep sea.° But in navigable 
 rivers beyond the flow of the tide the proprietors on either side 
 are presumed to be possessed of the soil of it to a supposed line 
 in the middle, though the law secures to the community the right 
 of navigation upon the surface of that water as a public highway, 
 which individuals are forbidden to obstruct, and precludes the 
 riparian proprietors from preventing the progress of the fish 
 through the river or dealing with water to the injury of their 
 neighbours.'^ The right of navigation does not draw with it any 
 right of property, but is confined to the right of passage to and 
 
 1 EotertsiJ.Eicliards, 50 L. J. Ch. 297 ; 
 44 L. T. 271 (Sutclife v. Booth, 32 L. J. 
 Q.B. i36,'con8idered and .approved). In the 
 Court of Appeal order discharged on under- 
 taking. SeeW.N.iSSijp.isejSiL.J.Ch. 
 944 ; Attorney-General v. Great Eastern 
 Eailway Company, L. E. 6 Ch. 572 : 19 
 W. E. 788. 
 
 " Ivimey v. Stocker, L. E. i Ch. App. 
 396 ; 3S L. J. Ch. 467 ; 14 L. T. 427 ; 
 14W.E.743. 
 
 ^ Original Hartlepool Collieries Com- 
 pany V. Gibb, S Ch. D. 713 ; 46 L.J. Ch. 
 
 311 i 36 L. T. 433 ; Anon., i Campb. 517, 
 n. ; The King v. Montague, 4 B. & G. 
 S98 ; even against the Crown : Colchester, 
 Mayor, &c., of, v. Brooke, 7 Q. B. 339 ; 
 Williams v. "Wilcox, 8 A. & E. 314. 
 
 * Orr Ewing v. Colquhoun, 2 App. Cas. 
 839- 
 
 * Comyns, Digest, Navigation, A ; Bul- 
 strode v. Hall, i Sid. 148. 
 
 " Per O'Hagan, J., in Murphy v. Eyan, 
 Ir. E. 2 C. L. 143, at p. 148, citing De 
 Jure Maris, i. ; Bristow v. Connioan, 3 
 App. Cas. 641, at p. 666. 
 
BOOK III.] WATER AND WATEECOURSES. 1145 
 
 fro, as in a land highway ; ' while the riparian owner on a 
 navigable river, in addition to the right connected with the navi- 
 gation to which he is entitled as one of the public, retains his 
 rights as an ordinary riparian owner, underlying and controlled 
 by the public right of navigation." 
 
 With these limitations, the position of an owner of land by 
 which a navigable stream flows is the same as that of an owner 
 by whose land a not navigable stream flows. If the stream form 
 the boundary of the property of landowners, each proprietor has 
 an equal right to the use of the water, and no proprietor has a 
 right to the water to the prejudice of other proprietors unless 
 he has a prior right to divert it or a title to some exclusive enjoy- 
 ment.' 
 
 The owners of lands adjoining a stream from its source to the Eights of 
 sea have a natural right to the use of the water of it. A river a^oMng a 
 begins at its source when it comes to the surface, and the owner natural 
 
 ... . stream. 
 
 of the land on which it rises cannot monopolize all the water at 
 the source any more than a proprietor lower down.* When it is 
 said that the proprietors of the bank of a running stream are 
 entitled to the bed of the stream as their property usqiie ad 
 medium Jihom it does not by any means follow that that property 
 is capable of being used in the ordinai^y way in which so much 
 land uncovered by water might be used, but it must be used in 
 such a way as not to affect the interest of riparian proprietors in 
 the stream. Neither is, therefore, allowed to use it in such a 
 manner as to interfere with the natural flow. The bank may be 
 fenced, but any erection in the alveus is unlawful, and the onus 
 of proving that such an erection is not an encroachment falls on 
 the person putting it in the stream ; neither need damage be 
 proved' — ^that is, damage need not be proved if the Court be of 
 opinion that, in future, injury might reasonably be expected to 
 result. But if neither at the time of action did injury result 
 nor there be probability of it resulting at some future time, then 
 no action would lie.^ 
 
 Further, the presumption is that each riparian proprietor is 
 entitled to the adjoining half of the bed of the stream. This 
 presumption is, however, rebuttable ; but not by proof that the 
 conveyance is of land bounded by the river, nor of subsequent 
 
 1 Orr EwinK v. Colquhoun, 2 App. Cas. Union, i H. & N. 627 ; 26 L. J. Ex. 146. 
 gjg. ii Birkett v. Morris, L.-E. i Sc. & D. 
 
 2 Lyon V. FishmODgers' Company, I 47 ; Crossley v. Lightowler, L. R. 2 Ch. 
 App. Cas. 662 ; 46 L. J. Ch. 68 ; 35 L. T. 478 ; 36 L. J. Cli. 584 ; 15 W. R. 801 . 
 N. S. 569 ; 25 W. K. 165. ° Per Cotton, L. J., Kensit v. Great 
 
 ' Wright V. Howard, i Sim. & Stu. Eastern Railway Company, 27 Ch. D. 
 190. 3 Kent's Coram. 12th edit. p. 439. 122, at p. 131 ; 54 L. J. Ch. 19 ; 32 
 < Dudden v. Guardians of Clutton W. B. 885- 
 
1146 THE LAW OF NEGLIGENCE. [book m. 
 
 inconvenience arising to the grantor from the grant, nor that the 
 grantor was owner of both banks.' 
 
 If the stream is wholly in the property of one landowner, then 
 the rights of those higher up and lower down the course of the 
 stream are the same as those of opposite proprietors, with the 
 exception that any use may be made of the stream within the 
 limits of property, provided that its volume and quality are unaf- 
 fected at the points of adit and exit.^ 
 Embrey v. The law is stated in Bmbrey v. Owen' to be that flowing water 
 
 is pvhlici jwis in this sense only — ^that all may reasonably use it 
 who have a right of access to it, and that none can have any 
 property in the water itself except in the particular portion which 
 he may choose to abstract from the stream and take into his 
 possession, and that during the time of his possession only. The 
 right to have a stream of water flow in its natural ^ state without 
 diminution or alteration is an incident to the property in the land 
 through which it' passes, but this is not an absolute and exclusive 
 right to the flow of all the water, but only subject to the right of 
 other riparian proprietors to the reasonable enjoyment of it, and 
 consequently it is only for an unreasonable and unauthorized use 
 of this common benefit that any action will lie.'' 
 lord Cairns, The general type of these iises is specified by Lord Oaims, C, 
 Waterworks in Swindon Waterworks Company v. Wilts and Berks Canal Navi- 
 wuts*^"" gation Company": " Undoubtedly the lower riparian proprietor is 
 Berks Canal entitled to the accustomed flow of water for the ordiaary purposes 
 Company. for which he can use the water ; that is quite consistent with the 
 right of the upper owner also to use the water for all ordinary pur- 
 poses — namely, as has been said, ad lavandwm, et ad potandum, 
 whatever portion of the water may be thereby exhausted and may 
 cease to come down by reason of that use. But, further, there are 
 uses no doubt to which the water may be put by the upper owner — 
 namely, uses connected with the tenement of that upper owner. 
 Under certain circumstances, and provided no material injury is 
 done, the water may be used and may be diverted for a time by 
 the upper owner for the purposes of irrigation. That may well 
 be done. The exhaustion of the water which may thereby take 
 place may be so inconsiderable as not to form a subject of com- 
 plaint by the lower owner, and the water may be restored after 
 the object of irrigation is answered in a volume substantially equal 
 
 1 Micklethwait v. Newlay Bridge Com- field v. Andrews, 41 Am. E. 828. 
 
 ■pany, 33 Ch. D. 1331.55 L- '■!'• 336; ^ 6 Ex. 353; 20 L. J. Ex. 212. 
 
 Jameson w. Police Commissioners of Dun- * Sampson v. Hoddinott, i C. B. N. S. 
 
 dee, 12 E. 300. 390 ; 26 L. J. C. P. 148. 
 
 * West Cumberland Iron and Steel ' L. R. 7 IT. of L. 697 ; 45 L. J. Ch. 
 
 •Company ». Kenyon, 11 Ch. D. 782 j ^38; 33 L. T. N. 8.513; 24 W. E, 
 
 48 L. J. Cb. 793 ; 40 L. T. 703 ; Crau- 284. 
 
BOOK III.] WATEE AND WATERCOUESES. 1147 
 
 to ttat in wHcli it passed before. Again, it may well be that 
 there may be a use of the water by the upper owner for, I will 
 say, manufacturing purposes so reasonable that no just complaint 
 can be made upon the subject by the lower owner. Whether 
 such a use in any particular case could be made for manufacturing 
 purposes connected with the upper tenement would, I apprehend, 
 depend upon whether the use was a reasonable use. Whether it 
 was a reasonable use would depend, at all events in some degree, 
 on the magnitude of the stream from which the deduction was 
 made for this purpose over and above the ordinary use of the 
 water." 
 
 In connection with this may be taken an often-cited passage Lord Kings- 
 from the judgment of Lord Kingsdown in Miner v. Gilmour ': Mkei'w. 
 " By the general law applicable to running streams every riparian Giimouv. 
 proprietor has a right to what may be called the ordinary use of 
 the water flowing past his land — for instance, to the reasonable 
 use of the water for his domestic purpostes and for his cattle — and 
 this without regard to the effect which such use may have in case 
 of a deficiency lower down the stream. But, further, he has a 
 right to the use of it for any purpose ^ or what may be deemed 
 the extraordinary use of it, provided he does not thereby interfere 
 with the rights of other proprietors either above or below him. 
 Subject to this condition, he may dam up the stream for the pur- 
 poses of a mill, or divert the water for the purposes of irrigation, 
 but he has no right to interrupt the regular flow of the stream if 
 he thereby interferes with the lawful use of the water by other 
 proprietors, and inflicts upon them a sensible injury." 
 
 A distinction is here drawn between — Distinotion 
 
 First, ordinary user to which water may be applied irrespective ordiSi™ and 
 of subtracting from lower proprietors;'' and, esti-aordinary 
 
 Secondly, extraordinary user to which it may be applied subject 
 to its not being subtracted from them ; and this is accepted as law. 
 
 In Ormerod v. Todmorden Mill Company,' Brett, M.E., may ormerod v. 
 seem, if not to suggest, at any rate to transmit, a doubt as to ^u°oom^ 
 the perfect accuracy of Lord Kingsdown's statement of the rights pany. 
 of ordinary user. He is reported* as alluding to Swindon Water- 
 works Company v. Wilts and Berks Canal Navigation Company,* 
 and saying : "In that case Lord Cairns in substance adopts the 
 language of Lord Kingsdown in Miner ■;;. Gilmour f but I observe 
 
 1 12 Moo. P. C. C. 131; at p. 156. age ; " 46 L. J. Ch. 773 ; 37 L. T. 149 ; 
 
 2 See Pennington v. Brinsop Hall Com- 25 W. R. 874. 
 
 pany, 5 Ch. D. 769, per F17, J., at p. ' 11 Q. B. D. 155 ; 52 L. J. Q. B. 445; 
 
 772 : " The pollution of a clear stream is 31 W. E. 759. 
 
 to a riparian proprietor below both injury ■* 11 Q. B. D. at p. 165. 
 
 and damage, whilst the pollution of a ^ L. R. 7 H. of L. 697, at p. 704. 
 
 stream already made foul and useless by " 12 Moo. P. C. C. 131, at p. 156. 
 
 pther poilutione is an injury without dam- 
 
1148 
 
 THE LAW OJP NEGLIGENCE. 
 
 [book hi. 
 
 Nuttall 0. 
 Brace well. 
 
 Brett, M.E., 
 in Orraerod 
 V. Todmorden. 
 
 that in LordNorbury v. Kitchin' the remarks of Lord Kingsdown 
 wene not fully assented to by the Court of Exchequer." In that 
 caste, Pollock, O.B., delivering the judgment of himself and 
 Clannell, B., is reported saying of counsel's argument: "He 
 argues that, because my brother Martin read with approbation 
 ^e passage from Lord Kingsdown, there should be a new trial. 
 I do not follow him ; it is by no means a consequence." And 
 Wilde, B., explains what was meant by saying : " It is said this 
 is bad law ; that the judge said it is good, and therefore there is 
 misdirection. Whether it be bad law I do not think I am called 
 upon to say. It does not arise in the case." And Martin, B., 
 adds : "If the question in this case were whether Lord Kings- 
 down were right I should like to have the whole upon the 
 record, that it might be decided solemnly by a superior Court. 
 But I think it has nothing to do with the case." 
 
 However, in the subsequent case of Nuttall v. Bracewell,' 
 where the matter was decided "solemnly by a superior Court" 
 in considered judgments, Martin, B., said : " The law has been 
 supposed to be well settled, and, in my opinion, is nowhere 
 more clearly stated than by Lord Kingsdown in Miner v. Gil- 
 mour." He then read the passage already cited, and con- 
 tinued : " According to the law so enunciated, and which no 
 doubt is the law," &c. While Channell, B., delivering the judgment 
 of himself and Pollock, C.B., two of the judges in Lord Norbury v. 
 Kitchin, says : " I quite agree that the passage quoted by my 
 brother Martin from Lord Kingsdown's judgment in Miner v. 
 Gilmour' very clearly, as well as accurately, states the law applicable 
 to running streams. I think, how.ever, that the decision in Stock- 
 port Waterworks Company «. Potter "* was quite in accordance with 
 the law so stated ; and, further, if the decision in the Stockport 
 Waterworks case was wrong, then it appears to me that Lord 
 Kingsdown's statement would require qualification." But Brett, 
 M.R., in Ormerod v. Todmorden Mill Company, says' : " I agree 
 with the judgment of the majority of the Court in Stockport 
 Waterworks Company v. Potter^ ; " and the other judges of the 
 Court did the same. 
 
 The authority in favour of Lord Kingsdown's dictum seems, 
 therefore, overwhelming. Brett, M.R., however, in the same 
 case, not only adopted Lord Kingsdown's distinction, but carried 
 
 1 9 Jur. N. S. 132 ; 7 L. T. N. S. 685 ; 
 at Nisi Prius, 3 F. & F. 292. 
 
 2 L. E. 2 Ex. I, at p. 9 ; 36 L. J. Ex. 
 i; isL.T. N. S. 313. 
 
 3 i2Moo. P. C. C. at p. 156. 
 
 ■» 3 H. & C. 300 ; 10 L. T. N. S. 748. 
 '^ n Q. B. D. iss, at p. 170; 52 L. J. 
 
 Q. B. 445 ; 31 W. E. 7S9. 
 
 ^3 H. & C. 300. Compare Laing v. 
 Whaley, 3 H. & N. 675, at p. 901 ; 27 
 L. J. Ex. 422, which decided that no one 
 bntlhopo in lawful enjoyment of a bene- 
 ficial (low of clear water fr-m a stream 
 can maintain an action for the fouling it. 
 
BOOK III.] WATER AND WATEKCOURSES. 1149 
 
 it further. In the Lmo Journal report of Ormerod v. Todmorden 
 Joint Stock Mill Company' he is reported to say: " If I were 
 clear that the use of the water by the defendants was an ex- 
 traordinary use within the principle laid down by Lord Kings- 
 down, I might be able to deal with the case on that footing ; but 
 the argument for the defendants strikes me as forcible, and I 
 agree that it is impossible to negative the proposition that the 
 use that may at one time have been extraordinary may by changes 
 in the condition of thitigs become ordinary, and that a use of water 
 which might be extraordinary in an agricultural district may not 
 be extraordinary in a manufacturing district; and I am not 
 prepared to hold that in such a district, where the use of water 
 for the purpose of drinking or irrigation has become obsolete, 
 the use of water for manufacturing purposes may not be an ordi- 
 nary user." 
 
 In the case just referred to — Stockport Waterworks Com- Stockport 
 pany v. Potter^ — the point in dispute was whether the grantee company ». 
 from a riparian proprietor of land part of the former riparian ^°^'^^- 
 estate, but separated from the stream by land of the grantor 
 not included in the grant, with a grant from the grantor 
 of a right to lay pipes from the stream to the granted land, 
 and take water by means of them from the stream to such 
 granted land, could maintain an action against a person who 
 fouled the stream. The Court of Exchequer was divided on the Bvamweii, 
 question. Bramwell, B., was of opinion that the grantee could ' ^ °P™°°' 
 maiatain a right of action because the grant, as between grantor 
 and grantee, being good, is evidence that they have found the 
 arrangement to their advantage, and consequently to the public 
 good. The grant should therefore be made effectual against a 
 person who, as against the riparian proprietor, was a wrongdoer ; 
 while, as the riparian proprietor might sue in his own name for 
 injury, and might covenant that the grantee should sue in his 
 name, what could be done indirectly should be able to be done 
 directly. The majority of the Court, however, held that, though judgment 
 the grant was valid as against the grantor, the grantor could ^^jo®;tj. ^j 
 create no rights for the interruption of which the grantee could the Com-t of 
 sue a third person in his own name. The rights of the riparian 
 proprietor were entirely derived from his possession of land abut- 
 ting on a stream. If he grants away any portion of land so 
 abutting, the grantee becomes a riparian proprietor, and by con- 
 sequence entitled to riparian rights. But if the grant is of lands 
 not abutting, then clearly there are no water rights by occupa- 
 tion. But a person cannot create by grant new rights of property 
 
 1 52 L. J, Q. B. 4S0 2 3 H. & C. 300. 
 
1150 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 N uttaU ». 
 Brace well. 
 
 Holker v. 
 Pon-itt. 
 
 SO as to give the grantee a right of suing in his own name for 
 an interruption of the right by a third party. Consequently, the 
 grantee cannot have them apart from the riparian estate, even by 
 express grant.^ 
 
 In the subsequent case of Nuttall v. Bracewell,^ Bramwell, B. , 
 reiterated his opinion, and added, as a further reason, that a man 
 entitled to land may grant to others estates in and rights of 
 enjoyment of it, and the grantees may maintain actions against 
 those who disturb them. The right of granting water rights 
 is presumably grantable like others. " Those who deny this, 
 must give a reason for it, and I have heard of none." The rest 
 of the Court,' however, distinguished the case before them from 
 Stockport Waterworks Company v. Potter."* There the water of the 
 River Mersey was abstracted for use of the inhabitants of Stockport 
 for domestic purposes, and the complaint was that the defendants 
 had fouled it. The Court decided that a riparian proprietor 
 could not grant his water rights apart from his estate. In the 
 present case two adjoining riparian proprietors agreed to divert 
 a stream so that it should run in two channels instead of one, the 
 Water passing again into the old stream below their land, and 
 flowing down to the lower proprietors as before. The Court 
 decided that " what is done by the two proprietors may be sup- 
 posed to be a more convenient way of making use of the flow 
 of water, while it in no way diminishes or affects the rights of 
 the other proprietors." 
 
 Holker v. Porritt," which we have already considered, was 
 distinguished from Stockport Waterworks Company v. Potter" 
 because that was a diversion of water made from a stream by a 
 person who had no power to make it. It was not a taking by a 
 riparian proprietor out of a stream for his own purposes, but 
 the making of a new stream, and carrying away the water in 
 immense quantities for consumption elsewhere, the water never 
 being returned into the same stream, but being taken to a place 
 where the person taking it claimed to apply it entirely to his own 
 purposes. Oi-merod ■;;. Todmorden Mill Company' was entirely 
 indistingqishable. There the Court of Appeal approved and 
 adopted the view taken by Pollock, C.B., and Channell, B., and 
 approved by Wilde, B., that the grant of a right to flowing 
 
 1 Hill V. Tupper, 2 H. & C. 121 ; 8 
 L. T. N. S. 792. 
 
 2 L. R. 2 Ex. I ; 36 L, J. Ex. i ; 15 
 L.T.N. S. 313; 4H. &C. 714. 
 
 ' Piillock, U.B., Channell, Martin, and 
 Pigott, BB. " 3 H. & C. 300. 
 
 » L. E. 8 Ex. 107 ; 42 L. J. Ex. 85 ; 
 21 W. R. 414. 
 
 « 3 H. & C. 300 ; 10 L. T. N. S. 748. 
 
 ' HQ.B.D.ISS; S2L.J. Q.B.44S; 
 31 W. _E. 759. See Kensit v. Great East- 
 ern Railway Company, 27 Ch. D. 122 ; 54 
 L. J. Ch. 19 ; 51 L. T. 862 ; 32 W. R. 
 885, where a lower proprietor was held 
 not entitled to recover against the licensee 
 of a higher proprietor not doing injury. 
 
BOOK III.] WATER AND WATERCOURSES. .1151 
 
 water by a riparian owner is valid only against himself, and 
 cannot confer rights against others. 
 
 The inquiry as to what are ordinary and what extraordinary Ordinary and 
 uses of water in streams depends largely upon custom and local use^of "^^S. 
 circumstances. The law does not lay down any fixed rule for 
 determining what is a reasonable use of the water of a stream by 
 a riparian owner. What constitutes a reasonable use is not a 
 question of law, but of fact, to be determined by the jury or Court 
 from all the circumstances of the case. But, like any other 
 finding of fact, it is subject to review, and will be set aside if 
 against the evidence, or not supported by it. Some remarks of Eemarks by 
 Redfiold, O.J.,' are valuable, however, as giving an indication of on ae'oon-'^'' 
 the considerations most generally applicable : "In regard to many ^'dera'^"^ 
 uses of the water in streams, it has been so long settled by com- 
 mon consent, or is so obvious in itself, that it is determinable 
 as matter of law. Such are the uses for irrigation, for propelling 
 machinery, and for watering cattle, and some others. And in 
 regard to some dih'is or waste deposits in such streams, there 
 would seem to be no question. The uniform practice, the con- 
 venience, and, in some instances, the indispensable necessity would 
 seem sufficiently to decide such cases. Among these may be 
 named the infusion of soap-dyes and other materials used in 
 manufacturing into the streams by which the machinery is pro- 
 pelled. The deposit of sawdust to some extent is nearly indis- 
 pensable in the running of saw-mills,^ and most other machinery 
 used in the manufacture of wood and propelled by water-power. 
 The reasonableness of such use must determine the right, and 
 this must depend upon the extent of detriment to the riparian 
 proprietors below. If it essentially impairs the use below, then 
 it is unreasonable and unlawful, unless it is a thing altogether 
 indispensable to any beneficial use at every point of the stream. 
 An extent of deposit which might be of no account in some 
 streams might seriously affect the usefulness of others. So, too, 
 a kind of deposit which would affect one stream seriously would 
 be of little importance in another.'" 
 
 The cases we have hitherto directly considered have been with Subterranean 
 reference to natural streams on the surface flowing in defined flj^^^gj^ 
 channels. It is manifest that besides these there may be subter- ^^^^^^j^ 
 ranean streams running in defined channels. Indeed, they were 
 
 1 Snow V. Parsons, 28 Vt. 459, at p. is entitled to pure water ; therefore, if one 
 461 ; Uranfield C.Andrews, 41 Am. E. 828. higher proprietor discharges a harmless 
 
 2 As to thip, see a most valuable judg- chemical into the stream, and another 
 ment, Red Eiver Holler Mills t!. Wright, 44 does the same, and the conjunction pro- 
 Am. R. 194. duces contamination, he is entitled to an 
 
 3 In Blair v. Deakin, 3 Times L. R. injunction against both. 
 757, Kay, J., held that a lower proprietor 
 
1152 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Dickinson 
 V. Grand 
 Junction 
 Canal 
 Company. 
 
 Artijicial 
 streams. 
 
 a very frequent feature in ancient Greece.' The law with regard 
 to them is laid down by Pollock, O.B., in Dickinson v. Grand 
 Junction Ganal Company^ : "If the course of a subterranean 
 stream were well known, as is the case with many which sink 
 under ground, pursue for a short space a subterranean course, 
 and then emerge again, it never could be contended that the 
 owner of the soil under which the stream flowed could not main- 
 tain an action for the diversion of it if it took place under such 
 circumstances as would have enabled him to recover had the 
 stream been wholly above ground." And this is approved in the 
 House of Lords in Chasemore v. Richards,^ where Lord Wens- 
 leydale said'' : " The right to a natural stream flowing in a definite 
 channel is not confined to streams on the surface, but the right to 
 an underground stream flowing in a known and definite channel 
 is equally a right ex naturd, and an incident to the land itself as 
 a beneficial adjunct to it, as was determined in the case of Wood 
 V. Waud."° 
 
 2. The rights arising with regard to artificial streams differ 
 considerably from those that belong to natural streams. In the 
 latter case, each successive riparian proprietor is primd fatw 
 entitled to the unimpeded flow of the water in its natural course. 
 In the former, any right to the flow of water must rest on some 
 grant, either proved or presumed, from or with the owners of the 
 lands from which the water is artificially brought." The water in 
 an artificial stream flowing in the land of the proprietor by whom 
 it is caused to flow is his property, and not subject to any rights 
 of others. If a stream so artificially constructed is made to flow 
 on a neighbour's land without his consent, an actionable wrong is 
 committed ; but. if there is a grant by the neighbour, the rights 
 and liabilities of the persons concerned are regulated by it. Un- 
 interrupted user of a neighbour's land to discharge water upon 
 for a period of twenty years is evidence of an easement ; but not 
 that the land so sending water has become bound to send it, so 
 that there is a duty to continue sending the water.' Further, what 
 was originally an artificial stream may become subject to the laws 
 relating to natural streams, if it be shewn that the person by 
 
 ^ See Grote's History of Greece, 2nd 
 edit. vol. ii. p. 292, and note ; Dudden v. 
 Guardians of Glutton Union, i H. & N. 
 627, per Pollock, O.B. : " If the channel or 
 course under ground is known, as in the 
 case of the liiver Mole, it cannot he inter- 
 fered with;" 21 L. J. Ex. 241. 
 
 2 7 Ex. 282, at pp. 300, 301 ; 21 L. J. 
 Ex. 241 ; Cross v. K.itta, 58 Am. R. 558. 
 
 2 7 H. L. C. 349 ; by Lord Chelmsfunt, 
 at p. 374 ; 29 L. J. Ex. 81 ; 7 W. R. 
 685. 
 
 * At p. 384. 
 
 ^ 3 Ex. 748; 18 L. J. Ex. 305. 
 
 ^ Kameshur Pershad Navain Singh i-. 
 Koonj Behari Pattuk, 4 App. Gas. 121 ; 
 Kensit v. Great Eastern Railway, 27 
 Ch. D. 122; 54 L. J. Ch. 19; SI L. T. 
 862 ; 32 W. R. 885. 
 
 ^ Mason v. Shrewsbury and HerutbrJ 
 Railway Company, L. R. 6 Q. B. 578 ; 40 
 L. J. Q. B. 293 ; 25 L. T. N. S. 239 ; 
 20 W. E. 14. 
 
BOOK III.] WATER AND WATERCOUESES. 1153 
 
 whom it was made either intended to construct a permanent 
 stream, or subsequently abandoned control over it.' 
 
 The fact that artificial streams are besides subterranean can Artificial 
 work no difference. We have seen already = that a natural sub- futtoneTn 
 terranean stream flowing in a known and defined channel is sub- 
 ject to the same right as a natural stream flowing on the surface 
 in a known and defined channel. Like a similar stream on the 
 surface, it may become subject to the laws governing natural 
 streams;^ but the presumption is that it is the private property 
 of its constructor or maintainer, and that neighbouring proprietors 
 have no rights.* As it is, until rights are acquired in it, water 
 brought on land, in so far as it partakes of this nature, it is 
 subject to the rules of law developed by Eylands v. Fletcher,' 
 Nicholls V. Marsland,° Carstairs v. Taylor,' and the rest. 
 
 1. A watercourse is water flowing usually in a defined stream. Summary. 
 
 2. A natural stream is water arising from a natural source, 
 and flowing in a course determined originally by natural 
 causes.' 
 
 3. An artificial stream is water whose origination or direc- 
 tion is determined by human agency.^ 
 
 4. Riparian proprietors — i.e., the owners or occupiers of land 
 on the banks of a natural stream — are entitled to have the water 
 of the stream flow m its natural state without diminution or 
 alteration.' 
 
 5. Riparian proprietors are entitled — 
 
 («) To the reasonable use of the water of the stream for 
 
 their domestic purposes ;" 
 (6) To such other use of the water as does not interfere 
 with the rights of other proprietors." 
 €. The question of what is a reasonable use of the water of a 
 stream is a question of fact." 
 
 7. The right of the riparian proprietors to a stream is not an 
 absolute right, but a natural right qualified and limited by 
 
 - Gaved v. Martyn (1865), 19 C. B. ' L. E. 6Ex. 217. ^ „ „ „ 
 
 N. S. 732 ; 34 L- J. C. t. 353 ; I3 ' Holker v. Porritt L. E. 8 Ex. 107, 
 
 L. T. N. S. 74 ; Arkwright v. Gell, 5 M. L. E. 10 Ex. 59 ; 44 L- J- Ex. 52 ; 33 
 
 & W. 203 ; Wood V. Wand, 3 Ex. 748 ; L. T. N. S. 125 ; 23 W. E. 400. 
 
 18 L. J. Ex. 305 ; Greatrex v. Hayward, » Emtrey v. Owen, 6 Ex. 353 ; 20 L. J. 
 
 8 Ex 2q^ • 22 L. J. Ex. 137 ; Sutclife D. Ex. 212; Sampaon v. Hoddinott, 1 
 
 Booth, 32 L. J. Q. B. 136. See EobertB CBN S. 590 ; 26 L. J. OP. 148 
 
 V. EiohardB, 50 L. J. Ch. 297 ; 44 L. T. i» Milner v. Gilmour, 12 Moo. P. 0. 0. 
 
 271 ' t;i L J Ch. 944. ^S^' 
 
 2 '^nte p ii?! " Swindon Waterworks Company v. 
 
 2 See per Kelly, C.B., Holker i». Porritt, Wilts and Berks Canal Navigation Com- 
 
 L. E. 8 Ex. 107, at p. 1 14. pany, L- E. 7 H. of L. 697 ; 45 L- J- 'f- 
 
 * Gaved V. Martyn, 19 C. B. N. S. 732 ; 638 5 33 L. T. K S. 513 ; 24 W. R 284. 
 
 Arkwright «. Gell, S M. & W. 203. 12 Embrey «>. Owen 6 Ex. 353 ; Wright 
 
 5 L. E. 3 H. of L. 330. ■>'■ Ploward, i Sim. & St. 190 ; Angell, 
 
 c 2 Ex' I ) i Watercourses, 6th edit, § 140 d. 
 
 40 
 
]154 THE LAW OF NEGLiaENCE. [book iii. 
 
 the existence of a similar right in the other owners or occu- 
 piers.' 
 
 8. Whenever it appears that any use of a stream by one 
 riparian proprietor interferes with the reasonable use of the stream 
 by a lower riparian proprietor, either by the interruption, diver- 
 sion, abstraction, or pollution of water, the burthen of proof is on 
 the one so using the water to shew that such user is reason- 
 able.^ 
 
 9. Those only who are in lawful enjoyment of a beneficial flow 
 of clear water from a stream can maintain an action for the foul- 
 ing it.^ 
 
 10. Where a grant of water rights has been made by a 
 riparian proprietor to one not a riparian proprietor, such grant 
 is good as between grantee and grantor, but does not confer on 
 the grantee in his own name any rights against other riparian 
 proprietors." 
 
 1 1 . Where a grant of water rights has been made by a 
 riparian proprietor to one not a riparian proprietor, and in pur- 
 suance of such grant water has been abstracted from a stream 
 and returned undiminished and unpolluted, a lower riparian pro- 
 prietor has no right of action against such grantee." 
 
 1 2. A riparian proprietor may make what use he pleases of 
 water during its passage through his land, provided he does not 
 thereby afEect the rights of other proprietors, whether higher up 
 or lower down the stream, by increasing their burthen or 
 diminishing their benefits from it." 
 
 13. Any number of the riparian proprietors may agree amongst 
 themselves and make diversions of the stream or otherwise deal 
 with it on their lands subject to the same restriction of not in- 
 creasing the burthen or diminishing the benefit of other pro- 
 prietors.' 
 
 1 4. Subterranean waters flowing in a known and defined course 
 are subject to the same rights and liabilities as surface waters 
 flowing in a defined course.' 
 
 1 Wood V. Waud, 3 Ex. 748 ; Sampson 19 ; 51 L. T. 862 ; 32 W. E. 885. 
 
 V. Hoddinott, i C. B. N. S. 590; 26 « Holker v. Ponitt, L. E. 8 Ex. 107, 
 
 L. J. C. P. 148; Embiey v. Owen, 6 10 Ex. 59; 44 L.J. Ex. 52; 33 L. T.N. S. 
 
 Ex. 353 ; 20 L. J. Ex. 212. 125 ; 23 W. E. 400; West Cumberland 
 
 - Eed Eiver EoUor Mills ». Wriglit, 44 Iron and Steel Company v. Kenyon, n 
 
 Am. E. 194. Ch. D. 782 ; 48 L. J. Cli. 793 ; 40 L. T. 
 
 ' Laiug V. Whaley, 3 H. & N. 675, 703. 
 
 901 ; 27 L. J. Ex. 422. Per Bramwell, ' Nuttall v. Bracewell, L. E. 2 Ex. i ; 
 
 B., Stockport Waterworks Company v. 36 L. J. Ex. 1 ; 15 L. T. N. S. 313. 
 
 Potter, 3 H. & C. 300, at p. 318 ; 10 « Dickinson v. Grand Junction Canal 
 
 L. T. N. S. 748. Company, 7 Ex. 282 ; 21 L. J. Ex. 241 ; 
 
 * Stockport Waterworks Company v. Chasemore v. Eichards, 7 H. of L. 349, 
 
 Potter, 3 H. &C. 300. at p. 374 ; 29 L. J. Ex. 81 ; 7 W. E. 
 
 ^ Kensit v. Great Eastern Eailway 685 ; Duddeu v. Guardians of Glutton 
 
 Company, 27 Ch. D. 122 ; 54 L. J. Ch. Union, i H. &N. 627 ; 26 L. J. Ex. 146. 
 
BOOK in.] WATER AND WATEKCOURSES. 1155 
 
 I S. Artificial streams are, primd facie, the private property of 
 those by whom they are caused to flow or in whose land they are 
 found.' 
 
 1 6. A stream originally artificial may become subject to the 
 rights attaching to natural streams.^ 
 
 II. What is the position of the owners of land by or through li. where 
 which water runs, but not in any channel or defined stream ^^^ T"'"'" 
 
 mi.' in -1 -1 (. runs by or 
 
 ihis we shall consider with reference (i) to surface water and 'iirough land, 
 (2) to subterranean water. any d°efln°d 
 
 First, as to surface water. stream. 
 
 I. As to sur- 
 
 Ihe leading cases on this point are Rawstron v. Taylor ° **'''' ■^**'"'- 
 and Broadbent v. Ramsbotham." In the former case the Taylor.™ "' 
 plaintiff brought his action to recover damages for the injury 
 to his mills by the diminished supply of water brought to 
 them in consequence of the alleged unlawful acts of the 
 defendant. In giving judgment for the defendant negativing the 
 right of action Parke, B., said: "This is the case of common 
 surface water rising out of springy or boggy ground and flowing 
 in no definite channel, though contributing to the supply of 
 the plaintiff's mill. The water having no defined course, and its 
 supply being merely casual, the defendant is entitled to get rid 
 of it in any way he pleases. The same observations apply to the 
 water rising at the point K. This water has no defined course, 
 and the supply is not constant, therefore the plaintiff is not 
 entitled to it." 
 
 In the latter case, where the facts were similar, Alderson Broadbent v. 
 B., delivered the considered judgment of the Court, and ^™me°nt of* ' 
 thus expressed himself on the principle : " The right to the Alderson, B. 
 natural flow of the water in Longwood Brook undoubtedly belongs 
 to the plaintiff ; but we think that this right cannot extend further 
 than a right to the flow in the brook itself, and to the water 
 flowing in some defined natural channel, either subterranean or 
 on the surface, communicating directly with the brook itself. No 
 doubt all the water falling from heaven and shed upon the surface 
 of a hill at the foot of which a brook runs must, by the natural 
 force of gravity, find its way to the bottom, and so into the brook ; 
 but this does not prevent the owner of the land on which this 
 water falls from dealing with it as he may please and appropriating 
 it. He cannot, it is true, do so if the water has arrived at and 
 is flowing in some natural channel already formed. But he has 
 
 1 Eameshu Pershad Narain Singh v. ^ (1856) 11 Ex. 369; 25 L. J. Ex. 
 Kooni Behari Pattak, 4 App. Cas. 121. 33. 
 
 2 Graved v. Martyn, 19 C. B. N. S. ■■ II Ex. 602; 25 L. J. Ex. 115. See 
 7-?2 ; Arkwright v. Gell, 5 M. & W. Bnnor v. Barwell, 2 Giff. 410 ; i De G. 
 203. F. & ,J. 529 ; 4 L. T. N. S. 597. 
 
1156 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 a perfect right to appropriate it before it arrives at such a channel. 
 In this case a basin is formed in his land which belongs to him, 
 and the water from the heavens lodges there. There is here 
 no watercourse at all. If this water exceeds a certain depth it 
 escapes at the lowest point, and squanders itself (so to speak) over 
 the adjoining surface. The owner of the soil has clearly a right 
 to drain tliis shallow pond, and to get rid of the inconvenience 
 at his own pleasure." 
 Conclusions. It appears, then, clear that the owner of land on the 
 surface of which water comes, but not in a defined stream, is 
 entitled to appropriate it, and prevent any portion reaching 
 any adjoining lands. But the rights are varied when we come 
 to consider the position of a landowner, not anxious to keep, but 
 anxious to get rid of the water on his land. He has an 
 unqualified right to allow his surface water Tvatwally to flow 
 on his neighbour's land ;^ and he may further get rid of it in the 
 best way he can ; but in relieving himself he must respect the 
 rights of his neighbour, and cannot make his estate more valuable 
 by an act which unnecessarily renders his neighbour's less valuable.^ 
 In the civil law a distinction was drawn. If a man, for the 
 purpose of cultivating the soil, did some work with the plough 
 by which water was brought on the premises of his neighbour, no 
 action would lie, provided, that is, that the work so done was 
 necessary for the purposes of raising crops ; but if the work was 
 designed to improve the ground, an action lay. Again, ditches 
 made to drain the ground, though performed for agricultural' 
 purposes, were not permitted to be made for the purpose of 
 conducting water into the land of a neighbour, because a man 
 must not improve his premises in such a way as to injure his 
 neighbour.^ 
 
 This distinction is found also in the Code Napolgon. By that 
 code the tribunals are directed to decide in such a way in cases 
 where a claim to make drains is made as to reconcile the respect 
 due to property with the interests of agriculture* (doivent comilier 
 VintMt dc Vagricidture avec le respect dH A la propridtd). This, 
 Duranton* interprets to mean that a landowner cannot make on 
 his land any works which would change the natural passage of 
 the waters upon the inferior estate, either by collecting it on a 
 single point and giving it thereby a more rapid current, and more 
 
 French law. 
 
 ^ Hurdman v. North-Eastem Railway 
 Company, 3 C. P. D. 168 ; 47 L. J. C. P. 
 368; 38L. T. 339; 26W. E. 489. 
 
 2 Sampson v. Hoddinott, i 0. B. N. S. 
 590; Livingston v. M'Donald, 2i Iowa 
 160, at p. 174, citing Lord Tenterden. 
 
 Compare Code Napoleon, art. 640. 
 
 ' I>. 39, 3, 3, § 4; Martin v. Jett, 12 
 La. An, 501. 
 
 * Art. 645. 
 
 ^ I DurantoD, pp. 164, 165. 
 
BOOK III.] WATER AND WATERCOUESES. 1157 
 
 apt to carry sand, earth, or gravel upon the land, or by directing 
 upon a point on the same land a much greater volume of water 
 than it would have received without such works. But the owner 
 may make any work upon it necessary or simply useful to the 
 cultivation of his land, such as furrows in a planted field. He 
 may also, in planting vines or forming a meadow, make ditches 
 for the irrigation of the meadow, or for the purpose of rendering 
 his vines more healthy and vigorous. 
 
 The effect of this in English law would be to leave to the jury, English law 
 in any doubtful case, whether the use of land were the natural cotto'n^L'7 
 use for purposes of agriculture, or whether the use was with a *" Hurdman 
 view to improve the estate. And this appears to be the law, as Eastern 
 stated by Cotton, L.J., in Hurdman v. North-Bastem Railway company. 
 Company' : "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 suit of him 
 who is so injured ; and this view agrees with the opinion expressed 
 by the Master of the Rolls in the case of Broder v. Saillard."* 
 But this must be taken subject to the exception in Nield v. 
 London and North -Western Railway Company,' that " the flood is 
 a common enemy, against which every man has a right to defend 
 himself ; and it would be most mischievous if the law were other- 
 wise, for a man must then stand by and see his property de- 
 stroyed out of fear lest some neighbour might say, ' You have 
 caused me an injury.' The law allows what I may term a 
 reasonable selfishness in such matters ; it says, ' Let every one 
 look out for himself, and protect his own interest ' ; and he who 
 puts up a barricade against a flood is entitled to say to his neigh- 
 bour who complains of it, ' Why did not you do the same ? ' " ■* 
 The distinction, then, is between water coming on land in the 
 normal way and water coming on abnormally. The former is an 
 incident to property from which a man may not relieve himself at 
 the expense of his neighbour ; the latter is a common enemy, 
 against the advent of which each may take precautionary measures 
 without regarding his neighbour. 
 
 Secondly, as to subterranean water. suMeixanean 
 
 In Acton v. BlundelP the plaintiff's claim against the de- water. 
 fendant was for subtracting water from his well by carrying on f "^'^aJJi. 
 
 I3 C P. D. 168, at p. 173; 47 2 2 Ch. D. 692, at p. 700; 45 L.J. Ch. 
 
 L. J. C. P. 368; 38 L. T. 339; 26 414; 24 "W. R. loii. ^ ^ _, 
 W. R. 489. See Bagnall v. London and ' L. E. 10 Ex. 4; 44 L. J. Jiy. Ig ; 
 
 North- WeBtera Railway Company, 7 H. & 23 W. R. 60. 
 N. 423, I H. & C. S44 ; 31 L. J. Ex. 480 ; ^ Per Bramwell, B., at p. 7. 
 
 9 L. T. N. S. 419 ; 10 W. R. 802. = 12 M. & W. 324 ; 13 L. J^ Ex. 289; 
 
1158 
 
 THE LAW OF NEGLIGENCE. 
 
 [book III. 
 
 Chasemoi'e 
 V. Eichards, 
 
 Opinion of 
 the judges 
 delivered 
 to the House 
 of Lords by 
 ^Vightman, J. 
 
 mining operations on defendant's own land. The well had not 
 been made twenty years. The Exchequer Chamber decided that 
 there was no right of action, but intimated " no opinion what- 
 ever as to what might be the rule of law if there had been an 
 uninterrupted user of the right for more than the last twenty 
 years." 
 
 In the subsequent case of Chasemore i). Eichards' the whole 
 point was raised and the law conclusively settled. The plaintiff 
 was the occupier of an ancient mill who had himself, or by 
 his predecessors in title, for more than sixty years before action 
 enjoyed as of right the flow of a river for the purpose of working 
 the mill. The water was supplied by the rainfall of a district 
 many thousands of acres in extent, which percolated through the 
 strata to the river. The defendant represented a local board, 
 which, for the purpose of supplying its district with water, sank • 
 a well and pumped up large quantities, thereby intercepting 
 underground water, not running, however, in any defined channel, 
 but that would otherwise have found its way into the river and 
 so to the plaintiff's mill. 
 
 Wightman, J., delivering the unanimous opinion of the judges 
 who were summoned, said : " It is impossible to reconcile such 
 a right [as that claimed by the plaintiff] with the natural and 
 ordinary rights of landowners, or to fix any reasonable limits to 
 the exercise of such a right. Such a right as that contended 
 for by the plaintiff would interfere with, if not prevent, the 
 draining of land by the owner. Suppose, as it was put at the 
 bar in argument, a man sank a well upon his own land, and 
 the amount of percolating water which found a way into it 
 had no sensible effect upon the quantity of water in the river 
 which ran to the plaintiff's mill, no action would be main- 
 tainable, but if many landowners sank wells upon their own 
 lands, and thereby absorbed so much of the percolating water by 
 the united effect of all the wells as would sensibly and injuriously 
 diminish the quantity of water in the river, though no one well 
 alone would have that effect, could an action be maintained 
 against any one of them ? and, if any, which ? for it is clear that 
 no action could be maintained against them jointly." The 
 conclusion of the judges' was that " such a right as that claimed 
 by the plaintiff is so indefinite and unlimited that, unsupported 
 as it is by any weight of authority, we do not think that it 
 can be. well founded, or that the present action is maintain- 
 able." 
 
 1 7 H. L. C. 349; 29 L. J. Ex. 81; 
 7 W. E. 685, affirming the Exchequer 
 Chamber, 2 H. & N. 168, giving judg- 
 
 ment without argument on the authority 
 of Broadbent v. Eamsbotham, 11 Ex. 
 602. 
 
BOOK HI.] WATER AND WATERCOURSES. 1159 
 
 The House of Lords' coincided in this conclusion. Lord Wens- Lord Wens- 
 leydale, however, "felt very great difHculty in coming to a alffioiuy. 
 conclusion " satisfactory to his mind. The question in this case 
 seemed to resolve itself into an inquiry " whether the defendant 
 exercised his right of enjoying the subterraneous waters in a 
 reasonable manner." " Had he," says Lord Wensleydale, " made 
 the well and used the steam-engines for the supply of water for 
 the use of his own property and those living on it, there could 
 have been no question. If the number of houses upon it had 
 increased to any extent, and the quantity of water for the 
 families dwelling on the property had been proportionately 
 augmented, there could have been no just grounds of complaint, 
 but I doubt very greatly the legality of the defendant's acts in 
 abstracting water for the use of a large district in the neighbour- 
 hood, unconnected with his own estate, for the use of those who 
 would have no right to take it directly themselves, and to the 
 injury of those neighbouring proprietors who have an equal right 
 with themselves." 
 
 It thus appears that the House of Lords were in all respects Effect of tlie 
 unanimous in holding that one proprietor could not claim any the House 
 right to the flow of subterranean water, unless flowing in a de- °^ Lords. 
 fined current, as against another proprietor, even though there 
 may have been an actual taking of water flowing in that way 
 during a period that would have conferred prescriptive rights 
 had it been possible for them to be acquired. The doubt of Lord 
 Wensleydale was whether one proprietor could drain the subter- 
 ranean waters of a district, not for his own use merely, but to 
 supply persons who had no rights whatever in or about the 
 lands whence the water was collected ; being neither landowners, 
 nor residents, nor interested in the district, from which the supply 
 was drawn. This doubt was, however, not shared by the other 
 legal members of the House ; and the law may be considered as 
 laid down by them in the very widest terms — that in no 
 way whatever can a title be acquired to water flowing under 
 ground in no deflned channel, so as to impose an obligation 
 on proprietors in their methods of draining and the use of their 
 land. 
 
 A limitation to the right to water percolating under ground in Jjj^^^'^j^" 
 an undefined manner is imposed by the decision in Grand June- percolating 
 tion Canal Company v. Shugar.^ A local board, by means of a g^*® j= 
 drain, intercepted water that the canal company had been used l^^f^°^^^_ 
 to draw from a pond. The local board asserted their right to pany ». 
 
 ^ Shugar. 
 
 1 Lords Chelmsford, Cranworth, Kings- "■ L. E. 6 Ch. 483 ; 24 L, T. N. S. 
 
 down, and Brougham. 402 ; '9 W. E. 569. 
 
1160 THE LAW OP NEGLIGENCE. [book iii. 
 
 intercept subterranean springs, and justified what they had done 
 on the ground that the diminution of the plaintifE's supply of 
 water was caused as a natural consequence of their assertion of 
 their legal right. This view was adopted by the Master of the 
 Rolls, whose judgment was overruled by the Lord Chancellor 
 (Hatherley), who held that Ohasemore v. Richards' had no bear- 
 ing at all on what might be done with water going in a defined 
 channel, ^nd that if underground water could not be collected 
 without touching water in a defined channel it could not be got 
 at all. " You are not, by your operations or by any act 
 of yours, to diminish the water which runs in this defined 
 channel, because that is not only for yourself, but for your 
 neighbours also, who have a clear right to use it, and have 
 it come to them unimpaired in quality and undiminished in 
 quantity." 
 Summary. I . Surface water flowing in no defined channel is the property 
 
 of the person on whose land it originates so long as it continues 
 there.^ 
 
 2. Every proprietor is bound to receive surface water naturally 
 flowing from his neighbour's land, but is not entitled to demand 
 the flow.' 
 
 3. The flow of surface water upon a neighbour's land may not 
 be increased by any act of the landowner other than in the natural 
 use of his land.'' 
 
 4. A flood, which is in the nature of a common enemy, 
 may be diverted by any precautionary measures from the 
 landowner's own land to that of a neighbour without incurring 
 liabiUty.^ 
 
 5 . Subterranean water flowing in no defined channel is not the 
 subject of property.* 
 
 6. Every landed proprietor has a right to intercept all subter- 
 ranean water he is able to obtain, even though in doing so he 
 may drain his neighbour's well of which he has enjoyed the im- 
 memorial use.' 
 
 7. Subterranean waters obtained by sinking a well or by other 
 means whereby the supply of neighbouring proprietors is ex- 
 
 Ij^-^- ^- 349 ; 29 L. J. Ex. 81 ; Company, 3 C. P. D. 168 ; Livingston v. 
 
 7W.E. 685. M'Donald, 21 Iowa 160. 
 
 3 Eawstron 0. Taylor 11 Ex. 369; 6 ^ield v. London and North- Western 
 
 25 L. J. Ex. 33 ; Broadbent v. Earns- Eailway Company, L. E. 10 Ex. 4 ; 44 
 
 botham, 1 1 Ex. 602. L. J. Ex. 15 ; 23 W. E. 60. 
 
 ■* Rawstron «. Taylor, 11 Ex. 369; « Acton o. Bhindoll, 12 M. & W. 324 ; 
 
 BroaJbent «. Eamsbotham, 11 Ex. 602; 13L. J. Ex. 289 ; Chasemore«. Eichards, 
 
 25 L. J Ex. lis; Hurdman yi. North- 7 H. L. C. 349; 29 L. J. Ex. 81; ^ 
 Eastern Tnilway Company, 3 C. P. D. W. E 685 
 
 ^^^iM}"- o- ^- ■''• 3^^i 38 L. T. 339 ; 7 Ohasemore v. Richards, 7 H. of L. 
 
 26 W. E. 4S9. 34g. ' 
 
 * Hurdman «. North-Eastern Bailway 
 
BOOK m.] WATER AND WATEECOURSES. 1161 
 
 hausted may be applied to the use of those who are neither land- 
 owners, nor interested in, nor connected with the district from 
 which the supply is drawn.' 
 
 8. If, in obtaining subterranean water flowing in no defined 
 channel, water flowing in a defined channel is affected, a right of 
 action arises against the person so affecting such water flowing in 
 a defined channel." 
 
 1 Cliasemoreu. Richards, "j H. of L. 349. Sbugar, L. E. 6 Ch. 483 ; 24 L. T. N. S. 
 
 2 Grand Junction Canal Company v. 402; 19 W. E. 569. 
 
INDEX. 
 
 ABAKDONMENT OF VESSEL does not always avoid liability, 937 
 ABRIDGMENT OF RESPONSIBILITY at common law by special stipulation, 
 
 742, 743 
 ABROAD, action pending for a wrong, no gi-ound for staying action in this country, 
 
 247, n. 
 
 ABSOLUTE DUTY on owner of savage animals, 914 
 ABUSE OF PROCESS, action against sheriff for, 775 
 ACCEPTANCE imperfectly fiUed up, 890 
 ACCESS TO PREMISES, right to, from highway, 1031, 1034 
 
 ACCIDENT, injury caused by kicking horse, 958 
 breaking down of vehicle, 958 
 from neglect of precautions, 1106 
 causing injury, 48 
 when mere occurrence of, does not warrant the inference of negligence, 
 
 103, 104 
 to vehicle, carrier of passengers must provide another vehicle, 661 
 inevitable, what is, 572, 573 
 ACCOUNTABLE, all servants of the Crown now are, 245 
 
 agency necessary to found negligence, 46 
 ACQUIESCENCE, mere constructive, in breach of trust not enough to found an 
 
 action, 868 
 ACT done in natural enjoyment of property does not impute liability, 981, 991 
 effect of neutral, in law where injurious consequences fallow, 825 
 of Parliament, breach of duty imposed by, may be negligence, 662, 663 
 of Grod, damage to sea-wall, 1065 
 
 will not, in all cases, exempt common carrier from liability, 573, 574 
 
 borrower not liable for losses by, 487 
 
 what is, 49, 74, 572, 573, 722, 723 _ , ,. ^, , 
 
 and acts of enemies of the King, common earner not liable for, 572, sso, 
 
 588 
 not co-extensive with dangers of the sea, 723 
 ACTION for particular disposal of sewage, 1130 
 
 who may maintain, for fouling stream, 1154 
 
 would not lie for hindering a person passing along highway, 1027 
 
 for non-repair of a fence, 965 
 
 in what circumstances against landlord for injury arising from the condition 
 
 of property, 1074, 1075 
 against canal proprietors, 1051 
 
 where no fraud, party left to remedy by, against solicitor, 784 
 not well laid by mere allegation of negligence without faots,_ 1131 
 against solicitor at common law for negligence excludes equitable proceeding, 
 
 791 
 solicitor when liable to, 781 
 for negligence against solicitor, 787 
 time within which, must be brought under Employers' Liability Act, 439 
 
1164 INDEX. 
 
 ACTION will not lie where the negligence is a want of foresight merely of a remote 
 probability, 8i 
 where privity not necessary, 64 
 does not lie where no temporal damage, 60 
 
 under Employers' Liability Act, what is necessary to constitute, 419 
 when lies against sheriff, 771, 772 
 against sheriff, who may maintain, 772 
 
 pending abroad, no ground for staying proceedings in this country, 247, n. 
 against unqualified medical practitioner, 824 
 refusal to sue by an executor will not in itself justify a legatee suing an 
 
 executor and the alleged debtor for loss of assets, 856 
 against seller of securities, 818 
 when grounded on misrepresentation, 888 
 for cattle straying on land, 917 
 ACTIONS, two, can be brought for same negligence, 185 
 
 under Employers' Liability Act may be consolidated, 440 
 
 failing, can plaintiff proceed at common 
 law? 441, 442 
 ACTS 04' ENEMIES OP THE KING, common carrier exempt from liability for, 
 
 S74. S76 
 ACTUAL DAMAGE— ^fee Bamabb, Actual 
 
 not necessary to prove scienter, 919 
 ADDITIONAL WORKS, when constructed voluntarily by canal company, impose duty 
 
 to maintain them in safety, 1056 
 ADMIEALTY Court, apportionment of damage by, in collision, 938 
 
 Division of the High Court can entertain action in rem under Lord 
 Campbell's Act, 188-193 
 AGENTS, when directors liable, 842 _ _ 
 
 employed by trustee, obtaining possession of trust property cease to be 
 
 agents, 847 
 not liable as constructive trustees so long as, act as agents, 848 
 professing to contract for another, undertake that authority exists, 818 
 liability of, for sub-agent, 871 
 duties of, in presentment of bills, 800 
 responsible to both parties, 800 
 solicitors of principal, 802 
 negligence of, propositions as to damages, 528 
 both of sender and receiver, telegraph company are, 738 
 all persons may act as, 823 
 acts of, how far binding on corporation, 228, 229 
 AGISTERS of cattle, history of law as to, 519 
 not insurers, 520 
 want of reasonable care and diligence renders, liable, 520, 521 
 derivation of term, 519, n. 
 
 and liverv stable keepers, distinction between, 521 
 AGISTMENT, definition of, 519, 520 
 AGREEMENT, depositary may vary liability by, 463 
 AGREEMENTS amongst riparian proprietors as to division of stream, 1154 
 ALDERSON'S, Baron, definition of negligence, 3 
 ' ALIAS," what is, 769, n. 
 
 ALLEGATION " that a thing was negligently and improperly done, and contrary to 
 
 their duty," will not dispense with necessity of setting out facts, i loi 
 ALLOPATHIC TREATMENT, legal position of, 827 
 AMERICAN LAW as to highways, 1034 
 
 in the case of bailments to a banker, 882 
 
 as to natural and lawful use of land, H28 
 
 as to escape of something brought on land tends to differ from 
 English law, 1125 
 
 stringency of, in the case of railway companies, 1 100 
 
 diffei's from English law in the case of an excavation near a 
 highway, 1091 
 
 as to cariiers, 644 
 
 proximate cause in, ordinarily a question for jury, 91 
 
 in cases of collision, 938 
 ANALYSIS of cause of action for negligence, 9 
 
INDEX. 1165 
 
 ANIMALS, 911, 933 
 
 without notice the owner must be taken to know of the savage nature of 
 
 904 
 vrneu dangerous, 919 
 straying, rights of tlie person on whose land they are found, 911 
 
 without negligence, 963 
 liability where there is notice of the nature of, 964 
 Lex Aguilia regarding, 91 1 
 noxal action, 911 
 which are valuable property, owner not liable for damagj done contrary 
 
 to their nature, 932 
 responsibility follows ownership, 913 
 where thoroughly tamed, 913 
 
 ferce naturce, duty in keeping, independent of negligence, 914, 930 
 of savage character, 913 
 mansuefactiB naturce, 914 
 kept for uses dependent on their retaining their natural instincts, 914 
 
 whims, 914 
 savageness of disposition, 917 
 presimiption of law as to disposition, 918 
 which never lose their wild nature are only property while they continue in 
 
 actual keeping, 924 
 thoroughly tamed, 916 
 subject to larceny at common law, 916 
 not of a mischievous nature, 917 
 precautions with regard to, when vicious, 919 
 those which never lose their wild nature have a qualified protection by 
 
 law, 924 
 where there is negligent keeping, but no knowledge of vicious propensity, 
 
 920 
 elements that go to constitute cause of action in respect of, 920 
 if of wild nature, owner not liable for their trespasses, 923 
 test of class to which an animal is to be referred, 932 
 irritated by person in the course of lawful user of the highway, 919 
 killing v/ild vermin, 932 
 when domesticated, 932 
 which are valuable property, owner not liable for trespasses when going 
 
 along highway, 932 
 harbourer of wild, on his land not liable for injury they may do, 930 
 valuable, when owner liable for trespass, 932 
 wild, in whom property when killed, 930 
 
 remedy of person injured by, 932 
 manauetcB natures, owner not liable for injury caused by sudden outbreak 
 
 of natural disposition, 100 
 damage caused by civil law, as to, 13 
 APOTHECARIES, Act, 1815: 822, 825, 830 
 
 practising without certificate, 822 
 who are, 822 
 APPOINTMENT of gaoler, how made, 753 
 
 of notaries, 746 
 AEBITEATOE liable for fraud and collusion, 252, 253 
 
 who is, 252, 253 
 AECHITECT, 810-814 
 
 nature of duties and liabilities, 810, 813 
 may employ a quantity surveyor, 813 
 
 duty as to preparation of bills of particulars and quantities, 810 
 Ruskin's definition of, 810 
 ARREST, illegal, gaoler not liable for, but sheriff, 754 
 
 of the person by sheriff, when some illegality in some of the circumstances 
 attending the arrest, 759 
 ARTIFICER, definition of; 447 
 
 ARTIFICIAL stream, presumption of ownership of, 1155 
 flowing over neighbour's land, 1 152 
 may become subject to the rights attending natural streams, 
 
 1152, IISS 
 works producing injury, 1128, 1141, 1157 
 
 ASHBY V. WHITE, 755, 75^ 
 
1166 INDEX. 
 
 ASSESSOR may be appointed under the Employers' Liability Act to assess compensa- 
 tion, 440 
 ASSISTANCE, persons rendering, liability of persons assisted for injuries to, 406-410 
 ASSISTANT SUBVEYOE OF HIGHWAYS, position of, 1016 
 ATTACHMENT against sheriff, when gi-anted, 770, 77 1 
 
 what is nature of, 779 
 ATTOENEY, what is meaning of the term, 779 
 
 only liable for gross negligence, 42 
 AUCTIONEEE, 814-816 
 
 nature of interest of, in goods, 81S 
 
 who is, 814 
 AUDITOE OF COMPANY, duties of, 844 
 
 AUSTIN'S definition of negligence, 34S 
 
 theory of liability, 13 
 AUTHOEITY of master of passenger ship, 733 
 
 of Sovereign, subject not liable for injuries done by, 236 
 servants of the Crown liable for any act not justifiable by lawful, 239, 
 240 
 AXLE-TEEE OF COACH breaking, liability of proprietor for, 632, 633, 634 
 
 BAILEE, duty of a, 452 
 
 when railway company is a, 601 , n. 
 
 and bailor, confusion of property of, 452, 453 
 
 not liable for thing stolen by robber, 506 
 
 loss by stealth'evidence of negligence, 464 
 
 when carrier a, 61S, 619 
 
 in niord, liability of, 509 
 
 three degrees of negligence of, 463 
 
 when liable for losses by theft, 464 
 
 when, alone receives advantage from bailment must answer for slight 
 
 negligence, 466 
 liability for returning thing in a damaged condition, 507 
 right of action against wrongdoer to thing bailed, 475 
 when a common carrier becomes a mere, 625, 627 
 for compensation, forwarding agent in same position as, 538, 539 
 telegraph company as, 738 
 
 gratuitous, duty oii different from that of bailee for hire, 458, 459, 463, 466 
 must be proof of actual negligence against, 462 
 f turns horse into dangerous pasture after dark, evidence of negli- 
 
 gence, 461 
 bankers are, of plate and jewellery deposited with them, 470, 47 1 
 < only liable for gross negligence, 470, 471 
 contrasted with borrower, 486 
 for hire of labour, negligence of, in doing work contracted to be done, 518 
 destruction of articles bailed pending completion, 513, 514 
 when property in bailment transferred to, 514-517 
 claim of, for reward, co-extensive with benefit bailor re- 
 ceives, 518 
 only bound to care and skill of bnsiness he undertakes, 
 
 S14 
 has a lien on thing bailed, 517 
 
 duty of, to observe good faith, and return bailment, 517 
 duties of bailor, 513 
 bailee, 514 
 
 where property in bailment transferred, 514-517 
 rules of law as to, 514 
 liability of sheriff in possession on same footing as, 766 
 BAILIFFS, 752 
 
 bound, what are, 752 
 
 high, of county court responsible in same manner as sheriff, 777 
 special, what are, 752 
 BAILMENT, conversion of, by third party both bailor and bailee, right of action for, 
 - . , 454 . 
 
 right of action for, in contract or in tort, 454, 455 
 gratuitous, distinction between, and mandate, 481 
 
 articles sent to an exhibition not, 476, 477 
 
INDEX. 1167 
 
 BAILMENT to keep safely, bailee liable for loss by theft, 463, 464 
 
 when praperty in, transferred to bailee for hire of labour, 514-517 
 
 mere oontract to deliver not a, 452 
 
 must be a delivery to constitute a, 452 
 
 may partake of nature of a loan, 466 
 
 to keep goods in a particular place, bailor cannot object that place is not 
 
 a safe one, 465 
 thing bailed must be a chattel, 452, 457 
 
 where property in, transferred to bailee for hire of labour alters liability 
 of bailee, 514-517 
 BAILMENTS-H|ee Deposits 
 
 bailee for hire has a lien on, 517 
 definition of deposit, 456 
 
 of, 451 
 division of, 455, 456 
 
 distinction between, and possession of property by a servant or agent 
 on behalf of master or principal, 451 
 BALANCES, dealing with, by executor, 853 
 
 BALE OF GOODS falling from warehouse trap-door, 1 108 
 BALLOON descending in garden, 65 
 
 BANK, debentures deposked with, liability of banker for, 470 
 definition of, 866 
 position of branches, 866 
 shares deposited in, duty of banker, 471 
 teller, diligence to be looked for from a, 807 
 too large balance at, negligence for a trustee to have, 850 
 liabilities of, for securities coming to, iu ordinary course of business, 472, 473 
 when bound to produce books, 867 
 BANKEB, 866-882 
 
 acceptance of bill of exchange payable by, equivalent to an order to the 
 banker to pay the bill to any person who can give a valid discharge 
 for it, 877 
 acting in other than usual way, 879 
 autbority for looking on, as a trustee, 869 
 business of, considered, 866 
 collection of bills or notes, duties as to, 869 
 degree of care required of a, 37 
 ■liability of, for dishonest servant, 882 
 dishonouring cheques for customer, 866 
 duty of, as to disclosing accounts of customer, 868 
 employing notary, 872 
 
 not generally liable for hia negligence, 749 
 liability for absconding clerk, 870 
 may be customer's agent, 868 
 
 money deposited with, bank not bound to restore same money, 469 
 negligence of, in paying cheque, 888 
 not bound to inquire whether directors of a registered company his customers 
 
 are legally appointed, 867 
 obligation of, to honour his customers' cheques, 867 
 paying cheques, liability for, 879 
 position of, with regard to payee, 868 
 relations between banker and customer, 866 
 responsible for paying forged cheque otherwise than through another banker, 
 
 881 . , , . 
 
 statutory exoneration from liability for trust-money deposited with nim, 848 
 three kinds of liability of a, 37 
 warehouseman, 88 1 
 
 where duty to inquire as to title of securities, 899 
 where prejudiced by his customer's negligence, 889 
 BANKING ACCOUNT, money left fourteen months in, renders trustee personally 
 
 liable, 851 
 BANKRUPTCY ACT, 1883 : 801 
 BAEBEK-SUBGEONS, incorporation of Guild of, 821 
 BARGE, accident from natural causes after negligent deviation of, 76 
 BAEGE-OWNEES are common carriers, 563 
 
1168 INDEX. 
 
 BABRIEE, erection of, nnautborized, 89 
 
 BASTAED cannot recover under Lord Campbell's Act, 193 
 
 BATHINa ON FOEBSHOEB, right of, 1029 
 
 BEAB, liability for the escape of, 915 
 
 owner of, keeps it at his peril, 931 
 BEAST, action for damage done by a, 914 
 
 damage done by, secand/um natwram suam, 913 
 provisions of the civil law as to, 912 
 trespass of, 917 
 
 trespassing, right of person on whose land it is found, 911 
 BILLS and notes, delivery of, for collection, 869 
 
 of Exchange Act, 1882: 874, 876-878, 880 
 
 banker bound to know the commercial character of the paper he 
 
 undertakes to collect, 869 
 duty of drawer on presentment, 874 
 
 pasted together after being torn and thrown into the street, 893 
 payable to order on demand, drawn on a banker, 878 
 drawn* on a banker, 878 
 
 personal demand of payment not in general necessary, 877 
 presentment for acceptance, 873, 874 
 right of resort, 876 
 stolen when not perfected, 890 
 time for presentment for payment, 875 
 when payable on demand, 875, 877 
 of lading expresses terms of contract between shipper and shipowner, 722 
 how, affect liability of shipowner, 703, 704, 705 
 "loss by fire " in, and in policy of insurance, distinguished, 729, 730 
 what are, 722 
 
 words in common use in, 722 
 of quantities, law as to, discussed, 811 
 of sale, duties of solicitors with regard to, 801 
 
 BOARDING HOUSE not an inn, 525 
 
 BOAED OF HEALTH liable for non-repair of streets, when, 218 
 BONA FIDES neDeaea,Tj to entitle to protection of statute requiring notice of action, 
 1023 
 where knowledge of, dispenses with inquiries, 904 
 BOEEOWEE and gratuitous bailee contrasted, 486 
 care required of, 485, 486 
 diligence required of, exact, 489 
 duties of lender co-relative with duties of, 489, 490 
 duty of, where his own goods and goods of borrower are jeopardized, 487, 
 
 488 
 if lender aware of incapacity of, rigorous diligence not required, 487 
 in case of loss, on what principle compensation fixed, 488 
 liable for fraud, 487 
 
 must restore the thing in its original condition, 488 
 must use the loan according to the intention of the lender, 488 
 not an insurer, 487 
 not liable for losses by act of God, 487 
 
 negligence of persons not his agents, 486 
 not returning loan when demanded liable for all subsequent losses, 
 
 48p 
 obligations on, 48^ 
 
 represents himself to lender as a person of competent skill, 486 
 what money expended on loan, is entitled to be recouped, 488 
 
 BOEEOWING AND HIRING, distinction between, 486 
 BOUND BAILIFFS, who are, 752 
 
 BEEACH of carrier's contract, onus of shewing, on plaintiff, 699, 700 
 
 of regulations, absence of lights, 939 
 effect of, 940 
 
 where deemed culpable by statute, 940 
 where accident is not the natural sequence of, 940 
 
 of statutory obligation, effect of, in Admiralty, 940 
 
 of trust, position of directors joining board after, 842 
 
INDEX. 1169 
 
 BREACH of tmst, remedies of a cestui que trust for, 864 
 
 when committed by a co-trustee, 865 
 
 when instigated by beneficiary, 865 
 BREAKING TTP pavement, when indictable, 995 
 
 streets by gas or water company, 997 
 BRETT'S definition of negligence, 8 
 
 BRIDGES, 1059-1062 
 
 by common law inhabitants of county bound to repair^iora 
 
 by whom repairable at common law; 1059 
 
 Coke's definition of, 1059 
 
 common law liability, how regulated, 1060 
 
 condition of, 1025 
 
 dedication of, 1060 
 
 definition of, 1059, 1062 
 
 expense of repairing, how recoverable, io6l 
 
 in whom the freehold of, 1060 
 
 liability as regards, similar to that of highways, io5i 
 
 remedy for want of repair of, 216 
 
 who liable to repair, 216, 217 
 BRITISH SHIPS, rules to be observed by, for avoiding collisions, 946 
 
 BROKER, degree of skill required from, 809 
 
 misappropriating securities, trustee liable, 850 
 
 statutory exoneration from liability for trust-moneys deposited with, 848 
 BUILDER, action by, against employer for want of accuracy in bills of quantities, 8 1 2 
 no wan'anty by owner to, of accuracy of bills of quantities, 812 
 duties of, as between, and architect, 813 
 BDLL goring horse while being agisted, 921 
 led through street, 921 
 
 liability of owner for, where dangerous character of, known, 919 
 BURDEN OF PROOF under Railway and Canal Traffic Act, 1873 : 603 
 
 BUSINESS carried on in obedience to rules or bye-laws, liability of master for injury 
 to workman arising therefrom, 434, 435 
 conditions under which it must be canied on, 1105, 11 12 
 what is, that will justify an entry upon premises in the absence of an 
 express invitation, 1 1 12 
 BUTTY MAN, workman in employ of, injured by others engaged in same system of 
 
 work, 433 
 BYE-LAWS, act or omission under, meaning of, in Employers' Liability Act, 433, 435 
 business carried on under, liability of master for injuries to servant by 
 
 dangers arising therefrom, 434, 435 
 where part of employment, danger arising therefrom, within the con- 
 templation of contracting parties, 434 
 
 CABMAN and proprietor, relations between, 570, 571 
 
 paying proprietor certain sum and keeping the excess is proprietor's servant, 
 
 510, S" 
 relation of proprietor to, summary of law as to, 512 
 is servant of cab proprietor, when, 510, 511 
 CAMPBELL'S (Lord) Act, 162-194, 954, 1036, 1102 
 
 section l, actions may be brought in certain cases by rcpie- 
 sentative of deceased, 163 
 Reports, their high merit, 918 
 
 CANALS, 1048-1059 
 
 definition of, 1048, 1057 _ /. j- • o 
 
 duty on companies to keep their bridges and paths in a safe condition, 58 
 permitting navigation to be out of repair, 77 
 
 and waterworks company, want of foresight of remote probability not action- 
 able, 81 
 duty of owner to take reasonable care to free it from obstruction, S37 
 duty of proprietors of, 1049 
 mostly regulated by Act of Parliament, 1049 
 duty of proprietors of, at common law, 1050 
 
 where Act of Parliament restricts the getting of minerals near, 1052 
 overflow through works authorized by statute, 1054 
 
 duty of proprietors to maintain works they have in fact constructed, inde- 
 pendently of statutory obligation to construct them, 1056, 1058 
 
 4E 
 
1170 INDEX. 
 
 CANALS, duty constituted by existence of, with regard to other proprietors, 1057 
 where powers of the Courts may be ousted, 1059 
 boat sinking in, 1 105 
 
 user by, of water drawn from a pond, 11 60, 1 161 
 CA. SA., writ of, duty of sheriff with regard to execution of, 766, 767 
 CAPIAS UTLAOATUM, how executed, 768 
 
 CAPTAIN of Queen's ship not liable for running down ship caused by negligence of 
 lieutenant of the watch, 262, 263 
 of a ship and sailor are fellow-workmen, 382-384 
 
 of Queen's ship not liable for acts in which he is not actively concerned, 713 
 CA-BE, standard of, required, forjudge to fix, 12 
 Holmes's view, 12 
 due, meaning of, 20 
 
 when only due, and skill need be used, 33, 34 
 degree of, required of bankers, 37 
 
 omnibus proprietor ought to adopt, 37 
 dqck-owner must take reasonable, that appliances in dock are in a fit state to be 
 
 used, S3 
 duty of absolute, over inanimate things, loi, 102 
 
 over animate things, only to guard against injury from their customary 
 habits, loi 
 amount of, required of a depositary depends upon circumstances, 458 
 test of degree of, required of a depositary, 462 
 required to be taken by a borrower, 485, 486 
 due, what is, 636 
 
 railway company must use reasonable, to passengers, 662 
 reasonable, what is, question for jury, 663 
 and skill, question of fact, 798 
 
 required of a member of a learned profession, 807 
 want of, on the part of directors of companies, 840 
 in the conduct of the business of a trust, 846 
 and diligence, what required from personal representatives, 849 
 requisite in firing in a wilderness different from what is needed in a town, 990 
 amount of, required from gas and water companies, 1004, loio 
 CAEGO of a ship improperly sold abroad by master, owners liable for, 274 
 damage to, no ground for refusal to pay freight, 712 
 not liable to pay damage in case of collision on water, 953 
 
 CAERIAGB, owner of, taking in gratuitously another person, 21 
 
 causing obstruction in street, 1033, 1047 
 GABRIEES ACT, 1830, the, 38, 569 
 
 summary of, 596 
 defence of felony under, 595, n. 
 special contract after, 596, 597 
 defence under, 598 
 
 money paid into court under, 595, 596 
 meaning of servant in, 595 
 evidence admissible under, qgi;, n. 
 GAEEIERS without hire, 481 
 for hire, 539-543 
 
 definition of, 539 
 
 distinction betweeu, and common carrier, 539, 540 
 
 where regarded as common carriers, 539 
 
 when plying between fixed termini, 540 
 
 distinction between case of goods cai-ried for every one and goods 
 
 carried occasionally and specially, 541 
 liability of, 541 
 rule of diligence for, 542 
 presumption of negligence in the case of, 542 
 responsibility for deterioration of goods, 543 
 obligation of, may be varied by contract, 543 
 may incur the liability of a common can-ier, 543 
 r, A oTTAT Txr^TTr-nTTl^®^''""^ whother any shipowners can be, 543 
 OAbUAL INQUIEY, erroneous answer to, not actionable, 782 
 
 CATS, where killed while straying, 924 
 
 creatures of " intrinsic value " amongst the ancient Britons, 024 
 CATTLE, definition of, 968 
 
INDEX. 1171 
 
 CATTLE, agisters of— see Agisters op Cattle 
 
 a property in, at common law, 913 
 
 are railway companies common carriers of? 615, 6l5 
 
 duty to provide reasonably safe standing place for, 1 108 
 
 eating clippings of yew-trees, 85 
 
 escaping, eating neighbour's grass, 21 
 
 going along a highway, duty with respect to, 921 
 
 held to include horses, 930 
 
 law with regard to them suited to the convenience of early times, 918 
 
 liability of carriers as to, 614, 615 
 
 liability of owner of, while travelling along highway, 966 
 
 loss of, from lack of fencing the yard of the railway company, 972 
 
 must be kept in a man's own ground, 963 
 
 placed in a field, duty with respect to, 921 
 
 straying on the highway and thence upon adjoining lands, 969 
 
 might be distrained, 975 
 
 straying, obligation as to neighbour's cattle, 76 
 
 "cattle of occupiers," 972 
 
 includes all persons lawfully on the land, 975 
 
 treading down crops, liability of owner, 916 
 
 obligation of carriers as to delivery of, 621, 622 
 CAUSA GAUSANSmvLSir&ieA, 79, 83 
 PBOXIMA, what is a, 79 
 SINE QUA iVrOjY illustrated, 83 
 CAUSAL CONNECTION, 959 
 
 between act of defendant and trespass of third persons, 6<; 
 CAUSES, sequence of, 52 r t , 3 
 
 CESTUI QUE TBUST, 845-865 
 
 not essential to fix liability for breach of trust that ho 
 
 should be known, 846 
 where funds coufounded with trustee's, 860 
 interests of one, not to be preferred to another, 856 
 not barred by Statute of Limitations, 862 
 where, acquiesces in improper investment, 864 
 CELLAE flap placed against wall on highway, 1093 
 flooding of, 1 128 
 invaded by filth, 11 26 
 opening upon highway, 1042 
 
 CHAIN OP CONSEQUENCES, interruption in, test of termination of liability, 83 
 " CHARGE OR CONTROL," meaning of, in Employers' Liability Act, 437 
 
 CHARTER-PARTY, definition of, 722 
 
 ship under, owner liable for tortious acts of his master, 714 
 prepared by notary, 747 
 CHATTEL, thing bailed must be, 452 
 CHEMICAL COMPOSITION, where duty to test, 57 
 CHEMIST, mistake in supplying poisonous drug, 833 
 CHEQUE, alteration in, 867 
 definition of, 878 
 
 duty of banker to honour his customer's, 866 
 duty of holder of dishonoured cheque, 879 
 efiect of giving, to third party, 868 
 lost or stolen, position of holder for value, 893 
 negligently filled in, 889 
 payment of forged, 867 
 
 revising, at branch other than that at which customer has his account, 866 
 signing blank, effect of, 890 
 where banker receives, to collect of another customer, 878 
 
 of some one not customer, 878 
 differs from bill of exchange, 876 
 drawing, singly by two executors, 849 
 CHILD, definition of, 149 
 
 gun accident to young, go 
 
 young, mere fact of accident occnrring to, will act raise presumptive evidence 
 
 of negligence, 142 
 when a trespasser, differs in no way from an adult, 143 
 
1172 INDEX. 
 
 CHILD, accident to, by negligence of others, 141, 142 
 
 contributory negligence of, 141, I4S> 1461 149> IS°> '53 
 identified with those in charge, 150-152, 157, 158 
 injured by negligent acts of others, 141-146 
 when playing on highway, 1042 
 CHEISTIANITT part of law of England, 1086 
 CHUECHWAEDENS AND OVEESEEES to prepare a list of persons qualified to 
 
 act as jurors, 756, 757 
 CIVIL LAW as to liability, 14 , , v 
 
 influence of, on English law, with reference to degrees of negligence, 
 
 17-19 . . 
 
 writers on, their conclusions as to citZpo levissima, 2g,n., 30, n. 
 
 division, not into degrees, but into kinds, 30, 31 
 liability of madman for his acts in, 48 
 negligence in, operating on antecedent negligence, 72 
 rule in, as to liability of those playing games, 94 
 as to contributory negligence, 128 
 as to deposits, 456 
 as to mandates, 477, 478 
 as to obligation of, 479 
 mandatary, 480 
 
 negotiorv/m gestor, who is, in, 483, «. 
 division of contracts in, 484 
 
 distinction in, between commodatu/m and mutuum, 484 
 obligations of lenders in, 489 
 ' as to pignus, 491 
 
 prohibition against pawning certain things in, 492 
 
 obligation of pawnor in, 498 
 
 as to contracts of hire, 499, 500 
 
 as to factors, 524, 525 
 
 as to innkeeper's liability, 548, 549 
 
 liability of common carrier in English law not derived from the, 564 
 
 as to carrier's liability, 564, 572 
 
 as to letting and hiring, 501 
 
 distinction in, between operce illiberales and opercB liberdleis, 513 
 
 as to carriers by sea, 703, 704 
 
 distinguished from English law, 704 
 position of attorneys in, 779 
 Cicero's description of attorneys under, 779 
 meaning of (yrassa negligentia and (Mlpa lata in English and Eoman law 
 
 respectively considered, 788 
 relation between patron and client in, 802 
 history of relation between advocate and client in, 803 
 general principles of the law of partnership in, 835 
 soeietas, how dealt with in the Digest, 835 
 liability of a bailee for reward in, 881 
 as to animals, 911 
 noxa in, 911 
 noxal action in, 911 
 provisions as to animals in, 911 
 ^dilitian edict as to beasts, 912 
 Lex Pesulania de cane, 912 
 pavperies, what it is, 912 
 
 applied to all quadrupeds,- 912 
 surrender of animal doing injury in, 912 
 damage done by domestic beast secwndum natwram suam, 913 
 dog taken where it was unlawftil to take him, and then let slip, owner 
 
 liable to all damage, 913 
 dogs under control in the streets, 913 
 liability in, extinguished by death of animal, 913 
 noxa ccmwt seguitw, 913 
 
 person irritating animal liable, and not owner, 913 
 where animal irritated or roused by another, no action lay against 
 
 owner, 913 
 liability in, foresoap of wild animal, 915 
 
 gave property in animal /erte ruOma to him who reduced it into posses- 
 sion, 930 ' 
 
INDEX. 1173 
 
 ^■'^11' LAW, causal connection in, 959 
 
 as to fire arising on property, 981 
 
 title De aqua et aqucepluviai arcendce, 1055 
 
 rule of, as to water coming on land, 1 142 
 riT r-Tji^o authorities on the flow of water, 1 142 
 
 l^JjJiKJSb — see Public Clekks 
 
 OOACH hired for job, when hirer liable for injury caused by job coachman loi, W2 
 
 proprietor warrants, equal to journey it undertakes, 633 
 r^,^ A T ^P'OP™ tors not in same position as railway companies, 647 
 COAL Mines Eegulation Bill, 439 / r , <t/ 
 
 plate, negligence in remoying, 1076 
 „„^^ insecurely fastened, 1076 
 
 CODE NAPOLEON, art. 1833 : 488 
 
 obligations of mandatary, 480 
 law as to animals, 918 
 
 party-walls, 975 
 
 /-.m^icir^n TT/^rr^T, Jaidowner cannot change the natural passage of water under, 1 1 56 
 l^UJ<JjJl,Ji-JlUUSE not an inn, 545 
 
 COLLATEEAL NEGLIGEXCE, employer not liable for, 1080 
 COLLEGE OF SURGEONS, its powers and privileges, 821 
 COLLISION on land, 955-961 
 
 rule of the road, 955, 956 
 
 between two omnibuses — passenger injured on one — who liable, 130 
 
 where deviation from right side warranted, 956 
 
 duty to avoid, 957, 958 
 
 general rule of liability for, 959 
 
 rule as to, with tramcar, 960 
 
 between foot passengers, 961 
 
 and carriages, 961 
 on water, 933-954 
 
 between steamboats — ^passenger injured on one by falling of an 
 anchor, 130, 1 31 
 chartered vessels by Government in tow of steamer iu 
 command of naval officer, 244 
 whilst ship is under directions of harbour-master, owner liable, 
 
 719, 720 
 between tug and vessel iu tow with another, towed vessel liable, 
 
 720 
 whilst ship under compulsory pilot, Labilities of owner, 720 
 loss by, is peril of the sea ? 725 
 
 brought about with negligence is not a peril of the sea, 725, 726 
 if in no way default of defendants, they are entitled to judgment, 
 
 726-728 
 effect of primary negligence, 935 
 with sunken ship, 935 
 
 where fault on both sides, loss to be apportioned, 937 
 where both parties are to blame, 937 
 without blame, to be borne by him on whom it lights, 937 
 where by the fault of the suffering party only, 937 
 where by fault of suffering party, loss must be borne by him alone, 
 
 937 
 where the fault of the injuring party, the injured entitled to 
 
 entire compensation, 937 
 rule of apportionment a, judicium rusticorum, 937 
 loss brought into hotchpot, 937 
 where the fault of the injuring party, 937 
 without blame to either party, 937 
 may occur in one of four ways, 937 
 omission to exhibit lights, 938 
 non-compliance with Admiralty regulation, 938 
 burthen of proof in absence of regulation lights, 938 
 between steamship and sailing snip, 938 
 infringement of regulations not necessarily affecting with liability, 
 
 939 „ 
 
 non-observance of non-statutory regulation, 939 
 
 violation of regulations, absence of lights, 939 
 
1174 INDEX. 
 
 COLLISION on water, meaning of words " any posBibility " of, 939 
 
 breach of regulations itself deemed blame, 939 
 
 effect of regulations where collision is inevitable from the first, 
 
 while launching vessel, 940 
 
 in perilous alternative what course to be adopted, 94 1 
 
 blame on both sides, 942 
 
 dragging anchor with damaged rudder, 942 
 
 when occurring through inevitable accident, 942 
 
 through catching of cable on the windlass, 942 
 
 steamer colliding against a brig at night, 942 
 
 ship fastened to a buoy colliding through the parting of a baud 
 
 round the buoy, 942 
 dumb barge driving with the tide, 942 
 breaking of steerage gear through latent defect, 942 
 liability imputed only where negligence contributing to the 
 
 accident is shewn, 942 
 damages recoverable for, 943 
 where both are to blame, costs awarded, 943 
 duty to execute any practical manoeuvre to avoid, 943 
 duty in emergencies, 943 
 where through the negligence of one vessel another is driven 
 
 against a third, 944 . 
 failure to identify injurious ship, 944 
 duty of master to adopt reasonable precautions, 945 
 how precautions to be judged, 945 
 precautions taken by vessel that is run down to be considered 
 
 in. 945 
 
 through negligent sinking, 945 
 
 regulations applicable to British ships, 946 
 
 rule for determining whose duty it is to avoid collision where 
 one ship is anchored, 946 
 
 between ship nnder sail and one at anchor, 947 
 
 duty to exhibit a light, 948 
 
 presumption of negligence, 948 
 
 while snip being launched, 948 
 
 duty in case of fog or darkness, 949 
 
 where one vessel is a steam the other a sailing vessel, 949 
 
 duty of master of ship where sailing regulations not applicable, 
 95° 
 
 statutory provision where one ship sails away without render- 
 ing assistance, 952 
 
 regulations only applicable when risk of collision can be avoided, 
 952 
 how construed, 952 
 
 what is a "risk of collision," 952 
 
 liability for, limited by statute, 952 
 
 cargo not liable to pay damages, 953 
 
 freight ordered to be paid into court to satisfy damage, 953 
 
 rule as to marshalling of compensation where there is both loss 
 of life and loss of property, 954 
 COLONIAL ACT OF INDEMNITY an answer in an English action for wrongful acts 
 
 committed by Governor in respect of which the Act was passed, 250 
 COLONY, Governor of — see Goveknok op Depemdenct 
 
 COMMISSION, Governor of colony has not the whole royal power delegated to him 
 unless expressly given by his, 248-250 
 
 COMMISSIONERS acting as servants of the Crown, when remedy against, mandamus 
 or petition of right? 246, 247 
 appointed in a conquered country only equal to Governor, 247 n 
 COMMISSIONS OF SEWBES, what, 1063, 1064, 1067 governor, 247, n. 
 
 COMMODATUM, distinction between, and mvivmm, 484 
 
 COMMON CARRIER, definition of, 562, 563, 565 
 
 of passengers, warranty as to roadworthiness of vehicle, 20 
 by sleam, obligation otj to use great care, 38 
 limitation of liability of, by notice, 39 
 gross negligence of, how affected by notice, 39 
 
INDEX. 1175 
 
 COMMON CAEEIER, whether notice by, excepting from liability save for fraud and 
 neglect, reasonable? 41, 42 
 when, must use specialist diligence, 43 
 of goods must take the utmost care of goods delivered to him 
 ,. 473. 474 ' 
 
 liable m respect of his reward, 507, 508 
 warehouseman not like a, 529 
 when awarehouseman, 529, n., 618, 619 
 distinction between, and wharfinger, 532-534 
 when liabi% of, ceases and that of warehouseman beeins 
 . 534. 535 ^ ' 
 
 becomes mvoluntaiy bailee of goods when consignee refuses to 
 
 accept, 536 
 distinction between, and carriers, 539-541 
 innkeepers almost on same ground as, 554 
 differs from warehouseman, 563 
 
 forwarding merchant, 563 
 who are, 563, n. 
 Koman law as to, 564 
 
 liability in English law not derived from Roman law, 564 
 by water, liability of, 564 
 
 character of, does not depend on plying between fixed termini, 
 564, 565 
 negatived or modified by special agreement, 565, 
 593 
 liability of, for not carrying goods tendered to him, 565, 566 
 character of, is it essential to, that he should be bound to 
 
 carry goods for every person applying to him ? 565, 566 
 of passengers, 566, 567 
 diflerence between, and private carrier, 567 
 by land, 567 
 duty of, 567 
 
 exercises public employment, 567 
 only entitled to a reasonable sum, 567 
 liable independently of contract, 567, 568 
 in nature of insurer, 568, 569 
 not obliged to take a package of which owner will not inform 
 
 him of contents, 569 
 duties and liabilities of, 569 
 may limit his liability by notice, 569, 585-588 
 duty of, to ask such questions as to nature of goods as may Le 
 
 necessary, 570, 571 
 fraud on, 571, 582, 591 
 
 liability of, for explosion of dangerous substance, 570, 581 
 failure to disclose to, nature of goods delivered to, 571 
 not an insurer against fire caused by lightning, 571 
 insures in all cases except two, 571 
 not liable for acta of God or of the King's enemies, 572, 586- 
 
 588 
 not liable for inevitable accident, 572, 573 
 act of Q-od does not in all cases exempt from liability, 573, 
 
 574, 576 
 liable for losses by robbers, 574 
 exempt from liability for acts of King's enemies, 574 
 bound to use reasonable means of resistance against public 
 
 enemies, 576 
 not liable for losses occasioned by inherent defects in goods 
 
 apart from his own negligence, 576-578, 580 
 negligence of, in bringing on the peril, 577 
 
 in delivering animals imperfectly secured, 578, 
 
 , 579 . 
 liability of, for losses occasioned by goods imperfectly packed, 
 
 578, 579 
 negligence of, 579, 593 
 
 liability of, for goods damaged by salt water, 580 
 not liable for defects in loading undertaken by owner, 581 
 
 for apparent defects in carriage chosen by owner, 5S1 
 for loss occasioned by fault of owner, 581, 582 
 
1176 INDEX. 
 
 COMMON OAEEIER, warranty and insurance of, 583 
 fraud upon, 583, 584 
 good faith of owner towards, 583-585 
 when liable foi* delay, 585 
 how may limit liability, 586-588, 595 
 special acceptance by, 586, 587 
 how may discharge liability, 588 
 notices given by, must be effectual, 589 
 owner not bound to communicate nature of contents of parcel, 
 
 American doctrine of, 593 
 
 what articles not liable for loss of, when value exceeds ;^io : 
 
 593,594 
 may demand increased rate, when, 594^ 
 when increased rate demanded, must give receipt, 594, 595 
 not liable for losses by pirates, 594, 595 
 value of parcel declared not conclusive, 595 
 when, cannot limit liability, 595 
 liable for felonious acts of servants in his employ, 595 
 servant of, answerable for his own misconduct, 595 
 not bound by declared value of parcel, 595 
 special contracts of, change in law, 597 
 formerly liable for fraud and misconduct of servants, 597 
 limitation on special contracts of, 597, 598 
 eonld limit responsibility for gross negligence, 598 
 negligence of, bow affected by special contracts, 598-601, 605 
 special contract of, bound to exercise care notwithstanding, 599 
 exempted from negligence as well as unreliance under 
 
 Carriers Act, 1830 : 599 
 of passenger, time of stoppage at particular places matter for 
 
 jury, 601, 602 
 need not carry dogs at common law, 602 
 liability may be limited by special contract if consignor receive 
 
 pecuniary benefit, 605 
 when exempted from negligence does not escape liability for 
 
 wilful misconduct, 606 
 contract by, to carry at owner's risk does not exclude liability 
 
 for negligence, 606 
 how far liable for injury arising beyond the extent of his own 
 
 route, 611, 612 
 liability of, as to live stock, 614, 615 
 what goods, bound to carry, 615 
 are raflway com_panies, of cattle ? 615, 616 
 duration of liability of, 616 
 delivery by, 616 
 not liable for iryuries arising from inherent qualities of cattle, 
 
 6i6 
 delivery to, what constitutes, 616-620 
 must carry for, reasonable reward, 617 
 reward of, how far tender of, is necessary, 617 
 liability of, on account of reward, 617 
 bound to receive what goods ? 617, 618 
 when liability of, attaches, 618 
 when a bailee, 618, 619 
 delivery tp, question of fact, 619 
 goods delivered to imperfect address, 620 
 contract by, to carry by a particular train, no warranty as to 
 
 time, 621 
 delivery by, within what time, 621 
 pf cattle, obligation of, as to delivery, 621, 622 
 delivery by, must provide safe and proper means of, 621, 623 
 by road and rail, distinction between, as to delivery by, 622 
 duty of, to deliver to proper person, 623 
 wrong delivery hyy^imdfade a conversion, 623 
 
 is liable in trover, 623, 624 
 actual delivery by, may be waived, 624 
 holds goods in other capacity, liability of, 624 
 termination of responsibility of, when, 624, 625 
 
INDEX. 1177 
 
 COMMON CARRIER, when becomes wareliouseman, 625, 626 
 
 responsibility, on wbat terms goods remain after termination to, 
 
 625-627 
 when becomes mere bailee, 625, 627 
 
 must conduct himself as a reasonable man on refusal of con- 
 signee to accept goods, 626 
 tender of parcel by, refusal of consignee to accept, 626 
 an insurer to end of journey, 626, 627 
 rightof, to warehouse goods after arrival, 627 
 only involuntary bailee after notice to consignee of arrival of 
 
 goods, 627 
 whether bailee for hire or depositary? 628 
 holding goods as a depositary only liable for gross negligence, 
 
 628 
 duty of, to do what necessary to preserve the cargo, 628, 629 
 when, retaining goods, incurring expense, 628, 629 
 on refusal of consignee to receive, 629 
 loss or non-delivery of goods by, onus on plaintiff, 629 
 is discharged from liability on delivery to consignee at any 
 
 place, 630 
 of passengers by land liable for negligence of their servants, 
 630 
 when liable for injuries to passengers, 
 630, 631 
 of goods, distinction between, and carrier of passengers, 631 
 of passenger, liabilities of, 631 
 does not warrant safety of passengers, 631 
 action against, for the overturning of coach, not in tort, 631, u. 
 of passengers must provide a sufficiency of vehicles for safe con- 
 veyance of public, 632 
 duty of proprietor of coach, 632 
 only liable for negligence, 632 
 conditions under which, ought to conduct his 
 
 business, 632 
 axle-tree of coach breaking, liability for, 632-634 
 coach proprietor warrants coach equal to journey 
 
 it undertakes, 633 
 liable for all defects in vehicle which can be seen 
 
 at time of contract, 633 
 railway carriage running off line primA fade 
 
 evidence of negligence, 633, n. 
 obligations of, two views as to, 635 
 only liable to supply a vehicle reasonably fit for 
 
 journey, 635, 636 
 what is due care, 636 
 meaning of, " if reasonably fit," 636, )j. 
 only wan'ants that vehicle reasonably fit, 636- 
 
 638 
 no warranty by, as to undiacemible defects in 
 
 vehicles, 636-638 
 defects in vehicle, what, question for jury, 637, 
 
 638 
 duty of, to examine vehicles, 637, 638 
 jobmaster's liability identical with, 638, 639 
 railway company liable as to all persons lawfully 
 
 on railway, 640, 641 
 passenger's right to be carried safely independent 
 
 of contract, 641 
 fraud by passenger, effect on liability of, 641 
 liability of, to person not rightfully in carriage, 
 
 642 
 where duty of performance devolves on other 
 persons, 642, 678 
 negligence of contract to exonerate from liability for, void in 
 
 American law, 644 
 American law as to, 644 
 
 of passengers where bound by law to carry must carry safely, 
 644 
 
1178 INDEX. 
 
 COMMON CAEEIEE, how far liable to passenger traveUing at own risk, 645 
 
 of passenger, passenger at own risk, incidental penis, 646 
 
 negligence of, how far can be exonerated from liability for, by 
 
 special contract, 645, 646 , i • j 
 
 of passenger not liable for injuries arising from pure tort of third 
 
 person over whom he has no control, 649 
 
 duties of, as to vehicles not under his control, 
 
 649 
 only bound to see everything under his own con- 
 trol is in order, 649 
 must start at advertised time, 650 
 duty of, may he modified by condition, 650 
 ought to bring to notice of passenger terms of special contract, 
 
 652, 653, 656, 660 
 of passenger, how far can limit liability by conditions, 656- 
 658 
 where passenger is presumed to know special 
 
 conditions, 656-658 
 bound to carry all persons subjected to limitation, 
 
 659 
 cannot expel a passenger except m certam cases, 
 
 659 
 what is sufficient excuse for refusal of, to carry, 
 
 659 
 duty of, to carry safely, 659, 660 
 
 to atop at particular places, 661 
 to carry the whole way, 661 
 in case of accident to vehicle must provide 
 another, 661 
 representation by, nature of its effect, 661 
 of passengers, duty of, during transit, 662 
 
 how far responsible for injury to property, limbs, 
 
 &c., by narrowness of way, 677 
 liable for passenger's luggage as carrier of 
 goods, 680, 681 
 liability of, for luggage, over which passenger exercises con- 
 trol, 682-688 
 for lost luggage, how affected by conduct of pas- 
 senger, 683, 684 
 for loss of luggage under control of passenger, two 
 views as regards, 685-687 
 notices by, 686-689 
 part of contract with, to deliver passenger's luggage, 688, 689, 
 
 695,699,700 _ 
 
 liability of, where luggage is of a different character from 
 
 ordinary or personal, 690-693 
 not liable for loss of merchandise taken with passenger as 
 
 " personal luggage," 691-694 
 may choose to carry inerchandise as personal luggage, 693 
 how, may waive his right to claim exemption from liabiHty on 
 the ground that loss is of merchandise, not of personal 
 luggage, 693, 694 
 railway company is, of passenger's luggage when received by 
 their servants for the purpose of being conveyed by a 
 particular train, 696 
 delivery by, termination of contract, 698 
 
 onus of shewing breach of contract, on plaintiff, 699, 
 700 
 loss of goods entrusted to, negligence presumed, 700 
 by sea, two theories with regard to, 702 
 only liable to those with whom he contracted, 702 
 carrier by sea of goods for hire is, 703, 704 
 distinction between civil law and English law as to, 704 
 ship employed in commerce always a, 704-707 
 discriminating mark of, 707 
 whether common or not, question for the jury, 708 
 of goods regarded in law as insurers, 710 
 by sea, law as to, summarized, 731, 732 
 
INDEX. 1179 
 
 COMMON CARKIEE of passengers by sea, 733-735 
 
 is telegraph company liable as ? 737, 742 
 telegraph company is not, 740 
 
 law as deTeloped in case of, applicable to telegraph messages 
 transmitted over several lines, 74'?, 744 
 COMMON EMPLOYMENT, who are in, 377-388, 390 
 
 senants employed by same master is prima facie evi- 
 dence of, 386 
 not under same control not in, 388, 391-396, 
 402 
 propositions deduced from cases on, 389, 390 
 sub-contractor and all his servants are in, vfith servants 
 
 of employer, 390-392, 394, 397-400, 404, 406 
 are servants of contractor in, with servants of employer, 
 
 393-406 
 test of, 382, 384, 385, 390, 397, 401 
 conclusions deduced from cases as to, of servants of con- 
 tractor, 404-406 
 
 COMMON LAW PKOCBDUKE ACT, 1852, o. 10 : 769 
 
 not a good return, that sheriff could 
 not execute vmt, 769 
 COMMON LAW theoiy of liabiUty, 13 
 
 rights of hunting by, 915, 916 
 COMMON REPORT of madness of dog admissible, 925 
 COMMON SENSE forjudge or jury, 113 
 
 COMMUNICATION BETWEEN CARRIAGES, railway company bound to provide, 
 662 
 
 COMPANIES ACTS, 1862 and 1867, the, 837 
 
 COMPANY, how managed, 837 
 
 railway — see Railway 
 
 one, not bound to adopt all precautions of another, 664, 665 
 telegraph, liability of, arises out of contract, 737 
 COMPENSATION under Lord Campbell's Act, what principles govern, 164-171, 176, 
 181 
 partial, having been recovered against servant, master is released, 
 
 27s. «- 
 right to, under Employers' Liability Act, may be waived, 351, 352 
 limitation of amount of, recovered under Employers' Liabihty 
 
 Act, 438 _ 
 
 assessors may be appointed under Employers' Liability Act to 
 
 assess, 440 
 no workman is to recover, twice for same injury, 441 
 provisions as to, with reference to working minerals near canals, 
 
 1052 
 COMPOSITION, power of trustees to accept, 856 
 
 COMPROMISE by solicitor, in what circumstances, 793 
 
 offer of, very slight evidence of liability, 919 
 COMPULSION, person under, not legally responsible, 49 
 
 not physical, merely excuses, but mental, 50 
 COMPULSORY force, what words in a statute conferring powers may have, 227 
 pilotage, collision whilst ship under, liabilities of owner, 720 
 
 towed vessel under, effect on liabilities of tug-owners, 721 
 pilot of towed vessel negligent, how affects liability of tug, 721 
 CONCEALED DANGER in river, duty in respect of, 934 
 
 rail missing from railings not a, i loi 
 liability with regard to, i loi 
 where visitor is injured through, 11 03 
 when near a highway, 1037, 1047 
 CONCURRENCE OF CAUSES producing gas explosion, 1007 
 CONDUCT determines liability, 15 
 
 CONDUCTOR kissing female passenger, held, in America, company liable, 289 
 CONDUCTORS and drivers of trams and omnibuses not within the Employers' Liability 
 Act, 446 
 
1180 INDEX. 
 
 CONDITIONS, just and reasonable, in opinion of Court, may be made by the company, 
 6oi, 602 
 or contracts under Carriers Act, to ^ind traders, must be in writing, 
 
 and reasonable and just, €04 
 of deposit contained on ticket, how far binding, 650, 651 _ 
 of contract limiting liability of railway company to taeir own trains, 
 
 6SS 
 on ticket to be construed against the company propounding them, 657 
 unreasonable, passenger not bound by, 658 
 fraudulent, not binding, 658 
 five, sacrifice in jettison must conform to, 709 
 on which telegraph companies send their messages, 741, 742 
 CONFUSION of property of bailor and bailee, effect of, 452, 453 
 
 CONSCIOUS agency, last, must be sought to affix liability, 53 
 
 volition necessary to make liability, 58 
 CONSEQUENCE, natural, an inadequate expression to convey its meaning, 85 
 
 CONSIGNEE, refusal of, to accept goods, carrier becomes involuntary bailee, 536 
 to accept parcel tendered by carrier, 626 
 after notice to, of arrival of goods, carrier an involuntary bailee, 627 
 railway company ought to give notice to, of arrival of goods at station, 
 
 627, 629 
 refusal to receive, duty of earner, 629 
 delivery to, by carrier at any place a good discbarge, 630 
 CONSIGNOR may, for pecuniary benefit, limit carrier's liability, 605 
 CONSPIRACY AND PROTECTION OF PROPERTY ACT, 998 
 
 CONSTRUCTIVE NOTICE where there are conflicting claims to property, 904 
 
 lessee has, of his lessor's title, 905 
 
 in case of company director, 907 
 CONTEMPT, sheriff wilfully and corruptly discharging his duties in the election of 
 
 members of Parliament, 756 
 CONTINUOUS ACT, what may be looked at as a, 49 
 
 CONTRACT of hire— see Hiee, Contkaot of 
 
 action arising on, degrees of negligence, 20-22 
 in absence pi; where liability, 53 
 
 limitation of liability to the cases where there exists a, 56 
 negligence constituting breach of, 72 
 with corporation, when void, 228 
 servants of Crown not liable as to, 238, 239 
 
 person may act in double capacity of servant and contractor — in which 
 capacity he acted at the time of the injury determines liability, 307 
 void as against public polimr, 352, 353 
 excluding the Employers' Liability Act held good, 353, 352), 
 workmen may, themselves out of the Employers' Liability Act, 448 
 creating a duty, nonfeasance gi-ound of action in tort, 455 
 of bailee without reward, nature of, 462 
 of mandate, requisites of, 480 
 division of, in civil law, 484 
 of pawn, nature and obligations of, 494 
 
 who can enter mto, 496 
 special, carrier for hire may vaiy liability by, S43 
 innkeeper may modify his liability by, 551 
 liability of common carrier independent 0^ 567, 568 
 
 V,.- r, . T^ Ije lifted ty, 586, 587, 595, «., 598 
 special, not within Carners Act, 1830 : 595 
 by common carrier to carry at owner's risk does not include liability for 
 
 negligence, 606 
 to carry by a particular train no warranty as to time, 621 
 passenger's right to be safely carried independent of, 641 
 how far carrier can, to free himself from liability for negligence, 645 
 not communicated to passenger, how far bound by, 650, 651 
 railway company putting forth a time-table, 660 
 carrier's delivery marks termination of, 698 
 carrier only liable to those with whom he made the, 702 
 ( special liability of, most largely determined by, 708 
 between shipper and shipowner expressed by bill of lading, 722 
 
INDEX. 1181 
 
 CONTRACT, liability of telegraph company arises out of, 737, 739 
 
 made for benefit of third party, third pai-ty cannot sue on it 740 n 
 
 notary liable on, 748 ' it < 
 
 duty of solicitor to ascertain whether parties are of contractual canacitv 
 
 what the contract of a physician or surgeon is, 831 
 privity of, not necessary to enable surgical practitioner to recover, 834 ' 
 to sell property known to be in the occupation of a tenant, go6 
 to do fencing and lighting, 1019 
 
 duty with regard to the condition of premises where there is a, no6 
 CONTRA.CTOE and contractee, relation between, view formerly prevalent, 298 
 
 view accepted at present, 298 
 leaving heap of rubbish in the road, owner of premises liable, 298-300, 
 
 30s 
 and employer, employer only liable for acts definitely authorized, or 
 ^ ^ which are in the nature of a nuisance, 298-301 
 
 doing acts in the nature of anuisance renders employer liable, 298-300 
 
 30s 
 and contractee, tradesman's negligence in the execution of the work 
 does not render the employer liable, 300 
 person from whom all authority is originally derived 
 
 liable, 300, 304, 306 
 warehouseman employing master porter is liable for 
 
 his negligence, 303 
 railway company when liable for negligence of con- 
 tractor's workmen, 306, 307 
 employer's power to remove contractor's workmen 
 does not create relation of master and servant, 
 307 
 where the work cannot be done otherwise than in an unlawful manner, 
 
 employer liable, 308 
 and contractee, where plant is hired, and with it the men who gene- 
 rally have charge of the plant, employer not 
 liable for negligence of those in charge of the 
 plant, 399 . 
 rule in America with regard to liability of, 310, 311 
 propositions with regard to the liability of, 311, 312 
 sub-, and all his servants are servants of the employer, 390-392, 394, 
 
 397, 404, 406 
 are servants of, in common employment with servants of employer ? 
 
 393-402, 404-406 
 servants of, conclusions deduced from cases on common employment 
 
 of, 404-406 
 if servant is lent to, who has control of work contracted for is liable 
 
 for wrongful acts of the servant, 411 
 liability for injuries done in prosecution of work, 1082 
 negligence of, causing explosion, effect of the principle in Ey lands v. 
 Fletcher discussed, 1137 
 CONTROL, where there is personal, over subordinate, then the superior is liable, 301 
 CONTRIBUTORY NEGLIGENCE, chap. vi. 
 
 passenger placing himself in a perilous position, 
 
 SO 
 two theories as to, in English law, 128 
 in playing games, 95 
 
 what necessary to prove, 121, 122, 124-127 
 how it affects the negligence of defendant, 120 
 of person riding against obstruction on highway, 
 
 129 
 liability turns on the last negligent act previous 
 
 to the injury, 129 
 what amounts to, 129-137, 161 
 what amount of, disentitles plaintiff to recover, 
 
 131-135 „ 
 constituents of, 134-136 
 Scotch view that the whole question for jury, 
 
 140 
 of an infant, 141 
 of children, when, 141, 149, 150, 153-156 
 
1182 INDEX. 
 
 CONTKIBUTORY NEGLIGENCE of those in whose charge children are, imputed to 
 
 children, 150-152, 157, 158 
 difference between Admiralty rule and common 
 
 law rule as to, 190 
 not conterminous with the maxim, Volenti nonft 
 
 injuria, 337 
 a person guilty of, cannot recover even when 
 
 injury arises from a neglect of a statutory 
 
 duty, 337, 338 
 not affected by sub-section 3 of section 2 of the 
 
 Employers' Liability Act, 427 
 passenger alighting from train without invitation 
 
 to alight, 669, 670, 672, 673, 675 
 as applicable to railway companies, 675 
 whether passenger sitting with his arm out of 
 
 window, 677 
 when passenger alighting or getting on train in 
 
 motion, 678, 679 
 on part of towed vessel, how affects liability of the 
 
 tug, 718 
 in the case of negligence of a medical or surgical 
 
 practitioner, 826 
 in collision; 938 
 
 where a non-observance of regulation 
 about rate of speed, 939 
 effect of, in Admiralty, 943 
 in navigation, 947 
 where stop-cock of gas-pipe in empty house not 
 
 turned off, 1007 
 in permitting escape of gas, loog 
 damage caused by, in case of water and water- 
 courses, 1 131 
 CONTRIBUTION, when owner of goods on board ship entitled to, 709 
 
 CONVERSION, liability of company for, by their ofEcials, 290 
 
 of bailment, is right of action for, in contract or in tort? 454, 455 
 both bailee and bailor may maintain action for, 454 
 
 finder of goods liable for, 466 
 
 an apparent, where goods demanded from depositary and refused, 468 
 
 of goods found, what is, 466 
 
 depositary refusing to give up deposit, 476 
 
 pawnor cannot maintain action for, until he has tendered debt, 494 
 
 matter of law, 624 
 
 of post-office orders, 896 
 CONVEYANCER, rale as to the liability of, 781 
 
 CONVEYANCING AND LAW OP PROPERTY ACT, i88ii 856 
 
 section 3, sub-section 3 : 
 906 
 CO-OPERATING CAUSES, their legal effect, 71 
 
 CORPORATION and public bodies, 195 
 
 as owners and occupiers, regarded as private persons, 195, 196 
 performing public duties, and those formed for private profit, dis- 
 tinction between liabilities of, 196 
 liability for negligent acts varies according as the corporation is 
 
 formed for private profit or not, 197 
 formed for pubhc purposes not liable within certain limits for the 
 
 negligtent acts of servants, 197, 198 
 statute created, how far liable for acts and defaults of servants, 
 200 
 protected by statutory authority, 201 
 how affected as to their liabilities for differences in their modes of 
 
 incorporation, 208, 209 
 liable for negligence in construction of works, 225 
 and public bodies, discretionary words creating a duty, 225-228 
 
 distinctionbetween powers conferred with duty to 
 exercise them and powers conferred with 
 absolute discretion, 225-228 
 when contract with, void, 228 
 
INDEX. 1183 
 
 CORPORATION, aud natural person, difference between, with reference to powers of 
 incurring liabilities, 228 
 how far acts of agents binding on, 228, 229 
 having no power themselves, cannot authorize their agent to do the 
 
 act, 229 
 whether Uable in private capacity for acts done in corporate capacity, 
 
 229, 230 
 liable for trespass of its oBScers, when, 229, 230 
 not liable for acts of its directors done ultra vires, 230, 231 
 doing intentional injury ought to be liable, 231 
 summary of general principles governing, 232-235 
 liable for carrying out a plan essentially defective, 261, n. 
 liability of, for acts of their manager, 381, 382 
 is employer under Employers' Liability Act, 444 
 COSTERMONaERS AND STALL-KEEPERS, obstruction by, on highway, 1041 
 COSTS, in what cases solicitors summarily ordered to pay, of their negligence, 785 
 solicitor's liability to pay, 785 
 in Admiralty in collision cases, 943 
 COUNSEL, theory of English law with regard to the position of, 804 
 
 distinction between contracts concerning advocacy and cases unconnected 
 
 therewith, 804 
 have general conduct of action, 804 
 
 may enter into binding agreements in the conduct of a suit, 805 
 not responsible for ignorance or lack of judgment, 805 
 neither directly nor indirectly liable, 805 
 solicitors protected by consulting, 786 
 solicitor not liable for negligence of, 795 
 duty of, to chent, 802-805 
 
 COUNTRY SURVEYOR, degree of skill, 806 
 
 COUNTY Bridges Act, 1803, the, 1060 
 
 Rates and Bridges Act, 1812, the, 1060 
 Bridges Act, 1815, the, 1060 
 1841, the, 1060 
 court, action under Employers' Liability Act must be commenced in, but 
 may be removed into superior court, 440, 441 
 high bailiff of, responsible for all the acts and defaults of himself and 
 under-bailifis in like manner as sheriff, 777 
 inhabitants, no civil action lay against, for breach of public duty, 218 
 COURT of Faculties, notary is amenable to, 748 
 
 of civil or criminal jurisdiction, jurisdiction of, not affected by the mere fact of 
 
 person brought before it being soldier or sailor, 244, 245 
 judge of superior, and judge of inferior, distinction between, 255 
 of Queen's Bench, judges of inferior, amenable to, 255 
 superior, nothing without jurisdiction of, except what specially appears so, 
 
 259 
 writ issued by, prima facie valid unless appear on face to be without 
 jurisdiction, 259 
 money paid into, under County Court Act, 595, 596 
 writ, issue of, by, good till set aside, 758 
 COURTS, Queen's, have jurisdiction if no other jurisdiction be pleaded, 248 
 
 of law, what necessary to prevent holding cognizance of acts of Governors of 
 dependencies, 251, 252 
 COW injured by swallowing pieces of rusted iron rope, 85 
 responsibility of owner for the trespasses of his, 917 
 injured, jumping dangerous railing, 1 108 
 
 CBASSA NEOLIGENTIA, 945 
 
 what it is, 787, 788 
 
 as applied to directors of companies, 839 
 
 CREDITORS, when, may claim to be put in place of executor, 854 
 when rights of, greater than those of legatees, 855 
 
 CREW OP SHIP warranted competent by shipowner, 711 
 
 CRIME, effect of commission of, on antecedent negligence, 890 
 
 CRIMINAL law, liability of master for acts of his servant in, 294, 295 
 
 when servant has implied power to set, in motion, 289-293 
 non-liability of public body to, for neglect in repairing highway, 219 
 
1184 INDEX. 
 
 CRIMINAL negligence, what will establish, 825 
 
 how distinguishable from actionable negligence, 829 
 CROSSED CHEQUE, how to be paid, 880 
 
 reasonable time of payment, 880 
 not negotiable, 881 
 CEOWN, no action for negligence can be.brought against the, 236-238 
 subject not Jiable for injuries done by, 236 
 liability of servants of the, 237, 238 
 
 as to contracts, 238, 239 
 position of servants of, 245 
 
 servants of, liable for any act not jnstifiable by lawful authority, 239, 240 
 ratification of acts otherwise wrongful by, 242-244 
 mandamus to, 245, 246 
 
 and petition of right, 246, 247 
 duty of, to protect realm from inundation, 1063, 1067 
 CULPA, three grades of, 33 
 hvis, 17, 21, 31 
 
 has also three grades, 36 
 of a solicitor, 789 
 of a medical man, 828 
 of a director of companies, 839 
 lata, 17, 21, 31 
 
 of a medical man, 828 
 lemssima, 17, 21, 31, 1078 
 
 summary of conclusions of civil law writers as to, 29, »., 30, «. 
 in abstraeto, culpa in concreto, 836 
 
 CUSTODY OF TRUST PROPERTY, liability of trustee with regard to, 851 
 
 CUSTOMERS, protection afforded to, 1105, 1106 
 
 DAIRYMAN is servant in husbandry, 446 
 DAMAGE, I0S3 
 
 actual, action only maintainable against sheriff for escape in respect of, 
 767, 768 
 must be shewn in order to maintain action against sheriff for not 
 
 levying writ of _^. fa. , 761 
 sheriff only liable for, where he seizes goods let to hire to execution 
 debtor, 776 
 arising from machinery on board ship, " dangers of the sea," 724 
 caused by animal driven along street, 6, 7 
 happening without default, liability of skilled labourer for, 809 
 necessary to sustain action, 793 
 
 person who has public duty to perform, and neglects or refuses to per- 
 ,form that duty, gives right of action to any one sustaining, thereby, 
 209, 2IO 
 requisite to maintain an action for a public nuisance, 1028 
 resulting from act done under statutory authority, 202 
 to cargo no ground for refusal to pay freight, 712 
 
 where can be set off against freight, 712, 713 
 where general, to pubUc, and indictment can be maintained for, action 
 
 can be brought by individual suffering special damage, 221-223 
 where man has temporal loss by act of another he has an action, 220 
 whether a person sustaining particular, is prevented from bringing action 
 because of penalty annexed to offence, 221, 222 
 DAMAGES, amount payable in respect of ccjllision on water, 954 
 
 Board of Trade may institute proceedings for recovery of, in the case of 
 
 loss of life or personal injury, 953 
 for breach of statutory enactment, when, 207 
 for dishonouring cheque of trader and of one not a trader, 865 
 in Admiralty where the injured ship has been guilty of want of care, 
 rendering collision inevitable, 943 
 where the negligence of the injured ship might have been 
 avoided by the injured ship, 943 
 inquiry as to, whether a special rule in the case of injury done by lunatics, 
 
 48 
 limited, not measured by Employers' Liability Act, 438 
 measure of, for solicitor's negligence, 791 
 
INDEX. 1185 
 
 DAMAGES, measure of, in respect of mavitirae injury, 654 
 
 obtained in consequence of nervous or mental shock, 69 
 only for the proximate and direct consequence of wrongful acts, 1006 
 plaintiff forced to pay through solicitor's negligence, 787 
 proportions as to, in respect of negligence of agents, 528 
 recoverable against ahenff for escape, 774 
 recovered in case of negligence of telegraph company, 739 
 remoteness of, 67 
 rule as to remoteness of, 92, 93 
 under Eailway and Canal Traffic Act, 1854 : 602 
 vindictive, 44 
 
 what, obtainable against sheriff, 762 
 when raises a presumption of negligence, 551 
 
 where done by a ship to persons or goods, rule as to apportionment, 954 
 each ship has been guilty of negligence, 943 
 extraordinary care would have avoided the danger, 943 
 only claimants in respect of damage done by ship are owners of 
 property, 954 
 what, stockbroker misleading persons with whom he contracts is liable 
 to pay, 818 
 
 DANGEE, act done under pressing, how far doer liable, 46, 47 
 DANGEROUS agency, fire as a, 986 
 
 liability for fireworks as a, 989, 990 
 new combination producing duty with regard to, 1 137 
 what is generally understood by the term, 1133, 1135 
 animal, precautions with regard to, 919 
 condition, letting a house in, 1075 
 
 of property, tools, &c., liability of master to servant in 
 respect of, 314, 319, 338 
 employment, boy ordered to do, not within the scope of his employ- 
 ment, master not liable, 361, 362 
 difference between statutory duty of master and common 
 
 law liability, 346, 349 
 propositions as to, 355 
 where sei-vant working at, injured through neglect of 
 
 statutory precautions, 346, 353 
 what is voluntary undertaking of, 340, 346 
 where workman injured through the neglect of statutory 
 precautions of master, onus on master to prove, not 
 merely knowledge of risk, but also that servant dis- 
 pensed with statutory duty, 349 
 goods, nature of, not disclosed, penalty for, 582 
 
 sender ignorant of nature of, not liable, 582 
 hole adjoining highway, 1043 
 
 duty of canal proprietors similar to that of shopkeeper having 
 dangerous hole on premises, 1050, 1056 
 instrument, defectively constructed lamp, 55 
 
 use of, not actionable, 11 16 
 machinery, duty of master with regard to, where there is no personal 
 
 negligence, 331, 335 . 
 
 medicine, responsibility for admimstenng, 830 
 obstractions, 89 
 
 character of land not to be altered by placing, 1 103 
 operation, duty of operator to communicate to patient, 831 
 place, at a distance from highway, 1037, 1047 
 
 distinction between place made so and becoming so, 58 
 driver of stage-coach, duties of, before going through, Jo 
 in a market-place, duty with respect to, 1108 
 using by night, 109 1 
 substance, innocent transmission of, 52 
 
 liability of common carrier for explosion of, 570, 571 
 thing, dealing with, 64 
 trade, position of one caiTying on, 1117 
 
 work, liability of employer for injury caused contractor in the execu- 
 tion of, 1079 
 where master employs servant in, master must exercise due 
 care, 318 
 
 4F 
 
1186 INDEX. 
 
 DANGERS, how far knowledge of, is a ooncluBive defence in an action by servant for 
 injuries caused by dangerous employment, 333, 336 
 innocent person removing from himself to another not liable for conse- 
 quences, 46, 47 
 of the sea, definition of, 723, 724 
 
 not co-extensive with acts of God, 723 
 not so wide as dangers and accidents of navigation, 726 
 what are, 722, 723, 724 
 or inefficiency of machinery, when servant has knowledge of, cannot recover 
 from master for injuries caused by, 320, 331, 338 
 DARK PASSAGE, injury caused by, 1 180 
 
 DEADLY INSTEUMBNTS, setting, 925 
 
 DEATH OP SHEEIPP, effect of, 750, 751 
 
 DBBBNTUEES deposited with bank, liability of bank for loss of, 470 
 
 DEBT, discharge of, in county where it was contracted a good discharge everywhere, 
 
 247, n. 
 DBBTOE, when, may be arrested, 762, n. 
 
 DEBTOES ACT, 1869, s. 4, sub-s. 4 ; 786 
 
 DEBTS CARRYING INTEREST, duty of executor with regard to, 853 
 
 DECK, owner of goods on, not entitled to contribution, 709 
 
 DEDICATION OP BRIDGE, how effected, 1062 
 
 DEER may be so far reclaimed as to pass to executors, 920 
 
 DEPAULT OF SERVANTS, special risk incurred through, iiii 
 
 DEPECT and " defect in condition," what are, 422, 423, 444 
 
 in condition of machines, distinction between, and defect result of working of 
 
 machines, 425 
 in premises or machines which was palpable whether servant knew of or not, 
 
 he accepts risk, 418 
 in machinery, plant, &c., what is, under the Employers' Liability Act, 419, 
 
 424 . 
 in vehicles, what questions to be left to jury, 637, 638 
 DEPECTIVE pipe producing explosion, 1008 
 
 plan, corporation liable for carrying out, 261, n. 
 repair of premises, liability of landlord, 1075 
 
 when arising from the nature of things, 1027 
 stand, liability for, same as that of carrier of passengers, 59 
 vehicle, when accident arises from, 958 
 DEPECTS in carriage chosen by passenger, carrier not liable for, 
 
 in loading undei-taken by owner, common carrier not liable for, 581 
 in thing let, liabilities of letter for, 501 
 in vehicle, for what carrier of passengers liable, 633 
 inherent, in goods common carrier not liable for losses by, ijS- •i'yS 
 DEFINITIONS, adjustment, s 19, 520 
 artificer, 447 
 bailment, 451 
 carriers for hire, S39-541 
 
 of passengers by sea, 733 
 charter-party, 722 
 child, 149 
 
 common carrier, 562, 563 
 contract for hire, 499, 500 
 dangers of the sea, 723, 724 
 deposits, 456 
 dock, S36 
 dock-owners, 536 
 factor, 522 
 gratuitous loan, 485 
 inn, 544, S4S 
 innkeepers, 544, 54J 
 judicial officers, 252 
 mandates, 477, 478 
 "master," 282 
 negligence, 3-10 
 
INDEX. 1187 
 
 DEFINITIONS, notary, 746 
 
 passenger, 639 
 pawn, 490, 491 
 piracy, 575 
 sheriff, 750 
 warebouseman, 528 
 wharfinger, 532 
 
 workman under Employers' Liability Act, 532 
 DEGEEE of care exercised by owner of savage animals, 914 
 gas ard water companies, looi 
 in keeping fires, 982, 991 
 required from a railway company where they have undertaken a 
 
 duty, 973 
 required ot any one professing to deal with the life or health of the 
 people, 830 
 fdiligence while launching a vessel, 940 
 DEGREES of blame, distinction of, 35 
 of negligence, chap. iii. 
 
 civil law as to, compared with English law, 17, 18, 19 
 
 writers, division of, negligence not, into, 30, 31 
 comparison of, 21 
 discussed, 22, 23, 24 
 existing practice of English Courts, 20 
 none, 40 
 DEL CBEDEBE AGENT, what is, 525 
 
 DELAY, common carrier when liable for, 585 
 
 in presentment of bill, when unreasonable, 874 
 
 trustee guilty of unreasonable, in investment, liable, 855 
 
 DELEGATION OF AUTHOEITT, solicitor may not make, 781 
 
 DELIVEE, mere contract to, not a bailment, 452 
 
 DELIVERY, actual, by common carrier, may be waived, 624 
 
 after carriage by sea, must be in accordance with customs and rales of 
 port of delivery, 732 
 
 after carnage by sea, rules relating to, 732 
 
 by carrier, must provide a safe place, and proper means of, 621, 623 
 
 by carriers of cattle, delay as to, 621, 622 
 within what time, 621 
 
 by common carrier, what constitutes, 616 
 
 by mardatory, what is, 479 
 
 by road and railway carriers, distinction between, 622 
 
 marks termination of carrier's contract, 698 
 
 of passenger's luggage, what constitutes, 697, 698 
 
 to carrier, a question of fact, 619 
 
 to common carrier, what constitutes, 616-620 
 
 to proier person, duty of carrier, 623 
 
 what in bailments, 452 
 
 wrong by a can-ier.^rimo/ociea conversion, 623 
 carrier liable in trover, 623, 624 
 DEMISE of property in dangerous condition, 1075 
 
 DEODAND, what is, 13 
 
 DEPENDENCY, Governor of— see Govebnok of Dependency 
 
 DEPOSIT can only be of a chattel, 457 
 definition of, 456 
 
 distinction between, and mandate, 479 
 joint depositary not bound to deliver deposit without the consent of all 
 
 parties to, 476 
 meaning of gross negligence with reference to, 460, 461, 463 
 nature of, 457 
 notes left with banker on, distinguished from notes left as collateral security, 
 
 872 
 paid to auctioneer, 815 
 
 receiving goods on, for a reward, liable for ordinary negligence, 518 
 voluntary, what is, 456 
 who may make a, 457 
 
1188 INDEX. 
 
 DEPOSITAEY, action against, burden of proof on whom, 477 
 
 agreement not to take exception to fraud void, 465 
 
 amount of care required of, 458 
 
 carrier holding goods as, only liable for gross negligence, 628 
 
 duty of, varies with the existence or absence of a reward, 458, 459, 
 
 463, 466 
 for reward, different liability of, to ordinary depositary, 519 
 gross negligence of, what isy 471, 472 
 how far liable for loss of articles in a package, contents of which are 
 
 unknown to him, 465 
 may vary his liability for negligence by special agreement, 463 
 may use deposit, in what cases, 475 
 must deliver up the deposit in the same state as he received it with 
 
 accrued profit, 476 
 must restore deposit to right owner, 475 
 negligence, onus of proving on whom, 469 
 no authority to sell or to pledge, 475 
 not bound to deliver joint deposit without consent of all parties, 
 
 I^S . . , 
 
 only liable for gross negligence, four exceptions, 463 
 only need keep goods as he keeps his own, 460, 461, 462, 470, 471 
 refusing to deliver up deposit, conversion, 476 
 test applicable to degree of care required, 462 
 what evidence against for loss of deposit to go to jury, 458 
 when liable for goods lost without his fault, 457 
 whether a carrier is, after arrival of goods, 628 
 JDEPOSITOE, title of, need not be absolute, 457 
 
 DEPUTY, head gaoler when liable for the acts ef his, 754 
 
 of sheriff, 750 
 DETERIORATION of gas and water pipes, care as to the prevention of, 1004 
 
 DEVASTA VI T to pay debt banned by Statute of Frauds, otherwise within the Statute 
 of Limitation, 862 
 when executor guilty of, 851 
 DIFFICULT POINTS OF LAW, solicitor protected by consulting counsel, 794 
 
 DILIGENCE, degrees of, as to contract, 20, 21, 22 
 
 degree of, required of a factor, 524, 525 
 
 due, pawnee only required to use, 496 
 
 exception in bill of lading does not exempt shipowner from using 
 
 reasonable skill, 730 
 expert, what is, 36 
 hirer bound to use ordinary, 502, 503 
 in inquiring for title deeds, 903 
 of solicitor in making settlements, 793 
 ordinary, what is, 748 
 
 reasonable, each party to use in loading ship, 713 
 required of borrower is exact, 487 
 of a carrier for hire, 542 
 of a wharfinger, 532, 533 
 rigorous, not required of a borrower where lender knows of his inca- 
 pacity, 487 
 rigorous, not required of borrower where loan is for mutual benefit of 
 
 borrower and lender, 487 
 rules as to, illustrated, 504 
 specialist, when required, 21, 22 
 who must use, 43, 44 
 ^ to enact a minute, impracticable, 24, 28 
 
 want of reasonable care and, renders agisters liable, 520, 521 
 BILIGENTIA DILIGMNTISSIMUS, 24, 28 
 DIRECT NEGLIGENCE, what is, 895 
 DIRECTORS OF COMPANIES, 837, 844 
 
 at common law, agents of the company, 838 
 
 construction notice of, 907 
 
 distinction between the liability of a director and 
 
 the liability of a trustee, 840 
 gas and water companies, 1006, loii 
 
INDEX. 1189 
 
 DIRECTOES OF COMPANIES, joint and separate liability of, 843 
 
 liabilities for negligence, 838, 840 
 office and duty of, 837 
 quam trustees of property, 842 
 term director defined, 837 
 test of liability, 839 
 where acting vMra vires, 231, 841 
 liable as trustees, 842 
 personally liable, 842 
 corporation not liable, 230 
 DISCHAEGE of debt in county where it was contracted, a, discharge eveiywhere, 
 247, n. 
 
 DISCEETION and absolute obligation of public body contrasted, 224 
 interpretations of a trustee's, 850 
 
 none where statute confers authority to do a judicial act, 226, 227 
 to be used by executor, 853 
 granting an interpleader order is, 769, 770 
 
 jurisdiction of the Court of Chancery in stopping unauthorized inter- 
 ference with highways, 995, 1009 
 DISCEETIONAEY, what powers conferred by statute are, 224, 228 
 where duty is, liability of public body, 224 
 words creating a duty ou public bodies, 225, 228 
 DISPENSING MEDICINE, person acting as an apothecary in, 822 
 
 DISPUTE, facts in, for jury, 123 
 
 DISSIPATED CHAEACTEE, where not evidence of incompetency, 872 
 
 DISTEAINABLE, what things are, 495, n. 
 
 DISTEAINT of cattle, damage feasant, 917 
 
 DISTEESS— see Eent 
 
 pawn exempted from, 494, 495 
 
 trespass vi et armis does not lie against pound-keeper for receiving a, 
 7S4. n. 
 DITCH insufficiently fenced, 79 
 
 DITCHES, rights in respect of, 1150 
 
 DIVEESION OF WATEE, how far lawful, 1150 
 
 DIVIDENDS, payment of, out of capital, 842 
 
 DIVISIONS of bailments, 455, 456 
 
 of negligence, 17, 18 
 DOCK COMPANY, duty in providing gangways, 58 
 
 DOCK-OWNEES, definition of, 536 
 
 duties and liabilities of, 536-538 
 liabilities usually determined by Act of Parliament, 536 
 liability for supplying staging, 53 
 sometimes act as wharfingers and warehousemen, 538 
 DOCKS, definition, 536 
 
 dry, what are, 530 
 wet, what are, 536 
 DOCUMENTS left in possession of co-partner, 837 
 DOG attacking horse diiven on highway, liability of owner of dog, 91 
 biting visitors, 925 
 control of, in civil law, 913 
 
 habit of flying at horses and carriages, dangerous, 925 
 habit of woiTying sheep evidence of savage disposition, 929 
 imputed knowledge of savageness, 926 
 keeping ferocious, not illegal, 924, 1 1 10 
 knowledge of servant imputed to master, 926 
 
 liabilities of owner of, for coursing considered, 928 ^ , ,• 1. j 
 
 magistrate's power of drawing inferences where unlawful act has been e^tablistied, 
 
 Q29 
 may be shot to prevent actual further molestation of game, 923 
 may not be shot whilst trespassing, 923 
 muzzling of, ^30 
 
 notice of having bitten a man, 925 
 person stumbling over, and bitten, cannot recover, 913 
 
1190 INDEX. 
 
 DOG, printed notice of ferocity not enough to discharge owner from liability 924 
 proof of ownership, 928 
 
 right to keep fierce, for protection of premises, 1089 
 running after game, 923 
 shewing savage disposition, 925 
 spears, placing, in land, 1083, 1085, 1088, 1089 
 sold or destroyed at the option of parties under Dogs Act, 930 
 straying on a highway, duty of police with respect to, 930 
 what is sufficient knowledge of character of, to fix liability, 924 
 though fierce, may properly be let loose, 924 
 trespass by, 917 
 under proper control, when, 930 
 
 whether a savage, loose a risk incidentalto service, 1 109 
 when duty on servant to communicate with master, 927 
 
 DOGS ACT, 930 
 
 DOMESTIC SERVANTS not within the Employers' Liability Act, 445, 446 
 
 DOMESTICATED ANIMALS, 932 
 
 DOOB leading to office, mistaking, and falling into cellar, 1 106 
 
 'when sheriff may break open, 758, 759 
 DRAIN, negligent construction of, 107 1 
 
 DRAIN-PIPE, injury caused by obstruction in, 5 
 
 DRAINAGE of Land Act, 998 
 
 doubt of Lord Wensleydale whether one proprietor could drain sub- 
 terranean water of a district to supply persons having no rights 
 whatefer, 1159 
 doubt settled in the House of Lords, 1159 
 DRAWEE, duty of, on presentment of bill of exchange, 874 
 
 DRAWER OF CHEQUE, Hability of, 879 
 DRAWING-DP ORDER, solicitor liable for, 794 
 DRIVER, duty of, 957 
 
 on turning corners, 958 
 to foot passenger, 958 
 not bound to know peculiarity of horse, 957 
 must give way to allow foot passengers to cross the road, 961 
 of coach, duty of, when going through dangerous place with passengers, 
 
 50 
 liable for smallest amount of negligence, 631 
 DRIVERS AND CONDUCTORS OP TRAM^OlYS AND OMNIBUSES not 
 within Employers' Liability Act, 446 
 
 DRIVING on wrong side, 955 
 
 rule in a fog, 956 
 
 traveller on wrong side must leave ample room, 956 
 
 where deviation from rule of the road allowed, 956 
 DRUGGIST, liability of, for dangerous medicine, 52 
 
 DRUNKEN MAN ON CAR, tramway company liable for injuiies resulting from, 679 
 
 DUE or reasonable care, what is, 1112 
 
 diligence same as absence of negligence, 1 103 
 DUTIES, netary may not depute, 749 
 
 and liabilities of common carrier, 569 
 DUTY arising from possession of property, 1081, 1087 
 as to condition of premises, 1 1 12 
 breach of, by auctioneer in not obtaining deposit, 815 
 
 by ministerial officers gives right of action, 259 
 oihii' leiiissima does not imply a continuous, 25, 28 
 existence of a, to take care, 50 
 
 greater, thrown on the master by employment of young persons, 360, 361 
 how far a, to regard the susceptibilities of animals, 1096 
 in case of new combination of influences, 1 137 
 in constiTioting a sewer, 1071 
 in executing dangerous work, 1079 
 in providing gangways, 58 
 in regard to navigation of vessels, 934 
 user of highway, 934 
 
INDEX. 1191 
 
 DUTY in respect of sea walls, 1063, 1064, 1067 
 
 x«»Oiiiiisterial and judicial, distinction between, 260, 261 
 none where presence of injured person was not to be anticipated, 1 102 
 of agent in presenting bill, 874 
 of architect, 810 
 of auctioneer, 814 
 
 as to rescision of contract, 815 
 of bailee for hire of labour, 514 
 of banker as to crossed cheques, 881 
 
 in the delivery of bills or notes, 869 
 
 collection of bills of exchange or promissory notes, 869, 870 
 to keep secret his customer's account, 868 
 to payee, 868 
 of canal company with regard to water in or coming to their canals, 1054 
 of canal proprietoi's, 1049, 1057 
 
 with regard to the passage along canal, 1057, 1058 
 of College of Physicians with regard to the admission of members judicial, 821 
 of common carrier, 567 
 
 to inquire as to nature of goods delivered to them, 570, 571 
 of driver, 957 
 
 to foot passengers, 961 
 »«ef examination of instrument passing through one's hands, 52 
 of executor, 853 " 
 of foot passengers on a highway, 958, 961 
 of gas and water companies as to testing pipes, 1002 
 
 use of care, 1002 
 in providing pipes, 1003, loio 
 of gaoler, 753 
 
 of local board as to re-instatement of public way, 1019 
 of master to his servant, 313 
 
 summary of law as to, 365, 368 
 of medical and surgical practitioners, 827 
 of mortgagee, 900 
 
 in the absence of title deeds, 904 
 ^of notaries, 746-748 
 of occupier of property, 1094, 1 1 12 
 
 of operator to forewarn patient of dangers aeoompanying operation, 831 
 of owners of property, 1074, 11 24 
 
 land adjoining highway, 1091 
 
 with regard to his neighbour's cattle, 965 
 user, 978 
 of partners, 836 
 of person undertaking to perform a voluntary act, 973 
 
 using navigable river, 936 
 of quantity surveyor, 810 
 
 of railway company as to gates opening on to highways, 975 
 hire and construction of engines, 983 
 to guard against all circumstances that might spread flie, 
 987 
 of rider or driver of a horse, 957 
 of skilled labourer, 806 
 
 of solicitor before commencing an action, 792, 794 
 in selecting an agent, 782 
 to invest in a particular security, 799 
 
 without reference to his client, 799 
 to clients, 790 
 
 to find a security subject to the approval of his chents, 799 
 to those for whom, not by whom, they are employed, 782 
 of sea frontages, 1066, 1067 
 
 of stockbroker to make contract in a binding form, 819 
 in making a bargain, 817 
 to buy, &c., 818 
 of surveyor, 810 
 
 of trustees, 840 , . , c • • o — 
 
 to deal impartially between the various bonehoiaries, »57 
 or executor in reference to insurance, 852 
 on every householder to see to_ repair of premises, 59 
 on shopkeepers as regards their customers, 1105 
 
1192 INDEX- 
 
 DUTY on those having property abutting on a highway, 1041 
 
 statutory, to protect cattle going along highway, 970, 975 
 
 to inquire into interest of tenant where there is a contract to sell property in 
 
 the occupation of tenant, 900 
 to keep in what has been brought on land, 1 124 
 to prevent hurtful things escaping from land, 85 
 to receive sewage, 1005 
 to reinstate pavement, 1077 
 
 to provide sufficient standing place for cattle in a market, 1 108 
 to supply staging for works, 54 
 to visitor, 1 103, 1 1 12 
 
 what, on landlord, to keep iron rails on roof in repair, iioi 
 where absence of legal, 1102 
 
 discretionary, liability of public bodies fur breach of, 224, 225 
 
 employment is by one person for the benefit of another, 60 
 
 hole adjoining highway, 1036, 1047 
 
 raised by implication of law admits exception of act of God, 1 131, 11 32 
 
 there is a private road leading to a house, 57 
 statutory obligation, 1081 
 
 vessel is abandoned in a river, 934 
 with regard to keeping fires, 982, 991 
 
 ECOLESIASTICAL DILAPIDATIONS, country surveyor dealing with, 806 
 
 EJECTMENT by owner of soil of highway 1039 
 
 ELECTION 01' MEMBERS OF PARLIAMENT, duties and liabilities of sheriff in 
 connection with, 754, 755 
 
 ELEaiT, writ of, duty of sheriff with, 
 
 EMBANKMENT, cutting into, to relieve pressure, injury thence resulting actionable, 
 1056 
 
 EMBARGOES OR BLOCKADES often within terms of bill of lading, 730 
 
 EMIGRANTS, 735 
 
 EMPLOYER, 269, 448, 1113, 1 123 
 
 " to whose orders or directions the workman was bound to conform," 
 meaning of, 431-433 
 
 EMPLOYERS' LIABILITY ACT, 1880, the, 414-448 
 
 object of the Act, 415-417 
 
 effect of defence of common employ 
 
 ment under, 415 
 corresponding enactments in the 
 
 colonies, 415 
 scope of the Act considered, 416 417 
 view of Bowen, L.J., as to, 416 
 provisions of amending Bill, 1888: 
 
 417 
 common law, how affected by, 419 
 how workmen may recover nnder, 
 
 ,419 
 workmen in the same position as a 
 licensee on premises, 415, 419, 
 
 427, 43 1 J 433. 436 
 defect and defect in condition, 419- 
 
 424 
 what are " ways " under, 423, 424 
 worksj 423, 424 
 
 is a machine under, 424, 425 
 plant, 42s, 426 
 injury under, must be "caused" by 
 
 some defect, 426 
 where workman has knowledge of 
 
 defect, 426 
 defence under, 427 
 workman injured by the negligence 
 
 of one having superintendence, 
 
 427-430 
 
INDEX. 1193 
 
 EMPLOYERS' LIABILITY xVCT, 1880, the, who are those under, who have 
 
 " superintendence," 427-430 
 workmen employed by butty men 
 injured by others engaged in the 
 same system of work can re- 
 cover, 433 
 workman injured by act or omission 
 of person acting under bye-laws, 
 
 ,433. 434 
 employer must see that dangers of 
 
 the system of work are not un- 
 _ necessarily increased, 434 
 liability where business is carried on 
 
 under bye-laws whence injury 
 
 arises, 434, 435 
 where sanctioned by Government, 
 
 ^ 434> 435 . . 
 
 where workman injured by the negli- 
 gence of some one whose orders 
 he had to obey, 431-433 
 
 scaffold breaking when made by 
 competent workmen, 433, 434 
 
 what is a " locomotive engine " 
 under, 436 
 
 workman may recover where injury 
 caujged by any one having charge 
 or control of signal points, or 
 locomotive engine, or train on a 
 railway, 436 
 
 what are "railways" within, 436, 
 
 437 ., 
 what are railway servants, 436, 444, 
 
 445 
 "charge or control," meaning of, 
 
 437 
 
 rule under the Act as to damages 
 only affects amount, 43S 
 
 compensation, how limited, 438 
 
 time \vithin which action must be 
 brought, 438, 439 
 
 notice of action, what, required, 438, 
 
 where penalty paid under any other 
 Act, 439, 440 
 
 evidence of negligence of employer 
 or of some person employed by 
 him, 420 
 
 distinction between defect in the 
 condition of machine and defect 
 resulting from' working of ma- 
 chine, 425 
 
 effect of Volenti nonfit injuria under, 
 416-418 
 
 workman under, does not include those 
 working in Government depart- 
 ments, 448 
 
 compensation under, may be waived, 
 
 351.352 . . 
 contract excluding Act good, 353, 
 
 354,448 _ 
 
 consolidation of actions under, 440 
 contributory negligence not affected 
 
 by section 2, sub-section 3, of, 427 
 appointment of assessors to settle 
 
 compensation, 440 
 action brought in county court, 440, 
 
 441 
 position of plaintiff at common law 
 
 when he fails under, 441, 442 
 
1194 INDEX. 
 
 EMPLOYEES' LIABILITY ACT, 1880, the, notice of action under, 442, 443 
 
 how notice of action to be served, 
 
 443.444 
 definition of workman, 444, 445 
 "employer" includes a "corpora- 
 tion," 444 
 to support action under, contract 
 must he for personal doing of 
 work, 447 
 EMPLOYMENT, all acts done by seiTOnt within scope of, master must answer for, 
 
 272-2/'4, 276-27S 
 
 what acts of servant within scope of employment, 281-288 
 
 scope of servant's) question whether Act within for jury, 285 
 
 where risks of, ordinary and usual, 314 
 
 when carried on under bye-laws, position of servants, what, 434 
 EMPTIES, liability of railway company for, 614 
 ENEMIES OF KING, who are, 574 
 ENEMY, public, what is, 574 
 EQUAL EIGHTS, possession of, how affects liability for negligence, S-7 
 
 EKEOE in transmission of telegram, 744 
 
 liability in respect of, of judgment generally, 807 
 
 of judgment only will not charge directors of companies, 841 
 
 ESCAPE, action against sheriff for, only maintapable where actual damage, 767, 773, 
 
 774 
 damages recoverable against sheriff in action for, 774 
 of gas, where negligent, 1007 
 ESTOPPEL, 884-908 
 
 definition of, 884, 886 
 
 meaning of word "wilfully" in Lord Denman, C.J.,'8 definition of, 
 
 88s, ■ , 
 
 Brett, J.,'s proposition as to, 886, 887 
 in negligently filling in cheque, 889 
 
 where one of two parties must suffer by the act of a third, 890 
 Young V. Grote, cases considered, 890, 895 
 where crime committed, 890, 892 
 where negligence not proximate, 890 
 where instrument voluntarily parted with, 8gi 
 where negligence in filling in blanks, 891 
 where impugned act not followed in natural course by actionable results, 
 
 891 
 indorsement in blank subsequently filled up without fraud, 891 
 Canadian judicial opinion on Young v. Grote, 892 
 where bill torn in two pieces, and thrown into street, 893 
 against innocent owners for value, 893 
 cheque pj:operly drawn lost or stolen, 893 
 where receipts signed for dividends, the stock represented by which had 
 
 been fraudulently sold by third persons, 894 
 only where result is the natural, necessary, ordinaiy, or likely result of 
 
 the negligence averred, 895 
 ordinary usage of merchants, 896 
 
 distinction Between negotiable and not negotiable instruments, 896 
 of customer giving unsigned post-ofBce orders to clerk to pay into bank, 
 
 897 
 blank indorsement got from a clerk by false pretences, 898 
 securities taken by a money-lender in the ordinary course of his business, 
 
 and pledged, 899 
 EVIDENCE of negligence, 37 
 
 presumption of defendant's liability for all acts done by his animals 
 
 trespassing, 79 
 where, of negligence, the person guilty liable for its consequences, 
 
 whether foreseen or not, 83 
 in continued user of appliances not intrinsically dangerous, 85 
 what is reasonable, of negligence, loi 
 primdfade, of negligence, what, 103-106 
 brick falling from railway bridge prima facie negligence, 107 
 mere occurrence of railway accident, 108, 109 
 
INDEX. 1195 
 
 EVIDENCE of negligence not neutralized by evidence of contributory negligence, but 
 
 the whole question foi- the jury, 117-iig 
 must be connected with accident as cause and effect, 117 
 where mere occurrence of i^'ury is not, of negligence, 142 
 jurymen giving verdict against, cannot be punished for it, 2C4, 2« 
 of incompetency of servant, 358 " 
 
 negligence, evidence of incompetency, 359, 360 
 yrhat primd facie, of common employment, 386 
 against_ depositary for loss or damage to goods for the jury, 458 
 ot negligence of gratuitous bailee turning horse into pasture dauforous 
 
 aiter dark, 461 
 fire on pawnbroker's premises is primd facie, of negligence, 498 
 what IS aotronable negligence under the Carriers Act, 595, n. 
 of negligence on platform, 606 
 onus of proof of loss or non-delivery on plaintiff, 629 
 railway carriages running off rails, 633, n. 
 mere surmise not sufficient to leave to jury, 665 
 of subsidence of embankment, 666, 667 
 
 of subsequent precautions not evidence of antecedent neglect, 666, 667 
 train not drawn up to platform, 669-671, 673 
 of negligence of passenger attempting to alight, 668-674 
 omia of proof of what is ordinary luggage on passenger, 681 
 
 breach of carrier's contract on plaintiff, 699, 700 
 on railway company to shew delivery of luggage given in their 
 charg^, 701 
 of ship foundering at sea, 723 
 
 of acts of under- Sheriff admissible against sheriff, 761, n. 
 the fact that j'udgment has been wrongly obtained against a man 
 
 evidence of damage, 790 
 onus on solicitor with retainer, who has done nothing- to shew there was 
 no negligence, 790 
 of proving authority on solicitor in action, 792 
 of solicitor's negligence need not be exclusive ground of inj'ury to 
 
 plaintiff, 795 
 onus where money lost by a bank clerk, 808 
 copy of Medical Register under 21 & 22 Vict. c. 90 : 823 
 presumption as to the employment of physicians, 824 
 where surgeon's act of practice is not illegal, 825 
 
 illegal, 82s 
 positive evidence of negh'gence required where act alleged is in itself of a 
 
 neutral complexion, 825 
 where injurious, result actionable without positive evidence of negligence, 
 
 826 
 presumption of competency of medical man, 826 
 what is, of medical negligence, 827 
 
 criminal and civil liability to be established by the same evidence, 829 
 difference in amount between civil and criminal negligence, 830 
 where onus is on person professing to act as a medical or surgical 
 
 practitioner, S30 
 of husband's authority to medical man to perform operation on wife, 
 
 831 
 not admissible to shew that the defendant is generally of skill in his 
 
 profession, where action is against doctor, 832 
 presumption that trustees are liable to account for moneys paid to the 
 
 trust, 845 
 presumption that only those executors who act are to account, 845 
 onus on those who seek to charge an executor or trustee with a loss 
 arising from the default of an agent when the propriety of em- 
 ploying an agent has been established, 848 
 
 to discriminate trust property from his own, on trustee, 850 
 on which trustee is j'ustified iu allowing a claim, 856 
 onus lies upon trustee, in the case of loss of funds, to excuse himself, 
 
 856, 8S7 
 of value of trust funds, 859, 860 
 onus on trustee j'oining in receipt to shew that in fact he did not receive 
 
 the money, 861 
 of dissipated character of notary will not establish incompetency, 872 
 of indorsement on cheque, 880 
 
1196 INDEX. 
 
 EVIDENCE, onus on payor of one of a series of forged bills to disprove signature of 
 others, 888 , . i o ^ 
 
 rejection of evidence of ordinary usage of merchants in estoppel, Sgb 
 where the law raises a presumption of knowledge of antecedent dealmgs 
 
 with real property, 904 
 what circumstances raise presumption of notice of an incumbrance, 904 
 of knowledge variable in different circumstances, 918 
 what is sufficient to shew that a dog is of a fierce nature, 918 
 of dog being Gerce and unruly, 919 
 of disposition of a bull, 920 
 what 19, of a kicking horse, 921 
 of dog being mad, 925 
 
 ownership of dog, what, 928 * 
 
 of savage disposition of dog from habit of worrying sheep, 929 
 proper contrcJ of dog, question of fact, 930 
 
 omits on plaintiff to disprove contributory negligence where there is non- 
 observance of a regulation, 939 
 breach of regulations statutory blame, 940 
 
 onue where breach of regulations not followed by injury in natural 
 sequence, 940 
 accident happens during launch of vessel, 941 
 burden of proof in Admiralty, 943 
 
 onvs where collision on water has been the fault of both parties, 943 
 of sailing regulations, when relevant, 946 
 failure to comply with local usages in maritime matters, 946 
 presumption of negligence where one ship sails away after a collision 
 
 without rendering assistance to the other, 952 
 of being on wrong side of road, 95S 
 of negligence, for a jury, when collision on land happens from want of 
 
 sufficient room to pass, 956 
 intoxication in a driver some evidence of negligence, 957 
 of forty years' repair offences conclusive, ^of obligation to repair, 966 _ 
 presumptive liability to repair fences raised by twenty years' repairing, 
 
 966 
 presumption of negligence from fire arising from sparks from railway 
 
 engine, 983 
 mere happening of a fire may raise a presumption of negligence, 984 
 effect of 14 Geo. III. c. 78, s. 86, on onus of proof in case of fire, 984 
 onus of proof where fire happens through use of railway engines, ^84 
 mere fact of being stiuck by fireworks raises presumption of negfigcnoe, 
 
 989 ... 
 
 mere fact of accident from use of firearms sufficient to charge, if it arises 
 
 in a populous place, 990, 992 
 onus where gas or water works company have caused injury, looi 
 fracture of gas or water company's j^i'pe primdfade, 1002 
 what will fix a surveyor of highways with liability, 1018 
 where want of notice of action is pleaded, what required, 1028 
 admissible to shew that others than the plaintiff's horse have shied at 
 
 objects near highway, in order to shew nuisance, 1030 
 primd facie, right to the whole width of a highway, 1034, 1046 
 presumption raised by repairs done to sea wall by frontager, 1068 
 onus of proving encroachment on a stream, 114S, 1154 
 presumption of ownership of stream, 1145, ii54 
 onus to shew reasonable user of water, 11 54 
 presumption of ownership in artificial stream, 11 55 
 
 EVENING PAETY, caniages at door to take up guests from, 1033, 1047 
 
 EXCAVATIONS near highway, duty with regard to, 1080, 1097 
 
 test of liability for, 1090, 1097 
 
 person falling into, 1090, 1097 
 
 maker liable even when statutory obligation to fence imposed on 
 some one else, 1092 
 EXCESSIVE WEIGHT, what is, on highway, 1043 
 
 EXCURSION TRA.IN, passenger, by taking luggage when train run under special 
 
 conditions, bound to pay ordinary goods rate, 701, 702 
 EXECUTION against pawnor does not render pawn liable to be taken, 495 
 when against pawnee, effect considered, 495 
 
INDEX. 1197 
 
 EXECUTION of process, duty of sheriff in respect of, 757 
 
 no action lies for issuing, on a judgment without malice, 758 
 debtor, or his goods in the house of a stranger, sheriff may enter, 759 
 
 EXECUTORS — see Tkdstees and Executoks 
 
 EXHIBITION, articles sent to, not regarded as a mere gratuitous bailment, 476, 477 
 
 EXPECTATION of benefit, not recognized by law, except so far as it has its root in 
 
 property, 60 
 EXPLOSION from escape of gas, 1007 
 EXPLOSIVES, 52, 323, 570, 581, 582, 1133 
 
 EXTRAORDINARY augiority, effect of, when given to trustee, 863 
 
 casualty, property ownev may protect himself against, 1055 
 
 diligence not required in maritime affairs, 941 
 
 flood, aggravating effects of, 1129 
 
 skill, where reqrared, 809 
 
 not required from ordinary skilled labourer, 809) 
 
 master of a ship, 951 
 storm, damage caused to sea-wall by, 1065 
 
 what is, question for jury, 107 1 
 traffic, what is, 1044 
 
 an inference of law, 1044 
 use, what is, of water, 1148, 1151 
 
 FACTOR, definition of, 522 
 
 extent of authority of, 523 
 
 power to pledge, 523 
 
 those only may be who are sui juris, 523 
 
 duties of, 523-525 
 
 statutes oonfemng powers on, 524 
 
 degree of diligence required of, 524 
 
 sometimes becomes dd eredere agent, 525 . . ^ 
 
 receiving money of his principal, what is the position of, 525, 520 
 
 duty 0^ to insure, 526, 527 
 
 should be always ready with his accounts, 527 , > j 
 
 neglect of duty to be ready with his accounts, habihty of, to be charged 
 
 goodTconsi^ed to, duty of factor to pay over proceeds, and re-deliver uusold 
 residue on demand, 527 
 FALSE imprisonment, action against Governor of dependency for, 247, 248 
 
 when railway company liable for, by reason ot the acts ot its 
 
 servants, 274 
 railway officials, liability of the company lor, 289-293 
 when gaoler liable for, 754 . 1 j j 
 
 action against sheriff for detaining person in custody under 
 writ of ca. sa. in case of privilege, 768 
 return of sheriff, when liable for, 252, n. 
 FATHER held liable for medical attendance when ignorant that a surgeon had been 
 
 FEES^^where r^^stered medical practitionefr sues for fees, no defence that the treat- 
 
 ment was ineffectual, 833 
 FELLOW-SERVANT— see Common Employment 
 FELLOW-WORKMAN, risk arising from negligence of, 1 1 10 
 FELONY, questu>n ^. J^ l^-^^^f ^^^^^^ ^^ ,^,^„^^^ „^g,g,„,, i^^.terial, 595 
 
 defence of, under Carriers Act, 1830 : 595, n. 
 surgical malpractice may be, 829 
 
 rt^X?p:Srde:r,l"£,%lres, &c., not so considered at common 
 
 stealS'hens, capons, geese, ducks, peacocks, &c„ so considered at common 
 
 law, 924 
 
 FENCES, definition of, 962 
 
 horse straying through broken, 7S 
 
 injury to cattle escaping through defective, »& 
 
1198 INDEX. 
 
 FENCES, presumptive, ownership of, 962 
 duty of owner of land as to, 962 
 
 to keep cattle on one's own land, 963 
 animals breaking tbrougb, 963 
 prescriptive obligation to fence, 963 
 action for not repairing, 965 
 prescriptive liabilty to fence, 965 
 signification of the act of repair, 966 
 BufScienoy of, 967 
 duty of occupier to repair, 967 
 
 need not be snfflcient to meet extraordinary strain, 967, 968 
 statutoiy obligation to fence, 968 • 
 
 interpreted with reference to the common law 
 limitation of, for the benefit of adjoining 
 owners, 969, 974 
 cattle straying through defect in, 970 
 licensee of occupier to have benefit of, 971 
 limitations on the duty to fence, 971, 97s 
 
 railway company may discharge their statutory obligation to fence by pay- 
 ing compensation, 974 
 liability to fence bridges, 1062 
 where there is duty to fence on owner of land, 1089 
 obligation to fence new road substituted for old one, 109 1 
 rusted iron dropped from, causing injury, 1094 
 £ER^ NATURE, difference between care in regard to animals, and those mansuetiE 
 
 natwcE, 914 
 FEEOCIODS DISPOSITION, knowledge of, where presumed, 78 
 FI. FA. action against sheriff for not levying pecuniary loss must be shewn, 761 
 
 where several writs of, in hands of sheriff at same time, duty of sheriff as to 
 762, 763 
 FIGHT, consent to, no bar to action for assault, 96 
 
 FILTH, percolating, to neighbour's land, 1129 
 
 FINDER of goods liable for conversion, but not for negligence, 466 
 rights and liabilities of, 466, 467 
 
 spending money to preserve things found may recover the amount, 467 
 
 has no lien for expenses on goods found, 467 
 FINE on conviction for not repairing highways, 1014 
 
 FIEE, person neglecting to remove his goods from proximity to a spreading, 91 
 on premises of pawnbroker, prima fade evidence of neglect, 498 
 when warehousemen responsible for, 531 
 
 accidental liability of innkeeper for loss of guests' goods by, 552, SS3, 555 
 loss by, in bill of lading, does not exonerate irom loss by fire caused oy negli- 
 gence, 729 
 loss by, what is, 729 
 
 distinction between, in a policy of insurance and a bill of lading, 729, 
 
 7.30 
 duty as to emission of sparks, 978 
 custom of the realm to keep, " safely and securely," 979 
 duty to keep in, at common law, 979 
 where kindled by act of a stranger, 980 
 where fire merely accidental, lia|)ility arose, 980 
 owner of land bound to control fire arising on his land, 980 
 where made dangerous iy circumstances subsequent to its being lighted, 981, 
 
 991 
 properly kindled, but carried to neighbour's 'ground through violence of the 
 
 wind, 981, 991 
 kindled in the carrying on of husbandry, 981, 991 
 the civil law vrith regard to, 981 
 from unlooked-for natural agency, 984 
 from act of strangers, 984 
 distinction between, as instrument of husbandry and as a dangerous agency 
 
 986 
 liability where merely isolated and not extinguished, 986 
 question whether proper means taken to prevent escape of sparks, for the jury, 
 
 988 
 catised by wrongful act of a third person, 991 
 
INDEX. 1199 
 
 FIIiE "accidentally besiiuiing," meaning of, 992 
 
 coming in contact with gas, 1009 
 FIRE-AEMS, care in the use of, 990 
 FIRE-PLUGrS, liability of company to repair, loo5 
 FIREWORKS, letting off, in street, 6 
 
 license to sell, how granted, 988 
 
 regulations by English law, 988 
 
 amount of care requisite in letting off, 989 
 
 liability of schoolmaster for giving, to boys, 989 
 
 FISHING- IN THE SEA, right to, 1030 
 
 FIXED PROPERTY, duties in regard to, 1074, 1082, 1097 
 
 FLOOD, may be diverted, 1160 
 
 FOGr, duty of ship's master in, 949 
 driving in, rule as to, 956 
 
 FOOT PASSENGERS, duty of, on highway, 958, 961 
 
 right to walk along the carriage way, 961 
 the rule of the road between, g6i 
 right to cross the road, 961 
 
 FOOTPATH, a man riding ou, primd faeie in the wrong, 99 
 prevention of straying from, 1091 
 
 FORECLOSE, pawnee may, or sell, 493 
 
 FOREIGN TELEGRAMS, what are, 736 
 
 FOREMAN PORTER, no implied authority to arrest ■■ person whom he suspected 
 of stealing company's property, 292 
 
 FORESHORE, rights of the owner, 1065 
 
 FORGED bank-notes, ability of person who receives, to sue for the price of the goods, 
 or for money lent, 877 
 docnment, payment of trust funds on faith of, renders trustees liable, 852 
 
 FORGERY, where person estopped from setting up, 887 
 payment of one of a series of forged bills, 888 
 effect of, on negotiability of instruments, 891 
 
 FORM OF VALUATION of property in which trust funds are to be invested, 85 o 
 
 FORWARDING AGENT, duties and liabilities of, 538 
 
 who are, 538 
 
 is in same position as a bailee for compensation, 539 
 FOULING STEAM with gas refuse, 1000 
 
 FOUNDERING AT SEA, what is prima facie evidence of, 723 
 
 FOX, hunting, 915 
 
 liability for the escape of a, gij 
 
 hunting. Lord EUenborough's opinion as to the law of, 916 
 liability for escape of tame, 964 
 FRAUD, notice by carrier excepting from liability for, 41, 42 
 
 and damage from an act contemplated at the time as one of the results of the 
 
 fraud renders fraudulent person liable to person injured, 55 
 where damage is the result of, 55 
 and collusion, arbitrator liable for, 252, 253 
 gross negligence construed as, when, 458 
 agreement that depositary not to take exception to void, 465 
 borrower liable for, 487 
 on common can-iers, 571, 582, 583, 591 
 upon carrier, 583, 584 
 
 of passenger, effect of, on liability of railway company, 641 
 officer entrusted with common law or statutory duty liable for,' in execution of 
 
 his office, 778 
 when transaction tainted with. Courts will summarily interfere against the 
 
 solicitor, 784 
 solicitor should ascertain that bargain is not tainted with, 796 
 or misrepresentation in preparation of bills of quantities, 813 
 assisting dishonest design of trustee, 848 
 where conduct has enabled, to be perpetrated, 896 
 
1200 INDEX. 
 
 FE ATJD, where perpetrated by person of whom an inquiry should have been made, goj 
 something like, must be shewn to render the giver of mere permission to use 
 a way liable to an action for damage arising from the use, i lOO 
 FRAUDULENT ALTEEATION of crossed cheque, 880 
 FREE AGENT, intervention of, 47 
 FREEHOLD OF HIGHWAY to whom belonging, 1039 
 
 FREIGHT, damage to cargo no ground for refusal to pay, 712 
 
 when can be set off against damage to cargo, 712, 713 
 FRENCH Code, rule as to knowledge of mischievous propensities in animals by the, 
 918 
 law prooui'ators, 780 
 
 provisions of, as to party-walls, 975 
 as to water coming on land, 1 142 
 as to imgation of land, 11 56 
 FRIGHT, injured caused by, 51 
 FRIGHTENING PEOPLE, injury done by, 915 
 FRONTAGER, right of access to property from highway, 1029 
 FRONTAGERS to the sea, liability of, 1063, 1067 
 FUMES, unhealthy, from alkali works, 21 
 FURNITURE, injury to hirer of ready furnished lodgings liable for injury to, 508 
 
 GAME, property in, 930 
 
 GAMES, injuiy inflicted while playing, 94 
 
 distinction between lawful and unlawful, 96 
 leave and licence where accident occurs while playing lawful, 97 
 GANGWAY, premature removal of, 1105 
 
 accident through defective condition of, 1 107 
 GAOL, sheriff, custody of, at common law, 753 
 GAOLER, what is, 753 
 
 sheriff appoints, at common law, 753 
 duties and liabilities of, 753 
 position of, to his prisoners, 753 
 
 must have sufScient force to prevent breach of prison, 754 
 liable for trespass in executing warrant against wrong person, 754 
 not liable for illegal aiTest, 754 
 
 how far protected in obeying a warrant valid on its fece, 754 
 must observe statutory requirements, 754 
 liable for acts of his deputy civilly, but not criminally, 754 
 GAS, explosion of, 64 
 
 Works Clauses Act, 998 
 
 and water companies, 993-101 1 
 
 their position at common law, 993, 1009 
 
 injunction where granted against laying pipes, 994 
 
 public, not piivate, benefit consulted, 995 
 
 rights of owners of soil as to pipes, 998 
 
 statutory powers of, 998, lOlO 
 
 powers of local authorities under 23 & 24 Vict. u. 125, 
 
 ■•• 54: 999 
 extraordinary frost bursting pipes, locxi 
 escape from pipes of, looi 
 injury without negligence, lOOl 
 burthen of proof where injury results from their works, 
 
 lOOI 
 
 negligence of a third person, how it affects, 1002 
 
 co-operating negligence, 1002 
 
 duty with regard to the operation of natural agencies, 1003 
 
 _ as to kind of pipe necessary to be used, 1003 
 care in providing appliances, 1004 
 leakage from pipes ot; 1004 
 directors indicted for nuisance, ICX}6 
 liabilitjj of directors for acts of servants, ICX35, loil 
 relations with customers, 1006 
 right to lay pipessubordinate to the public right to have 
 
 streets kept in repair, 1040 
 
INDEX. 1201 
 
 GAS and water pipes, must be reasonably su£Boient for purpose for which they, are 
 intended, loii 
 Waterworks Facilities Act, 1870 : 998 
 
 Amendment Act, 998 
 GOODS, carrier of— gee Common Cakrier 
 
 intermixed, so as to be indistinguishable, 452, 453 
 
 delivered to be carried for hire must be taken the utmost care of, 473, 474 
 
 inherent defects in, carrier not liable for losses occasioned by, apart from his 
 
 own negligence, 576-580 
 what a carrier is bound to receive, 618 
 imperfectly addressed, 620 
 damaged by other goods stored in hold, 712 
 in possession of sheriff, 765, 766 
 wrong, taken by sheriff, 775 
 let for hire to execution debtor, sold by sheriff, 776 
 OOVEENMENT not liable for misfeasance, laches, or unauthorized exercise of power 
 by its agents, 240 
 officers not liable for default of their subordinates, 261, 262 
 sanctioning bye-laws, effect on liability of master to workmen, 434, 
 
 435 
 employees of, not within Employers' Liability Act, 448 
 QOVEENOE in a conquered country, 247, n. 
 
 in a dependency in the nature of a viceroy, 248-251 
 of a dependency, action against, for wrongs done in his government, 247, 
 248, 252 
 has not the whole royal power'unlesa expressly given by 
 his commission, 248-250 
 liable to be sued, but not liable to arrest while resident in his govern- 
 ment, 250 
 wrongful acts done by, 250 
 action for trespass against, 250, 251 
 cognizance of acts of, by courts of law, 251, 252 
 GRAND JDROBS, early law as to immimity of, 253, 254 
 GRANTEE OF WAY, duty of, 1037 
 
 GBATOITOUS bailees, liabilities of, 882 
 
 how far bankers are, 882 
 loan — see Loan, Geatuitods 
 
 GROSS NEGLIGENCE, what is, 38, 42-44 
 illustration of, 36 
 
 of carrier, how affected by notice, 39 
 attorneys only liable for, 42 
 with reference to vindictive damages, 44 
 what is, in medical practice, 827 
 where inferred in the case of medical or surgical treatment, 
 
 831 
 in the case of trustees, 861 
 meaning of the phrase, where protection is afforded to trustees 
 
 wider than that of the indemnity clause, 863 
 of bankers, 883 
 
 of deceased stockholder in Bank of England, 894 
 where evidence of fraud. Fry, L.J.,'s view discussed, 900- 
 
 902 
 equivalent to malice, 945 
 in keeping fires, 982 
 f'TTARDIANS OF THE POOR, action against, in their corporate capacity, for neglect 
 L,UA«uiAnDUJ! X oftleir administrative duty, 263-265 
 
 position and liabilities of, under Poor-Law orders, 
 265, 266 
 GUEST, where disentitled to recover, 59 
 passengers received in an inn, 545 
 what constitutes reception by innkeeper ot, 54S-54» 
 traveller leaving his horse or trunk at an inn is, 54b 
 relation between, and innkeeper, 548 
 beaten while in inn, innkeeper not liable, 550 
 extent of the obligation of innkeeper to, 550 
 
 may discharge the innkeeper from his ■pnmd facie liabibty, 550-555 
 
 40 
 
1202 INDEX. 
 
 GUEST, oiroumstanceB in which primd fade liability of innkeeper may be discharged 
 by conduct of, SSO, 5SS. SS6 . , . „' 
 
 innkeeper liable for loss of goods unless there is a special contract, 551 
 goods of, SSI-SS4 
 
 destroyed by accidental fire, SS2-S54 
 not entitled to have the particular room he wants, 55S 
 innkeeper has lien ion the goods of, SS^ 
 
 may demand amount of reasonable costs of guest s entertainment, 
 
 distinction between visitor and, HO4-II12 
 GUN, fraudulent representation as to, 55 
 
 HAIEWASH, deleterious, 57 
 
 HAMPER, passenger falling over, no5 
 
 HAEBOUB-MASTER, collision whilst under direction of owner, still liable, 719-720 
 
 HEAVEN V. PENDER discussed, 54 
 
 Brett, M.B.,'s proposition, 54 
 considered in other cases, 60 
 in America, 61 
 
 American text writers on the proposition of Brett, M.B., in, 62 
 judgment of Brett, M.R., in, examined and criticised, 63 
 HEDGES, presumptive .ownership of, 962 
 HEEDLESSNESS, what is ? 45 
 
 HIGHER VALUE, if declared, company entitled to additional sum as insurance, 594 
 HIGHWAY, 1012-1047 
 
 negligent user of, 4 
 
 damage caused by defective state of, 23 
 
 public, all persons right to pass along, 33 
 
 damage caused by horse ridden in, 33-34 
 
 frozen water on, 85 
 
 unanticipated accident happening from fall of tool from house adjoining 
 
 the, 88 
 dangerous obstruction, 89 
 playing games on, 97 
 person walking in, knocked down by barrel, p^imd facie e^dence of 
 
 negligence, 100 
 obstruction on, contributing negligence of person riding against, 129 
 accidents to children in, who liable, 144-148 
 nuisance on, caused by local authority, renders them liable to indictment, 
 
 213-215 
 breach of duty to repair, when local authority liable for damages, 215 
 remedy for want of repair of, 216 
 who liable to repair, 216-217 
 out of repair, surveyor liable for, 217 
 repair oi, exclusive right in vestries, 218 
 right to repair, in the vestries, as constituted under the Me tropolis Local 
 
 Management Act, 218 
 duties and liabilities of surveyor of, transferred to vestry by Metropolis 
 
 Local Management Act, 1885, 218 
 all streets becoming under the control of Board of Health, 218 
 parish not exempted from liability to repair, because duty is imposed on 
 
 other body of repairing, 218 
 neglect in repairing, non-liability of public body for, in criminal proceed- 
 ings, 219 
 non-repair of, by parish, no action against, by person sustaining injury 
 
 by, 219 
 Board, action against surveyor and members of, for acts done under order 
 
 of the Board, 230 
 Board officer appointed, 25 & 26 Vict. c. 61, s. 16, to carry out orders of 
 board as to, protected whilst carrying out orders without negligence, 
 259, 260 
 surveyor of, not liable to a person sustaining damage in consequence of 
 
 parish ways being out of repair, 267, ■». 
 obstruction in, caused by contractor, owners of premises liable, 298-300, 
 305 
 
INDEX. ]203 
 
 HIGHWAY, keeping savage beast near, 912 
 
 obstruction in, by horse grazing, 920 
 
 <',Mage done by animals going along, 932 
 
 liability of property adjoining, 933 
 
 reason for requiring person injured whilst; using, to shew actual negli- 
 gence on the part of injurious person, 934 
 
 rules as to trafBo on, 955 
 
 mere happening of accident on, does not infer negligence, 958 
 
 foot passengers along, 961 
 
 strips of land adjoining, 963 
 
 cattle on, to graze, 966 
 
 unfenced land adjoining, 966 
 
 cattle straying while passing along, 966, 975 
 
 obligation of railway companies with regard to gates opening on, q7c 
 
 fireworks upon, 988 
 
 obstructing, by laying pipes in, 993 
 
 right to lay tram lines m, 994 
 
 unauthorized interference with, 995, icwg 
 
 absolute rights of the public, 996 
 
 owner of soil may not disturb the surface, 998, 1010 
 
 laying water pipes in, 998 
 
 owner of soil may carry pipes under, 998, loio 
 
 how different from street, 1012 
 
 footway may be a, 1012 
 
 must be generally usefiil, therefore way leading to a church not a highway, 
 1012 
 
 permanent obstruction in, 1012 
 
 railway is a, 1012 
 
 public river is, 1012 
 
 definition of, 1012, 1045 
 
 presentment of, 1013 
 
 non-repair of, 1013 
 
 discretion of justices in regard to conviction for non-repair of, 1013, n. 
 
 repair of, 1013 
 
 mandamus as to, 1014 
 
 proceeding by information, 1014 
 
 where_ obligation to repair is disputed, 1014 
 
 anything incommoding passage along, nuisance, 1014 
 
 foul ditches alongside, 1014 
 
 anything contracting a nuisance, 1015 
 
 certificates of two justices with regard to, loij 
 
 statutory limitations on the dedication of, 1015 
 
 contract between highway authority and tramway company in respect to , 
 
 1021 
 what amount of repair to be done, 1025 
 no action for hindering person passing along a, 1027, 1046 
 any member of the public may be negligent in respect of uses of, 1027 
 must be particular damage to support an action for hinderiug a person 
 
 passing along, 1027, 1046 
 private person may not abate nuisance on, unless it causes him special 
 
 damage, 1028 
 frontager's right of access to his property from, 1029 
 public right of passing and re-passing, 1030 
 coaches standing in, unreasonable tim.e liable to indictment, 103 1 
 limitation of primd facie right to the whole width, 1034 
 highway board's rights extend to all rights essential to the maintenance, 
 
 occupation, and exclusive possession of, 1034, n. 
 American cases refenring to, 1034 
 vesting of the surface ofj in highway beard, 1034 
 extends the whole space between fences, 1030, 1046 
 acceptance of dedication of, not compulsory, 1035 
 erection on, or excavation in, 1035 
 footway of, forming roof of cellar, 1035 
 where roof of cellar who bound to repair, 1035 
 dedicated, subject to obstruction, 1035, 1046 
 duty to guard against dangers adjoining, 1036, 1047 
 hole adjoining a, 1036 
 within what distance dangerous place causes liability, 1037 
 
1204 INDEX. 
 
 HIGHWAY, special user of by-frontages, 1038 
 
 loading and unloading goods from, 1038 
 
 owner of soil of, may deal with it by laying pipes on, &e., 1039, 1 047 
 
 in whom freehold and profits, 1039 
 
 right of highway authority may be limited as to use of the subsoil, 
 
 1040 
 tempting display of goods in shop not an obstruction, 1040 
 obstruction may be other than physical, 1040, 1047 
 test of duty to those lawfully using, 1041 
 what is lawful uses of, 1042 
 children injured when playing on, 1042 
 use of, by traction engines, 1043 
 what is unaccustomed user of, 1043 
 what is excessive weight so as to constitute nuisance, 1043 
 ordinary uses, what are, 1044 
 extraordinary traffic on, 1044 
 how distinguished from a turnpike road, 1047 
 cellar-flap on, 1093 
 
 dedication subject to obstruction, 1093 
 unnecessarily driving across flooded, 11 08 
 law as to traffic on, 1 125 
 HIGHWAYS Act, 1835: 1013 
 
 section 109 : 1025 
 ' section 21 : 1061 
 and Locomotives Amendment Act, 1879, s. 23 : 1043 
 HIRE, carrier for, definition of, 539-41 
 
 distinction between, and common carrier, S39~4I 
 liability of, for robbery and theft, 542 
 diligence required of, 542 
 returning property in damaged condition, 542 
 
 goods in damaged condition, when presumption ol negli- 
 gence raised, 542, 543 
 may vary his liability by special contract, 543 
 not liable for deterioration caused by inherent defect in goods, 54^ 
 contract of, definition of, 499, 500 
 division of, 500 
 requisites of, 300 
 obligations arising out of, 501 
 of custody of goods for a reward, custodian liable for ordinary ueglisenee 
 
 of things, 500 ^ 
 
 HIBING and borrowing, distinction between, 486 
 
 of care, experience and skill, 8o5 
 HOAKDING, what is? 1031 
 
 legal position of, in London, 1031 
 
 accident happening on public way through removal of, 87 
 HOIST HOLE within fourteen inches of public way, 1090 
 HOLMES'S view of standard of care, 12 
 HOMCEOPATHIC treatment, legal position of, 827 
 HOUSE, damage caused by, on public highway, liability of owner of ^1 -li 
 
 passenger m omnibus injured by kick of, 36 " ' 
 
 ridden by skilful person bound to use care and skill 40 
 
 death of, from sudden fright, 68 > t 
 
 kicking person where horse is where it should not be, 79 
 
 ^'""tionrgg"^ " '^"™^' ^° ""^ g"a>^antee against waywardness of disposi- 
 
 is plant within Employers' Liability Act, 425, 426 
 
 property in, at common law, 913 
 
 injury by, while grazing on a road, 920 
 
 VICIOUS, 920 
 
 habit of kicking, 920 
 
 gored by bull while being agisted, 921 
 
 kicking in panel of omnibus, 921 
 
INDEX. 1205 
 
 HOTCHPOT, loss brought into, in case of collision by mutual fault, 937 
 HOTEL, falling down the well of lift in, i loa 
 HOUSE, insufficiently shored, 1074 
 
 unhealthy from fumes, H26 
 HOYMEN are common carriers, 503, 504 
 HUMAN LIFE, instruments causing danger to, 925 
 
 HUNTING, distinction between hunting miachievous animals and animals not mis- 
 chievous, 915, 916 
 
 HUSBAND AND WIFE, negligence of husband imputable to wife under common 
 
 law, 141 
 HUSBANDEY, servants in, who are, 446 
 
 fire kindled in course of, 985 
 HYPOTHECATION, distinction between, and pawn, mortgage, and lien, 491 
 
 ICE on platform evidence of railway company's negligence, 666 
 
 IDIOTS or maniacs, inquiry whether they can be juridical cause, 47 
 
 IGNORANTIA FACTl EXOUSAT, 256 
 
 ILLEGAL act, notice of action as to, 1025 
 
 liability of persoa assuming to set in motion, 1075 
 bargain, stockbroker making, 817 
 
 eifect of, where binding by rules of the Stock Exchange, 818 
 IMMEDIATE LOSS, no distinction in liability between, and loss occurring in a 
 
 connected chain of causes, 76 
 IMPACT, question of actionable negligence apart from, 67 
 
 where necessary in order to raise liability, 70 
 IMPLIED AUTHOEITY, when solicitoi-s have, 786 
 
 IMPRISONMENT, where railway company liable for wrongful, by their servants, 229 
 
 false — see False Impkisonment 
 IMPROPER investment, where cesUii que trust sui juris acquiesces in, 864 
 
 retention of trust funds by executor, 853 
 IMPROVEMENTS, what should be adopted by railway company, 926 
 IMPUTED KNOWLEDGE OF SAVAGENESS OF DOG, 926 
 INADVERTENCE, scope of negligence much wider than. 5 
 INCLOSUEE ACT, 1833: 1061 
 INCOMPETENCY of servant ^ma/acte evidence of want of care in his selection, 358 
 
 negligence of servant prima /acie evidence of, 359, 360 
 INCORPORATION, liabilities of public bodies not affected by differences in the mode 
 
 of their, 208, 209 
 INDEMNITY, colonial act of, good defence in English Court, 250 
 clause, effect ofi in trust deeds, 863 
 three classes of liability specified by Lord Westbury, 863 
 INDEPENDENT VOLITION, what is an, 52 
 
 what is the effect of intervention of, 55 
 INDICTMENT, parish remains liable to, though duty to repair roads is imposed on 
 some other person, 218 
 where maintainable for public injury an action lies for special damage 
 
 to an individual, 212, 222 
 best to determine whether proceedings for a wrong are to be by, 
 
 223, n. 
 against owner of horse obstructing highway, 920 
 for breaking up pavements, 995 
 for non-repair of highway, 1013, 1042 
 for insufficiency of bridge, 1026 
 INEVITABLE ACCIDENT, 937, 947 
 
 defined, 941 
 
 consequences of, in Admiralty, 941 
 
 test whether it would have been averted by ordinary 
 
 care and skill, 942 
 where there is negligence, 942 
 when an excuse for a trespass, 1 126 
 INFANT, question of the responsibility of, 47 
 under seven years of age, 17 
 
1206 INDEX. 
 
 INFANT, on premises without invitation, and not in charge of responsible person, 58 
 contributory negligence of, 141 
 different standard from that of an adult, 144, 147 
 responsibility of, at what age, 148 
 contributory negligence of, American view as to, 153 
 may make a deposit, 457 
 INFIRMITIES, people under, 140 
 
 INFORMATION, proceeding by, in reference to highways, 1014 
 INHABITANTS OF COUNTY, duty with respect to bridges, 1026 
 INHERENT DIFFICULTY OF WORK may excuse inaccuracy of quantity sur- 
 veyor, 812 
 INJUNCTION, where there is iiTeparable injury, 995 
 where there is continuous injury, 995 
 interference by, in the matter of laying down gas- and water-pipes, 
 
 794. 1009 
 for using street as a stable-yard, 103 1 
 
 INJUBIA ABSQUE DAMNO, 1055 
 
 INJURIOUS AGENCY, liability continues daring undiverted action of, 47 
 
 INJURY, intentional, by corporation, 231 
 by frightening people, 915 
 mere occurrence of; when sufficient to raise a, prima facie case, 1012 
 
 INNOCENT PERSON removing danger from himself to another not liable, 46, 47 
 
 INN, definition of, 544, 545 
 what is not an, 545 
 
 traveller leaving his horse or trunk at, deemeda guest, 546 
 how the relation of landlord and guest is constituted, 545-548 
 INNKEEPER, 544-548 
 
 duty and liability of, in respect of guest's goods, 546 
 
 special contract by, 546 
 
 and guests, relation between, 548 
 
 HabiUty and duties of, 549-558 
 
 bound only to keep the goods and chattels of his guest, but not his 
 
 person, 550 
 extent of obligation of, 550 
 prima fade responsibility may be discharged by act of the guest, 550, 
 
 .555 ^ „ 
 
 special contract, effect of, 551 
 
 liability for loss of guest's goods by accidental fire, 552, 553, 555 
 liable for loss of goods in the absence of default, 554 
 liability analogous to that of common carrier, 554 
 negligence of guest may discharge, 555, 556 
 riot an absolute insurer, 557 
 effect o£ 26 & 27 Vict. c. 41 : 557, 558 
 
 may refuse to receive guest unless there is tender of amount of reason- 
 able charges, 558 
 lien of, 558 
 
 accommodation provided by, 558 
 duty of, 1 1 02 
 INSOLVENCY, for what, trustee not liable, 849 
 
 INSTINCTIVE ACT, 89 
 
 INSTRUCTION, particular, what is, under Employers' Liability Act, 435 
 
 INSUFFICIENT INVESTMENT, rights of cestui que trust in case o;f, 864 
 
 INSURANCE, effect of, on damages recovered under Lord Campbell's Act, 180, 181 
 
 warranty of common carrier, 583, 584 
 
 liability of executor for neglecting to insure, 852 
 INSURE, duty to, under what circumstance, 526, 527 
 
 INSURER, borrower is not, 487 
 letter is not, 501 
 agister of cattle is not, 520 
 livery-stable keeper is not, 521 
 innkeeper is not unqualifiedly, 557 
 common earner is, 568, 569 
 
 except in two cases, 571, 710 
 
INDEX. 1207 
 
 INSURER, shipowner carrying goods for hire is, 703, 704 
 
 INTENTIONAL harm, liability of owner for injury done by animal, 915 
 
 wrongs, actual impact not necessary to found right of action in the 
 case of, 71 
 INTEREST, rate allowed in charging executor or trustee, 854 
 
 where corruption or deliberate breach of trust is shewn, 854 
 
 INTERFERENCE WITH STREETS without parliamentary powers, 993, loio 
 
 INTERMEDIATE AGENTS, when irresponsible, not liable, 52 
 
 INTERNATIONAL REGULATIONS adopted in the case of maritime collisions, 946 
 
 INTERPLEADER, discretionary, 769, 770 
 
 INVESTMENT OF TRUST FUNDS on Exchequer bills, 850 
 
 bound to be made where superfluous money, 
 
 8SS- 
 in what securities, 858 
 not on promissory note, 857 
 what are authorized securities for, 858 
 money under control of Court, 859 
 distinction between those in their nature im- 
 proper and those subsequently proved to be 
 
 so, 864 
 ultimately proving insufficient, 864 
 INVITATION, liability of owner of premises to person on them by, 36 
 to premises, 58 
 
 to passenger in car to alight, 678 
 IRELAND, Lord Lieutenant of, not amenable to any Court for acts done in his official 
 
 capacity, 251 
 IRRIGATION, rights of, 1146 
 
 JETTISON, derivation of, 708, 709 
 what is, 708, 709 
 
 must conform to five conditions, 709 
 earliest statement of law of, 709 
 does not allow for negligence, 710 
 JOB coachman, when not responsible for negligence of, 301, 302 
 master, liability of, for defect in carriage let out, 21, 501 
 
 liability akin to that of carriage of passengers, 638, 639 
 JOINT causes, if solicitor is negligent, he is liable to action though other causes have 
 co-operated to produce the result, 765 
 injury by animals, 928 
 JOURNEYMAN, who is a, 447 
 JUDGE, questions for, in action for negligence, 10, II, I12-123 
 
 must fix standard of care required, 12 , • <• j 
 
 must say whether any evidence of negligence can be interred, IIS 
 
 province of, as distinguished from the juiy, 112, 113 
 
 early law as to the immunity of, for judicial acts, 253, 254 
 
 of inferior court amenable to Queen's Bench Division, 255 
 
 not liable for judicial acts, 254 
 
 liable, acting wholly without jurisdiction, 255-258 
 
 distinction between, of inferior and superior courts, 255 
 
 and justice of the peace, 258 .„ . , , -^t 
 
 JUDGMENT of military tribunal, when Court of Queen's Bench will interfere with, 
 
 no ontVn^be sued for issuing execution on a judgment unless he acts 
 maliciously, 758 
 JUDICATURE ACT, 1873 : 280, 780, 792. ^SL 862, 938 
 JUDICIAL authority, liability of persons acting under, 258 
 
 persons acting under, wrongly assumed, liable, 258, 259 
 officer, definition of, 252 . . ,. ^. „,, 
 
 cannot be sued for matter withm his junsdiction, 255 
 and ministerial function of sheriff discriminated, 54 
 duties, distinction between, 260, 261 
 Act, where statute confers authority to do, authority must be exercised, 
 226, 227 
 
1208 INDEX. 
 
 JURISDICTION, judges acting wholly without, liable, 255-258 
 
 aotning beyond, of superior Conrtfl, except what specially appears so, 
 
 ^59 . ..,..„ 
 
 every plea against must state a junsdictiop, 248 
 Queen's courts have, unless other jurisdiction is pleaded, 248 _ 
 justice of the peace not liable for committing error within his, 
 
 252, n. 253 
 judicial officer cannot be sued for matter within his, 255 
 if writ on the face shews sheriff may not set up defect, 758 
 of the courts over solicitors, 784 
 JURORS, grand, early law as to immunity of, 253-254 
 book, what is, 756 
 qualifications of, 756, n. 
 special, not to be put in separate lists, 759 
 JURY, directions to, where plaintiff placed by misconduct of defendant in a position 
 - where he has to Euiopt perilous alternative, 50 
 what questions for, in negligence, lo-ll, 112-123 
 question for, whether act within the scope of servant's employment, 285 
 when case cannot be taken away from, 102 
 proper tribunal to decide negligence in carriage of, 114 
 evidence of negligence cannot be neutralized by contradictory evidence, but 
 
 whole must be left to, 11 7-1 19 
 case for, where any evidence of negligence, 123-126 
 what amount of evidence sufficient to go to maintain action against a depositary 
 
 for loss or damage of goods, 458 
 question for, what is reasonable care, 663 
 
 what question for, where passenger is injured whilst alighting from train, 673 
 question for, whether common carrier or not, 708 
 duties of sheriff in summoning, 756 
 province of, in determining solicitor's negligence, 787 
 to draw inference of prejudice, in order for the principle of estpppel to operate, 
 
 888 
 to consider whether prober precautions against fire have been taken, 988 
 province of, in determining amount of care in the case of firearms, 990-992 
 direction to, as to. obstruction on the highway, 1037 
 to say whether a storm is extraordinary, 107 1 
 
 question of reasonable care in lighting and guarding way for the; 1106 
 to decide what is ordinary, reasonable, and proper working of a mine, 1 131 
 list, maliciously omitting name from, 756 
 
 negligence in preparing, punishable by fine, 756 
 JURYMEN, immunity of, 254, 255 
 
 cannot be punished for finding verdict against the evidence, or against 
 direction of the judge, even though given corruptly, 254, 255 
 JUSTICE, administration of, gaoler is an officer relating to, 753 
 
 of the peace, not liable for committing an error within his jurisdiction, 
 
 252, M.,253 
 
 authonty of, is to try before themselves and others, 258 
 distinction between acts done by, and a judge of a superior 
 court, 258 
 
 KILL, a gaoler may lawfully, a prisoner breaking gaol, 753 
 
 KlNGt — see Ckown 
 
 can do no wrong, 236 
 enemies of, what are, 574 
 
 KNOWLEDGE, effects of a custom not to obsei-ve an Act of Pariiament, 819 
 
 of fierce dispositionwhen necessary, to fix owner with liability, 924 
 
 of savage propensities of animals, either direct or imputed, 925, 926 
 
 of solicitor, that title deeds were out of vendor's possession, 797 
 
 of solicitor to make him personally answerable, 785 
 
 of vicious propensity either personally or presumed, 932 
 
 what affects with, in dealing with interests in real property, 904 
 
 what is presumed knowledge ? 932 
 
 where presumed, 932 
 
 it may be inferred in the case of having a dangerous animal, 
 919 
 
INDEX. 1209 
 
 LABOUR, bailee for hire of — see Bailees for Hike of Labouk 
 
 lotting of — see Lettino op Labour, 512 
 LABOURER, who is, 446 
 LAJIP overhanging public way, 1078 
 LAJIPSELLER, sale of defectively constructed lamp, 55 
 
 LAND, artificial mound of earth on, 1128, 11 57 
 common carrier by, 567 
 
 LANDLORD, liability of sheriff to, under 8 Anne, u. 14 : 775, 776 
 
 and tenant, landlord not bound to repair in absence of express stipula- 
 tion, 501 
 
 LANDS CLAUSES CONSOLIDATION ACT, 1845 : 859 
 
 !i. 68: 1069 
 LANGUAGE used which has an accustomed meaning, effect of, 885 
 
 LATENT DEFECT, effect of, 55 
 
 breaking of steerage gear, 942 
 
 duty in regard to, where defective property adjacent to highway 
 
 1078 
 where, causes injury to guest, 1 104 
 one bound to search for, 1 1 34 
 LAUNCHING VESSEL, degree of diligence required in, 940 
 
 LAW OF ENGLAND wiU not sanction inhumanity, 1086 
 
 LAWFUL GAMES, what are, 96 
 
 LEAKAGE from water or gas pipes, 1004 
 
 LEARNED PROFESSION, degree of skill required from a member of a, 807 
 
 LEEMAN'S ACT, 819 
 
 LEGACIES, references to the law of, 854 
 
 LEGAL act, illegally done, liability where, 1075 
 
 proceedings, when the duty of trustees to take, 856 
 
 LEGATEE, no right of action when legacy defeated through negligence of solicitor, 60 
 LENDER — see Boerowee 
 
 LESSEE OF PROPERTY, liability of, 1074, 1075 
 
 LESSOR, no implied obligation on, to keep, up fences if close, retained by the land- 
 lord, but abutting, 76 
 and lessee, repairs done at the expense of lessor, lessor liable for injury to a 
 third party caused by negligence during the repairs, 301 
 LETTER of a thing, duties of, 501 
 
 is not an insurer, 501 
 LETTING AND HIRING, duties and liabilities of hirers of horses, 503, 504 
 thing hired must be kept in a safe place, 505 
 of carriage and horses with servant, liability of master, 
 
 507 
 thing hired, how to be used, 508 
 where two people hired a carriage, and together drove in 
 
 it, both were liable for negligent driving, 509, 510 
 of labour and services, 512 
 LEVISSIMA CULPA in a ship entering a harbour, 947 
 LEX AQUILIA, provision as to persons not accountable for their actions, 48 
 provisions as to those playing games, 94 
 as to animals, 911 
 LIABILITY of employers— «ee Employer's Liability of Master and Servant 
 limits of, chapter i_v. 
 theory of, chapter ii. 
 two theories of, 13 
 based on personal grounds, 13 
 civil law as to, 14 
 
 a question of conduct not of intent, 15 . , • . 
 
 of owner of caiTiage for injury caused to another gratuitously in the cir- 
 
 riage, 21 
 of parties, how effected by rights of, 34 
 
1210 INDEX. 
 
 LIABILITY, two stages in the impiitation of, 90 
 of public ofScers, 236 
 when dependent upon the existence of the relation of master and eervant 
 
 the whole circumstance must be looked at, 309 
 of carriers in English law not derived from Eoman law, 564 
 
 in Eoman law, 564, 572 
 of common carriers for not carrying goods tendered them, 565, 566 
 
 carrier independent of contract, 567, 568 
 and diity of common carrier, 569 
 
 of common carrier may be limited by notice, 569, 585-588 
 for goods imperfectly packed, 578, 579 
 how may be discharged, 588 
 
 limited, 586, 587, 595 
 as to what articles when value above^io: 593, 594 
 carriers', common, when cannot limit, 595 
 of railway company on refusal to carry goods, 601, n. 
 
 for goods transfen-ed to another line, 606-61 1, 613, 
 614 
 of carrier for injury beyond his own route, 611-613 
 of common carrier, duration of, 616 
 of carrier, when attaches, 618 
 for negligence, ground of, 667 
 
 of telegraph company for negligent mistakes, not on ground of misrepre- 
 sentation, 738 
 of telegraph companies, 739 
 notary not liable to any one whom his negligence may collaterally injure, 
 
 748 
 of notaries to action, 748 
 
 of executors of under-sheriif for wrong committed by him, 751 
 of directors of companies, 838 , 
 
 as trustees, 842 
 of trustee, 846 
 
 for taking insufficient security, 853 
 under the usual indemnity clause, 863 
 in civil law extinguished by death of animal doing injury, 913 
 effect of offer of compromise, 919 
 
 for sunken vessel dependent on possession and control, 936 
 to repair fences, 966 
 
 for fire, duty of railway company in respect of, 984 
 for the emission of sparks causing damage, 986 
 of local board for defective works in the construction of a sewer, 1019 
 where employer remains liable, notwithstanding a contract, 1082 
 of canal company for boat sinking in, 1 105 
 
 LIBELLOUS PICTDKE, exhibition of, may be an obstruction and indictable, 1040, 
 
 1047 
 LIBERTY, duty of sheriff as to execution of writ in a, 759 
 
 sheriff may enter if writ contains a non omittas clause, 759, 760 
 LICENCE, where language used from which a, could naturally be inferred, 885 
 
 to use private road, 1098 
 
 effect of giving, iioi 
 
 to use water, 1150 
 
 right of lower proprietor in respect of, 1 150, 1 154 
 
 LICENSED PERSONS, although Act of Parliament compels employment of, master 
 still liable for their negligence, 304 
 
 LICENSEE, duty of owner of premises to, 338, 339 
 who is, 408 
 workman in same position as under Employers' Liability Act 419, 427 
 
 431.433.436 ... 
 
 either bare, or on premises on business concerning the occupier, 1082, 
 
 1097 
 element of busmess discriminates from volunteer, 1107 
 LIEN, finder of goods none on the goods for money spent on them, 467 
 distinction between, and pawn, moi'tgage, and hypothecation, 491 
 bailee for hire of labour has, on bailment, 517 
 livery stable keeper, none at common law, 522 
 on guest's goods, innkeeper has, but not on person, 558 
 abstract of law relating to, 539, n. sequ/ntv/r 
 
INDEX. 1211 
 
 LIEN on lugpiage of passengers, master of ship has, 735 
 
 banker's, 881 
 LIFE, endeavouring to save, what acts excused, when, 138, 139, 11., 140 
 
 an eflbrt to save life not imputed to negligence, 139 
 
 LIGHTEEMEN are common carriers, 563 
 
 LIGHTNING, fire caused by, common carrier not an insm'er against, 571 
 
 is " act of God," 729 
 LIGHTS, omission to exhibit, in collision, 938 
 
 LISHTATION on right of making special contracts by Common Carriers Act, 1830 : 975 
 of liability as to collisions on sea, 952, 953 
 
 cargo not liable at all, 953 
 
 in the case of foreign ships, 953 
 
 to what amount, 954 
 LION, owner to keep, at his peril, 931 
 
 LIVERY STABLE, horses and carriages in distraint for rent, 522 
 keeper, difference between, and agister, 521 
 liability, if for negligence, 521, 522 
 LOADING, time for each party to use reasonable diligence, 713 
 
 LOAN, gratuitous, definition of, 485 
 
 where bailment partakes of nature of, 466 
 
 gratuitous, constituents of, 488 
 
 must be used by borrower according to intention of lender, 488 
 
 money expended on, not arising out of using, borrower entitled to be recouped , 
 
 488 
 must be restored to lender in its original condition, 488 
 if not returned when demanded, borrower liable for subsequent injuries, 489 
 security to banker for, 872 
 
 LOCAL authority, power as to laying of gas pipes, 999 
 may be surveyor of highways, 1016 
 board only liable for private injuries 'from failure to carry out powers where 
 ' there is absolute obligation, 224 
 
 may not give permission to interfere with level of streets, 996 
 of health, contract for repair of roads usually with them and not with 
 the surveyor of highways, 1017 
 
 LOCOMOTIVE ENGINE authorized to be used by statute, right to recover for 
 
 damages caused by, 200, 201 
 meaning of term, in Employers' Liability Act, 436 
 LODGINGS, hirer of ready-furnished, hirer responsible for injuries to furniture, 508 
 
 LOED CAMPBELL'S ACT— «ee aho Campbell (Lokd) 
 
 legal principles governing compensation, 164-171, 176- 
 
 181 
 right of action for benefit of individuals, 170 
 distinction between expenses caused by injury and ex- 
 penses caused by death, 1 70 
 what sufficient to sustain action under, 170-172 
 efiect of insurance on damages recovered under, 180, 181 
 damages recovered under, not assets of deceased, 182 
 action under, not to be confounded with action by the 
 personal representative for injury to personal 
 chattels, 182, 186, 187 
 damages can only be recovered under, if deceased could 
 
 have recovered if he had not been killed, 183 
 gives a new right of action to representative, 183, 184 
 does not take away any right of action of the personal 
 
 representative 186, 187 
 can Admiralty Division entertain an action in rem under, 
 
 188-193 
 child en ventre sa mere entitled to participate in damages 
 
 under, 193 
 not necessary to negative the existence of other relatives, 
 
 '93 , 
 
 wife living in adultery may not recover under, 194 
 action can be retained by relative, although executors 
 
 exist, 194 
 money paid under compromise, no legal right to obtain 
 
 apportionment, remedy in equity, 194 
 
1212 INDEX. 
 
 LORD CAMPBELL'S ACT, feiling an agreement, money paid into Court may be 
 
 paid out in certain proportions, 194 
 LORD-LIEUTENANT OE IRELAND not amenable to any CoVirt for acts done in 
 
 his cfEcial capacity, 251 
 
 LOSS OF LIFE, proceedings by Board of Trade, 953 
 
 following wrongful user of thing bailed, but not necessarily consequent 
 upon it, 508 
 LUGGAGE, ordinary, meaning of, 680 
 passenger's, what is, 680 
 
 carriers, not formerly liable for, 679, 68p 
 
 of passengers liable for, as carriers of goods, 680, 681 
 ordinary, onits of proving luggage to be on plaintiff 681 
 liability of carrier where the passenger exercises control over, 682-688 
 lost by conduct of passenger, 683, 684 
 
 whilst passenger reasonably absent from carriage, liability of carrier, 
 684 
 in carriage with passenger, how far company liable for, 684, 685 
 under control of passenger, the view as to liability of carrier for loss of, 
 68s, 686 
 carrier not exonerated from deliveiy, 687, 688 
 passenger's part of contract with carrier to deliver, 688, 689, 695, 699, 700 
 of a different character from ordinary or personal, liability of carrier for, 
 
 690-693 
 ordinary and personal merchandise is not, 691-993 
 personal, carrier may choose to cany merchandise as, 69^ 
 
 how carrier may waive his right to claim exemption from liability 
 on the ground that loss is of merchandise, not of, 693, 694 
 carrier holding as warehoufeman, liabilities of, 694 
 passenger's, may be in custody of, carrier in other capacity than that of 
 
 carrier, 694 
 excess, liability of carrier for, 694, 695 
 delivered to railway porter, with a view to transmit, liability of railway 
 
 company for, 695, 696 
 passenger's, which has reached its destination, railway company ought to 
 
 have it ready to deliver on the platform, 697 
 carried on after passenger has left the train, liability of railway company 
 
 ■for, 697 n. 
 passenger's, what constitutes delivery of, 697, 698 
 transferred from one station to another, who liable for loss of, 698, 699 
 delivered to railway company, onus on them to show they have delivered 
 
 it, 701 
 passenger taking, on an excursion, 702 
 of passenger by sea, 734 
 of passenger, master of ship has a lien on, 735 
 LUNACY, treatment by doctor, 803 
 
 LUNATIC, grounds of non-liability of, 47-49 
 
 distinction between a criminal act and a civil trespass, 48 
 
 tendency of the modem law as to, 49 
 
 at common law liable to be sued as if sane, 49 
 
 suit proceeds in all respects as if the defendant were sane, 49 
 
 at common law need not have guardian, 49 n. 
 
 entitled to recover for injuries to, 140 
 
 MACHINERY, dangerous condition of, liability of master to servant in respect of, 
 
 , 314-319, 338 
 when servant knows of, cannot recover from master 
 in respect of, 320 
 duty of master with regard to, where there is no question of 
 
 direct personal negligence, 331, 335 
 when servant enters on employment no obligation on em- 
 ployer to improve it, providing there is no conceal- 
 ment, 332 
 n a reasonably fit state when servant enters on employment, liability 
 
 of employer for accident arising out of non-repair, 332-334 
 misihanagement of, by servants not incompetent, master is not liable 
 
 3361 337 
 duty of master to provide fit and proper, how determined, 338 
 defect in, what constitutes, 419, 420 
 
INDEX. 1213 
 
 MACHINERY, what at common law is a master bound to provide, 421 
 what is, under Employers' Liability Act, 424, 425 
 on board ship, damage arising from perils of the sea, 724 
 
 MAIL-BAG THROWN PROM TRAIN, passenger struck by, 663 n. 
 
 MALICE, alleged in proceeding before military tribunal, not sufficient to give Court of 
 _ Queen s Bench jurisdiction, 245 
 judicial officer cannot be sued for matter within his jurisdiction, even though 
 done with, 255 
 
 MALICIOUS EXECUTION OF ORDERS by naval and military renders them 
 
 liable, 244 
 MALPRACTICE, a great misdemeanom- and offence at common law, 826 
 principle determining what is, 826 
 
 ancient distinction between a regular and irregular practitioner, 829 
 MANAGING PARTNER, distinction between, and director, 840 
 MANDAMUS as to highways, 1014 
 
 only remedy where public body neglect to perform a public duty for the 
 
 whole of a district, 223 
 can Crown direct, to itself, 245, 246 
 
 when remedy is by, against commissioners acting under parliamentary 
 authority, 246, 247 
 MANDATE, definition of, 477, 478 
 
 meaning of, in English laiv, 479 
 distinction between, and deposit, 479 
 requisites of contract of, 480 
 
 distinguished from gratuitous bailment to carry from place to place, 481 
 MANDATORY, delivery by, what is, 479 
 obligation of, 480 
 only liable for gross negligence, 481 
 
 mis-feasance, not for non-feasance, 481 
 when only liable for gross negligence, 483 
 MANSLAUGHTER, what is, by person professing to treat for the cure of disease, 829 
 where dangerous animal negligently left at large kill-i any one, 914 
 
 MANSUET^ NATURE, difference between animals, and those /erte naturce, 914 
 
 MANUFACTURER, liability of, dependent on contract, 59 
 
 MARKET-PLACE, insufficient accommodation in, 1108 
 
 MARRIED WOMAN'S PROPERTY ACT, 1882 : 141 
 
 MASTER not liable for tortious acts of pilot, 714 
 of ship, duties and liabilities of, 713 
 
 acts of, for what is shipowner liable, 713, 714 
 may in certain cases warehouse goods, 732, 733 
 authority of, over passenger, 733 
 duty of, in collision, 945 
 
 in case of fog or darkness, 949 
 of, where rules not applicable, 950 
 rules of navigation not an unfailing test of his obligation, 950 
 liability where also owner, 952 
 and servant, employer's liability — see Employer's Liability 
 
 principle determines master's liability for the acts of his servant, 
 
 part iii. chap. i. 271 
 disabilities of the servant at common law to recover for injuries 
 
 received in the course of his employment, chap. iv. 369 
 definition of, 282 
 why master liable, 8, 9 
 liability of master for tortious acta of servant referred to maxim 
 
 Mespondeat superior, 271 
 master never liable where servant acts without his authority 
 
 express or implied, 272 
 master must answer for all acts of his servants done within scope 
 
 of their employment, 272-274, 276, 278 
 master liable where servant acting within scope of his authority 
 
 commits a direct trespass, 274 
 history of law as to liability of master for acts of his servant, 
 
 274-279 
 when master liable for the misrepresentation of his servant, 274 
 earliest proposition with regard tQ the law as to, 274, 275 
 
1214 INDEX. 
 
 MASTEE and servant, propoBition relating to liability of master for acts of his servant, 
 
 in Year Book, 9 Hen. VI., 53 B., discussed, 274, 275 
 can be joined in one writ, 275 
 compensation, partial, having been recovered against servant 
 
 releases master, 275, n. 
 Kingston v. Booth, proposition in, discussed, 276, 277 
 master's liability for acts of his servant, recognized in 1697 : 
 
 278 
 formerly much stress laid on distinction between trespass and 
 
 trespass on the case as a means of, discriminates between 
 
 those acts of servant for which the master is liable, and 
 
 those for which he is not, 279 
 former distinction drawn between those actfl of servant for which 
 
 master is liable and those for which he is not, 279 
 distinction between those acts of servant for which master is 
 
 liable and those for which he is not, 2S0 
 master liable where servant does a lawful act negligently, but 
 
 not where he wilfully does an illegal one, 280, 281 
 scope of employment, what acts are within, 281-288 
 servant acting contrary to instructions, when master liable, 
 
 283 
 master responsible for trespass, where natnral consequence of 
 
 act done by his servant, 283, 284 
 scope of employment, question whether act within, for the jury, 
 
 28s 
 American rule as to "scope of employment," 285 
 employment, scope of servant's, cases where master liable, 286, 
 
 287 
 conductor of tramcar kissing female passenger, held, in America, 
 
 company liable, 288, 289 
 authority of servants to arrest offenders, and liability of master 
 
 for false arrests, 289-293 
 railway company, liability of^ for false imprisonment by their 
 
 officials, 289-293 , 
 when servant has implied authority to set criminal law in 
 
 motion, 289-293 
 liability of railway company for what acts of general super- 
 intendent, 290 
 railway company, liability of, for conversion by their officials, 
 
 290, 291 
 
 railway company, distinction between those acts which com- 
 pany can do and those which they had no authority to do, 
 
 291, 292 
 
 servant, when entrusted with the property of his master, has 
 
 implied authority to put the law in motion with regard to 
 
 any offence that may be committed in connection with tlie 
 
 property, 292 
 liability of master, criminally, for act of his servant, 294, 295 
 public nuisance, caused by servant's master, when liable for 
 
 29s 
 propositions with regard to the liability of master for the acts of 
 
 his servants, 295-297 
 liability of master when servant employs another to do his 
 
 business, 299, 300, n. 
 third party entering into contract with master which does not 
 
 raise the relation of master and servant, is not thereby 
 
 rendered liable, 305 
 when liability depends upon the relation of master and servant 
 
 the whole circumstance must be looked to, 309 
 master must answer for acts done by his servant within the 
 
 scope of his agency where strangers are injured, 309, 
 
 373-37S 
 duty of master to his servant, 313 
 liability of master to his servant, views as to how it arises, 
 
 313 ,. , 
 master not hable to servant for ordinary risks of employment, 
 
 314 
 liability of master to servant in respect of dangerous condition 
 
 of properly, tools, &c., 314-319, 338 
 
INDEX. 1215 
 
 MASTER and servant, where master employs servant in dangerous work, must exerciae 
 due care as regards machines, &o., 318 
 
 liability of the master to the servant in respect of his own per- 
 sonal negligence, 319, 331 
 
 personal negligence of master, consists in what? 319, 320 
 
 master not liable to servant for his personal negligence when ? 320 
 
 servant cannot recover for injuries caused by dangerous 
 machinery on premises if he knew, or had means of know- 
 ing, of the danger, 320, 331 
 
 agreement by servant to work under condition of greater risk, 
 how shewn, 320 
 
 shipowner and sailor within the law relating to, 321 
 
 liability of master to servant for injuries caused by dangerous 
 machinery, American law summarized, 330, 331 
 
 duty of master with regard to machinery where no questidn of 
 direct personal negligence, 331, 335 
 
 where machinery, in a reasonably fit condition when servant 
 enters on employment, and, by reason of non-repair, an 
 accident happens, presumption of negligence on part of 
 employer, 332-334 
 
 if machinery is dangerous when servant enters upon employ- 
 ment, no obligation on employer to improve if there is no 
 concealment, 332 
 
 where machinery in a reasonably fit state when servant enters 
 on employment, duty of master to set all surrounding in a 
 suitable condition, 332-334 
 
 master not liable for the mismanagement of machinery by ser- 
 vants not incompetent, 336, 337 
 
 duty of master to provide fit and proper tools for machinery 
 how determined, 338 
 
 liability of master for injuries to his servant where the risk is 
 
 contemporaneous or subsequent to his employment, 339 
 dangerous employment, mere knowledge of danger, how far a 
 conclusive defence, 339-346 
 what is voluntary undertaking of, 340- 
 
 346 
 where evidence of compulsion given 
 
 onus changed, 344 
 where servant working at, injured by 
 neglect of statutory precaution, 
 346, n., 353 
 difference between neglect of statutory 
 duty and commonlawduty, 348, 349 
 where workman injured by neglect 
 statutory precautions by master, 
 must prove that workman dispensed 
 with the precaution, 349 
 statutory obligation of master to fence machinery, 351 
 dangerous employment, propositions as to, 355 
 when can a workman contract to undertake risk, 355 
 master must use reasonable care in selecting servants, 3SS-357 
 duty of master to the servant with regard to the employment 
 
 of fellow-servants, 355-357, „ . .^ . ^ r 
 
 incompetency of servant prima facie evidence ot want ot care 
 
 in master employing nim, 358 
 negligence of servant is evidence of his incompetency, 359, 360 
 presumption of want of care in the selection of servants, not 
 
 raised by one act of servant's negligence, 360 
 master not liable where boy ordered to do dangerous work not 
 
 within the scope of his employment, 361, 362 
 duty of master to servants who are young, 361, 365 
 
 his servant, summary of law as to, 366-368 
 when master liable for injury caused by one servant to 
 another apart from statute, 369-376 
 for injuries caused by one servant to 
 another at common law, 369, 6, 414 
 master not liable at common law for injuries to his servant by 
 a fellow-servant's negligence engaged in the same employ- 
 ment, 369, 373-376, 414 
 
1216 INDEX. 
 
 MASTER and servant, rights of servants not identical with the rights of stranger to 
 
 recover against the master for personal injuries, 371, 372 
 
 mere relation of, cannot imply an otiligation on the part of the 
 
 master to take more care of his servant than he does of 
 
 himself, 372 
 
 duty of master to provide suitahle machinery for servant, 375, 
 
 376 
 
 servants employed in the same work, who are ? 377-390 
 
 common employment^test of, 377-382, 384, 385, 390, 401 
 
 master's liability for acts of vice-principal in the management 
 of concern, 381-383 
 
 servants employed by same master, prima fade evidence of 
 common employment, 386 
 
 doctrine of common employment, proposition deduced from 
 cases on, 389, 390 _ * 
 
 sub-contractor and all his servants considered as the servants 
 of employer, 390, 391 
 
 servants not under the same control not common employment, 
 388,391-396,402 _ ,....' 
 
 contractor, are servants of, m common employment with ser- 
 vants of employers ? 393-406 
 
 servant disentitled to recover only for injuries caused by dangers 
 involved in the employment, 397 
 
 contractor's servants, common employment of, conclusions de- 
 duced from cases on, 404-406 
 
 volunteer injured by negligence of servants cannot recover, 
 406, 407, 409 
 
 negligence of servants, master is liable for, where a person is 
 injured by, who is on the premises engaged in a transac- 
 tion of common interest to both parties, 408-410 
 
 servant lent to contractor, who has control of contracted 
 work, contractor liable for wrongful acts of servant, 411 
 
 servant personally liable, when, 4IZ, 413 
 
 where there is a palpable defect in premises or machinery, 
 whether servant knew of it or not, he accepts employment 
 with risk, 418 
 
 at common law a master only bound to provide fit machinery, 
 421 
 
 bye-laws, where, are part of employment, dangers arising from 
 are within the contemplation of contracting parties, 434 
 
 master must see that dangers attendant on system of working 
 not unnecessarily increased, 434 
 
 knowledge of workman, how affects liability of master, 434 
 
 liability of directors of gas companies for acta of servants, 1006, 
 
 lOII 
 
 MAXIMS— JJespoBrfeoigMpej-ior, 13, 271, 272, 300, 307, 310, 369, 373, 377, 544 
 Spmdet periUam a/rtis, 21, 514 
 
 Magna negligentia culpa est, magna cu^a est dolus, 45, 863 
 Injwre non remota caiisa sedproxima spectatur, 75 
 Ees ipsa hguitur, 98 
 Inauria dans loeum injurice, 24, 116 
 Actio personalis moritw ewm persona, 162, 183, 184 
 Cuicunque aliquis quid concedit, concedere videtur et id sine quo res 
 
 ipsa esse non potuit, 203 
 lle-x rum potest pecca/re, 236 
 Qui fadt per miMm,faAper se, 237, 272, 369 
 Jnvigilandmn est semper multce insidice stmt bonis, 253 
 Qtd jussu judids dkquod fecerit non mdetw dou> mdh fedsse quia 
 
 parere necesse est, 258 
 Volenti mm fit injwria, 329, 336-338, 34S, 348, 396, 4i7i 427. 43S 
 Quivis renumciare potest juiri pro se vntroducto, 352 
 Culpa tenet suos auctores tantwn, 369, 370 
 Dolwm et (rnlpam mandattmi, 481 
 Adjuvari quippe nos, non dedpi benefido oportet, 490 
 Besperit domino, 513, 514 
 Imperitia tuApce adnvmeraiwr, 514 
 Aaveraus latron^ parvm prodest castodia; adversus furem prodesse 
 
 potest si cpds advigilet, 542 
 
INDEX. 1217 
 
 yiAXIUS—^omtis sua cuique est tutissimum refugium, 759 
 
 Magna negligentia culpa est, magna culpa est dolus, 86^ 8q2 
 Quam Ionium esse debet non definitur in jure, sed pendetex disci-etione 
 justiaariorum, 875 
 
 ■^*"*rf^«m^T™2" ^*'^ desinere tunc cum revertendi cmisuetudinem 
 
 Nemo tesnetur ad impossihilia, 946 
 
 Lea; non cogit ad impossihilia, 946 
 
 Sic uteretuo ut alienum non Icedas, 1073, 1 128 
 
 Caveat viator, 1093 
 
 ProKbetur ne quisfaciat in suo quod nocere possit alieno 1 128 
 MEASURES FOR SALE OE GAS ACT, 998 
 MEDICAL ACT, 1858 : 823 
 
 1886, sec. 6 : 823 
 
 treatment, where ineffectual, 833 
 
 MEDICAL AND SURGICAL ^RACTITIOOTIRS, 820-834 
 
 position of, at common law, 820 
 candidate, when approved, has a 
 
 personal right to practise, 821 
 puhhc have a right to nis services, 
 
 821 
 when practising gratuitously, 
 
 exempted from the operation 
 
 of statutes, 824, 827, 829 
 ma^ contract, no cure no pay, 824 
 distinction hetween acts void and 
 
 acts illegal, 825 
 malpractice by, 826 
 legal position of the various 
 
 schools of, 827 
 divergence from the rules of the 
 
 prevalent system, 828 
 position of a person ignorant of 
 
 medical or surgical practice, 
 
 828 
 employment of a person not pro- 
 fessing the art, 829 
 position of irregular practitioner, 
 
 830 
 hushand's authority to operate on 
 
 wife, 831 
 where there is wilful disregard of 
 
 instructions by patient, 831 
 collateral act done by third person, 
 
 effect of, 832 
 improper treatment by, a ground 
 
 of defence, 833 
 not a guarantor in the absence of 
 
 express contract, 833 
 liability of patient not dependent 
 
 on contract, 834 
 who liable to pay tor attendance 
 
 of, 834 
 MEMBERS OF PARLIAMENT— «ee Parliament, Members or 
 
 MENIAL SERVANT not within the Employers' Liability Act, 445, 446 
 
 MENTAL SHOCK, whether in law the same as nervous shock, 67, 68 
 
 MERCHANDISE not " ordinary and personal " luggage, 69i-693_ 
 
 taken vrith passenger as personalluggage carrier not liable for loss 
 
 of, 691-694. 
 carrier may carry, as personal luggage, 693 
 
 what sufficient notice by carrier by which he waives his rights to 
 claim exemption from liability, on the ground that loss is of 
 and not of personal luggage, 693, 694 
 MERCHANT, forwarding, differs from common carrier, 563 
 
 MERCHANT SHIPPING ACT, 1854: 191, 938 
 
 provisions of, 714-716 
 
 4H 
 
) ) 
 
 1218 INDEX. 
 
 MERCHANT SHIPPING AMENDMENT ACT, 1862 (25 & 26 Vict. c. 63): 191, 
 
 192, 946 
 provisions of, 715, 716 
 MERE GOOD-NATURED ACT, legal effect of, 1109 
 MERE LICENSEE, rights of a, 1098 
 MESSAGES, telegrapli, transmitted over various lines, 743 
 
 law applicable to, 743, 744 
 
 METROPOLIS Gas Act, i860 : 997-999 
 Water Act, 1885 : 998, 999 
 
 Statutes, 1852 : 999 
 Local Management Amendment Act, 1862, s. lo5 : 1021, 1023 
 Management Act, 1855: 999i ioi3i 1061 
 METROPOLITAN Hackney Carriage Acta, 510, 511 
 Streets Act, 930-1041 
 Building Act, 1855 : 975-977i 1024 
 Management Act, 1855, ss. 68: 135, 1068 
 Police Act, 1041 S S 
 
 MILESMAN is a fellow-servant with traffic manager, 385 
 
 MILITARY discipline and duty, case involving questions of, alone properly cognisable 
 by military tribunals, 244 
 and naval officers, liability of, for aot-s done in the course of their duty , ! ! 
 
 241, 242 
 where they maliciously or oppressively i ! 
 
 execute orders, 245 j ) 
 
 tribunal — see Tbibiinal, Militaey \ \ 
 
 MINE flooded by water from neighbour's reservoir, 21, 1126 
 distinguished from quarry, 447 
 proper method of working, 1131, 1141 
 owner, rights of, with reference to canal proprietors, 1052 
 MINERALS, limitation on rights of working near canal, .1052 
 
 rights of owner of, 1 127, 1 141 
 MINISTEBT AL duties of sheriff, 754 
 
 and judicial duties, determination of what are, 260, 261 
 
 of sheriff determinated, 754 
 officers, breach of duty by, gives right of action, 259 
 
 protected as to those acts done under statutory authority 
 without negligence, 259, 260 
 officer, a notary not a mere, 747 
 MISAPPLYING FUNDS, in the case of directors of companies, 841 
 MISAPPLICATION OF TRUST FUNDS, duty of tmstee, to render impossible, 855 
 MISCHIEVOUS act, liability for, 914 
 
 animal, duty of owner to secure it at his peril, 915 
 
 owner liable where injury results from keeping, 915 
 kept at owner's peril, 915 
 hunting, 915, 916 
 absolute duty to keep in, 968 
 disposition, knowledge of, in beast by owner, 914 
 propensity, duty with regard to animals having a, 914, 932 
 MISCONDUCT of defendant exposing plaintiff to alternative perils, 50 
 
 of solicitor, 784, 786 
 MISFEASANCE, mandatory liable for, 481 
 
 of crew, master personally liable, 713 
 liability of returning officers for, 755 
 MISREPRESENTATION OF SERVANT, when master liable for, 274 
 MISTAKE, stockbroker mistaking his authority, 817 
 MISTAKING DOOR, accident happening from, 1106 
 
 MIXTURE OF GOODS belonging to different persons by negligence, to whom the 
 mixture belongs, 4J4 
 so as to be indistinguished, to whom they belong, 4152. 4?3 
 MODERATE SPEED, what is moderate speed in a fog at sea, 949 
 MONEY deposited with bankers, how to be treated, 469 
 rent should ordinarily be paid in, 499 
 what is, under control of Court, 859 
 MORTGAGE, distinction between, and pawn, hypothecation iind lien, 491 
 
 advance of mone^ on, negligence of a surveyor in giving advice, 813 
 rule as to advancing money on; 859 
 
INDEX. 1219 
 
 jrORTGAGEE having realized security before winding up of company may not be 
 made to refund, 844 
 what acts deprive him of his security, 902 
 duty of, to obtain possession of title-deeds, 903 
 where legal estate is to be postponed, 905 
 MUEDER, what is, by person professing to treat for the cure of disease, 828 
 letting loose a wild beast may be, 914, 915 
 
 NATURAL agencies, consideration of, 74 
 
 consequence, Blackburn, J.,'e explanation of what is a, 87 
 stream, defined by Mr. Groddard, 1142, 1143, 1153 
 
 either navigable or not navigable, 1144 
 user of land, removing shingle from foreshore not a, 1065 
 
 what is, 1127, 1 141 
 purpose to which a well may be applied, 1129, 1141 
 XADTICAL NEGLIGENCE, defined by Lord Stowell, 940 
 
 NAVAL AND MILITARY OFFICERS, liabiUty of, for acts done in the course of 
 
 their duty, 241, 242 
 malicious and oppressive 
 execution of orders, 244 
 NAVIGATION, right of, does not draw with it any right of property, 1144 
 
 of river, when obstructed, 934 
 NECESSITY, act done under, how far doer liable for, 467 
 NEGLECT OP STATUTORY DUTY, what constitutes, 778 
 NEGLIGENCE, definitions of, 3-6, 8-10, 46, 1000 
 in user of highway, 4 
 
 liability for, how affected by possession of equal rights, 5-7 
 analysis of, cause of action for, 9 
 what question for judge, what for jury, 10, 1 1 
 a negative conception, 16 
 degrees of, 16, 463 
 division of, 17, 18 
 three degrees of, 17, 18, 463 
 
 degrees of, in civil law and English law compared 17-19 
 influence of civil law on English law, 17-19 
 three degrees of, in Prussian code, 19 
 degrees of, as regarded in English courts, 20 
 in tort, 20-22 
 comparison of, 21 
 discussed, 22-24 
 civil law writers division of, not degrees, but kinds, 30, 31 
 iUustration of gross, 36 
 meaning of terra, 38, 42-44, gcx), 902 
 probably nine degrees of, 40 
 when vindictive damages given in, 44 
 to render liable for, there must be accountable agency, 46 
 of person as distinguished from agency, 46 
 in not providing coupling rein, 50 
 transmission offeree by unconscious agencies, 51 
 of intermediate agents, 52, 1055 -- 
 distinction between liability in contract and tort, 53 
 of dock-owner in supplying staging, S3 
 of purchaser in inquiry as toffitness of coach supphed. So 
 in not keeping premises in ordinary condition, 58 
 in interfering with premises, 58 
 
 distinction between active and passive, 58 . • j 
 
 in hanging a chandelier where no duty to person injured, 59 
 where sudden shock occasioned by, 67 
 from defect in the condition of way, 72 
 of one person co-operating with that of another, 72 
 innocuous, without co-operating cause, rule of liabihty, 72 
 where concurrent rule of liability, 73 . ■ c c 
 
 accident happening from natural causes, after deviation from, 76 
 what enough, 77 .,.10 
 
 mere want of foresight of a remote probability not, Si 
 what consequences impart liability, 81, 987, 992 
 when too remote, 86 
 
1220 INDEX. 
 
 NEGLIGENCE, probable consequences of, 86 
 
 m dieregiarding the spread of fire, 91 
 wbatprimS/acie evidence of, 103-106 
 action of, province of judge and jury, 1 12-123 *- 
 of plaintiff, bow affecting liability of defendant, 135 
 doctrine of comparative, 135 
 not imputed to effort to save life, 138 
 . — imputability of, parents or guardians to cbildren, 141, 142 
 
 of tbose in charge of cbildren, imputed to the children when, 150-152, 
 
 158 
 can two actions be brought for, 185 
 public trustees, how far liable for, 1.95-212 
 in exercise of statutoiy powers, 2o5 
 ' of local authority, 211 
 in repairing highways, non-liability of local authorities in criminal 
 
 proceedings, 219 
 in performance of statutory duty, when person injured has remedy for, 
 
 220 
 of public body, when remedy by mandamus, 223 
 ' in construction of public works, 225 
 of Sovereign, 236-238 
 of Crown servant, 237, 238 
 of ministerial officers, 259, 260 
 of tbose carrying out statutory duties, 261, 262 
 of guardians of the poor, 263-265 
 of surveyor of local board, 266, 267 
 of servant, when master liable for, 280, 281 
 of tradesman in the execution of work does not render his employer 
 
 liable, 300 
 of job coachman, when hirer liable for, 301, 302 
 of master porter, whether employer is liable for, 303 
 when Act of Parliament compels employment of licensed persons, 
 
 employer continues liable for them, 304 
 of contractor's workmen,'3o6, 307 
 
 when railway company liable in working of hired plant, 309, 310 
 of subordinate, when the Bu;perior is liable for, 310 
 personal, of the master, liability to the servant in respect of, 319-331 
 when the master is not liable to bis servant for, 320 
 on part of employer, when presumed, 332-334 
 plaintiff must shew breach of duty, 337 
 in taking statutory precaution, liability of master for injuries received 
 
 by his servant, 346-353 
 of master in selecting incompetent servant, 355-357 
 of servant is evidence of his incompetency, 359, 360 
 one act does not raise presumption of want of reasonable care in the 
 
 selection by the master, 360 
 of servant causing injury to another, liability of master for, 375-377 
 of master in selecting competent servants, 375-377, 1 1 1 1 
 onus usually on injured person jjo shew, 377 
 of servant injuring volunteer, 406, 407 
 
 master liable where injured person is on premises engaged in a trans- 
 action of common interest to both parties, 408-410 
 of one having superintendence under Employers' Liability Act, 427-430 
 to whose orders workman is bound to conform, 431-433 
 acting under byelaws, 433, 434 
 having control of points on a railway, 436 
 of employer under Employers' Liability Act, 420-422 
 where goods have been mixed, 454 
 depositary without reward only liable for gross, 458 
 signification of gross, in reference to deposit, 459, 460, 463 
 must be actual, to obarge gratuitous bailee, 462 
 of bailee, 463 
 
 slight negligence of bailee, 463 
 
 of depositary must as usual be gross, with four exceptions, 463 
 where bailee alone receives benefit from bailment he must answer for 
 
 shght negligence, 466 
 of finder of goods, what is ? 466 
 of receiver of goods sent without request, 468 
 
INDEX. 1221 
 
 NEGLIGENCE of gi^atuitous bailees, 470, 471 
 of mandatory, 481 
 
 of one undertaking a gratuitous act, 482 
 where wrongful entry at custom-house, 483 
 of third parties, borrower's responsibility for, 489 
 of pawnee, 496, 497 
 
 must be of commission, 497 
 of letter, 501 
 
 where bailee returns thing in damaged condition, 507 
 of driver, 509, 510 
 of bailee for hire of labour, 518 
 of livery-stable keeper, 521 
 of factor, 527 
 of agents, 528 
 of warehousemen, 528-531 
 of wharfinger, 532, 533 
 of carrier for hire, 542 
 presumption of, when carrier for hire returns goods in damaged con- 
 
 dition, 542, 543 
 of postmaster -general, 544 
 of ofScers in employ of post-office, 544 
 ofguest, 5So,.55S, 556 
 when damage raises a presumption of, 551 
 of common carrier, 577, 579 
 
 in delivering animals imperfectly secured, 578, 579 
 notice of carriers, its effect on, 589-592 
 
 special contracts of common earner with regard to, 598-600, 605 
 of common carrier imder Carriers' Act, 599 
 misconduct and fraud of servants of common earner, 600 
 of railway company, subsidence of embankment, 600-607 
 breach of Btatutoiy duty, 602, 603 
 
 of common carrier, not excluded by contract to carry at owner's risk, 606 
 exemption from, does not cover wilful misconduct, 606 
 of carriers of passengers by land, by their servants, 630 
 carriers of passengers liable for the smallest, 631 
 American law will not allow contract of earners of passengei'S, 644 
 exonerating from negligence, 645 
 how far earner can contract himself out of liability for, 645, 646 
 
 railway company liable for, of those not in their employment, 
 650 
 depends on state of knowledge at the time, 662, 663 
 a mere surmise will not found action for, 665 
 ice on platform, 666 
 
 subsequent precaution no evidence of antecedent, 666, 667 
 grounds of liability for, 667 
 of train overshooting platform, 671, 672 
 of one person imperilling another, 676 
 none in not foreseeing unusual movement of train, 678 
 of passenger injured from alighting while train in motion, 678 
 presumed where goods entrusted to a common carrier are lost, 700 
 in jettison, 710 
 absence of, presumed where an exception to the ordinary carrier's 
 
 liability, 710 
 of shipowner, exemption from, 710 
 for bad packing, 712 
 of crew of ship, 713 
 of pilot, 717 
 of shipmaster, 7l7i "• 
 
 of pilot co-operating with that of master and crew, 719 
 of tug, when ship in charge of pilot, 720 
 collision brought about by, is not a peril of the sea, 725, 726 
 where collision not through defendant's, 727, 728 
 exception of " loss by fire " in bill of lading does not exonerate from 
 
 one caused by, 729 
 in English shipping law, condition exonerating from negligence valid 
 
 731 
 
 in transmitting telegram, 736-738 
 of telegraph company, damages, 739 
 
1222 INDEX. 
 
 NEGLIGENCE of notary, 749-750 
 
 to third person collaterally injured, 748 
 of notary in protest, of bill before maturity, 748, 749 
 in preparing jury lists, punishable by fine, 756 
 of sheriff, 761 
 
 of officer entrusted with statutory duty, 770 
 of conveyancer, 781 
 
 of solicitor, not a ground for summary jurisdiction of the Court, 784 
 when a ground for ordering him to pay costs occasioned 
 
 thereby, 785 • ^ . ■ • r i 
 
 function of judge and jury m determimng respectively, 
 
 787 
 to be actionable not necessarily sole ground of plaintiffs 
 
 injury, 795 ,. . 
 m matters not in litigation, 796 
 of surveyor, 811 
 
 where A. employs B. for the benefit of C, 813 
 of auctioneer, 814 
 
 in obtaining deposit, 815 
 in misdescribing property, 815 
 in not accepting bid, 816 
 of principal in supplying requisite funds to stockbroker, 817 
 of stockbroker with regard to the person with whom he has made a 
 contract, 817 
 in registration of transfers, 818 
 of medical man working criminal consequences, 825 
 distinction between civil and criminal, 829 
 of partners, 837 
 
 of directors of companies, 838, 840 
 of trustee, 846, 
 
 in improperly retaining trust funds, 853 
 
 trustee guilty oi, prvmd fade answerable for all the consequences, 857 
 in not sueing for twenty years, 865 
 in presentment of notes for payment, 875, 876 
 in payment of cheque, 880 
 
 of crossed cheque, 881 
 when working estoppel, 884-908 
 of banker's customer, 889 
 in drawer of cheque, 892 
 due to weakness of sight, 893 
 distinction between direct and remote, 895 
 in the transmission of draft, 895 
 of mortgagee, gcra, 905 
 in custody of title deeds, goo 
 what is gross, considered, 900-902 
 against negligence sets the matter at large, 908 
 of owner of beast after knowledge of mischievous disposition, 914 
 of keeper of cattle, 916, 964 
 not imputed irom, merely allowing liberty to an animal not naturally 
 
 prone to mischief, 918 
 apart from actual knowledge of vicious disposition of animal, 920 
 in the keeping of dogs, 926 
 necessary to be shewn in order to recover for injury where property 
 
 adjoins highway, 933 
 in respect of possession and control of vessels, 934 
 in navigating seas or rivers, 934 
 consequences flowing from, in collision, 935 
 on whom onvs where damage done by wreck, not abandoned by 
 
 owners, 935 
 in abandonment of ship, 935, 936 
 what is actionable ? 936 
 in collision must be proximate, 938 
 degree of, admitted in nautical aifairs, 940 
 where not actionable but for Admiralty regulations, 940 
 in launching vessel, 941 
 
 in Admiralty, where rules of common sense are violated, 941 
 at common law, and in Admiralty have similar consequences, 941 
 where not inevitable accident, 942 
 
INDEX. 1223 
 
 NEGLIGENCE, what are natural consequences, flowing from original, 943 
 
 general maritine law prevailed where collision was between British 
 
 _ and foreign ship, 946 
 liability where a ship places herself in a perilous position, 947 
 in collision, what presumption raised, 949 
 mere fact of being on wrong side of road no evidence of, where 
 
 person injured is a foot passenger crossing the road, 955 
 driving on right side ^nma^ie presumption of absence of, 956 
 not, per se, of one-armed man to drive, 957 
 intoxication in driver, 957 
 galloping through a crowded city, 957 
 of owner of vehicle in not providing good tackle, 958 
 general rule of liability for, in riding and driving, 959 
 not negligence to remove goods from a cart without putting a person 
 
 at the horse's head, 959 
 for what consequences of, action lies, 959 
 necessary or ordinary result, wilful act of a third person producing 
 
 injury, 960 
 presumption of, where collision occurs between a train and an ordinary 
 
 vehicle, 961 
 where act unlawful, not needful there should be, 961 
 in not fenciag, 972 
 in keeping fires, 978-992 
 of lessee burning down house demised, 9S1 
 in case of fires subsequent to the statute of Anne, 983 
 in the case of a railway engine, 986 
 of person on whose land fire begins, 987 
 in letting ofiF fireworks, 989 
 in opening street, 993 
 of defendant's contractor, 993 
 fracture of gas or water pipe prima facie evidence of, 1002, 
 
 1005 
 ofsurveyor of highway, ioi7_ 
 
 where surveyor of highway liable for, of his servants, 1017, 1045 
 surveyor of highway not liable for acts of servants of the parish work- 
 ing under him, 1017, 1045 
 in fencing and lighting road, 1018 
 of contractor infilling up excavation in road, 1019, 104S 
 in user of highway, 1042 
 in the case of canals, 1049 
 of sea frontager, 1066, 1067 
 in escape of water from fracture jn pipe, 1071 
 sometimes may be treated as nuisance, 1072 
 in condition of premises where agreement between landlord and 
 
 tenant, 1074 
 of occupier of premises, 1074 
 in leaving open trap of coal cellar, 1076 
 in filling in trench, 1077 
 in user of private road, 1097 
 must be positive to be actionable where mere permission to use a way 
 
 given, 1 100 
 mere allegation of, without facts will not sustain action, I loi 
 causing injury to one unlawfully where he was injured, iioi 
 in taking precautions against possible accident, 1 106 
 absenceof precaution may be, 1107 ,. , , , , 
 
 two views as to the obligation of keeping in anything brought on land, 
 
 1125 
 in the case of dangerous agencies, 11 33 
 of contractor causing explosion, 1137 
 at the base of the rule in JBylands v. Fletcher, 1 137 
 dealing with an injurious agency must be free from, 1 138 
 in the demise of part of premises, 1139, 1140 
 evidence of— gee Evidekce 
 oontributory— see Cohtributoey Neoligkncb 
 NEGOTIABLE INSTRUMENT, rule as to presentment for payment ot, 876 
 
 duty in regard to, 888, 897 
 when part of the currency, 893 
 NEO OTIOBUM OEfiTOR, neighbour who is, in civil law, 483, n. 
 
1224 INDEX. 
 
 NEQOTIOBUM GE8T0B, obligation as to condition of property, 1074 
 NERVOUS SHOCK, what is considered, 66. 
 
 NIGHT, accident happening in hotel to guest wandering about at, 1 102 
 NONFEASANCE, if duty created by contract, ground of action is lost 4S4> 4S5 
 mandatory not liable for, 481 
 solicitor liable for, 785 
 directors of com|fanies not liable for, 843 
 surveyor of highways not liable for, 1015, 1045 
 NON 0MITTA8 clause in writ, effect of, 759, 760 
 NON-STATUTOEY EBGULATION, non-observance of, 939 
 NON-NEGOTIABLE INSTEUMENT, duty in regard to, S96 
 NOTAEY, definition of, 746 
 how appointed, 746 
 duty of, 746 
 
 charter parties prepared by, 747 
 not a mere mimsterial officer, 747 
 bound to reasonable skill and diligence, 748 
 liability of, to Court of Faculties, 748 
 not liable for collateral injury, 748 
 liable on contract 748 
 duty to secrecy, 748 
 may not delegate his duties, 748 
 
 banker employing, not generally liable for negligence, 749, 869 
 negligence of, to protest bill hefore maturity, 749 
 position of, when negligent, 750 
 unfitness of, 872 
 NOTE payable on demand when construed overdue, 875, 877 
 NOTES when sent in parcels may be cut in halves, 876 
 NOTICE by person pulling down wall to adjoining owner, 36 
 
 by carrier, excepting from liability, save in oases of fraud and gross neglect, 
 
 whether recoverable, 402 
 what required under Employers' Liability Act, 439 
 liability of common carrier limited by, 569 
 effect of, by common carrier, 586-589, 592-594, n. 
 how given by common carrier, 589-592 
 American decisions on, by common carrier, 593 
 after Carriers' Act, 596 
 by railway company, 601, 602 
 
 to passenger limiting liability, 
 
 what sufficient, to waive right of common carrier to 
 claim exemption, on me ground that loss is of 
 merchandise and not of personal luggage, 693, 694 
 by railway company of non-liability " oft' their own 
 lines," 699 
 by solicitor of his retiring from case, 795 
 of non-acceptance of bill, duty of banker with regard to, 871 
 of incuiabrances on estates, 904 
 various modes of affecting with, 905 
 must be of the actual execution of a deed, 906 
 execution of deed by witness not, 906 
 recitals in a deed are, 906 
 of a deed is, notice of its contents, 906 
 
 not presumed when the known facts are consistent with another interpreta- 
 tion, 907 
 to an agent, notice to his principal, 907 
 
 of action, under Employers' Liability Act, what is essential in, 442, 443 
 
 how to be served, 443, 444 
 sheriff not entitled to, for acts done in executing process of Court, 
 
 .777 
 agamst surveyor of highways, I02l, 1046 
 two tests of^ contended for, 1022 
 province of judge to decide when required, 1023 
 in respect of what acts, 1023 
 whether contractor entitled to, 1023 
 where an injunction is applied for, 1024 
 
INDEX. 1225 
 
 NOTICE of action, builder acting under dangerous structure notice, 1024 
 where defendant acting in an unautliorized way, 1024 
 where in substance action for redress of a wrongful act, though 
 technically framed in contract, 1024 
 au omission to act, 1024 
 to what acts applicable, 1024, 1046 
 NDISANCE, how far statutory powers will licence, 202-205 
 
 where local authority liable to indictment or to action for damages, 213- 
 
 caused by senrants when master liable for, 295 
 permitted by owner of premises, 298 
 
 occasioned by works of contractor rendering employer liable 298-101 
 . 305, 306 ' J . 
 
 claim to commit, 997 
 
 gas and water company, directors responsible for, 1006 
 no action for, without special damage, 1027 
 how far may be abated by private person, 1028 
 division of, 1029 
 
 in digging up highway, 996, loio 
 definition of, 1014 
 to suffer ditches to be foul, 1014 
 
 boughs of trees to overhang the highway and to incommode 
 passengers, 1014 
 excavation near highway may be, 1093 
 
 OBSTRUCTION, damage caused from wrongful act of those removing, 81 
 placed on private road, 57, 89 
 
 in road, placed by contractor, owner of premises liable, 298-300, 305 
 owner ought to take reasonable care to free oanal from, 537 
 of public navigable river, 934 
 indictment for non-removal of, 934 
 indictable when a nuisance, 996 
 
 on a highway, power of surveyor with i-espeot to, 1016 
 on road, by surveyor of highways not allowed, 1016 
 of highway, when actionable, 1027 
 
 what interference constitutes, 1028 
 what is reasonable, 1032 
 left by side of roadway, 1034, 1046 
 on highway, previous to dedigation, 1035, 1046 
 duration of, 1038 
 
 on highway, may be other than physical, 1040 
 by costermongers and stall-keepers, 1041 
 bridge dedicated, subject to, 1062 
 
 in carrying out statutory works not authorized by statute, 1076 
 OCCUPIER of land, bound to keep up fences where obligation to fence exists, 968 
 
 subject to easement, not bound to repair drain on dominant tene- 
 ment, 1005 
 as between him and owner bound to repair, 1074 
 
 to take every possible precaution against danger arising from mode of 
 using property, 1094 
 OCCURRENCE of an injury sufficient to raise 3. primd fade case of negligence when, 
 
 lOI 
 
 of accident, when does not wanant the inference of negligence, 104, 
 los 
 OFFICERS, public— «ee Public Ofhcers 
 
 naval and military, liability of, for acts done in the course of their duty, 
 
 241, 242 
 of Court not to examine judicial act of Court touching the validity of 
 
 process, 259 
 sheriff, may take bonds from, to indemnify him against their neglect, 751 
 returning — see Retuknihs Officers, 755 
 entrusted with common law or statutory duty liable for fraud or neglect 
 
 in the execution of his duty, 778 
 
 OMISSION TO EXERCISE STATUTORY DUTY, does give right of action, 220 
 OMNIBUS PROPRIETOR, degree of care required to adopt, 37 
 
1226 INDEX. 
 
 ONEROUS COVENANTS, solicitor to protect his client against unwittingly under- 
 taking, 796 
 ONUS OF PEOOF, where it lies, the circumstances of traffic on a highway, 936 
 Chapter V., 99 
 general rale of law, 98 
 passenger injured whilst alighting from train not drawn up to 
 
 platform, 113, 114 
 may shift from time to time, 122, n. 
 
 on whom, 127 
 where man found dead on railwa^r, 126 
 on whom, in action against depositary for negligence, 469 
 in action against depositary, 477 
 OPEEA SINGER, degree of Bkill required from, 809 
 ORDINARY covenants, what are, 906 
 diligence, what is, 748 
 
 user of highway, duty not to interfere with, 1097 
 use of water, what is, 1147, 1151 
 OVERFLOW, damage to third person by circumstances over which canal company no 
 control, 1055 
 of water from canal, 1055 
 OWNERSHIP, not a fact but an inference from facts, 932 
 
 OWNER, definition of the term, 1074 
 
 not bound to communicate to common carrier nature of contents of parcel, 
 
 591 
 who is, of a party wall, 976, 977 
 when out of possession, liability of, 1074, 1075 
 of carriage doing damage on highway not afiected with 'liability without 
 
 negligence is shewn, 933 
 of dogs, who, 928 
 
 of dog, any person where any dog is permitted to live on the premises, 
 929 
 
 person in the occupation of part of premises where dog is found 
 
 deemed to be, 929 
 no difference between liability of corporation or individual, 926 
 of goods, good faith of, towards carrier, 583-585 
 of land not obliged to fence, 962 
 
 obligation with regard to neighbour's cattle, 965 
 not hound to keep in wild animals, 967 
 
 repair fences where land is let to a tenant, 967 
 under no obligation to fence, 967 
 must keep in his cattle, 967 
 when entitled to a fence, entitled to one sufficient according to the 
 
 accustomed course of farming, 967 
 bound to fence only for the benefit c^ai^'oining proprietor, 968, 975 
 duty to his neighbour, .978 
 
 common law obligation as to keeping of fire, 978, 979 
 when near a railway, must have regard to the fact of its position, 
 
 987 
 rights in respect of soil of highway, 998 
 right of, as against canal proprietors in the execution of statutory 
 
 work, 1053 
 must, in some cases, protect those entering his land even when 
 
 trespassers, 1089 
 duty Of, where newly made excavation rendering the highway unsafe, 
 
 1089, 1097 
 duty te fence near highway, 1090 
 test of liability where excavation upon it, 1090, 1097 
 where the ownership of the surface is severed from the ownership of 
 
 the subsoil, 1092 
 liable for artificial erection on, 1128, 1 157 
 
 entitled to receive water in substantially undiminished volnmes, 1144 
 rights of, by which navigable stream flows, 1 145 
 position of, where stream runs through his property, 1146 
 right to grant water rights apart from land, 1149 
 use by, of water passing through his land, 11 54 
 rights of, with regard to water flowing in course not defined, 1 156 
 of gninerals, duty to fence for benefit of owner of surface, 76 
 
INDEX. ]227 
 
 OWNEE of plant hired not liable for injury caused by negligence in working the plant 
 whilstinchargeoftliehirer, 309, 310 
 ol premises only liable for acts definitely authorized, or which are in the 
 nature of a nuisance, 298-300 
 liable for damage caused by obstruction in the road left by con- 
 tractor, 298-300, 305 
 ot property may use " reasonable selfishness " in his own protection, 1055 
 let to tenant not bound to repair, 1074 
 . ^°ty to licensees on his property, 1097, uo2 
 
 ot the soil, what property he has in wild animals, 930 
 
 PACE, in driving, to be moderate, 957 
 PAPER, negotiable, may be the subject of pawn, 492 
 PARAPET, accident arising from absence of parapet to bridge, 11 13 
 PARCEL or package, what is, 594 n. 
 
 PARENTS, imputablity of negligence of, to young children, 141, 142 
 PARISH, not exempted from liability to indictment for non-repair of highways, because 
 duty of repairing imposed on some one else, 215 
 
 no action against_for injury caused by non-repair of highway, 219 
 
 liability of with regard to highway, 1015 
 
 exceptions to liability of in respect of highway, 1037 
 
 duty of in respect of bridges, 1060, 1062 
 PARKER, C.J.,'s definition of common carrier, 505 
 
 PARLIAMENT, members of, duties and liabilities of sherifif in conducting election of, 
 754, 7S5 
 
 PARLIAMENTARY POWERS, subsequently obtained, authorize antecedent wrong, 
 
 997 
 PART POSSESSION, where only obtained under writ of possession, plaintiif may 
 
 have a new writ, 709 
 
 PARTICULAR agent, client approving the appointment by his solicitor of, 781 
 
 damage, when necessary in order to maintain action, 1032 
 PARTNERS, each partner ^riTrea/oeie liable for any misconduct of the other, 781 
 instructing solicitors, falsely pretending to be plaintiiTs partner, 792 
 duty of solicitor in advising, 800 
 
 retired without informine: firm customers of the fact, 88'! 
 PARTNERSHIP, definition of, 835, 837 
 
 partners not responsible for damna fatalia, 836 
 
 rule of liability in, 836 
 
 partner liable for a theft, 836 
 
 extraordinary skill, where to be looked for, 836 
 
 special rule of liability determined by the mutual confidence between 
 
 the partners, 836 
 liability between partners inter se, liability of partners to the outside 
 world, 837 
 PARTY WALL, defined in Metropolitan Building Act, 975 
 
 meaning of the term considered by Fry, J., 975 
 limitation on common law rights for the benefit of the public by the 
 Building Acts, 977 
 PASSENGERS, carriers of.— see Carriers 
 
 carriers of by sea. — see Carrier of Passenoeks by Sea 
 
 luggage. — see Lugoage 
 
 in omnibus, injured by kick of horse, 36 
 
 to be acquainted with risk, 50 
 
 negligence in the carriage of railway, jury proper tribunal to decide, 
 
 "4 
 not identified with those in charge and control of vehicle, so as to be 
 disentitled to recover on account of their contributory negligence, 
 
 IS9 
 
 received m an inn are guests, 545 
 
 common carrier of, 566, 567 
 
 luggage within Railway and Canal Traffic Act, 1854, 602 «. 
 
 alignting from railway carriage without invitation to alight, contribu- 
 tory negligence, 609, 670, 672, 673, 675 
 
 carrier does not warrant safety of) 631 
 
1228 INDEX. 
 
 PASSENGERS, who are, 639, 64D 
 
 right to be safely carried, independent of contract, 641 
 
 where no contract between and railway company, duty of company, 
 
 641 
 ii-aud on carrier of passengers, its effect, 641 
 when rightfully in carriage, 641 
 not rightfully m carriage, in what circumstances disentitled to recover, 
 
 642 
 without ticket, liability of railway company for injury to, 643_ 
 railway company where forced to cany, terms of carriage irrelevant, 
 
 643, 644 
 person accompanying, to tram rail company, how far liable to, 643 
 without ticket on railway, test whether trespassers, 643 
 getting in wrong tram, liability of company as to, 643 
 lawfully on railway, immaterisu how they came there, 644 
 travelling at their own risk, how far carrier liable to, 645 
 
 by a goods train, liability of railway company as to, 645, n. 
 at own risk covers incidental perils, 646 
 contracting with one railway company carried over lines of another, 
 
 "646-648 
 injuries to, contracting company liable to, although injuries occurred on 
 
 other lines, 647 
 injured, on account of condition of line over which railway company 
 
 have no control, 647 
 at " own risk " injured on a line other than line of contracting company, 
 
 647i 648 
 being carried by railway companies over lines of which companies are 
 
 not owners, 648 
 bow far bound by terms not communicated to them, 650 
 railway company, in order to vary their liability, must bring contracts 
 
 to notice of, 651 
 presumed to read conditions and terms upon their ticket, 652, 6^4, 656 
 not knowing writing on back of their ticket, not bound by conditions on 
 
 the back, 654, 655 
 if they know that ticket contains writing, and that writing contains 
 
 conditions, they are bound by them, even if they do not read them, 
 657 
 not bound by conditions which are unreasonable, 658 
 bound by reasonable conditions of carriage of which they have notice, 
 
 660 
 what is reasonable notice of conditions, 660 
 injured by railway company may sue in tort or contract, 660, n, 
 once received by carrier, must be carrier the whole way, 661 
 railway company must take reasonable care, 663 
 struck by mail-bag thrown from train, 663, ji. 
 duty of railway company to, 665 
 railway company must provide ibr alighting, 667-669 
 injured on alighting from train, what is evidence of negligence on part 
 
 of the railway oonroany, 668-673 
 electing to face difScnIties, and endeavours to alight, what qoestions 
 
 for jury, 673 
 hand crushed between door and doorpost of railway carriage, 675, 676 
 falling out of railway carriage throng defect in lock of door, 676, 677_ 
 sitting with arm out of carriage window, whether contributory negli- 
 gence, 677 
 in railway carriage, how far justified in causing door properly fastened, 
 
 .^77 ^ . 
 
 officials of company cannot prevent opening door to see if there is 
 
 room, 678 
 alighting or getting on a vehicle whilst in motion, when negligence, 
 
 678 
 not negligent in not foreseeing unusual movements of train, 678 
 alighting or getting on train in motion contributory negligence, 678, 
 
 679 
 advised by guard to alight entitled to recover, 679 
 riding on footboard of car not proper place for, 679 
 must place themselves in a safe position in train, 679 
 luggage carriers not formerly liable for, 679, 680 
 
IJSTDEX, 1229 
 
 PASSENGERS, exercising control over luggage, liability of carrier for loss of, 682-688 
 changing from one carriage to another, liability of carrier for luggage 
 
 left in first carriage, 683, 684 
 efl'ect of conduct of, on liability of carrier for lost luggage, 683, 684 
 in carriage with luggage, how far company liable for, 684, 685 
 reasonably absent from caniage, liability of company for loss of lugga 'e 
 whilst, 684, 68s " 
 
 luggage under control of the, view as to liability of oarrier for loss of, 
 685-687 
 carrier, not exonerated from delivery, 687, 
 688 
 part of contract with oarrier to deliver, 688, 689, 695, 699, 700 
 liability of carrier for, where not ordinary luggage, 690-693 
 taking merchandise with him as personal luggage, carrier not liable for 
 
 loss of, 691-694 
 delivering luggage to porter for conveyance by a particular train, com- 
 pany liable for loss of, 695, 696 
 on ship, duty of, 734 
 by sea, luggage of, 734 
 duty of shipowners towards, 734 
 PAVEMENT, reinstetement 0^ 1077 
 
 PAWN or pledge, 490 
 
 definition of, 490, 491 
 
 distinction between, and mortgage, hypothecation and lien, 491 
 
 by common law certain things exempted from, 492 
 
 if for an indefinite time, creditor may at any time call upon the debtor to 
 
 redeem, 492 
 what may be the subject of, 492 
 incidents of, 492 
 if for stipulated time, and time passes, absolute property in pawn does not pass 
 
 to pawnee, 493 
 Statute of Limitation does not apply to, 493 
 only a collateral security, 493-497 
 exempted fi-om distress, 494, 495 
 nature and obligation of contract of, 494 
 can be taken in execution against pawnee, 495 
 contract, who can enter into, 496 
 banker as pawnee, 881 
 notice of the infirmity of pledger's title, effect of, 899 
 
 PAWNBROKERS' Act, 1872, 496 
 
 s. 27 : 498 
 premises on Sie prima facie evidence of neglect, 498 
 
 PAWNEE, rights of to foreclose or sell, 493 
 
 dealing with pledge, when he commits actionable wrong, 494 
 
 cannot be compelled to sell, 493 
 
 sale by surplus belongs to pawnor, 494 
 
 only required to use due diligence, 496 
 
 responBibility of, for theft, 497 
 
 only liable fornegUgenee of commission, not of omission, 497 
 
 PAWNOR and pawnee, rights and liabilities of, 491-494 
 
 cannot maintain action for conversion until he has tendered the debt, 494 
 
 does not warrant property, 498 
 
 duties owing by, to pawnee, 498 
 PAYMENT OF DEBTS by executor in ordinary course, liability entailed thereby, 
 
 855 
 PECUNIARY damage, suffered through obstruction of highway, is an actionable 
 wrong, 1027 _ ... 
 
 loss must be shewn in action against sheriff for not levymg writ of 
 fi. fa., I6i 
 PENALTY, where by statute amened to an offence, whether person who has sustained 
 a particular damage is prevented from suing by, 221, 222 
 imposea for breach of statutory duty, when person injured has a right of 
 
 action in addition to, 222 
 recovered by workman under any other Act, effect of an action under 
 Employers' Liability Act, 439, 440 
 
1230 INDEX. 
 
 PENALTY, workman not entitled to recover under any Act of Parliament, in respect 
 of same cause of action brought under Employers' Liability Act, 439, 
 440 
 PEHIL, a man acts at his own, 13 
 PEEILS OF THE SEA, is loss by collision? 72s 
 
 collision brought about by negligence is not included in, 725, 
 
 726 
 duty of master to use skill in respect thereto, 951 
 losses by, what are, 573 
 PERILOUS ALTEENATI7E, defendant's negligence exposing plaintiff to, 50 
 
 by Admiralty Law, 941 
 PERISHABLE GOODS DAMAGED BY SALT WATER, common carrier's liability 
 
 for, 580 
 PERMISSION to use road, effect of, 1099 
 
 liability of owner of premises to persons on the premises by, 35 
 PERSON, natural, and corporation, difference between, as to powers of incurring liability, 
 
 228 
 PERSONAL estate, injury to, gives a distinct cause of action to personal repreeenta- 
 Ixve, not to be confounded with action under Lord Campbell's Act, 
 182, 186, 187 
 injury, proceedings by Board of Trade, 953 
 interference necessary to constitute liability in the case of a surveyor of 
 
 highways, 1018 
 misconduct of a trustee, 863 
 PERSONAL REPRESENTATIVES, when Uable for negligence, 849 
 PERSONAL SECUEITY^, duty of trustees where money outstanding on, 856 
 PETITION OF RIGHT, when remedy against commissioners acting as servants of 
 
 the Crown, 246, 247 
 PHYSICAL AGENCY, not always necessary to constitute legal wrong, 70, 71 
 PHYSICIANS, duty in the admission of, 821 
 
 acting as surgeon can recover, 822 
 status of Fellow of College of Physicians, 823 
 employment nominally of an honoraiy description, 824 
 can sue in America, 824 
 PILOT, compulsory, of ship not in common employment with sailors on board ship, 
 
 ,.384,385,, 
 
 shipowner uable at common law for tortuous, acts of, 714 
 employed under statutes sanction shipowners not liable, 714 
 personally Uable for his own negligence, 717 
 identification of shipowner with, 718, 719 
 
 negligence of co-operating with Uiat of master and crew, who liable ? 719 
 compulsory whilst vessel in charge of, liability of owners for act of some one on 
 
 board, 719 
 joint default and of owner's loss mnst fall on owner, 719 
 compulsory wrongful act of, effect upon damages recoverable, 719 
 on ship, negligence of duty of those on the tog as to avoiding injury, 720 
 PILOTAGE, compulsory, owner not liable for damage whilst ship is under, 716-719 
 
 and salvage,distinction between, 717, ra. 
 PIRACY, definition of, 575 
 
 PIRATES, losses by common carrier, not liable for, 574, 575 
 
 PLATE at bankers, 881 
 
 PLATE, &c., deposited at bank, must be returned nj specie, 469, 470 
 
 PLATFORM, ice on, liability of railway company, 666 
 
 train too long for, liability of railway company, 668, 669, 674 
 train not drawn up to, is evidence of negligence, 669-673 
 train merely overshooting not negligence, 671, 672 
 
 PLANT, what is within the Act, 425, 426 
 
 PLEDGE— «ee Pawn 
 
 depositary, no authority to, 475 
 power of factor to, 523 
 
 POISONOUS EFFLUVIA, nuisance, 1014 
 
 POLICE OFFICER, duty with regard to savage dogs straying on a highway, 930 
 
 POLICY OF INSURANCE, distinction between "loss by fire" in and in bill of 
 lading, 729, 730 
 
INDEX. 1231 
 
 POLICY OF INSURANCE, liability of trustee or executor for dropping it, 852 
 POIiLUTION of river by gas or water company, ioo5 
 
 of a stream, who may maintain action, 1 147, 114.8 
 
 POOB, GUAEDIANS OF— see Gdardians of the Poor 
 
 POOR LAW, orders, position, and liabilities of guardians of the poor under, 265, 266 
 PORTERS, how far common carrier,3 563 
 
 PO<SSE COMMITATUS, when sheriff should call out, 762 
 
 no means of reimbursing sheriff expenses in calling out, 
 762 
 POSSESSION, writ of — see Writ op Possession 
 
 of property by a servant distinguished from bailment, 452 
 
 lawful, sufficient to enable depositor to maintain an action, 457 
 
 with assertion of right suffices to enable possessor to maintain an 
 
 action against wrongdoer, 479 
 delivery of, necessary to constitute pawn, 492 
 writs of, how executed, 768, 769 
 and control of vessel, in what circumstances they import liability, 936 
 
 POSTMASTER-GENERAL not responsible for loss of a package received at the Post 
 
 Office, 261, 262 
 liable only for his own personal negligence, 544 
 exclusive privilege of sending telegrams in Great Brit lin 
 and Ireland, 736 
 POSTMASTERS, negligence of, who liable, 544 
 
 POST-OFFICE, branch of revenue and branch of police, erected by Act of Parliament, 
 262 
 
 POUNDKEEPER, trespass, viet armi, does not lie against, for receiving a distress, 
 
 7S4, «• 
 POWERS OF INCURRING LIABILITIES, difference between corporation and 
 
 natural person, 228 
 POWERS WHAT, conferred by statute, are discretionary, 224-228 
 
 PRECAUTIONS of one railway company another company not bound to adopt, 664 
 66s 
 no duty to use excessive, 896 
 what are reasonable, 1107 
 PREMISES, owner ot—See Owner op Premises 
 duty on occupier to repair, 59 
 
 PRESCRIPTION, duty of one bound to repair by, 1025 
 
 to repair sea wall, 1066, 1067 
 PRESENTMENT of bill of exchange for acceptance, 873, 874 
 
 payment, 875, 877 
 of cheque, 879 
 ■ for non-repair of bridge, 1060 
 PRESUMPTION of law with regard to dangerous employment, 355 
 where animal is mansuetee naturce, 918 
 
 has propensities not in general belonging to his race, 
 918 
 as to vicious inclination in animals, 921 
 irrebntable, that master authorized all work of servant done within 
 
 the scope of his authority, 272-274 
 of volenti rum fit injuria when in case of statutory enactment, 348- 
 
 lets in when workman contmues on danger- 
 ous employment with knowledge of the 
 danger, 349 , . 
 of want of reasonable care of master in selecting his servants not 
 
 raised by one act of negligence, 360 
 of negligence where bailee returns thing in damaged condition, 
 
 507 
 of right of riparian proprietor to half of the bed of a stream, 1145 
 
 PRIORITY between two equities, 903 904 
 
 PRISON, breach of, gaoler must have sufficient force to prevent, 754 
 
1232 INDEX. 
 
 PRISONERS, position of gaoler with regard to his, 753 
 
 must be actually delivered to new sheriff before liability accrues, 773 
 
 PRIVATE person may not abate nuisance unless injured by it, and pro tanto only, 
 1028 
 property, canon of constraction of enactment interfering with, 101&9 
 right, interference with ground of action, 1032 
 rights as to gas, sewage, and water-pipes, not allowed, 994 
 road, accident happening on, 88 
 telegraph, 736 
 way, liability to repair, 1036 
 
 PROCESS, execution of.duty of sheriff, 757 
 
 abuse of, action against sheriff for, 775 
 
 PROFESSIONAL character, special liability of solicitors when acting in, 781 
 
 diligence, where there is complicated and difficult business, 80S 
 plain and common rule of the profession, 808 
 amount required, 808 
 
 PROFESSION OF SKILL, what is required where there is a, 807 
 
 PROFESSIONAL SKILL, for what casualties the skilled labourer should answer, 
 809 
 
 PROFITS, rule as to, duty of executor to account for, 854 
 PROMISSORY NOTE, where pledged, pledgee must collect it, 497 
 
 PROOF, of contributory negligence, what necessary, 121, 122, 124-127 
 of loss or non-delivery of goods on plaintiff, 629 
 
 PROPER DILIGENCE, duty to use, with regard to care of animal of known vicious 
 quality, 914 
 
 PROPERTY adjoining a highway, liability of, 84 
 in telegram, 738 
 
 owner may use as he pleases, 932 
 owner of, injured, adjoining highway; must bear his own loss unless he 
 
 can establish negligence, 933 
 damaged by flood, 1 126 
 
 PROPRIETOR, signification of word, 1074 
 
 of coach used for conveyance of passengers must provide a proper 
 vehicle, 632 
 
 PROTECTED PERSONS under PubUc Health Act, 1875: 1023 
 PROTECTION, old writ of, only delayed execution, 249, 250 
 PROXIMATE CAUSE, 959 
 
 where property is destroyed by a mob, 65 
 what is considered, 75 
 American rple, 91,"^' 
 in estoppel, 887 
 
 what is, of larceny and forgery, 8g6 
 dust blowing from heap of lime in a highway frightening horse, 
 
 9S7 
 wilfully striking a horse, 959 
 where damage arose through defective bank, 1054 
 negb'gence, i 
 
 in estoppel, 889 
 in maritime matters, 942 
 in_ shipping cases, 942 
 result of not giving notice to do repairs, 77 
 PRDDENT PRECAUTION, test of conduct, whether a, Jo 
 PRUSSIAN CODE, three degrees of negligence in, 19 
 PUBLIC Health Act, The, 1848, s. 37: 1017, 1023 
 
 s. 39 : 1021, 1046 
 1875: 998, 1013 
 
 s. 144: 1019 
 
 S. 264: I02I, 1046 
 
 S. 340: 1022, 1023, I06l 
 
 S. 327 : 1067 
 
INDEX, 1233 
 
 PUBLIC Health Act, The, 1875, s. 13 : 1067, 1068 
 flreland) Act, 998 
 _ (Support of Sewers) Act, 1883, 1070 
 where indictment can he maintained for general damage to, action can be 
 
 _ brought by individual sustaining special damage, 212-222 
 bodies and trustees, summary of general principles stoveming, 232-233 
 
 rights of, with regard to fouling streams with sewage, 1073 
 clerks, liability of, as to acts and defaults committed in the course of their 
 
 employment, 777, 778 
 registry clerk's negligence does not disentitle medical man to recover, 823 
 duty, where person has, and neglects or refuses to perform that duty, when 
 ground of action for, 209, 210 
 every breach of, working injury in another is actionable, 216 
 no action will lie against inhabitants of county for breach of, 218 
 for whole of district where public body neglect to perform, only remedy 
 mandamus, 223 
 employment, common carrier exercises, 567 , 
 
 enemy, what is, 574 
 
 enemies, common carrier must use reasonable means of resistance against, 576 
 officer, 236 
 
 who is, 214 
 liability_ of, 236 
 
 suspension of, by Sovereign, effect of, 267 
 officers, rights and liabilities of, summary of law as to, 267, 268 
 
 distinction between those, acting for public at large and those who act 
 -'■ for individuals, 267 . 
 
 proceedings by, against gas and water company, 994 
 place, fireworks let off in, 988 
 policy, contract void as against, 352, 353 
 
 solicitors not allowed to take advantage of their own ignorance of, 782 
 method of protecting property against, 1083 
 way, hole in, 1036 
 PDNCTUALITY, how far railway company waiTant, 660, 661 
 
 PUECHASB, setting aside, 814 
 
 money paid to anclioneer, 815 
 PUECHASEK omitting to call for title deeds, 905 
 
 QUACK, liabiUty of, 827 
 QUALIFICATIONS of an apothecary, 822 
 
 QUANTITY surveyor, duties of, 810 
 
 position of, with regard to owner, 812 
 builder, 812 
 may recover, against whom, 813 
 "QUARRY distinguished from mine, 447 
 
 QUEEN— «ee Ckown 
 
 QUEEN'S Bench, when Court of, will interfere with judgment of military tribunal, 244, 
 
 ship raptain of, not liable for running down a vessel caused by negligence 
 "^ of lieutenant of the watch, 262, 263 
 
 acts not directly concerned in, 713 
 
 RABBITS on a man's land, what his rights in respect of them are, 931 
 
 RAILWAY Traffic Act, 17 & 18 Vict. c. 31, s. 37 : 41 
 
 passengers — see Passensee ■ /. y- ■ 
 
 bridge, brick falling from, on person passing underneath, jjnmiJ Jame no 
 
 evidence of negligence, 107 , 
 
 accident, mere occurrence when,i3rima Jacie evidence of negligence, 108, 
 
 person crossing, injured when negligence on part of company, 118, 119 
 man found dead on, onus ofproof as to canseof deatb, 120 
 servant is workman under Employers' Liability Act, 436, 444, 445 
 is tramway a ? 437, 438 . , i- u £ 
 
 carrier and road carrier, distinction between, as to delivery fcy, 622 
 
 41 
 
1234 INDEX. 
 
 BAILWAY carrier oaght to give notice to consignee of arriral of goods at station, 
 627, 629 
 riglit of, to warehouse goods after arrival, 627 
 carriage running off rails, primdfaeie evidence of negligence, 633, n. 
 passenger lawfully on, immaterial how he came there, 644 
 carriage, passenger falling out of, through defect in lock of door, 676, 677 
 passenger's hand crushed between door and doorpost of, 675, 676 
 door of, improperly fastened, liability of company for, 676, 677 
 how far passenger justifled in assuming door of, fastened, 677 
 companies, traffic carried on for joint benefit of, 613, 614 
 are they common carriers of cattle, 615, 616 
 how far liable for defects in carriages, 635-638 
 duty of, as to examinsvtion of carriages, 637, 638 
 not in same position as coach proprietor, 647 
 duties of, as regards negligence of persons not in their employ, 
 650 
 company — see Cakeibes 
 
 duty of, to passengers, 665 
 
 extension. of liability by ilailway and Canal TrafSc Act, 1854 : 
 
 601 
 how far, a common carrier, 563 
 what examination of wheels, &c., bound to make, 21 
 not liable for wilful acts and neglects of persons not in their 
 
 employ, 100 
 liability of, for wrongful imprisonment by their ofScials, 229 
 when liable for false imprisooment by their officers, 289-292, 
 
 29s 
 
 general superintendent can bind on all matter requiring a 
 
 prompt decision, 290 
 when liable for the negligence of contractor's workmen, 306, 307 
 liability of, for injury caused by a brick falling from one of their 
 
 bridges, 505 
 effect of notice given by, 601, 602 
 not common carrier, but ordinary bailers when, 601, n. 
 cannot refuse to carry goods if they have accommodation, 601, n. 
 can only demand reasonable rates, 601, n. 
 liability of, refusing to carry goods, &c., 601, n. 
 notice ^ven by, must be reasonable, 602 
 goods transferred from one line to another, 606-611 
 liability for empties, 614 
 
 accident on line from, caused beyond control of, 621 
 obligation of, to all persons lawfully on railway, 640, 641 
 duty to carry safely all passengers, 641 
 
 of, in case where no contract between company and in- 
 dividual passenger, 641, 642 
 using a ticket for journey on other company's line, liability of, 
 
 641, 648 
 guards van a carriage for passengers, 641, n. 
 nability of, where running powers over other lines, 642, 647, 
 
 648 
 carrying passenger under same obligation to passenger as 
 
 company with whom contract is made, 642, 647, 648 
 how far Gable to passenger getting in wrong train, 643 
 where forced to carry passenger, terms on which he is carried 
 
 irrelevant, 643, 644 
 liability of, to passengers travelling without tickets, 643 
 how far liable to trespasser, 643 
 
 a person accompanying passenger to train, 643 
 habihty as to passenger b^ goods train, 645, n. 
 passenger contracting vrith one, and carried over lines of 
 
 another, 646-648 
 liability of, in respect of portion of line over which they have 
 
 no control, 647 
 contracting with passenger over other lines, liable for negligence 
 of the companies over whose line the passenger 
 is carried, 647 
 liable to passenger throughout the whole of the 
 journey, 647 
 
INDEX. . 1235 
 
 EAILWAY company, paseenger " at his own risk " injured on line other than line 
 _ of contracting, 647, 648 
 liahilities of, for injuries arising off their own lines, 648 
 not liable for an independent trespass, 648 
 duty of, carrying passengers over line of which they are not 
 
 owners, 648 
 must hring contract varying liability to notice of passenger, 
 650, 651 
 terms of special contract to notice of passenger, 
 650, 651 
 condition limiting their liability to their own trains, 655 
 must inform passengers that there is wi'iting on ticket, 655, 656 
 condition on tickets to be construed against, 657 
 
 guaranteeing punctuality, 658 
 what is reasonable notice by, of terms of carriage, 660 
 putting forth a time-table amounts to contract, 660 
 how far they warrant punctuality, 660, 661 
 passenger injured by, may sue in tort or contract, 660, u, 
 bound to maintain in good working order communication 
 
 between carriages, 662 
 duty of, to passengers to take reasonable care, 663 
 should adopt what safeguards and improvements, 663, 664 
 liability of, for damage caused by runaway engine, 665, 666 
 must provide means for passengers to alight, 667-669 
 train too long for platform, 668, 669, 673 
 what is evidence of negligence of, on injury to passenger whilst 
 
 endeavouring to alight, 668-674 
 invitation to alight by, what is, 670 
 special development of contributory negligence as appligable to, 
 
 67s 
 liability of, for door of carriage improperly fastened, 676, 677 
 officials of, cannot prevent passengers opening door to see if 
 
 there is room, 677 
 holding luggage as warehousemen, liabilities of, 694 
 liability of, for excess luggage, 694, 695 
 responsible as a common carrier for luggage delivered to and in 
 
 the custody of their servants, 695, 696 
 duty of, to deliver passenger's luggage on the platform, which 
 
 has reached its destination, 697 
 liability of, for luggage carried on after passenger has left the 
 
 train, 697, n. 
 luggage transferred from one to another, who liable for loss of, 
 
 698, 699, 701 
 notice by, will not be liable for losses arising " off their own 
 
 lines," effect of, 699 
 when luggage delivered to, onus on them to shew they have de- 
 livered it, 701 
 obligation to fence, 968 
 
 apart from statute, 972 
 effect of negligent fencing as affecting their own tenants, 973 
 tenant of, identified with company's neglect in defective ienc- 
 
 absolute duty to keep gates opening on highways closed, 975 
 
 duty of, with regard to fire, 983 
 
 liability for fire caused by sparks from engme, 986 
 
 duty of, when adjacent to highway, 1094 
 
 platform, object on, 1106 
 
 station, condition of ways ma, 1 106 
 EAILW AT AND CANAL TEAFFIC ACT, 1873, interpretation of, 103. 104 
 aii-ixj YY ii * ii-Li ^^^ ^^^ affect Carriers Act, 1830 : 
 
 603 
 1854, contrasted with Carriers Act, 601 
 analysis of, 600, 601 
 effect of, 601, 602, n. 
 summary of points decided under, 
 
 604, 60S 
 special contract under, 614 
 EAILWAYS, what are, within the Employers' Liability Act, 436, 437 
 
1236 INDEX. 
 
 EAILWAYS Begulation Act, 1842: 968 
 
 ClauBes Act, 1845 : 968, 969; 974 
 Consolidation Act, 1845 : 1061 
 
 BAIN, insufficient provision to carry off, 1 131 
 
 EAM, vicious animal, 920 
 
 RASHNESS, what is ? 4 
 
 where injury attributable to, 5° 
 effect of, in medical treatment, 828 
 EATES, increased, when common carrier may demand, S94 
 
 reasonable, railway companies can only demand, 601, ■/*. 
 EATIFIOATION BY CROWN, how far an immunity for acts of its servants other 
 
 wise wrongful, 242, 243 
 RATIFY, power of Crown to, wrongful acts of its servants, 242, 243 
 EATS, warehouseman when liable for destruction by, 531 
 
 ou shipboard are perils of the sea, 723, 724 
 REAL PEOPBETY, obligation in regard to, 1078 
 EEASONABLENBSS, question of, for jury, 1033 
 
 EBASONABLE anticipation, 81 
 
 care, where the obligation to take, ensts, 53 
 
 and skiU, what is, where skilled labour is to be exacted, 808 
 what is, in case of gas and waterworks companies' officers, 1003, 
 
 lOIO 
 
 a customer, 1 106 
 diligence, where directors of companies are concerned, 840 
 and fit, what is, in case of carrying of passengers, 636, n. 
 man, how expected to act, 1000 
 
 what consequences, should foresee, 81 
 notice a question of fault, 655 
 
 must be given of solicitor retiring from a case, 795 
 precaution, definition of, 941 
 precautions, in collision, what, 945 
 
 what, where a canal intersected a highway, 1057, 1058 
 skill, what is, 748 
 
 of a banker, what, 872 
 what is, in Admiralty, 940 
 use, what is, of water, 1147, iiji, 1153 
 user of property, 1133, 1141 
 in collecting water, 1159 
 " EEASONABLE, fit, and proper," explanation of, 505 
 
 RECEIVEE of telegram, relation between, and company, 739, 740 
 
 and sender of telegram, relation of, liabilities, of, 743, 744 
 
 EEFEESHMENT BAE not an inn, 545 
 
 EEPDSAL OF CAEEIEES OF PASSENGERS TO CAREY, what is sufficient 
 
 excuse for, 659 
 EEGISTEE OF TEANSPEES not the duty of stockbroker, 818 
 EEGISTEEED MEDICAL PRACTITIONER, who is, under Medical Act, 1886 : 823 
 
 REGISTRATION of medical practitioner, registry clerk's negligence does not dis. 
 
 entitle, 823 
 must be before action, 823 
 not necessarily at time of attendance, 823 
 
 of mortgagee, duties of directors or officers of companies with regard 
 to, 844 
 
 REGULARLY RECURRENT HAZAED where known not actionable, 11 16 
 
 REINSTATEMENT OF ROAD, 1020 
 
 REMEDIES, what, against sheriff, 770 
 
 REMOTE cause, what is considered, 75 
 
 injury from defect in a highway, resulting months after in a spinal disease, 82 
 
 negligence, what is, 895 
 
 in shipping cases defined, 942 
 
 REMOTENESS OP DAMAGE where gas explosion has occurred, 1007 
 
INDEX. 1237 
 
 EEMOVAL OP WRECKS ACT, 1877 : 937 
 EEMDNERATION does not affect liability, 789 
 RENT, payment of, should be made in money, 499 
 
 horses and carriages in liveiy stable distrainable for, 522 
 REPAIRING- HOUSE, inconvenience not to be prolonged unreasonably, 1031 
 REPAIR, parish ways being out of, surveyor of highways not liable, 267, n. 
 
 amount of, required to be done to a road may vary, 1021; 
 REPAIRS of canal, 77 
 
 done at expense of lessee renders him liable for injury caused by negli- 
 gence done during the repairs, 301 
 
 REPLEVIN BOND SURETIES, on duties of sheriffs as to taking of, 776 
 REPRESENTATION by a carrier, nature of, its effect, 661 
 
 when intended to be acted on, effect of, 884 
 REPUDIATION, where bargain made by a stockbroker may be repudiated, 819 
 RESCISSION OP CONTRACT, where auctioneer permits, 815 
 RESPONSIBILITY, Windscheid's theory of, 7 
 
 limit of, 90 
 RESPONSIBLE agency, cart, liable, S3 
 
 producing injury in conjunction with irresponsible agency, 
 
 73. 75 
 person, 48 
 RESPONDEAT SUPERIOR, 13, 271, 272, 300, 307, 310, 369, 373, 377, 544 
 RETAINER, liability attaching under, of solicitor, 786 
 
 of solicitors, length of time covered by, 792 
 RETURNING OPPICER, duties of, 755 
 
 liability for wilful misfeasance, 755 
 action against, for refusing to admit vote, 755, 756 
 RETURN, false, action against sheriff for, how may plaintiff proceed; 772 
 sheriff's return conclusive save in action for, 772 
 
 REVENUE OPPICERS, liability of, for acts and defaults committed in course of 
 their employment, 777, 778 
 
 REWARD, duty of depositary varies according to existence or absence of, 458, 459, 
 463, 466 
 of carrier, how far tender of necessary, 617 
 reasonable carrier must carry for, 617 
 of carrier, liability on account of, 617 
 EIGHT of passage along a highway being interfered with, obstruction may bo abated 
 by private person, 1028 
 extent of, on highway, 1039 
 to use road as distinguished from permission, 1098, 1099 
 
 RIGHTPUL OWNER, depositary must deliver deposit to, 476 
 
 RIGHTS, public, whilst exercising, how far a person is protected against negligence of 
 others, 34 
 equal, effect on liability of parties, 34 
 negligent acts, 34 
 RIOT, injury done by, 65 
 
 RIPARIAN proprietors, rights of, 114S, 1153 
 
 agreement between, as to diversion of stream, 1150 
 entitled to pure water, 1151 
 RISK not necessarily incident to service, 53 
 
 of employment, master not liable to servant for ordinary, 314 
 
 if servant contracts to work under condition of greater, cannot recover from 
 
 master for ordinary, 320 
 contemporaneous or subsequent to the employment of servant, liability of master 
 
 for injuries, 339 
 can a workman contract to undertake, 355 
 user of road subject to, 1 100 
 of injury, whether savage dog a ri_sk,_ 1 109 
 
 assumed not merely all incidental, but all the known risks, 1 109 
 incident to employment, what are, ilii, 1113 
 voluntarily incurred, 11 13, 1123 
 ROAD trustees free from liability where all was done required by statute, 261, v, 
 
1238 INDEX. 
 
 ROAD subsidence, from ordinary wear and tear, 1020, 1045 
 
 progressive liability with respect to the reparation 0^ 1025 
 not dedicated, accident happening through unlicensed user of, 1090 
 ROBBERY by force considered irresistible, while loss, by steal^i, is evidence of negli- 
 gence of bailee, 464 
 when warehouseman liable for loss by, 531 
 liability of carrier for hire for, 542 
 losses by, common carrier liable for, 574 
 liability of sheriff for loss of goods by, 765 
 skilled labourer for loss by, 809 
 proved discharges trustee, 856 
 ROBBERS, bailee not answerable for thing stolen by, 506 
 
 ROOF, fall of snow from, 1091 
 
 RUINOUS PREMISES, tenant's remedy (if any), 1036 
 
 RULE of Admiralty, no difference between consequences of common law negligence 
 and negUgenoe by the rules of Admiralty, 941 
 where none applies the rule of common sense must be observed, 
 
 941 
 of equity in case of conflict with common law to prevail, 85 1 
 of the road, 955 
 
 carriages meeting tramcars, 960 
 preference for heavily loaded vehicles, 960 
 modified in case of tramcars, 960 
 RUNAWAY ENGINE, liability of railway company for, 605, 606 
 RYLANDS V. FLETCHER, ground of the decision examined, 1133, 1137 
 
 SAFEGUARDS, what, railway companies should adopt, 663, 664 
 removing during progress of work, 1 1 13, 1122 
 where duty to provide, 1 113, 1122 
 SALE, no authority for, by depositary, 475 
 pawnee cannot be compelled to, 493 
 duty of sheriff in conducting, 764 
 must take place with reasonable expedition, 764, 773 
 by auction on premises of owner, 815 
 in a public room, 815 
 
 ST. LEONARDS'S ACT, Lord, 857, 862 
 
 SALVAGE, distinction between pilotage and, 717, 71. 
 
 where towage contract partakes of nature of, how liability of parties 
 affected, 721, 722 
 SAVAGE ANIMALS, 913 
 
 SCIENTER, in the case of mischievous animals, 915 
 
 where the animal is manmetm Tiatv/rce, 918 
 does not require actual previous damage, 919 
 not to be extended to a contract to take reasonable care, 921 
 knowledge of servant of ferocity of dog may affect master, 926 
 complaint to the wife of the owner of dog, 926 
 
 master liable where dog kept in stable yard, whose ferocity was known 
 to coachman, 927 
 
 SCIENTIFIC KNOWLEDGE, amount required of gas and waterworks companies, 
 1003 
 
 SCOPE of authority, oases where master not liable, 287 
 
 employment, resporisibility of master, 1076 
 SEA, common carrier by — see Common Cakribr 
 
 perils of, losses by, what are, 573 
 
 dangers of, what are, 722, 723 
 
 inroads of, 1063 
 
 SEAMAN entitled to have a seaworthy ship provided, 321 
 
 within the law relating to master and servant, 321 
 
 is in common employment with captain of his ship, 382-384 
 
 not within the Employers' Liability Act, 445 
 
 SEARCHES, duty of solicitor in regard to, 797 
 
 SEA-WALLS or sewers, 1063, 1068 
 
INDEX. 1230. 
 
 SEA-WALLS or sewers, prescriptive liability to repair, 1066 
 
 Qii'A-\imT>miTTVT-r.o,r, ™*y ^° respect to, 1063, 1064, 1067 
 SEAWORTHINESS, test to be applied to, 711 
 
 ^vrnvnv j * r f ' ?^'"** *™® *° ^ detennined, 711 
 hELKECY, duty of notaries to, 748 
 
 SECKETAEY of State, on default of local authority, may authorize gas or water 
 mam to be laid, 999 
 of company, duty of, 844 
 ivnTTDimiT^c "^^^^ instracted by directors exonerates them, 844 
 bJ!.i^UiCmES received by bank in ordinary course of business, 472 
 
 SECURITY given by old drain, not to be reduced in constructing new one, 1072 
 
 SEIZURE OF GOODS by sheriff where there is illegality in some of the circum- 
 stances, 759 
 
 SELF-PRESERVATION, dangerous course adopted for, does not disentitle from 
 
 recovering, 50 
 
 aT?MT>T;'D "Slit of. entails no liability, 1055 
 
 bLNDER, when liable for sending dangerous goods, 581, 582 
 of telegram, rule as to, 739 
 receiver of telegram, relative liabilities of, 743, 744 
 
 SERVANTS of corporation formed for special purposes, 197-199 
 of statnte-created body, 200 
 personally liable,when, 412, 413 
 
 domestic and menial, not within the Employers' Liability Act, 445, 446 
 in husbandry, 446 
 
 possession of, on behalf of master, how distinguished from bailment, 452 
 carrying master's goods must use ordinary care, 474 
 cabmen of cab proprietor, when, 510, 511 
 of common carrier answerable for their own misconduct, 595 
 common carrier not liable for felonious acts of, 595 
 meauing of term, in the Gamers Act, 595, 596 
 of tug and tow, no common employment between, 722 
 of owner — see Owner ; see also Master and Seevant and Common 
 Employment 
 
 SET-OFF of freight against damage to cargo, when, 712, 713 
 
 SEWAGE falling into stream so as to pollute it, liability of Local Boai'd for, 222, 223 
 duty when, bound to receive, 1005 
 use of well for reception of, 1 129 
 SEWER, bursting of, negligence, 1068 
 of local anthority, 211 
 
 authorized by statute, persons constructing liable for negligence, 261 
 liability for defective works in the construction of a sewer, 1019 
 an iron pipe to discharge efliuent water held a, 1068 
 SEWERS, in whom Metropolitan area vested, 1068 
 definition, 1068, 1073 
 drains are, 1068 
 
 limited right of ownership in, 1069 
 right to support of, 1070 
 interference of, with mines, 1070 
 bursting into a cellar through a thunderstorm, 1070 
 defective, original construction of, 1071 
 efficiency of, must not he diminished by alterations, 1072 
 liability of corporation for not providing sufficient, 224, 225 
 
 SHAREHOLDERS, relation of, to directors, 841 
 
 filing bill against company on the footing of the directors being 
 trustees, 842 
 SHEEP, property in, at common law, 913 
 
 duty with, in a field, 921 
 SHERIFF, a ministerial officer, 252, n. 
 definition of, 750 
 effect of death of, 750 
 tenure of office of, 750 
 appointment of deputy, 7 50 
 under-sheriff, how appointed, 750 
 liable for acts and defaults of under-sheriff, 750 
 under-sheriff, duties of, 750, 751 
 
1240 INDEX. 
 
 SHERIFF, how removable, 751 
 
 may take bonds from his officers to indemnify against defaults, 751 
 
 death of, 751 
 
 under-sheriff, tenure of office by, 751 
 
 under-sheriff's executors liable for wrong committed by him, 751 
 
 miaoonduot of oEBcers, 753 
 
 has at common law control of gaol, 753 
 
 ministerial duties of, 754 
 
 rule discriminating his judicial and ministerial functions, 754 
 
 duties in election of Members of Parliament, 754, 755 
 
 duties in summoning juries, 756 
 
 power to appoint a deputy, 755 
 
 wilfully and corruptly discharging duty in the election of Members of 
 
 Parliament, 756 
 duties of, in execution of process, 757 
 
 duties and liabilities in execution of writ delivered to him, 757, 75S 
 indemnified against liability for inserting name of person not qualified in 
 
 jury book, 757 
 not to set up defect in writ if valid on the face, 758 
 when, may break open doors, 758, 759 
 
 distinction as to duty in seizure of goods, and in arrest of person, 759 
 execution of writ in a liberty, 759 
 
 may enter house of a stranger, if execution debtor or his goods there, 759 
 may enter liberty if writ contains a non omittas clause, 760 
 must execute writ on first opportunity, 760, 773 
 duty in receiving and executing writs, 760 
 
 action against, for not levying]^. /a., pecuniary loss must be shewn, 761 
 when admissions by under-sheriff are evidence against, 761, n. 
 negligence of, in selling, 761, n. 
 how compelled to sell goods, 761, n. 
 when, should call out posse comitatus, 762 
 what damages obtainable against, 762 
 responsible for execution of writ, 762 
 where several writs, 762 
 bound to sell, 763 
 may seize, what, 763 
 direction not to execute writ, 763, n. 
 duty in conducting sale, 764 
 liable for negligence in not properly lotting goods to execution debto?, 
 
 764 
 paiust sell with reasonable expedition, 764 
 in action against, injury not merely consequential, 764, n. 
 sale by, effect of, 765 
 duty of, as to goods in his possession, 765, 766 
 
 writ of elegit, 766 
 when, in possession, liability same as bailee for hire, 766 
 duty of, as to execution of ca. sa., 766, 767 
 action against, for escape, 767 
 
 may receive money and liberate goods under ^. fa., 768 
 m executing writ of possession, 768, 769 
 
 not a good return to writ of possession that, unable to execute it, 769 
 where part of land only obtained under writ of possession, 769 
 duty of, to inquire before seizing, 769, 770 
 what remedies against, 770 
 only protected as to original seizure, 770 
 attachment against, 770, 771 
 action against, 771, 772 
 who may maintain action against, 772 
 action against, for false return, 772 
 return of, conclusive save in action for false return 772 
 action against, for escape, 773 
 damages recoverable in, 774 
 
 action against, by person whose goods or body taken, 774 
 duty of, in taking sureties in a replevin bond, 774 
 tafang wrong goods, when liable for, 775 
 action against for abuse of process 77 S 
 when liable in trover, 775 
 liability under 8 Anne, c. 14 : 775 776 
 
INDEX. 1241 
 
 SHEEIPF, whero goods let to hire to execution debtor seized by, only liable for actual 
 damage, 776 
 not entitled to notice of action for tbings done in execution of powers of 
 Court, 777 
 SHIP seized illegally by naval ofBcer, liability for, 241, 242 
 
 must be seaworthy, 321 
 
 in dock, liability does not differ from that in respect of any other chattel, 536 
 
 employed in commerce, 563 
 
 common carrier, 704-707 
 
 to carry out directions from, 720 
 
 rats on, a peril of the sea, 723, 724 
 
 master of, may in certain cases warehouse goods, 733 
 
 definition of, 938 
 
 what is properly manned, 945 
 
 where, improperly anchored, 947 
 
 collision when being launched, 948 
 
 at anchor exhibiting light, 948 
 
 steam vessel to give way to sailing, 949 
 
 SHIPPER, no warranty on part of, 582 
 
 SHIPMASTER, duties and liabilities of, 713 
 
 SHIPOWNER, liability of, for loss of life or personal injury limited by statute, 192 
 where master improperly sells cargo abroad, 274 
 
 duty of, to provide seaworthy ship, 321 
 
 within the law of master and servant, 321 
 
 when ignorant of effect of heat in storing goods, 577, n. 
 
 duty to do what necessary to preserve or save cargo, 628, 629 
 
 prima, facie an insurer, 703, 704 
 
 special contract of, 708 
 
 implied warranty by, not bound to provide a perfect ship, 710, 711 
 
 may except liability for negligence, 710, 731 
 
 duty to passenger, 734 
 
 duty in stowage of goods, 712 
 
 when liable for acts of master, 713, 714 
 
 liable for tortious acts of pilot, 714 
 
 liability limited in certain cases, by statute, 714-716 
 
 liability when ship under compulsory pilotage, 716, 719 
 
 identification with pilot, 718, 719 
 
 liability of, for those on board while ship in charge of a compulsory 
 pilot, 719 
 
 joint default of, and pilot, 719 
 
 and shipper, contract between, in bill of lading, 722 
 SHOPKEEPERS, their rights as respects user of highway, 1041 
 SIGNATURE of receiving agent employed by consignor to deliver, and by consignee to 
 receive sufficient discharge, 603 
 of director of a company, 840 
 
 of trustee, 847 
 of banker, 872 
 
 SKILL, what is due, 33, 34. 40 , ., , , , , • «. 
 
 ordinary, required from one gratmtously undertakmg, 483 
 borrower represents himself to be of competent, 486 
 parties for hire only bound to care and, of business he undertakes, 514 
 amount of, notary_ bound to supply, 748 
 reasonable, what is, 748 
 
 amountrequiredof doctor, 831, 832 , ^ ... r 
 
 want of, of doctor must be in the method of treatment, not with reference to 
 
 the patient's particular constitution, 832 
 collision through want of, 938 
 of seamen, 941 
 of driver, 957 
 
 SKILLED LABOUR, 806, 834 ^ „ ^ „ .. 
 
 implied warranty of competence of, 806 
 
 of a country surveyoi', Sob 
 
 SMITH, diligence of, 808 
 
 SNOW falling from roof, 1091 
 
 SOLDIER doing injury while exercising, 97 
 
1242 INDEX. ~> 
 
 SOLICITING BUSINESS, an invitation implied to go on premises when, 1108 
 SOLICITOR, 779, 802 
 
 definition, 780 
 
 more than mere agents, 780 
 
 amenable to summary jurisdiction of the Courts, 780 
 
 client not bound to ascertain due qualification of, 781 
 
 when acting extortionately or vexatiously, 781 
 
 may not delegate their powers when liable for culpa in eMgeiido, 781 
 
 as officer of the Court, 781 
 
 where name is used without authority, 781 
 
 (Jourts will not summarily interfere where the matter is discounting of 
 bills, 781 
 
 sole duty of selecting agent, 781 
 
 in what cases the Courts will deal summarily with as its officer, 783 
 
 not summarily dealt with for mere negligence in the conduct of a suit, 
 
 784 
 country, held liable for misrepresentation of London agent, 784 
 having trust funds in possession, 785 
 
 to maie good deficiency in trust funds paid over through his negligence, 786 
 liability to under retainer, 786 
 amount of law expected to know, 786 
 where may shift responsibility by consulting counsel, 786 
 should obtain client's written authority, 786 
 amount of negligence to charge, 787 
 not responsible fer error in difficult points of law, 788 
 general rule of duty, 790 
 
 liable for negligence both in contract and tort, 790 
 must not accept conflicting engagements, 790 
 duty of, under special retainer, 790 
 where liable for negligence at common law, will not be called to answer 
 
 in equity, 79 1 
 counter-claim for negligence against solicitor's claim for his bill, 792 
 negligence in litigation, 792 
 appearing without authority, 792 
 should acquaint client with prospect of failure, 793 
 may compromise, 793 
 liability for failure of diligence in the ordinary procedure of an action, 
 
 794. 795 
 not responsible for counsel s negligence, 795 
 when may retire from case, 795 
 not necessarily liable for advising client to discontinue a good cause of 
 
 action, 796 
 not liable where damage arises from error of a judge, 796 
 where not liable for mistakes, 796 
 acting as advocate, liable for negligence, 796 
 duty in preparing abstract of title, 797 
 duty of, in the conduct of purchases, 797 
 
 to make searches, 797 
 may be liable where deed professes to be settled by the Court, 798 
 duty in regard to business between landlord and tenant, 79S, 799 
 duty in regard to negotiations between lenders and borrowers, 799 
 acting for both lender and borrower, 800 
 in partnership matters, 800 
 duty in matters between principal and surety, 800 
 
 between debtor and creditor, 800 
 having custody of client's deeds, 801 
 acting as trustee, 801 
 mislaying papers, 801 
 
 mixing property of clients held by them as trustees with their own, 801 
 borrowing money for client on personal secnrity, 801 
 charge for costs taken by, from a company, and not registered, 801 
 liability to third persons, 802 
 having funds of trustees in hand, 848 
 trust-money not to be left in his hands, 861 
 no general power to authorize solicitors to receivetrust-money, 862 
 duty of, in mortgage negotiations, 900 
 presumption that he has communicated to bis client facta that ought to 
 
 be \nown, 907 
 
INDEX. 1243 
 
 SOVEREIGN— see Ckowk. 
 
 may by Letters Patent suspend a public ofiScer, 267 
 SPARKS FLYma FROM ENGINE, and kindling fire, 986 
 SPECIAL contract, not within Carriers Act, 1830 : 595 
 summary of efifect of, 596 
 requisites of, after Act, 596 
 changes in the law, 597 
 
 negligence of common carrier, how affected by, 598-605 
 limitations on, 597 
 where bound to extreme care, 599 
 under Railway and Caual Traffic Act, 603, 614 
 when not binding, 603 
 with passenger, 65 1 
 acceptance by common carrier, 586, 587 
 stipulations, abridging common law, responsibility, 742, 743 
 bailiffl, what are, 752 
 
 SPECIALIST DILIGENCE, 22, 23 
 
 when carrier to use, 43 
 
 who must exercise, 43, 44 
 ^ considered, 789 
 SPECIFIC ACT, diligence required in performance of, 808 
 
 SPECIFICATIONS, duty of architect with regard to, 8io 
 
 SPECIFIC PERFORMANCE, efifect of notice of a lease or claim fjr, 906 
 
 SPRING GUNS, setting of, 924 
 
 use of, illegal, 1086 
 SQUIB, self-protection from, 46 
 
 STAG HUNTING, 916 
 
 STAIRCASE FALLING DOW.V, 1106 
 
 STANDARD OF CARE, judge to fix, 12 
 
 STATUTE, creating duty and imposing penalty when other remedies excluded, 222 
 conferring authority to do judicial act, 226, 227 
 meaning of " it shall be lawful' in, 227 
 of Limitations does not apply where fraud, 493 
 
 when it runs against solicitor's negligence, 791 
 right arising out of tort cannot be revived by acknowledg- 
 ment, 792 
 where act of directors is a breach of trust, 842 
 provisions of the Judicature Act with reference to, 862 
 runs against customer in favour of banker, 866 
 in regard to iires, 984 
 STATUTORY authority, how far licence a nuisance, 202-205 
 
 Ministerial officers where protected by, 259, 260 
 for laying gas or water-pipes, 994 
 
 to cany out works in connection with gas and water com- 
 panies, 999 
 of gas and water companies, loio, 1046 
 
 canal companies, 1050, 1058 
 local anthority acting within, 1070 
 diverting highways under, 109 1 
 
 damage when a consequence of work done under, 1127, 1138 
 the rule as to liability where, 1138, 1141 
 duty, action for breach of, 206, 207 
 
 neglect to perform, 209-211, 220, 321, 336 
 where mere omission of, 220 
 effect of penalty imposed for breach of, 222 
 where plaintiff guilty of coutributOTy negligence, 337, 338 
 injury to servant through neglect of, 346, 353 
 how differs from common law duty, 348, 349 - 
 effect of; on maxim, Volewti nonftt injuria, 349, 350 
 of gaoler in obeying warrant, 754 
 liability of officer acting under, 778 
 what constitutes negligence in executing, 778 
 of railway company to fence no greater than their common law 
 liability, 974, 1094 
 
1244 INDEX. 
 
 STATDTOEY duty imposed on highway authority, 1020 
 to maintain bridge across canal, 1062 
 where transgressed, 1076 
 how far ma^ be delegated, 1076 
 damage arising from delegation of, 1077 
 rales in Admiralty, where not applicable, 946^ 
 protection must be land fide belief in Act entitling to, 1022, 1046 
 STEAM VESSEL, duty of, when in collision with sinking vessel, 949 
 
 regulations as to, 950 
 STOCKBEOKBE, who is a, 8io 
 
 his relation to client if insolvent, 816 
 
 diiferences between members of the Stock Exchange, how adjusted, 
 
 816 
 authority to act, 816 
 
 when employed to buy in a particular market, 817 
 usage of particular market, how far binding of client of, 819 
 STOCK EXCHAffGE, history of, 816 
 
 how differs from Lloyds, 816 
 STONE STEPS projecting into street, 1093 
 
 STEEAM running through landowner's property, 1 146 
 
 STEEET, letting off fireworks in, 6 
 
 animal causing damage in, 6, 7 
 
 passenger injured in public, 34 
 
 driving animals along, 919 
 
 opening, 993 
 
 how different from highway, 1012 
 
 improper user of, as stable-yard, 1031 
 
 includes bridge, 1061 
 
 steps in, 1093 
 SUB-AGENT, where employment of, authorized, 871 
 
 SUBSIDENCE pf embankment, 600 
 
 in roadway, 1020 
 SUBSEQUENT PEEOAUTION no evidence of antecedent negligence, 666, 667 
 
 SUDDEN emergency, duty of captain or pilot in, 944 
 
 terror, accident caused by, Jo 
 SUNKEN vessel when abandoned, liability in respect of, 934 
 
 SUPEEIOE COUET, action under Employers' Liability Act, when may be removed 
 
 into, 440, 441 
 SUPEEINTENDENCB, who have, within Employers' Liability Act, 427-430 
 SUPEEINTENDENT, railway company liable for, what afcts of, 290 
 SUPPLYING MEDICINE, not necessarily practising as an apothecary, 822 
 SUPPLY PIPE to water-closet out of order, rights of person injured thereby, 1 140 
 SUEETIES ON EEPLEVIN BOND, duties of sheriff as to taking of, 774 
 
 SURFACE drainage, rights in respect of, 1128 
 
 water, righte as to, 1155, 1160 
 SUEGEON — see Medical and Sukqical Pbactitioneks 
 
 SUEVEYOE, liability of trustees in employing, 810-814, 848 
 
 of highways, liability of, for road out of repair, 217 
 non-repair of road, 218 
 duties of, transfen-ed to vestries, 218 
 where, not liable, 267, n. 
 power to make agreements with gas or water company, 
 
 996 
 may not authorize nuisance, 997 
 powers of justices with regard to, 1013 
 election of, 1013 
 duty of, 1013 
 
 non-liability for non-feasance, 1015 
 statutory modification of his authority, 1015 
 where obstruction, 1016 
 liability under 5 & 6 Will. IV. 0, 50: 1016 
 
 in respect of unlawful act ordered by Local Board, 
 1018 
 
INDEX. 1245 
 
 SURVEYOR of highways not personally responsible for not repairing a road, ioi6 
 
 distinction between one under the Public Health Act, 1875, 
 s. 189, and one under the Highways Act, 1835 : 1016 , 
 1045 
 
 TAME ANIMALS, 913, 932 
 
 teat whether an animal is a, 923 
 TAMED ANIMALS, 913, 923, 932 
 TEAMSTERS are comnion carriers, 563 
 TELEGRAM, error in transmission of, 744 
 
 exclusive privilege of Postmaster-Greneral, 736 
 negligence in transmitting, 736 
 property in, 738 
 
 receiver of, relation between telegraph company, 739, 740 
 sender of, rule as to, 739 
 transmitted over several lines, 743, 744 
 „ to or from foreign places, 7^6 
 
 TELEGRAPH Act, 1868 : 736 
 
 Acts, telephone within, 736 
 company, agents of sender and receiver, 738 
 as common carriers, 737, 738, 742 
 bound to use care, 739 
 
 conditions on which messages are sent, 741, 742 
 damages recovered in case of negligence of, 739 
 liability of, 739 
 
 arises out of contract, 737, 739 
 liable to addressee where wrong message is delivered, 740 
 not bound to warrant message, 739 
 not common carriers, 740 . 
 
 not hable for negligent mistakes on ground of misrepresen- 
 tation, 738 
 private, 736 
 TELEGRAPHS vested in Postmaster-General, 736 
 
 TELEPHONE, a telegraph within meaning of Telegraph Acts, 736 
 
 TENANT, distinction between defect in premises demised to, and in premises used by 
 tenant by permission, 1102 
 liable for injury sustained by third party from negligence, 750 
 of a flat, rights of, 1 139 
 
 TENDER OF DEBT necessary to enable pawnor to maintain action, 494 
 
 TENURE OF OFFICE of sheriff, 750 
 
 of under sheriff, 751 
 
 TERMINATION OF RESPONSIBILITY OF CARRIERS, when, 624, 625 
 
 on what terms goods 
 remain after, 625- 
 627 
 TERROR, legal effect of, 69 
 
 THEFT, bailment to keep safely, bailee liable for, 463, 464 
 liability of carrier for hire for, 542 
 
 sheriff for loss of goods by, 765 
 loss by presumptive evidence of negligence of bailee, 464 
 responsibility of pawnee for, 497 
 when bailee liable for losses by, 464 
 when warehouseman answerable for, 529 
 
 THEORIES OF LIABILITY, two, 13 
 
 THIRD PERSON causing injury from overflow of water, 1136, 1138 
 
 distinction between acts of directors acting on behalf of the com- 
 pany with regard to third person, and when acting for the 
 shareholders in a fiduciary capacity, 843 
 negligence of, causing injury to, 72 
 which of two innocent parties to suffer by act of, 890 
 wrongful act of, causing one of two people to injure the other, 50 
 TICKET, conditions on, carrier ought to bring to notice of passengers, 652-654, 660 
 question for jury whether passenger had notice of, 657 
 
1246 INDEX. 
 
 TICKET containing oonditiona, how far binding on passenger, 651, 635, 656 
 
 passenger bound by, 659 
 when binding, 650, 651 
 only a i-eceipt for money, 653 
 TIDEWAY, scuttling ship in, 935 
 TIME in which executor must realize assets, 834 
 
 reasonable, a question of fact, 536 
 TITLE DEEDS, duty of mortgagee in respect of obtaining, 903 
 
 in another's possession, notice of his claim to the estate, 904 
 where purchaser omits to call for, 905 
 of depositor need not be absolute, 457 
 TONNAGE, provisions as to limitations of liability in respect- of, 954 
 TORT, action against common carrier for overturning of a coach, not in, 631, m. 
 in die, with the former history of law as to, 162 
 
 except where statute has expressly 
 provided, 162 
 non-feasance arising under a contract, 454, 455 
 of third party, when carrier of passengers not liable for, 649. 
 what are the constituents of, to found an action in England, 247, ». 
 where legalized, 1054 
 TOW BOATS, owner of, not a common carrier, 563 
 TOWAGE contract, where partakes nature of salvage, 721, 722 
 law as to, 717 
 the duty of each vessel, 717 
 TOWED VESSEL, damage done to by tug, liability of tug owner limited by statute 
 721 
 towing vessel as regards stranger, a single whole, 720 
 contributory negligence of, how affects liability of tu", 718 
 collision between tug and another vessel, towed vessel liable, 720 
 under compulsory pilotage, whether immunity extends to tug, 721 
 and tug, no common employment between, 722 
 TOWING PATH a highway, 1057 
 
 user of, 1057 
 TRACTION ENGINE, user of highway by, 1043 
 
 TRADESMAN, negligence in execution of work does not render employer liable, 300 
 TRAFFIC MANAGER is a fellow-servant with milesman, 358 
 
 TRAIN merely overshooting platform not negligence, 671, 672 
 
 not drawn up to platform, passenger injured whilst alighting, on'us of proof, 113, 
 
 114 
 TRAM CARS, obstruction by, 1038 
 
 TRAMWAY and omnibus conductors and drivers within Employers' Liability Act, 
 440 
 
 is a railway, 437, 438 
 
 company, effect of a contract between highway authority and, 1021 
 
 company liable for injuries caused by a drunken man being on car, 679 
 TRAM lines in a highway, 994 
 
 TRAP, only actionable as far as calculated to injure a person using ordinaiy care, 113 
 fining, wrongful act, 1 100 
 
 door left open in shop, i lOJ _ 
 
 TRENCH, driving into, 1090 
 
 improperly filled in, 1020 
 TRESPASS, action for, against governor of colony, 250, 251 
 
 and false imprisonment, gaoler liable for, where warrant executed against 
 
 wrong person, 754 
 and criminal act, liability of lunatic for, 48 
 and trespass on the case, distinctions between, 279 
 breaking in horse in improper place, 47 
 by animals not in accordance with ordinary instincts, 920 
 by animals in the ordinary user of the highway, 968 
 dog may be seized if damage feasant while trespassing, 923 
 horse on highway, 920 
 
 in pursuit of animals injurious to the commonwealth, 915, 916 
 in pursuit of fox, &c., 915 
 
INDEX. 1247 
 
 TRESPASS, independent, railway company not liable for, 648 
 infants held responsible for, 47 
 liability for, where cattle stray, 964 
 without negligence, 961 
 of owner for the, by his cattle, 916 
 master, when liable for his servant's direct, 274 
 of lunatic distinguishable from criminal act, 48 
 of its officers, when corporation liable for, 229, 230 
 of servant, when master liable for, 283, 284 
 owner of soil of highway may have action for, 1039, 1041 
 purely accidental, 48 
 sheriff liable to action for, when, 774, 775 
 thorns falling on neighbour's land, when a, 33 
 »« et armis does not Ue against pound-keeper for receiving a distress, 
 
 though original taking was wrongful, 754, n. 
 when lunatic liable for, 48, 49 
 
 an inevitable accident, 1 156 
 TRESPASSER, a person on premises of another in pursuit of some object, implying an 
 inducement held out by owner, not a, 34, 35 
 child, when a, differs in no way from an adult, 143 
 distinction between injuries deliberately inflicted on, and those inoi- 
 
 destally arising, 406 
 falling into excavation, when unable to recover, 1090, 1097 
 injury caused by meddling of, 1090 
 
 to, caused by carelessness, 1098 
 liability of railway company as to, 643 
 on land, when violence may be used to pat him off, 276 
 passengers on railway without tickets are, 643 
 though liable to action, does not forfeit his own right, 1090 
 undertakes all risks with which trespass is attended, 338 
 when no right of action by, 6 
 
 when a person piling up rubbish against a neighbour's wall is, 23 
 where damage is sustained by, 1084 
 TRIBUNAL, military cases involving only military duty, or discipline properly 
 cognizable by, 244 
 when Queen's Bench will interfere with judgments of, 244, 245 
 TROVER, action in, proof of demand and refusal, constitute an apparent conversion, 
 
 469 . . 
 when sheriff liable in, 
 TRUST, whether voluntary or for valuable consideration immaterial, 846 
 funds following, 850 
 should be kept to a separate account, 850 
 
 TRUSTEE ACT, 1888 : 859-862 
 
 TRUSTEES and executors, 845-865 
 
 distinction between trustees and executors, 845 
 duty of trustees to secure trust property, 855 
 executor defined, 845 
 
 not liable for bad judgment, 854 
 not to carry on trade of his testator, unless ex- 
 pressly authorized to do so, 854 
 exonerated when agent is necessarily employed, 848 
 follow usual course of business, 847 
 general principles of trustees' liability, 845, S46 
 gross negligence of, 901 
 liability of gratuitous trustee considered, 846 
 
 retired trustee for investment proving in- 
 sufficient after his retirement, 865 
 where exclusive control is parted with, 849 
 liable for loss of trust funds left in the hands of their 
 
 solicitor, 848 
 limitations of liability, if under Trustee Act, 1888 : 859- 
 
 861 
 may employ agent, but bound to use his own skill and 
 
 judgment, 847 
 must not act beyond the terms of the trust, 847 
 not liable for the non-performance of a trust of which they 
 are ignorant, 85 1 
 
1248 INDEX. 
 
 TEUSTEES and exeontore, only chargeable for funda actually received, 862 
 personal liability of, 850 
 
 powers under tbe Conveyancing Act, 1881 : 856 
 who are, defined, 84S 
 
 not bound to specialty negligence, 846 
 
 or agent confusing trust property with his own, 
 
 850 
 paying trust money to his own banking account 
 hable, 850 
 what amount of confidence in co-trustee allowable, 801 
 when Bolioitors, 801 
 where executor is liable to refund, 855 
 where broker misappropriates securities, 850 
 where they have power to advance money on personal 
 security, 857 
 of a marriage settlement, dictvim of Jessel, M.E., as to liability of, 840 
 public, not deriving profit from their office, how far liable for negligence, 
 19S-212, 216 
 summary of general principles governing, 232-235 
 TUG— see Towed Vessel 
 
 duty of, to carry out directions received from ship, 720 
 
 implied obligation of efficiency is not set aside by proviso against negligence of 
 master, 717, ». 
 TUBNPIKE road, how distinguished from highway, 1047 
 
 liability as to, identical with that of an ordinary highway unless 
 
 regulated by statute, 1048 
 principal statutes regulating, 1048 
 what is, 1047 
 trustees, bridge built by, 1060 
 
 ULTRA VIBES, corporation not liable for the acts of directors done, 230, 231 
 
 UNDEE-SHEEIEF, duties of,_750, 751 
 
 how appainted, 750 
 
 acts and defaults of, sheriff liable for, 751 
 
 how removable, 751 
 
 tenure of office by, 75 1 
 
 executors Hable for wrong committed by, 751 
 
 when admissions by, are evidence against sheriff, 761, n, 
 UNLAWFUL ACT of a stranger, 959, 960 
 
 where it imports liability, 1138 
 
 injury results from, it is actionable without negligence, 961 
 
 UNLIMITED DISCEETION OF SOLICITOE, 790 
 
 UNEEASONABLE time in presentment of bill of exchange, 874 
 
 what, is, for coaches standing in a highway, 103 1 
 usage not binding, 819 
 
 UNSAFE CONDITION OF PEEMISES, duty in respect of, 11 12 
 
 UNUSUAL EISKS, what are, 1113 
 
 UNUSUALLY HEAVY EAINFALL, damage done to wharf through overcharged 
 sewer, 107 1 
 
 USE, thing deposited, depositary no right to, two exceptions to, 475 
 
 USING PEIVATE EOAD WITHOUT LICENCE, no duty on owner to protect 
 one, 1090 
 
 USUAL COVENANTS, what are, 799 
 
 VALUE of parcel declared not conclusive against canal company, S9S 
 evidence of, on which trust money is lent, 860 
 
 VALUABLE PEOPEETY, Hability for damage done by animals which are, 917 
 
 VALUEE of investment in trust funds to be employed independently of the owner ot 
 the property, 860 
 
 VEHICLES, carrier of passengers must provide sufficient, 632 
 
 for what defects in, carrier of passengers liable, 633 
 
INDEX. J 249 
 
 VEHICLES, carrier of passengers only liable to supply reasonably fit, for journey, 635, 
 636 
 duty of carriers of passengers to examine, 637, 638 
 not under control of carriers of passengers, duties and liability as regards, 
 649 
 VENDOR AND PURCHASER ACT, 1874, s. 2, sub-s. i : 905 
 VENDOR, duty to inquire into title of, goj 
 
 position of, with regard to notice, 907 
 VENDORS AND PURCHASERS, solicitor's duties with regard to, 796 
 VENGEANCE as a foundation for legal liability, 13 
 VERDICT, corrupt, inununity of jurymen for, 254, 255 
 VERMIN, killing, in defence of property, 932 
 
 VESTRIES, exclusive right to repair highways in, as constituted by Metropolis 
 Local Management Act, 1855 : 218 
 Metropolis Local Management Act transfers to, duties and liabilities of 
 the surveyor of highways, 218 
 VICEROY, governor of dependency in the nature of, 248, 249, 251 
 VICTORIAN RAILWAY COMMISSIONERS v. COULTAS, case discussed, 66, 67 
 VINDICTIVE damages, gross negligence with reference to, 44 
 
 given in some cases, 44 
 VISITOR, liability of owner for injury to, 35 
 
 rights of, where ferocious dog kept, 925 
 position of, on premises, 1103, 1 1 12 
 VIS MAJOR, 74 
 
 when it excuses, 1126, 1127, 1131 
 VOID CONTRACT against public policy, 819 
 
 VOLENTI NON FIT INJUBIA, 329, 336-338, 345> 348, 396, 417, 427, 43s 
 VOLUNTARY act, an act done to avoid injury likely to result from a wrongful act 
 of a third person not a, 50 
 what is, 71 
 distinction between liability arising from, and liability arising from 
 
 involuntary act, 891 
 duty of person undertaking, 973 
 
 thing sent, if received, receiver becomes liable for gross negligence, 468 
 undertaking, what is, 340, 341 
 
 of risk, question of, discussed, 1113, 1123 
 VOLUNTEER, who is, 409 
 
 what constitutes, 1 107 
 
 can impose no greater obligation than if in the actual employ of the 
 
 person he was assisting, 57 
 injured by negligence of servants, cannot recover against master, 406, 
 
 407, 409 
 injuries to, proposition deduced from cases relating to, 410 
 VOTE, refusal to take, gives ground of action, 755, 756 
 
 WAGGON, proper burthen for a, 1043 
 
 WAGGONER is common carrier, 503 
 
 is servant in husbandry, 446 ,. . . 
 
 WALL, person pulling down, when notice should be given to adjoining owner, 36 
 
 WANTON and mischievous act causing damage, 69 ; 
 
 WAREHOUSE, signification of, 528 
 
 flooded by flood from river, lOSS 
 goods, right to, after arrival at station, 627 
 WAREHOUSEMAN, employing, master pari;ly Uable for his negbgence, 303 
 definitions of, 528 
 
 liability of, for negligence, 528, 529 
 not an insurer, 529 
 when Uable for negligence, S29-S3I 
 
 duty and liability of, 529. 53° , , , » ^ j * , 
 
 cannot move goods from place where he has contracted to keep 
 
 them, 530, 531 „ . , ^ ,. 
 
 not liable for robbery, accident, or fire, without gross negligence, 
 
 responsibilitv commences directly goods delivered to him, 531 
 
 4 K 
 
1250 INDEX. 
 
 WAREHOUSEMAN, where liability as carrier ceases arid that of, begins, 534, S3S 
 dock-owners sometimes act as, 538 
 diifers from common carrier, 563 
 when carrier a, 618, 619 
 
 becomes, 625, 626 
 carrier holding luggage as, liabilities of, 694 
 WAEBANT, of arrest, &o., must show on its face all essentials, 259 
 
 pawnor does not, property,^ 498 . 
 
 expressing cause, though imperfectly, officer not expected to judge of the 
 
 sufficiency of statement, 259 
 telegraph company not bound to messages, 739 
 
 irregularly issued, gaoler not responsible for detaining a person under, 753 
 valid on the face of it, how far gaoler protected, 754 
 executed against a wrong person, gaoler liable for trespass and false im- 
 prisonment, 754 
 WARRANTY of carrier of passengers, as to roadworthiness of vehicle, 20 
 of due care, when implied, 59 
 by letter against faults and defects which prevent due enjoyment of use, 
 
 5°' SI 
 by earner for hire makes him a common earner, 543 
 
 none on part of shipper, 582 
 
 of common carrier, 583 
 
 none by carrier of passengers as to defects undiscoverablo, 636-638 
 
 by carrier of passengers as to reasonableness of vehicle, 636-^38 
 
 on part of shipowner that ship is fit for purpose for which it is applied, 
 
 710,711 
 
 by shipowner of competency of crew, 711 
 
 WATER COMPANY— «ee Gas Compahy 
 freezing on roadway, 85 
 maliciouBly cutting down, 47 
 introduced by a city corporation into private house, not on footing of a ooh- 
 
 tract, but a bouse which is paid for, 221 
 earners, liability of, 564 
 escaping from a main, 1005 
 on land, duty with regard to, 1005 
 
 subtraction of, from canals by working of mines, 1054, 105S 
 rights where, brought on land, distinct from when it n.itnrally comes there 
 
 1 124 
 flow of, on land, 1128 
 
 caused to flow on neighbour's property, 1128 
 keeping of, a reasonable use of property, 1133 
 mischief arising from act of third person, 1 136 
 extraordinary precautious necessary when bringing, on land, 1 137 
 brought on premises by right paramount, 11 39 
 running in defined channels, 1 142 
 
 channels not defined, 1 142 
 rights of proprietors along the course of a stream, 1146 
 use for irrigation, 1151 
 for propelling machinery, 1151 
 for watering cattle, 1151 
 
 distinction between artificial and natural streams, 1 152 
 flowing in a subterranean course, 11 52 
 
 no defined course, 1155 
 subterranean water, 1157, 1158, n6o 
 collected in a well, 11 58 
 escaping from fracture in pipe, 1071 
 
 WATERCOURSE, American law as to corrupting, 1128 
 definition of, 1142, 1153 
 
 test to discriminate between a natural and an artificial stream 
 1 143, 1 153 
 
 WATERWORKS CLAUSES ACT, 998 
 
 Amendment Act, 998 
 
 1847: 99 
 
 WAY— 866 fllSHWAY 
 
 " WAYS," meaning of, in Employers' Liability Act, 423, 42 
 WEIGHTS AND MEASURES ACT, 998 
 
INDEX. 1251 
 
 WELL pei-missible user of, 1129 
 
 water collected by sinking a, 1158 
 WHARFS,^ legal, what are, S32 
 
 sufferance, what are, 532 
 of two kinds, legal wharf— sufferance wharf, 532 
 definition of, 532 
 WHARFINGER, closely allied to warehouseman, 531-534 
 dili^noe required of, 532, 533 
 distinction between, and common carrier, 532-534 
 duty of, ends with delivery, 533, 534 
 dock owners sometimes act as, 538 
 WHARTON'S DEFINITION OF NEGLIGENCE, 4 
 
 WHERE JURY had manifestly shrunk from deciding issue, not be a new trial, 193 
 WILFUL default of trustee, 851 
 
 liability of trustees, where there is, 862 
 T®?^®°*'®' P™''able meaning of term, 902 
 WJJjLJlib, J.,'s definition of negligence, 10 
 
 WINDSCHIED'S theory of responsibility, 7 
 
 WOODLEY V. METROPOLITAN DISTRICT RAILWAY COMPANY, examined 
 and discussed, 11 13, 1122 
 
 "WORKS," meaning of in Employers' Liability Act, 424 
 WORKMAN, definition of, under Employers' Liability Act, 444, 445 
 
 in same position under Employers' Liability Act as if he had not been 
 
 in service of his employer, 415, 419 
 for what ma,y recover under Employers' Liability Act, 419 
 in same position as a licensee under Employers' Liability Act, 419, 427, 
 
 431.433.436 
 when he has knowledge of defect in machinery, &c., must inform his 
 
 employer within a reasonable time, 426 
 injured by negligence of any one having superintendence can recover 
 under Employers' Liability Act, 427-430 
 some one whom he is bound to obey, is entitled 
 to recover under Employers' Liability 
 Act, 431,433 
 act or omission of person acting under bye-laws, action may 
 be brought under Employers' Liability Act, 433, 434 
 may recover under Employers' Liability Act where injured by negli- 
 gence of any person who has control of locomotive engine, &c., 436 
 railway servant is, under Employers' Liability Act, 436, 444, 445 
 recovering penalty under any Act must deduct such penalty from com- 
 pensation recovered under the Employers' Liability Act, 439, 440 
 none is to recover compensation twice over for same injury, 440, 441 
 may contract himself out of the Employers' Liability Act, 448 
 WRECK, liability where abandoned by owner, 935 
 wilfully scuttling ship, 935 
 not abandoned by owner, 935 
 WRIT, old, of protection only delayed execution, 249, 250 
 
 of Superior Court, not appearing to be without jurisdiction, is valid and a 
 
 protection to those executing it, 259 
 issued by Court, good till set aside, 708 
 execution of, duty and liability of sheriff as to, 757 
 erroneously awarded, but shews jurisdiction on the face of it, sheriff not allowed 
 
 to set up defence, 756 
 what, sheriff may break open doors of a house in execution of, 758, 759 
 execution of, in a liberty, duty of sheriff as to, 759 
 containing a non omittas clause, sheriff may enter liberty, 759, 760 
 when sheriff must execute, 760, 761 
 
 of CO. sa., duty of sheriff with regard to execution of, 766, 767 
 of fi. fa., action against sheriff for not levjring, pecuniary loss must be shewn, 
 
 761 .... 
 
 where several in hands of sheriff, must execute all, giving priority according 
 
 to the time they came into his hands, 762 
 execution, sheriff responsible for execution of, 762 
 sheriff must not execute the writ where he is directed not to do so by plaintiff 
 
 or his solicitor, 763, n. 
 
1252 INDEX. 
 
 WEIT of elegit, duty of sheriff as to execution of, 767 
 of capias utlagatum, how executed, 768 
 of possession, how executed, 768, 769 
 
 not a good return to the sheriff could not execute it, 769 
 
 WRITTEN AUTHOElTr, solicitor should obtain from client, 786 
 
 WEONGS, whether proceedings for, to be by indictment or not, 223, n. 
 
 WRONGrFUL ACT, no duty can be imposed by, 406, 407, 409 
 liability of directors for, 842 
 
 WEONG SIDE OF ROAD, rule as to, does not apply with regard to foot passengers, 
 961 
 
 YOUNG V. GROTE considered, 892 
 
 YOUNG CHILD— see also Child 
 
 injury to, caused by horse grazing on a road, 920 
 persons, whether able to exercise choice, 47 
 workpeople, master under greater duty, to, 361-365 
 
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 INDEX OF SUBJECTS. 
 
 PAGE 
 
 ABSTRACT DRAWING— 
 
 Scott 32 
 
 ADMINISTRATION ACTIONS— 
 
 Walker and Elgood 18 
 
 ADMINISTRATORS— 
 
 Walker 6 
 
 ADMIRALTY LAW— 
 
 Kay 17 
 
 Smith 23 
 
 ARBITRATION— 
 
 Slater 7 
 
 ARTIZANS AND LABOURERS' 
 DWELLINGS— Lloyd .... 13 
 
 BANKRUPTCY— 
 
 Baldwin 15 
 
 Hazlitt 29 
 
 Indermaur (Question & Answer) 28 
 Ringwood "Si 29 
 
 BAR EXAMINATION JOURNAL 39 
 
 BIBLIOGRAPHY 40 
 
 BILLS OF LADING— 
 
 Campbell 9 
 
 Kay 17 
 
 BILLS OF SALE— 
 
 Baldwin 15 
 
 Indermaur 28 
 
 Ringwood 15 
 
 BUILDING LEASES AND CON- 
 TRACTS— 
 
 Emden 8 
 
 Hudson 12 
 
 CAPITAL PUNISHMENT— 
 
 Copinger ■ 42 
 
 CARRIERS— 
 
 \S-«« RAILWAY LAW. 
 „ SHIPMASTERS. 
 
 CHANCERY DIVISION, Practice of— 
 Brown's Edition of Snell ... 22 
 
 Indermaur 25 
 
 Williams 7 
 
 And see EQUITY. 
 
 CHARITABLE TRUSTS— 
 
 Cooke 10 
 
 Whiteford 20 
 
 CHURCH AND CLERGY— 
 
 Brice g 
 
 CIVIL LAW— .$■«« ROMAN LAW. 
 
 CLUB LAW— 
 
 Wertheimer 32 
 
 CODES— Argles 32 
 
 COLLISIONS AT SEA— Kay . , 17 
 
 COLONIAL LAW— 
 
 Cape Colony 38 
 
 Forsyth 14 
 
 Tarring 41 
 
 COMMERCIAL AGENCY — 
 
 Campbell ..,..,,. 9 
 
 PAGE 
 
 COMMERCIAL LAW— 
 
 Hurst and Cecil II 
 
 COMMON LAW— 
 
 Indermaur 24 
 
 COMPANIES LAW- 
 
 Brice 16 
 
 Buckley 17 
 
 Reilly's Reports 29 
 
 Smith 39 
 
 Watts 47 
 
 COMPENSATION— 
 
 Browne 19 
 
 Lloyd 13 
 
 COMPULSORY PURCHASE— 
 
 Browne ig 
 
 CONSTABLES— 
 
 i'^e POLICE GUIDE. 
 
 CONSTITUTIONAL LAW AND 
 HISTORY— 
 
 Forsyth 14 
 
 Taswell-Langmead 21 
 
 Thomas 28 
 
 CONSULAR JURISDICTION— 
 
 Tarring 42 
 
 CONVEYANCING— 
 
 Copinger, Title Deeds .... 45 
 Copinger, Precedents in ... 40 
 Deane, Principles of 23 
 
 COPYRIGHT— 
 
 Copinger . 45 
 
 CORPORATIONS— 
 
 Brice 16 
 
 Browne iq 
 
 COSTS, Crown Office- 
 Short 41 
 
 COVENANTS FOR TITLE— 
 
 Copinger 45 
 
 CREW OF A SHIP— 
 
 Kay 17 
 
 CRIMINAL LAW— 
 
 Copinger 42 
 
 Harris . . 27 
 
 CROWN LAW— 
 
 Forsyth 14 
 
 Hall 30 
 
 Kelyng 35 
 
 Taswell-Langmead . . , . . 21-^ 
 Thomas 28 
 
 CROWN OFFICE RULES— 
 
 Short 10 
 
 CROWN PRACTICE— 
 
 Corner 10 
 
 Short and Mellor 10 
 
 CUSTOM AND USAGE— 
 
 Browne jg 
 
 Mayne ...... -ig 
 
 DAMAGES— ■ 
 
 Mayne oi 
 
 DICTIONARIES— " 
 
 Brown ......... 26 
 
STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS-««'""'^.^. 
 
 23 
 
 38 
 
 DIGESTS- 
 
 Law Magazine Quarterly Digest . 37 
 Menzies' Digest of Cape Reports. 38 
 
 DISCOVERY— Peile 7 
 
 DIVORCE— Harrison 
 
 DOMESTIC RELATIONS— 
 
 Eversley 
 
 DOMICIL— ^■ei PRIVATE INTER- 
 NATIONAL LAW. 
 
 DUTCH LAW 
 
 ECCLESIASTICAL LAW— 
 
 Brice g 
 
 Smith 23 
 
 EDUCATION ACTS— 
 
 See MAGISTERIAL LAW. 
 
 ELECTION LAW and PETITIONS— 
 
 Hardcastle 33 
 
 O'Malley and Hardcastle ... 33 
 Seager 47 
 
 EQUITY— 
 
 Blyth 22 
 
 Choyce Cases 35 
 
 Pemberton 32 
 
 Snell 22 
 
 Story 43 
 
 Williams .... ... 7 
 
 EVIDENCE— 
 
 Phipson . 20 
 
 EXAMINATION OF STUDENTS— 
 Bar Examination Journal ... 39 
 
 Indermaur 24 and 25 
 
 Intermediate LL.B 21 
 
 EXECUTORS— 
 
 Walker and Elgood 6 
 
 EXTRADITION— 
 
 Clarke 
 
 See MAGISTERIAL LAW. 
 
 FACTORIES— 
 
 i-«« MAGISTERIAL LAW. 
 
 FISHERIES— 
 
 See MAGISTERIAL LAW. 
 FIXTURES— Brown .... 
 FOREIGN LAW— 
 
 Argles ., 
 
 Dutch Law 
 
 Foote 
 
 FORESHORE— 
 
 Moore 3° 
 
 FORGERY— i-«£ MAGISTERIAL LAW. 
 FRAUDULENT CONVEYANCES— 
 
 May 29 
 
 GAIUS INSTITUTES— 
 
 Harris 20 
 
 GAME LAWS— 
 
 See MAGISTERIAL LAW. 
 GUARDIAN AND WARD— 
 
 Eversley 9 
 
 HACKNEY CARRIAGES— 
 
 See MAGISTERIAL LAW. 
 
 45 
 
 HINDU LAW— 
 
 Coghlan 28 
 
 Cunningham 38 and 42 
 
 Mayne '38 
 
 HISTORY- 
 
 Taswell-Langmead 21 
 
 HUSBAND AND WIFE— 
 
 Eversley , 9 
 
 INDEX TO PRECEDENTS— 
 
 Copinger 40 
 
 INFANTS— 
 
 Eversley . 9 
 
 Simpson 43 
 
 INJUNCTIONS— 
 
 Joyce 44 
 
 INSTITUTE OF THE LAW— 
 
 Brown's Law Dictionary ... 26 
 
 INSURANCE— 
 
 Porter 6 
 
 INTERNATIONAL LAW— 
 
 Clarke 45 
 
 Cobbett 43 
 
 Foote 36 
 
 Law Magazine 37 
 
 INTERROGATORIES— 
 
 Peile 7 
 
 INTOXICATING LIQUORS— 
 See MAGISTERIAL LAW, 
 
 JOINT STOCK COMPANIES— 
 See COMPANIES. 
 
 JUDGMENTS AND ORDERS - 
 
 Pemberton 18 
 
 JUDICATURE ACTS— 
 
 Cunningham and Mattinson . . 7 
 
 Indermaur 25 
 
 Kelke 6 
 
 JURISPRUDENCE— 
 
 Forsyth 14 
 
 Salmond 13 
 
 JUSTINIAN'S INSTITUTES— 
 
 Campbell 47 
 
 Harris 20 
 
 LANDLORD AND TENANT- 
 
 Foa II 
 
 LANDS CLAUSES CONSOLIDA- 
 TION ACT— 
 Lloyd I" 
 
 LAND, IMPROVEMENT OF, by 
 Buildings — 
 
 Emden 8 
 
 LATIN MAXIMS 28 
 
 LAW DICTIONARY— 
 
 Brown 26 
 
 LAW MAGAZINE and REVIEW. 37 
 
 LEADING CASES— 
 
 Common Law 25 
 
 Constitutional Law . ... 28 
 
 Equity and Conveyancing ... 25 
 
 Hindu Law 28 
 
 International Law 43 
 
STEVENS 6- IIAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS-'^''"'''''""'- 
 
 PAGE 
 
 LEADING STATUTES - 
 
 Thomas 28 
 
 LEASES— 
 
 Emden .1 8 
 
 Copinger 45 
 
 LEGACY AND SUCCESSION— 
 
 Hanson 10 
 
 LEGITIMACY AND MARRIAGE— 
 See PRIVATE INTERNA- 
 TIONAL LAW. 
 LICENSES— .y«eMAGISTERIAL LAW. 
 LIFE ASSURANCE— 
 
 Buckley 17 
 
 Reilly 29 
 
 LIMITATION OF ACTIONS— 
 
 Banning 42 
 
 LUNACY— 
 
 Williams 7 
 
 MAGISTERIAL LAW— 
 
 Greenwood and Martin .... 46 
 MAINTENANCE AND DESERTION. 
 
 Martin 7 
 
 MARRIAGE and LEGITIMACY— 
 
 Foote 36 
 
 MARRIED WOMEN'S PRO- 
 PERTY ACTS— 
 
 Brown's Edition of Griffith . . 40 
 MASTER AND SERVANT- 
 
 Eversley 9 
 
 See MAGISTERIAL LAW. 
 
 „ SHIPMASTERS & SEAMEN. 
 MERCANTILE LAW 32 
 
 Campbell 9 
 
 Duncan 33 
 
 Hurst and Cecil 11 
 
 Slater 7 
 
 See SHIPMASTERS. 
 
 „ STOPPAGE INTRANSITU. 
 MERCHANDISE MARKS— 
 
 Daniel 42 
 
 MINES— 
 
 Harris 47 
 
 See MAGISTERIAL LAW. 
 MORTMAIN— 
 
 See CHARITABLE TRUSTS. 
 NATIONALITY— 5-« PRIVATE IN- 
 TERNATIONAL LAW. 
 NEGLIGENCE— 
 
 Beven 14 
 
 Campbell 40 
 
 NEWSPAPER LIBEL— 
 
 Elliott 14 
 
 OBLIGATIONS— 
 
 Brown's Savigny .... 20 
 
 PARENT AND CHILD— 
 
 Eversley ...... n 
 
 PARLIAMENT— 
 
 Taswell-Langmead 21 
 
 Thomas ■ . . . . . . 28 
 
 PAGE 
 
 PARTITION— 
 
 Walker 43 
 
 PASSENGERS— 
 
 See MAGISTERIAL LAW. 
 „ RAILWAY LAW. 
 
 PASSENGERS AT SEA— 
 
 Kay 17 
 
 PATENTS— 
 
 Daniel 42 
 
 Frost 12 
 
 PAWNBROKERS— 
 
 See MAGISTERIAL LAW. 
 
 PETITIONS IN CHANCERY AND 
 LUNACY— 
 
 Williams 7 
 
 PILOTS— 
 
 Kay 17 
 
 POLICE GUIDE— 
 
 Gireenwood and Martin .... 46 
 
 POLLUTION OF RIVERS— 
 
 Higgins 30 
 
 PRACTICE BOOKS— 
 
 Bankruptcy 15 
 
 Companies Law .... 29 and 39 
 
 Compensation 13 
 
 Compulsory Purchase .... 19 
 
 Conveyancing 45 
 
 Damages , 31 
 
 Ecclesiastical Law 9 
 
 Election Petitions 33 
 
 Equity 7, 22 and 32 
 
 Injunctions 44 
 
 Magisterial 46 
 
 Pleading, Precedents of . . . " 7 
 
 Railways 14 
 
 Railway Commission .... 19 
 
 Rating 19 
 
 Supreme Court of Judicature . . 25 
 
 PRACTICE STATUTES, ORDERS 
 AND RULES— 
 
 Emden 11 
 
 PRECEDENTS OF PLEADING— 
 
 Cunningham and Mattinson . ■ 7 
 
 Mattinson and Macaskie ... 7 
 
 PRIMOGENITURE— 
 
 Lloyd ij 
 
 PRINCIPLES— 
 
 Brice (Corporations) . .... 16 
 
 Browne (Rating) 19 
 
 Deane (Conveyancing) .... 23 
 
 Harris (Criminal Law) .... 27 
 
 Houston (Mercantile) .... 32 
 
 Indermaur (Common Law) . . 24 
 
 Joyce (Injunctions) . ... 44 
 
 Ringwood (Bankruptcy) ... 15 
 
 Snell (Equity) 22 
 
 PRIVATE INTERNATIONAL LAW— 
 
 Foote 36 
 
STEVENS &o HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS-««/»««.</. 
 
 PROBATE- 
 
 Hanson lo 
 
 Harrison 2^ 
 
 PROMOTERS— 
 
 Watts 47 
 
 PUBLIC WORSHIP— 
 
 Brice 9 
 
 QUARTER SESSIONS- 
 
 Smith (F. J.) 6 
 
 QUEEN'S BENCH DIVISION, Practice 
 of — 
 
 Indermaur 25 
 
 QUESTIONS FOR STUDENTS— 
 
 Aldred 21 
 
 Bar Examination Jourpal ... 39 
 
 Indermaur . . 25 
 
 Waite 22 
 
 RAILWAYS— 
 
 Browne 19 
 
 Godefroi and Shortt ..... 47 
 Set MAGISTERIAL LAW. 
 
 RATING— 
 
 Browne 19 
 
 REAL PROPERTY— 
 
 Deane 23 
 
 Edwards 16 
 
 Tarring 26 
 
 REGISTRATION— 
 
 Elliott (Newspaper) .... 14 
 
 Seager (Parliamentary) .... 47 
 
 REPORTS— 
 
 Bellewe 34 
 
 Brooke 3S 
 
 Choyce Cases 35 
 
 Cooke 35 
 
 Cunningham 34 
 
 Election Petitions 33 
 
 Finlason 32 
 
 Gibbs, Seymour Will Case . . 10 
 
 Kelyng, John 35 
 
 Kelynge, William 35 
 
 Reilly 29 
 
 Shower (Cases in Parliament) . 34 
 
 ROMAN DUTCH LAW— 
 
 Van Leeuwen ...'.... 3° 
 ROMAN LAW— 
 
 Brown's Analysis of Savigny . . 20 
 
 Campbell 47 
 
 Harris 20 
 
 Salkowski '4 
 
 Whitfield '4 
 
 SALVAGE— 
 
 Tones 4/ 
 
 Kay >7 
 
 SANITARY ACTS— 
 
 See MAGISTERIAL LAW. 
 SAVINGS BANKS— 
 
 Forbes " 
 
 SCINTILLAE JURIS— 
 
 Darling (C. J.) i» 
 
 SEA SHORE— ""ACE 
 
 Hall 30 
 
 Moore 3° 
 
 SHIPMASTERS AND SEAMEN— 
 
 Kay 17 
 
 SOCIETIES— 
 
 See CORPORATIONS. 
 STAGE CARRIAGES— 
 
 See MAGISTERIAL LAW. 
 STAMP DUTIES— 
 
 Copinger 4° and 45 
 
 STATUTE OF LIMITATIONS— 
 
 Banning .42 
 
 STATUTES— 
 
 Craies 9 
 
 Hardcastle ■ 9 
 
 Marcy 26 
 
 Thomas 28 
 
 STOPPAGE IN TRANSITU— 
 
 Campbell 9 
 
 Houston 32 
 
 Kay 17 
 
 STUDENTS' BOOKS . 20—28, 39, 47 
 SUCCESSION DUTIES— 
 
 Hanson lO 
 
 SUCCESSION LAWS- 
 
 Lloyd 13 
 
 SUPREME COURT OF JUDICA- 
 TURE, Practice of— 
 
 Cunningham and Mattinson , . 7 
 
 Indermaur 25 
 
 TELEGRAPHS— 
 
 See MAGISTERIAL LAW. 
 TITLE DEEDS— 
 
 Copinger 45 
 
 TORTS— 
 
 Ringwood • • 13 
 
 TOWNS IMPROVEMENTS— 
 See MAGISTERIAL LAW. 
 TRADE MARKS— 
 
 Daniel 42- 
 
 TREASON— 
 
 Kelyng 35 
 
 Taswell-Langmead 21 
 
 TRIALS— Bartlett, A. (Murder) . . 32 
 
 Queen v. Gurney 32 
 
 ULTRA VIRES— 
 
 Brice »o 
 
 USAGES AND CUSTOMS— 
 
 Browne '9 
 
 Mayne 3" 
 
 VOLUNTARY CONVEYANCES- 
 
 May 29 
 
 WATER COURSES— 
 
 Higgins 30 
 
 WILLS, CONSTRUCTION OF- 
 Gibbs, Report of Wallace o. 
 Attorney-General . . , . 10 
 
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 has materially changed since the first edition was published in 1882. It is well that those engaged in the 
 building trade should bear this in mind, as much litigation would therefore be avoided, with its consequent 
 expense and annoyance. The book is rendered more valuable from its glossary and well- arranged index." 
 — Building Times, 
 
 "The present treatise of Mr. Emden deals with the subject in an exhaustive manner,^ which leaves 
 nothing to be desired. . . . The book contains a number of forms and precedents for building leases and 
 agreements which are not to be found in the ordinary collection of precedents,"- — The Times. 
 
 " Mr. Emden has obviously given time and labour to his task, and therefore will save time and labour 
 to those who happen to be occupied in the same field of enquiry." — Law Jour^ial. 
 
 " It may safely be recommended as a practical text-book and guide to all people whose fortune or 
 misfortune it is to be interested in the construction of buildings and other works." — Saturday Review. 
 
 "To supply thiswant is_ the writer's object in publishing this work, and we have no hesitation in 
 expressing our opinion that it will be found valuable by several distinct classes of persons .... it seems 
 to us a good and useful book, and we recommend the purchase of it without hesitation."— y-^e Builder. 
 
 " From th^ point of view of practical utility the work cannot fail to be of the greatest use to all who 
 require a little law in the course of their building operations. They will find both a sound arrangement 
 and a clear sensible style, and by peiusing it with ordinary attention m.iny matters of which they were 
 before doubtful will become quite comprehensible." — City Press. 
 
STEVENS &• HAYNES, BELL YARD, TEMILE EAR. 
 
 In royal 8vo, noo pages, price S2J. dd., cloth. 
 
 THE LAW OF THE DOMESTIC RELATIONS, 
 
 INCLUDING • 
 
 HUSBAND AND WIFE: PARENT AND CHILD: GUARDIAN AND 
 WARD : INFANTS : AND MASTER AND SERVANT. 
 
 By WILLIAM FINDER EVERSLEY, B.C.L., M.A., 
 
 OF THE INNER TEMPLE, DARRISTER-AT-LAW. 
 
 ' It is essentially readable and interesting, and ouglit to take a high place among text books. . . . We 
 s.iy, withoat hesitation, that this is a le.-irned book, written in a peculiarly fascinating style, having regard 
 to the nature of the subject. . . . It can only be said, therefore, that the book is deserving of success upon 
 the merits ; and that the attempt to combine the treatment of three branches of the law which have hithert.j 
 ""-ri""^' u '^ '*"''''°'* ^''°*^i '" "-'^"^i ^ comprehensive grasp of principle."— Z«lu Times. 
 The author may be congratulated upon having produced an excellent treatise on this branch of the 
 law, well arranged, clearly written, and complete. A word of praise, too, must be accorded to the 
 I ,,°r^°"^ '-^''^ ^^ which he has accumulated references to the various Reports, and constructed his very 
 full mAex,— Solicitors' Journal. 
 
 Second Edition, in one volume, royal 8vo, price 32j., cloth, 
 THE LAW RELATING TO THE 
 
 SALE OF GOODS AND COMMERCIAL AGENCY. 
 
 SECOND EDITION. 
 By ROBERT CAMPBELL, M.A., 
 
 OF LINCOLN'S INN, BAEBISTER-AT-LAW ; ADVOCATE OF THE SCOTCH BAR; 
 AUTHOR OF THE " LAW OF NEGLIGENCE, ETC." 
 
 "An accurate, careful, and exhaustive handbook on the subject with which it deals. The excellent 
 index deserves a special wocd of commendation." — Laiu Quarterly Review. 
 
 " We can, therefore, repeat what we said when reviewing the first edition— that the book is a contribu- 
 tion of value to the subject treated of, and that the writer deals with his subject carefully and fully." — 
 Law yottrjial. 
 
 Second Editiorij in one volume, 8vo, price 28j., cloLh. 
 A TREATISE ON 
 
 THE CONSTRUCTION AND EFFECT OF 
 STATUTE LAW. 
 
 with appendices containing words and expressions used in st.\tutes 
 
 which have been judicially or statutably construed, and 
 
 the popular and short titles of certain statutes. 
 
 By henry ]IAR1)CASTLE, barrister-at-law. 
 
 SECOND EDITION, REVISED AND ENLARGED, wi W. F. CRAIES, 
 
 CARRISTER-AT-LAW. 
 
 "The result of Mr. Craies' industry is n sound and good piece of work, the new light thrown 
 OT the subject since 1879 having been blended wiih the old in a thoroughly workmanlike 
 manner. Though less a student's manual than a practitioner's text book, it is the sort of 
 volume an intelligent perusal of which would educate a student better than the reading of 
 much substantial Ism."— Saturday Review. 
 
 In one volume, 8vo, price zSs., cloth, 
 
 THE LAW RELATING TO PUBLIC WORSHIP ; 
 
 With special reference to Matters of Ritual and Ornamentation, and the Means of 
 Securing the Due Observance thereof, and containing in extenso, with Notes and 
 References, The Public Worship Regulation Act, 1874 ; The Church Discipline 
 Act; the various Acts of Uniformity; the Liturgies of 1549, 1552, and 1559, 
 compared with the Present Rubric ; the Canons ; the Articles ; and the Injunc- 
 tions, Advertisements, and other Original Documents of Legal Authority. By 
 Seward Brice, LL.D., of the Inner Temple, Barrister-at-Law. 
 
10 STEVENS dr= HAYNES, BELL YARD, TEMPLE BAR. 
 
 In 8vo, price 30J., clolh, 
 
 THE PRACTICE ON THE CROWN SIDE 
 
 Of the Queen's Bencli Division of Her Majesty's High Court of Justice 
 
 (Founded on Corner's Crown Office Practice), including 
 
 Appeals from Inferior Courts; with Appendices of Rules and Forms, 
 
 By FREDERICK HUGH SHORT, 
 
 Chief Clerk of ihc Crown Office, Author of "Taxation of Costs in the Crown Office," and Editor 
 
 of " Crown Office Rules and Forms, 1886 ;" and 
 
 FRANCIS HAMILTON MELLOR, M.A., 
 
 Trin. Coll. Camb., Northern Circuit, Inner Temple, Barrister-at-Law. 
 
 Ir. 8vo, piice \2s., cloth, 
 
 THE CROWN OFFICE RULES AND FORMS, 1886. 
 
 The Supreme Court of Judicature Acts and Rules of the Supreme Court 1883, relating to 
 the Practice on the Crown side of the Queen's Bench Division ; including Appeals 
 from Inferior Courts, Tables of Court Fees, Scales of Costs ; together with Notes, 
 Cases, and a Full Index. By F. H. SHORT, Chief Clerk of the Crown Office. 
 
 In 8vo, price 6/. iid., cloth, 
 
 THE CUSTOMS AND INLAND REVENUE ACTS, 
 
 I88O and 1881 (43 Vict. Cap. 14, and 44 Vict. Cap. 12), 
 So far as they Relate to the Probate, Legacy, and Succession Duties, and the Duties on 
 Accounts. With an Introduction and Notes. By ALFRED Hanson, Esq., Comp- 
 troller of Legacy and Succession Duties. 
 %* This forms a Supplement to the Third Edition of the Probate, Legacy, and Succession Duty 
 Acts by the same Author. 
 
 Third Edition, in 8vo, 1876, price 25^., cloth, 
 
 THE ACTS RELATING TO PROBATE, LEGACY, AND 
 
 SUCCESSION DUTIES. Comprising the 36 Geo. HI. c. 52 ; 45 Geo. HI. 
 c. 28 ; 55 Geo. HI. c. 184; and 16 & 17 Vict. c. 51 ; with on Introduction, 
 Copious Notes, and References to all the Decided Cases in England, Scotland, 
 and Ireland. An Appendix of Statutes, Tables, and a full Index. By Alfred 
 Hanson, of the Middle Temple, Esq., Barrister-at-Law, Comptroller of Legacy 
 and Succession Duties. Incorporating the Cases to Michaelmas Sittings, 1876. 
 
 '' It is the only complete book upon a subject of t " His book is in itself a most useful one ; its 
 
 great importance. _ author knows every in and out of the subject, and 
 
 "Mr. Hanson is peculiarly qualified to be the | has presented the whole in a form easily and 
 
 adviser at such a time. Hence a volume without 1 readily handled, and with good arrangement and 
 
 a rival." — Law Times. \ clear exposition." — Solicitors' Journal. 
 
 In royal 8vo, 1877, price \os., cloth, 
 LES HOSPICES DE PARIS ET DE LONDRES. 
 
 THE CASE OF LORD HENRY SEYMOUR'S WILL 
 
 (WALLACE V. THE ATTORNEY-GENERAL). 
 Reported by FREDERICK WAYMOUTH GIBBS, C.B., Barrister at-Law, 
 
 I.ATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE, 
 
 In Svo, 1S67, price i6j., cloth, 
 
 CHARITABLE TRUSTS ACTS, 1853, 1855, 1860; 
 
 THE CHARITY COMMISSIONERS' JURISDICTION ACT, 1862; 
 THE ROMAN CATHOLIC CHARITIES ACTS: 
 Together with a Collection of Statutes relating to or affecting Charities, including the 
 Mortmain Acts, Notes of Cases from 1853 to the present time, Forms of Decla- 
 rations of Trust, Conditions of Sale, and Conveyance of Charity Land, and a 
 very copious Index. Second Edition. 
 By HUGH COOKE and R, G. HARWOOD, of the Charity Commission. 
 
STEVE.VS &-■ HAYNES, BELL YARD, lEMFLE BAR. U 
 
 In 1 Volume, Svo, price 20s. , clo'.h, 
 THE 
 
 PRINCIPLES OF COMMERCIAL LAW; 
 
 WITH AN APPENDIX OF STATUTES, ANNOTATED BY JHCANS OF 
 
 REFERENCES TO THE TEXT. 
 
 By JOSEPH HURST and LORD ROBERT CECIL, 
 
 OF THE INNER TEMPLE, BAREISTERS-AT-LAVV. 
 
 ."Their compendium, we believe, will be found a really useful volume, one for the lawyer and the 
 Dusine^ man to keep at his elbow, and which, if not giving them all that they require, v/ill place in their 
 nanas the key to the richer and more elaborate treasures of the Law which lie in larger and more exhaus- 
 tive works. — z,rtw Times. 
 
 " ''^''^ "'y^':' of 'lie authors of this work, they tell us in their preface, is to state, within a moderate 
 compass, the prmciples of commercial law. Very considerable pains have obviously been expended on the 
 task, and the book is in many respects a very serviceable one."— Lam Journal. 
 
 In I ^■olume, Svo, price 20j-. cloth, 
 THE 
 
 RELATIONSHIP OF LANDLORD AND TENANT. 
 
 Bv EDGAR FOA, 
 
 OF THE INN'ER TEMPLE, BARRISTER-A T-I AW. 
 
 Will be found of much value to practitioners, iind when a second edition has given the author the 
 opportunity of reconsidering and carefully revising his statements in detail, we think it will take its place 
 a^ a very good treatise on the modern law of landlord and \.^-^zx\.\.."— Solicitors Journal. 
 
 " Mr. Foa is a bold man to undertake the exposition of a branch of law so full of difficulties and encum- 
 bered by S3 many decisions as the Law of Landlord and Tenant. But his boldness is justified by the 
 excellent arrangement and by the lucid statements which characterise his book." — Law Quarterly Revieiu. 
 
 '_' Mr. Foa's is a compact work, treating (i) of the creation of the relationship ; (2) the incident.s of 
 creation (distress) and determination of the relationship ; (3) modes and incidents of determination. We 
 commend it to the attention of the Proression, and predict for Foa on Landlord and Tenant a very useful 
 and very permanent future," — Laiv Times. 
 
 ** We have nothing but praise for the work, and we shall be astonished if it does not take rank in 
 course of time as one of the best — if not the best — work for every-day practice on the subject of Landlord 
 and Tenant." — Ltvw Notes. 
 
 '* Without making any invidious comparison with existing works on the subject, we may frankly say 
 that Mr. Foa's work indisputably possesses merit. . . . Our verdict on the book must be a decidedly 
 favourable one." — La'w Students^ Joitmal. 
 
 " ' The Relationship of Landlord and Tenant,' written by Mr. Edgar Foa, Barrister-at-Law, affords a 
 striking instance of accuracy and lucidity of statement. The volume should be found useful not only by 
 lawyers but by landlords and tenants themselves, the law in each particular being stated with a simplicity 
 and clearness which bring it within the grasp of the lay mind." — Law Gazette. 
 
 Second Edition, in i Volume, medium Svo, price 35^., cloth, 
 
 EMDEN'S COMPLETE COLLECTION 
 
 OF 
 
 PRACTICE STATUTES, 
 
 ORDERS AND RULES. 
 
 Being a Selection of such Practical Parts of all Statutes, Orders and Rules, as are now 
 in force, and relate to the Practice and Procedure of the Supreme Court. From 
 127S to 1886. With Tabulated Summaries of the Leading Cases and Analytical 
 Cross-references. 
 
 By ALFRED EMDEN, 
 
 or THE INNER TEMPLE, ESQ., BAREISTER-AT-LAW ; AUTHOR OF "THE PRACTICE IN WINDIXC-UP 
 
 companies;" "the law relating to buildlng, buildi.ng LEASEf, AND contracts; 
 
 " THE shareholder's LEGAL GUIDE," ETC. 
 ASSISTED BY 
 
 HERBERT THOMPSON, M.A., 
 
 or the INNER TEMPLE, BARRISTER-AT-LA\V. 
 
 C 2 
 
12 STEVENS &' HAVNES, BELL YARD, TEMFLE BAR. 
 
 Just published, in royal 8vo, cloth, 28^., 
 A TREATISE ON THE 
 
 LAW AND PRACTICE 
 
 RELATING TO 
 
 LETTERS PATENT FOR INVENTIONS. 
 
 WITH AN 
 
 APPENDIX OF STATUTES, INTERNATIONAL CONVENTION, 
 RULES, FORMS AND PRECEDENTS, ORDERS, &c. 
 
 By ROBERT FROST, B.Sc. (Lond,), 
 
 FELLOW OF THE CHEMICAL SOCIETY ; OF LINCOLN'S INN, ESQUIRE, BARRISTER-AT-LAW. 
 
 " In our view a good piece of work may create a demand, and without disparaging existing literature 
 upon the subject of patents, we think the care and skill with which the volume by Mr. Frost has been 
 compiled, entitles it to recognition at the hands of the profession, . . . Judging Mr. Frost on this 
 ground, we find him completely satisfactory. A careful examination of the entire volume satisfies us that 
 great care and much labour have been devoted to the production of this treatise, and we think that patent 
 agents, solicitors, the bar and the bench, may confidently turn for guidance and instruction to the pages 
 of Mr. Frost." — Laiv Times. 
 
 " Few practice books contain so much in so reasonable a space, and we repeat that it will be found 
 generally useful by practitioners in this important branch of the law. ... A capital index concludes 
 the book." — Law youmal. 
 
 " The book is, as it professes to be, a treatise on patent law and practice, the several topics being con- 
 veniently arranged and discussed in the thirteen chapters which form the body of the work, to which 
 are appended statutes, rules, and forms. The statements of the law, so far as we have been able to test 
 them, appear to be clear and accurate, and the author's style is pleasant and good. . . . The book is 
 a good one, and will make its way. The index is better than usual. Both paper and type are ako 
 excellent." — Solicitors Journal. 
 
 In royal 8vo, price 36^., in cloth, 
 A PRACTICAL TREATISE ON THE 
 
 LAW OF BUILDING AND 
 ENGINEERING CONTRACTS, 
 
 And of the DUTIES and LIABILITIES of ENGINEERS, ARCHITECTS, 
 
 SURVEYORS AND VALUERS, 
 
 WITH AN APPENDIX OF PRECEDENTS, 
 
 ANNOTATED BY MEANS OF REFERENCE TO THE TEXT AND TO CONTRACTS 
 
 IN USE. 
 
 AND AN APPENDIX OF UNREPORTED CASES 
 
 ON BUILDING AND ENGINEERING CONTRACTS. 
 
 By ALFRED A. HUDSON, 
 
 OF THE INNER TEMPLE, BARRISTER- AT-LAW. 
 
 "A. very full index completes the book. Mr. Hudson has struck out a new line for himself, and pro- 
 duced a work of considerable merit, and one which will probably be found indispensable by practitioners 
 inasmuch as H contains a great deal that is not to be found elsewhere. The Table of Cases refers to al 
 the reports. — Law yoiirnnl, 
 
 " Mr. Hudson, havinK abanaoned his profession of an architect to become a barrister, hit upon the idea 
 of writing this work and he has done it with a thoroughness which every houseowner would like to «ee 
 bestowed upon modern houses. . . The Index and Table of Cases reveal a vast amount of industry 
 expended upon detail, and we shall be much surprised if Mr. Hudson does not reap the reward of his 
 labours by obtaining a large and appreciative public."— inn/ Times. 
 
 ' The author of this somewhat bulky volume has, within the compass of some 900 pages, dealt in a 
 practical and exhaustive manner with the Law of Building and Engineering Contract . . . An Index of 
 Precedents and a good General Index will be found at the end of thl y,orV."-Solicitors Jonmal. 
 ,„^ V '-IH '• °"''"! f™ '° produce a work which, regarded both from the lawyer's and from the architect's 
 and builders point of view, must be, pronounced excellent. It is good from the lawyer's Mandpoint as 
 being logical in arrangement, c ear in statement, and generally accurate in the law laid down. The archi- 
 wTthiris="e?;^f:yeTs'.''-l'i:XL".''"'" '°' ""^"^""^ "•= ''"'^'■™^ precisely which arise in his dealings 
 
yr EVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 13 
 
 In Svo, price ioj. 6a'., cloth, 
 
 OUTLINES OF THE LAW OF TORTS. 
 
 By RICHARD RINGWOOD, M.A., 
 
 or THE MIDDLE TEMl'LE. BARKISTER-AT-LAW ; AUTHOR OF "PRINCIPLES OF BANKRUPTCY," &C., 
 AND LECTURER ON COMMON LAW TO THE INCORPORATED LAW SOCIETY. 
 
 „„-.^ r 1 . ^^ J ?• T=""''"„°^''; author of a Student's book on Bankruptcy. Its groundwork is a 
 wL, ff-"f d^'^f^d m 1887 by Mr. Ringwood, as lecturer appointed by the Incorporated Law 
 society, it is clear concise, well and intelligently written and one rises from its perusal with feelings of 
 L^^ittd'nt' ^ t P'''''^'"S 'h= '""re work, we can conscientiously recommend it to students."— 
 
 „,',' ?*" Z°l^ ^ °"! ^^ T" r,«':oinm="<l to law students, and the able way in which it is written reflects 
 much credit upon the author. — Law rimes. 
 
 ymrnaf'™^^°°^^ ''°°'' '^ * ^'^'° ^""^ straightforward introduction to this branch of the law."— Zaa/ 
 
 In Svo, price 25^-., cloth, 
 
 THE LAI OF COMPENSATION FOR LANDS, HOUSES, k 
 
 UNDER THE LANDS CLAUSES, RAILWAY CLAUSES CONSOLIDATION AND 
 
 ■ METROPOLITAN ACTS, 
 
 THE ARTIZANS AND LABOURERS' DWELLINGS IMPROVEMENT ACT, 187s, 
 
 WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. 
 
 FIFTH EDITIOiV, Enlarged, with Additional Forms, including 
 Precedents of Bills of Costs. 
 
 By eyre LLOYD, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "The work is eminently a practical one, and is of great value to practitioners who have to deal with 
 compensation cases." — Solicitors' yourital. 
 
 satisfactory it appears to us in every point of 
 view — comprehensive in its scope, exhaustive in its 
 treatment, sound in its exposition." — Irish Law 
 Times, 
 
 "It is with much gratification that we have to 
 express our unhesitating opinion that Mr, Lloyd's 
 treatise will prove thoroughly satisfactory to the 
 profession, and to the public at large. Thoroughly 
 
 '* In proiiidifig the le^al profession ivith a book ivhic/i contaifis the decisions of the Courts of Law and 
 Equity upon the various statutes relating to the Lazv of Compensatiofi, Mr. Eyre Lloyd has long since 
 left all competitors in the distaiice, and liis boolc may 7io7v be considered the standard work upon the sitb- 
 j'ect. The plan of Mr, Lloyds book is gciierally kncnvn, and its lucidity is appreciated ; the present quite 
 fulfils all the promises of the preceding editions, and contains in addition to other matter a complete set 
 of forms under the Artizans a7td Labourers Act, i%7<„ and specimetis of Bills of CosiSy which will be found 
 a novel feature^ extremely useful to legal practitioners " — Justice of the Peace. 
 
 In Svo, price ys.j cloth, 
 
 THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES, 
 
 WITH SPECIAL REFERENCE TO 
 
 THE LAW OF PRIMOGENITURE AS IT EXISTS IN ENGLAND. 
 By eyre LLOYD, B.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF '* THE LAW OF COMPENSATION 
 UNDER THE LANDS CLAUSES CONSOLIDATION ACTS," ETC. 
 
 In crown Svo, price 6s. ^ cloth, 
 
 ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY, 
 
 By JOHN W. SALMOND, M.A., LL.B. (Lond.), 
 
 A 1;ARRI5TER of The supreme court of new ZEALAND. 
 
14 STEVENS a' HAYNES, BELL YARD, TEMPLE BAR, 
 
 In one volume, royal 8vo, price ifls., cloth, 
 
 PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 By THOMAS BEVEN, 
 
 OF THE INXEK TEMPLE, EARRISTER-AT-LA\V ; AUTHOR OF "THE LAW OF EMPLOYER'S LIABILITY 
 KOR THE NEGLIGENCE OF SERVANTS CAUSING INJURY TO FELLOW SERVANTS." 
 
 "He has treated the well-known subject of Negligence in a scientific way, and has not been content with 
 merely collecting, in more or less relevant positions, a number of cases which anyone could find for himself 
 m any Digest of Law Reports, but has endeavoured to reduce from the chaos of decided cases a systematic 
 study of the subject, with clear CTiunciations of the principles he finds governing the various decisions. In 
 the arrangement' of the book the author has been very happy in his method, a by no means easy task in the 
 treatment of a subject in which each branch of it in reality overlaps another. ... A goo^ index and 
 clear type increase the value of a book which will without doubt receive the hearty commendation of the 
 profession as a successful completion of the author's ambitious task. "—Law Times. 
 
 '* The reader who takes these as samples of the work, will find how careful and exhaustive Mr. Beven has 
 been, and how valuables contribution he has made to the important branch of the law with which he has 
 undertaken to desil." —Soit'cito^s Journal. 
 
 "Inrespect of the style of treatment of the subject, the book must be highly commended. It will be of 
 service to every lawyer who wishes rather to get an intelligent understanding of the Law of Negligence, 
 than merely to find correct and reliable legal propositions for practical use and that whether he be a student 
 or a practitioner. To the student the work is valuable 'for the searching and well-sustained discussion of the 
 cases ; and to the practitioner there are presented all the cases that bear on most points for which he may 
 be in search of authority. One of the chief merits of the work is, that all the available authority on each 
 point IS collected and so arranged that it can be easily iQ\mA"— 'Juridical Reruieiv. 
 
 _ ** Contains evidence of much serious work, and ought to receive a fair trial at the hands of the profes- 
 sion. — Law Quarterly Review. 
 
 _'* This is themost elaborate work on the Law of Negligence which has yet appeared in England. . . . 
 His treatment is original, and has evidently not been adopted without great research, care, and revision." 
 —Law Journal. 
 
 In one large vol., 8vo, price yis,^ clothj 
 
 INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW, 
 
 WITH CATENA OF TEXTS. 
 
 By Dr. CARL SALKOWSKI, Professor of Laws, Kbnigsberg. 
 
 Translated and Edited by E. E. Whitfield, M.A. (Oxon.). 
 
 In 8vo, price 4^. dd. , cloth, 
 THE 
 
 NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 
 
 With a statement of the Law of Libel as affecting Proprietors, Pubh'shers, and Editors of 
 Newspapers. By G. Elliott, Barrister-at-Law, of the Inner Temple. 
 
 In one volume, royal 8vo, price 30J., cloth, 
 
 CASES AND OPINIONS ON CONSTITUTIONAL LAW, 
 
 AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. 
 
 Collected and Digested from Official Documents and other Sources; with Notes. By 
 William Forsyth, M.A., M.P., Q.C., Standing Counsel to the Secretary of 
 State m Council of India, Author of " Hortensius," "History of Trial by Jury," 
 "Life of Cicero," etc., late Fellow of Trinity College, Cambridge. 
 
STEVE. VS &- IIAYNES, BELL YARD, TEMPLE BAR. 15 
 
 Fifth Edition, in 8vo, price los. 61/., cloth, 
 
 THE PRINCIPLES OF BAMRDPTCY. 
 
 WITH AN APPENDIX. 
 
 > 
 
 CONTAINING 
 
 THE CONSOLIDATED RULES OF 1886 & 1890, SCALE OF COSTS, 
 1886, AND THE BILLS OF SALE ACTS 1878, 1882 & 1890, 
 
 Etc., Etc. 
 By RICHARD RINGWOOD, M.A., 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; LATE SCHOLAR OF TRINITY COLLEGE, DUBLIN. 
 
 "This edition is a considerable improvement on the first, and although chiaSy written for the use o( 
 Students, the work will be found useful to the practitioner."— Zrtit/ Times. 
 
 " Those who have to deal with the subject in any of its practical legal aspects will do well to consult 
 Mr. Ring\vood's unpretending but useful volume." — Law Magasine. 
 
 " His book does not profess to be an exhaustive treatise on bankruptcy law, yet in a neat and compact 
 volume we have a vast amount of well-digested matter. The reader is not distracted and puzzled by having 
 a long list of cases flung at him at the end of each page, as the general effect of the law is stated in a few 
 well-selected sentences, and a reference given to the leading decisions only on the subject. . . , An 
 excellent index, and a table of cases where references to four sets of contemporary reports may be seen at 
 a glance, show the industry and care with which the work has been done." — Daily Paper. 
 
 Sixth Edition.^ 1890, in royal i2mo, price 20J., cloth, 
 With Supplement i 1S91, containing the Act and Rules ^ 1890, 
 
 A TREATISE UPON 
 
 THE LAW OF BANKRUPTCY 
 
 AND 
 
 BILLS OF SALE. 
 
 WITH AN APPENDIX 
 
 COXTAIMNG 
 
 THE BANKRUPTCY ACT, 1883 ; GENERAL RULES AND FORMS 
 
 OF 1886; SCALE OF COSTS AND FEES OF 1886; 
 
 RULES UNJ)ER S. 122 OF 1888 ; BANKRUPTCY (COUNTY COURT 
 
 APPEALS) ACT, 1884'; BANKRUPTCY DISCHARGE ACT, 1887; 
 
 RULES AND FORMS; BANKRUPTCY (PREFERENTIAL 
 
 PAYMENTS) ACT, 1888; DEEDS OF ARRANGEMENT ACT, 1887; 
 
 RULES AND FORMS ; BOARD OF TRADE AND COURT 
 
 ORDERS; DEBTORS ACTS, 1869, 1878, AND RULES,' 1889; 
 
 BILLS OF SALE ACTS, 1878, 1882, AND RULES, 1883. 
 
 BY EDWARD T. BALDWIN, M.A., 
 
 OF THE INNER TK.MPLE, BARRISTER-AT-LAW. 
 
 *^* The Supplement may be had separately^ price y, cloth, 
 
 *• His new edition is in every respect satisfactcry."— ^rtw Ttwes. t j .i, _ 
 
 " It A a Thoroughly good and reliable work. ... We think-as pract.t.oners-that we would rather 
 
 have his book thfn any other on the same subject in our library. ■•-i<i» StudmUJoj.rna^^ 
 
 na^e ims ^^^ ^ well-earned reputation for conciseness, clearness, and accuracy. . . . . As 
 
 a terse and readable treatise on Bankruptcy law his work may be commended to our readers. . . .There 
 
 " ?4r'pretnt7d1ti^f a"pe-S"rbe quite equal in excellence to its predecessor,, and for pr.ctitionor's 
 purposes the book is all that can be desired."— Xm" Notes. 
 
1(3 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Second Edition, in one vol., price 2Qs., cloth, 
 
 A COMPENDIUM OF THE LAW OF 
 PROPERTY IN LAND. 
 
 FOR THE USE OF STUDENTS AND THE PROFESSION. 
 
 SECOND EDITION. 
 
 By WILLIAM DOUGLAS EDWARDS, LL.B., 
 
 OF Lincoln's inn, barristf.r-at-la\v. 
 
 *' We consider it one of the best works published on Real Property Law.'' — Law Students' JouniaL 
 
 " Another excellent compendium which has entered a second edition is Mr. Edwards* 'Compendium of 
 the Law of Property in Land." No work on English law is written more perspicuously. . . . Mr. 
 Edwards has manifestly bestowed the utmost care in putting into the most modern dress a treatise which 
 we think will continue to grow in the estimation of the profession." — Law Times. 
 
 "We formed a very favourable opinion of the first edition of this little book, and our opinion is con- 
 firmed by the perusal of the second edition. The author has the merit of being a sound lawyer, a merit 
 perhaps not always possessed by the authors of legal text books for students. He writes in good English, 
 and generally speaking states the law correctly. We are glad to hear of the rapid sale of the book, as we 
 feel certain that no student will repent having studied it." — Lain Quarterly Review. 
 
 " The book is certainly destined to take a high place as a standard work on the Law of Property in 
 Land. The style is good, the conclusions of law are accurate, and the authorities are well selected. • • ; ■ 
 
 The amount of detail is much greater than in Williams As a companion volume to it, we can with 
 
 great confidence recommend it to the student ; and the practitioner will find it a very useful epitome of 
 the modern law. Altogether it is a work for which we are indebted to the author, and is worthy of the 
 improved notions of law which the study of jurisprudence is bringing to the front." — Solicitors' Journal. 
 
 " This book shows signs of thorough work throughout The book is a business-like and useful 
 
 performance." — Laiv Journal. 
 
 "Mr. Edwards has produced a most comprehensive, and in many ways most valuable, piece of work 
 
 We consider this book preferable In many respects to the standard works usually placed in the 
 
 hands of students In arrangement, the book has more good method in it than any other book we 
 
 know on the same subject." — The Oxford Review. 
 
 Third Ecliiion, royal 8vo, in preparation, 
 A TREATISE ON THE DOCTRINE OF 
 
 ULTRA VIRES: 
 
 BEING 
 
 An Investigation of the Principles which Limit the Capacities, Powers, and Liabilities of 
 CORPORATIONS, 
 
 AND MORE ESPECIALLY OF 
 
 JOINT STOCK COMPANIES. 
 
 THIRD EDITION. 
 
 By SEWARD BRICE, LL.D., 
 
 or THE INNER TEMPLE, ONE OF HER MAJESTY'S COUNSEL. 
 
 EEVIEWS. 
 
 ". . . . On the whole, we consider Mr. Brice's exhaustive work a valuable addition io the literature oj 
 the pro/essiori."— Saturday Review. 
 
 _ " It is the Law of Corporations that Mr. Brice treats of (and treats of more fully, and at the same 
 time more scientifically, than any work with which we are acquainted), not the law of principal and 
 agent ; and Mr. Brice does not do his book justice by giving it so vague a title."— iura Journal. 
 
 "On this doctrine, first introduced in the Common Law Courts in East Anglian Raihvay Co. v. 
 Eastern Counties Railway Co., Brice on Ultra Vires may be read with advantage."— 7K<&-«f<;»< of 
 Lord Justice Bramwell, in the Case o/ Evershed v. L. &= N. W. Ry. Co. (L. R., 3 Q. B. Div. 141.) 
 
STEVENS &• IIAYNES, BELL YARD, TEMPLE BAR. 17 
 
 Sixth Edition, in royal 8vo, price 34J., cloth, 
 
 BUCKLEY ON THE COMPANIES ACTS. 
 
 SIXTH EDITION BY THE AUTHOR. 
 
 THE LAW AND PRACTICE UNDER THE COMPANIES ACTS, 
 
 1862 TO 1890, 
 
 AND 
 
 THE LIFE ASSURANCE COMPANIES ACTS, 1870 TO 1872, 
 
 Including the Companies (Memorandum of Association) Act, 
 The Companies (Winding-up) Act, and the Directors' Liability Act. 
 
 ^ Iveittisc on the ^abj ai Joint <Stot;lt erominmita. 
 
 CONTAINING THE STATUTES, WITH THE RULES, ORDERS, AND 
 FORMS, TO REGULATE PROCEEDINGS. 
 
 By H. burton BUCKLEY, M.A., 
 
 OF LINCOLN'S INN, ESQ., ONE OF HER MAJESTY'S COUNSEL. 
 
 Second Edition in preparation. 
 THE LAW RELATING TO 
 
 SHIPMASTERS AND SEAMEN. 
 
 THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES, 
 
 AND REMEDIES, 
 
 By JOSEPH KAY, Esq., M.A., Q.C, 
 
 OF TRIN. COLL. CAMBRIDGE, AND OF THE NORTHERN CIRCUIT ; 
 
 SOLICITOR-GENERAL OF THE COUNTV PALATINE OF DURHAM; ONE OP THE JUDGES OF THE COURT OF 
 RECORD FOR THE HUNDRED OF SALFORD ; 
 
 AND AUTHOR OF "tHE SOCIAL CONDITION AND EDUCATION OF THE PEOPLE 
 IN ENGLAND AND EUROPE." 
 
 REVIEWS OF THE WORK: 
 
 From the LIVEBPOOL JOURNAL OF COMMERCE. 
 
 " ' The law relating to Shipmasters and Seamen * 
 
 such is the title of a voluminous and important 
 
 work which has just been issued by Messrs. Stevens 
 and Haynes, the eminent law publishers, of London. 
 The author is Mr. Joseph Kay^ Q-C, and while 
 treating generally of the law relating to shipmasters 
 and seamen, he refers more particularly to their ap- 
 pointment, duties, rights, liabilities, and remedies. 
 It consists of two large volumes, the text occupying 
 nearly twelve hundred pages, and the value of the 
 
 work being enhanced by copious appendices and 
 index, and by the quotation of a mass of authori- 
 ties, . . . The work wust be an invaluable one 
 to tfte shipowner^ ship^naster^ or consul at a foreign 
 port. The language is clear and simple, while the 
 legal standing of the author is a sufficient guarantee 
 that he writes with the requisite authority, and 
 that the cases quoted by him are decisive as regards 
 the points on which he touches." 
 
 From tlie LAW JOURNAL. 
 
 "The author tells us that for ten years he has 
 been engaged upon it. . . . Two large voiuiues 
 containing 1181 pages of text, 81 pages of nppen- 
 dices, 98 pages of index, and upwards of 1800 cited 
 cases, attest the magnitude of the work designed 
 and accomplished by Mr. Kay. 
 
 "Mr. Kay says that he has 'endeavoured to 
 
 compile a guide and reference book for masters, ship 
 agents, and consuls.' He has been so modest as 
 not to add lawyers to the list of his pupils ; but his 
 work willt we think, be welcomed by lawyers who 
 have to do with shipping transaciions^ almost as 
 cordially as it undoubtedly will be by those who 
 occupy tlieir business in the great waters." 
 
18 
 
 STEVENS dr^ HAYNES, BELL YARD, TEMPLE BAR. 
 
 Fourth Edition, in Royal 8vo, price 40^., cloth, 
 
 THE JUDGMENTS, ORDERS, AND PRACTICE OF 
 THE SUPREME COURT, 
 
 CHIEFLY in RESPECT to ACTIONS ASSIGNED to the CHANCERY DIVISION. 
 
 By LOFTUS LEIGH PEMBERTON, 
 
 One of the registrars of the Supreme Court of Judicature ; and Author of " The Practice 
 
 in Equity by way of Revivor and Supplement. " 
 
 "The work under notice ought to be of considerable service to the profession The forms 
 
 throughout the work — and they are the most important element in it — appear to us to be accurate, and of 
 the most approved type. This fact alone will commend the new edition to practitioners in the Chancery 
 Division. There is a useful table of the Lord Chancellors and Judges at the beginning of the book, and a 
 very full index co ncludes it." — Law Times. 
 
 In demy l2mo, price 5^., 
 
 THE STATUTORY LAW RELATING TO TRUSTEE 
 
 SAVINGS BANKS (1863-1891), together with the Treasury Regu- 
 lalions (1888— 1889), and the Scheme for the Appointment of the Inspection 
 Committee of Trustee Savings Banks. By Urquhart A. Forbes, of Lincoln's 
 Inn, Esq., Barrister-at-Law, Author of " The Law Relating to Savings Banks ; " 
 the "Law of Savings Banks since 1878;" and joint Author of "The Law 
 Relatin g to Water." ^ 
 
 In demy l2mo, price ts., cloth, 
 
 THE LAW OF SAVINGS BANKS SINCE 1878; 
 
 With a Digest of Decisions made by the Chief Registrar and Assistant Registrars of 
 Friendly Societies from 1878 to 1882, being a Supplement to the Law relating to 
 Trustee and Post Office Savings Banks. 
 
 By U. a. FORBES, of Lincoln's Inn, Barrister-at-Law. 
 * ^* The complete work can be had, price \os. 6<i., cloth. 
 
 In 8vo, price 15^., cloth, 
 THE LAW AND PRACTICE RELATING TO 
 
 THE ADMINISTRATION OF DECEASED PERSONS 
 
 BY THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE; 
 
 WITH AN ADDENDA giving tlie alterations effected by the NEW ET7LES of 1883, 
 
 And an APPENDIX OF ORDERS AND FORMS, Annotated by 
 
 References to the Text. 
 
 By W. GREGORY WALKER and EDGAR J. ELGOOD, 
 
 OP LINCOLN'S INN, BARRISTERS-AT-LAW, 
 
 " In this volume the most important branch of 
 the administrative business of the Chancery Divi- 
 sion is treated with conciseness and care. Judging 
 from the admirable clearness of expression which 
 characterises the entire work, and the labour which 
 has evidently been bestowed on every detail, we do 
 not think that a literary executorship could have 
 devolved upon a more able and conscientious repre- 
 sentative . . . . ^ Useful chapters are introduced 
 in their appropriate places, dealing with the 
 
 ' Parties to administration actions,' * The proofs of 
 claims in Chambers,' and ' The cost of adminis- 
 tration actions.' To the last-mentioned chapter we 
 gladly accord special praise, as a clear and succinct 
 summary of the lawj from which so far as we have 
 tested it, no proposition of any importance has been 
 omitted .... An elaborately constructed table 
 of cases, with references in separate columns to all 
 the reports, and a fairly good index, much increase 
 the utility of the y/OTk." -Solicitors' Jontnal. 
 
 In Foolscap 8vo, superfine paper, bound in Vellum, price y. 6d. nett. 
 *^* A limited mmiher of copies have betn printed upon large paper, price *js. 6d, neit. 
 
 SCINTILLAE JURIS. 
 
 By CHARLES J. DARLING, Q.C.; M.P. With a Frontispiece and Colophon by 
 Frank Lockwood, Q.C, M.P. Fourth Edition (Enlarged). 
 " ' Scintillae Juris' is that little bundle of humorous essays on law and cognate matters which, since the 
 day of its first appearance, some years ago, has been the delight of legal circles. ... It has a quality 
 of style which suggests much study of Bacon in his lighter vein. Its best essays would not be unworthy of 
 the Essays, and if read out, one by one, before a blindfolded connoisseur, might often be assigned to that 
 wonderful book." — Daily Neivs. 
 
STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 19 
 
 Second Edition, in 8vo, price zjs. , cloth, 
 THE PRINCIPLES OF 
 
 THE LAW OF RATING OF HEREDITAMENTS 
 
 IN THE OCCUPATION OF COMPANIES. 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMPLE, Q.C., 
 
 And D. N. McNAUGHTON, of the Middle Temple, Barrister- at-Law. 
 
 "The tables and specimen valuations which are 
 printed in an appendix to this volume will be of 
 great service to the parish authorities, and to the 
 le^l practitioners who may have to deal with the 
 rating of those properties which are in the occupa- 
 tion of Companies, and we congratulate Mr. Browne 
 on the production of a clear and concise book of 
 the system of Company Rating. There is no doubt 
 
 that such a work is much needed, and we are sure 
 that all those who are interested in, or have to do 
 with, public rating, will find it of great service. 
 Much credit is therefore due to Mr. Browne for his 
 able_ treatise — a work which his experience as 
 Registrar of the Railway Commission peculiarly 
 qualified him to undertake." — Laiv Magazine. 
 
 In 8vo, 1875, price *]s. 6^/., cloth, 
 
 THE LAW OF USAGES & CUSTOMS : 
 
 %, ^rattical fab Stratt. 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMPLE, Q.C. 
 
 "We look Upon this treatise as a valuable addition to works written on the Science of \j^\i." —Canada 
 Laiv Journal. 
 
 "As a tract upon a very troublesome department of Law it is admirable — the principles laid down are 
 sound, the illustrations are well chosen, and the decisions and dicta are harmonised so far as possible and 
 distinguished when necessary." — Irish Law Tijues. 
 
 "As a book of reference we know of none so comprehensive dealing with this particular branch of 
 Common Law In this way the book is invaluable to the practitioner."— Zaw TJ/^rtzzw?. 
 
 In one volume, 8vo, 1875, price i8j., cloth, 
 
 TBE PRACTICE BEFORE THE RAILWAY COMMISSIONERS 
 
 UNDER THE REGULATION OF RAILWAY ACTS, 1873 & 1874; 
 With the Amended General Orders of the Commissioners, Schedule of Forms, and Table 
 of Fees : together with the Law of Undue Preference, the Law of the Jurisdiction 
 of the Railway Commissioners, Notes of their Decisions and Orders, Precedents of 
 Forms of Applications, Answers and Replies, and Appendices of Statutes and Cases, 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMrLE, Q.C. 
 
 work of a man of capable legal attainments, and by 
 official position intimate with his subject ; and we 
 therefore think that it cannot fail to meet a real 
 
 " Mr. Browne's book is handy and convenient in 
 form, and well arranged for the purpose of refer- 
 ence : its treatment of the subject is fully and 
 carefully worked out : it is, so far as we have been 
 able to test it, accurate and trustworthy. It is the 
 
 want and to prove of service to the legal profession 
 and the pubhc."— Zan/ Magazine. 
 
 In 8vo, 1876, price Ts. dd., cloth, 
 
 ON THE COMPULSORY PURCHASE OF THE UNDERTAKINGS 
 OF COMPANIES BY CORPORATIONS, 
 
 And the Practice in Relation to the Passage of Bills for Compulsory Purchase through 
 Parliament. By J. H. Balfour Browne, of the Middle Temple, Q.C. 
 
 ' ' This is a work of considerable importance to all 
 Municipal Corporations, and it is hardly too much to 
 say that every member of these bodies should have 
 a copy by him for constant reference. Probably at 
 no very distant date the property of all the existing 
 jras and water companies will pass under municipal 
 control, and therefore it is exceedingly desirable 
 that the principles and conditions under which such 
 transfers ought to be made should be clearly under- 
 stood. This task is made easy by the present volume. 
 The stimulus for the publication of such a work 
 was given by the action of the Parliamentary 
 Committee which last session passed the preamble 
 of the * Stockton and Middlesborough Corporations 
 Water Bill, 1876.' The volume accordingly con- 
 tains a full report of the case as it was presented 
 
 both by the promoters and opponents, and as this 
 was the first time in which the principle of com- 
 pulsory purchase was. definitely recognised, there 
 can be no doubt that it will long be regarded as a 
 leading case. As a matter of course, many inci- 
 dental points of interest arose during the progress 
 of the case. Thus, besides the main question of 
 compulsory purchase, and the question as to whether 
 there was or was not any precedent for the Bill, the 
 questions of water compensations, of appeals fiom 
 me Committee to another, and other kindred sub- 
 jects were discussed. These are all treated at length 
 bv the Author in the body of the work, which is 
 thus a complete legal compendium on the large 
 subject with which it so ably deals. 
 
20 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Now ready, in crown 8vo, price lo^., dd. cloth, 
 
 THE LAW OF EVIDENCE, 
 
 By S. L. PHIPSON, M.A., of the Inner Temple, Barrister-at-Law. 
 'This book condenses a head of law into a "We are of opinion thatMr.Phipson has pro. 
 
 comparatively small compass — a class of literary 
 undertaking to which every encouragement should 
 be given. . . . The volume is most portable, most 
 compendious, and as far as we have been able to 
 examine it, as accurate as any law book Can be 
 expected to be." — La w Times. 
 
 duccd a book which will be found very serviceable, 
 not only for practitioners, but also for students. 
 We have tried it in a good many places, and we 
 find that it is well brought down to date." — Law 
 Joitrnal. 
 
 In 8vo, 1S78, price 6j., cloth, 
 THE 
 
 LAW RELATING TO CHARITIES, 
 
 ESPECIALLY WITH KEFERENCE TO THE VALIDITY AND CONSTRUCTION OF 
 
 CHARITABLE BEQUESTS AND CONVEYANCES. 
 
 By FERDINAND M. WHITEFORD, of Lincoln's Inn, Barrister-at-Law. 
 
 In 8vo, 1872, price Ts. td., cloth, 
 
 AN EPITOME AND ANALYSIS OF 
 
 SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. 
 
 By ARCHIBALD BROWN, M.A. 
 
 EDIN. AND OXON , AND B.C.L. OXON., OF THE MIDDLE TEMPLE, DARRISTER-AT-LAW. 
 
 ' Mr. Archibald Brown deserves the thanks 1 the French translation consisting of two volumes, 
 
 of all interested in the science of Law, whether 
 as a study or a practice, for his edition of 
 Herr von Savigny's great work on ' Obligations.' 
 Mr. Brown has undertaken a double task — the 
 translation of his author, and the analysis of his 
 author's matter. That he has succeeded m reducing 
 the bulk of the original will be seen at a glance ; 
 
 with some five hundred pages apiece, as compared 
 with Mr. Brown's thin volume of a hundred and 
 fifty pages. At the same time the pith of Von 
 Savigny's matter seems to be very successfully pre- 
 served, nothing which might be useful to the 
 English reader being apparently omitted.*'— Z. aw 
 Jotimal" 
 
 THE ELEMENTS OF ROMAN LAW. 
 
 Second Edition, in crown 8vo, price 6j., clolh, 
 A CONCISE DIGEST OF THE 
 
 INSTITUTES OF GAIUS AND JUSTINIAN. 
 
 Willi copious References arranged in Parallel Cohtmns, also Chronological and 
 
 Analytical Tables, Joists of Laivs, dr'c. <Sr=i:. 
 
 Primarily designed for the Use of Students preparing for Examination at 
 
 Oxford, Cambridge, and the Inns of Court. 
 
 By SEYMOUR F. HARRIS, B.C.L., M.A., 
 
 WORCESTER COLLEGE, OXFORD, AND THE INNER TEMPLE, BARRISTER-AT-LAW 
 AUTHOR OK " UNIVERSITIES AND LEGAL EDUCATION." 
 
 " Afr. Han-is' s digest ought to have very great success among law students both in the 
 Inns of Court and the Universities. His book gives evidence of praiseivorthy qiccuracy 
 and laborious condensation." — Law Journal. 
 
 " 7his book contains a summary in English of the elements of Roman Law as contained 
 in the works of Gains and J-ustinian, and is so arranged that the reader can at once see 
 what are the opinions of either of these two writers on each point. From the very exact 
 and accurate references to titles and sections given he can at once refer to the original 
 writers. The concise manner in which Mr. Harris has arranged his digest will render 
 it most useful, not only to the students for whom it was originally written, but aho to those 
 persons who, though they have not the time to wade through the larger treatises of Poste, 
 Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law. " — 
 Oxford and Cambridge Undergraduates' Journal. 
 
 "Mr. Harris desei-ves the credit of having prodticcd an epitome which will be of service 
 to those numerous students who have no time or sufficient ability to analyse the Institutes 
 for themselves." — Law Times. 
 
WORKS FOR LAIV STUDENTS. 21 
 
 Fourth Edition, in 8vo, price 21s., cloth, 
 
 ENGLISH CONSTITHTIONAL HISTORY: 
 
 FROM THE TEUTONIC INVASION TO THE PRESENT TIME. 
 
 5c3i0ncb as a 'Ccxt-book for ^tubcttts ani others. 
 
 By T. p. TASWELL-LANGMEAD, B.C.L., 
 
 OF Lincoln's inn, barrister-at-law, formerly vinerian scholar in the university 
 
 AND LATE PROFESSOR OF CONSTITUTIONAL LAW AND HISTORY, 
 UNIVERSITY COLLEGE, LONDON. 
 
 Fourth Edition, Revised throughout, with Notes and Appendices. 
 By C. H. E. Carmichael, M.A. Oxon. 
 
 Mr. Carmichael has performed his allotted task with credit to himbclf, and the high standard of 
 excellence attained by Taswell-Langmead's treatise is worthily maintained. This, the third edition, will 
 be found as useful as its predecessors to the large class of readers and students who seek in its pages 
 accurate knowledge of the history of the constitution."— Z^w Times. 
 
 To the Student of constitutional law this work will be invaluable The book is remarkable 
 
 for the raciness and vigour of its style. The editorial contributions of Mr. Carmichael are judicious, and 
 add much to the value of the work." — Scottish Law Review. 
 
 ''The work will continue to hold the field as the best class-book on \\\& iiVLh}zct."-~C ante 7it^orary Review. 
 
 " The book is well known as an admirable introduction to the study of constitutional law for students at 
 
 ^•'iw Mr. Carmichael appears to have done the work of "Editing, made necessary by the death 
 
 of Mr. Taswell-Langmead, with care and judgment." — Law JonrnaL 
 
 " The work before us it would be hardly possible to praise too highly. In style, arrangement, clearness, 
 and size, it would be difficult to find anything better on the real history of England, the history of its 
 constitutional growth as a complete story, than this volume." — Boston (C/.S.) Literary World. 
 
 "As it now Stands,' we should find it hard to name a better text-book on English Constitutional 
 History." — Solicitors' yountal. 
 
 J' Mr. Taswejl-Langmead's compendium of the rise and development of the English Constitution has 
 
 evidently supfjlied a want The present Edition is greatly improved. . . . We have no hesitation in 
 
 saying that it is a thoroughly good and useful work." — Spectator. 
 
 " It is a safe, careful, praiseworthy digest and manual of all constitutional history and law.'" — Globe. 
 
 "The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a 
 history should be." — Standard, 
 
 " Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. It is, however, in dealing 
 with that chief subject of constitutional history — parliamentary government — that the work exhibits its 
 great superiority over its rivals." — Academy, 
 
 Second Edition, in 8vo, price 6s., cloth, 
 
 HANDBOOK TO THE INTERMEDIATE AND 
 FINAL LL.B. OF LONDON UNIVERSITY ; 
 
 (PASS AND HONOURS), 
 Including A COMPLETE SUMMARY OF "AUSTIN'S JURISPRUDENCE," 
 AND THE EXAMINATION PAPERS of LATE YEARS IN ALL BRANCHES. 
 
 By a B.A., LL.B. (Lond.). 
 
 " Increased in size and usefulness. . . . The book will unJoubtedlj; be of help to those students 
 who prepare themselves for examination. . ■ • • The Appendix contains a good selection of papers 
 set at the different examinations." — Law Times. 
 
 " A very good handbook to the Intermediate and Final LL. B. by a B.A., LL.B. —Law Notes. 
 
 In Crown 8vo, price 3^. ; or Interleaved for Notes, price ^s. 
 
 CONTRACT LAW. 
 
 QUESTIONS ON THE LAW OF CONTRACTS. With Notes to the 
 
 Answers. Founded on "Anson," " C/iiity," and "Pollock." 
 
 By Philip Foster Aldred, D.C.L., Hertford College and Gray's Inn ; late 
 
 Examiner for the University of Oxford. 
 
 " This appears to us a very admirable selection of questions, comparing favourably with the average 
 run of those set in examinations, and useful for the purpose of testing progress. —Law •Journal. 
 
22 WORKS FOR LAW STUDENTS. 
 
 Tenth Edition, in 8vo, price 25^. cloth. 
 
 THE PRINCIPLES OF EQUITY. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 
 By EDMUND H. T. SNELL, 
 
 OF THE MIDDLE TEMPLE, DAKKISTER-AT-LAW. 
 
 TENTH EDITION. 
 By ARCHIBALD BROWN, M.A. Edin, & Oxon., & B.C.L. OxoN., 
 
 of tite middle temple, darrister-at-law ; author of "a new law dictionakv," 
 "an analysis of savigny on obligations," and the "law of fixtures." 
 
 REVIEWS. 
 
 "This is the Nmth Edition of certainly one of the best, arid probably the most widely read, text-book 
 which deals with any part of the English law." — Oxford Magazine. 
 
 "Students will find no better book than this to assist them in preparing for the ordeal of examination." 
 — Lain Journal. 
 
 " It is ample proof of the popularity of ' Snell's Principles of Equity,' that it has now reached its Ninth 
 Edition in the hands of Mr. Archibald Brown." — Law Times. 
 
 " This is now unquestionably the standard book on Equity for students." — Saturday Review, 
 
 " On the whole we are convinced that the Sixth Edition of Snell's Equity is destined to be as highly 
 thought of as its predecessors, as it is, in our opinion, out and out the best work on the subject with which 
 it deals." — Gibsoii'i Law Notes. 
 
 "The changes introduced by the Judicature Acts have been well and fully explained by the present 
 edition of Mr. Snell's treatise, and everything necessaiy in the way of revision has been conscientiously 
 accomplished. We perceive the fruitful impress of the 'amending hand' in every page; the results of 
 the decisions under the new system have been carefully explained, and engrafted into the original text ; 
 and in a word, Snell's work, as edited by Mr. Brown, has proved the fallacy of Eentham's description of 
 Equity as ' that capricious and inconsistent mistress of our fortunes, whose features no one is able to 
 delineate.' " — Ifish Law Times. 
 
 " We know of 7io better introduction to the Principles of Equity^* — 
 Canada Law Journal. 
 
 "Within the ten years which have elapsed since the appearance of the first edition of this work, its 
 reputation has steadily increased, and it has long since been recognised by students, tutors, and practitioners, 
 as the best elementary treatise on the important and difficult branch of the law which forms its subject." 
 — Law Magazine and Review. 
 
 Fourth Edition, in 8vo, price 6s. cloth, 
 
 AN ANALYSIS OF SNELL'S PRINCIPLES OF 
 
 EQUITY. Founded on the Tenth Edition. With Notes thereon. 
 
 By E.~E. Blyth, LL.D., Solicitor. 
 
 " Mr. Blyth's book will undoubtedly be very useful to readers of Snell."— Zaw Times. 
 ■Ihis Is an admirable analysis of a good treatise— read with Snell, this little book will be found very 
 ptontable to the student. — Law Jourjial. 
 
 In Svo, price 2J., sewed, 
 
 QUESTIONS ON EQUITY. 
 
 FOR STUDENTS PREPARING FOR EXAMINATION. 
 
 FOUNDED ON THE NINTH EDITION OF 
 
 SNELL'S "PRINCIPLES OF EQUITY." 
 By W. T. WAITE, 
 
 bAHt!IsrF.K-At-L.1W, HOLT SCHOLAR OF THE HO.NOURADLE SOCIETY OF ORAY's I.NN. 
 
WORKS FOR LAW STUDENTS. 23 
 
 Second Edition, in one volume, 8vo, price lis., cloth, 
 
 PRINCIPLES OF CONVEYANCING. 
 
 AN ELEMENTARY WORK' FOR THE USE OF STUDENTS. 
 
 By henry C. DEANE, 
 or limcoln's inn, barrister-at-law, sometime lecturer to the incorporated law society 
 
 OF THE UNITED KINGDOM. 
 
 "We hope to see this book, like Snell's Equity, a standard class-book in all Law Schools 
 where English law is /a«f/<A"— Canada Law Journal. 
 " We like the work, it is well written and is an 
 
 . ,,, "~- "■= ""■«■. '•■ IS well written and is an 
 
 excellent student's book, and being only just pub- 
 lished, It has the great advantage of having in ft all 
 the recent important enactments relating to convey- 
 ancing. It possesses also an excellent index."— 
 I-aw Students ymnial. 
 
 " Will be found of great use to students enterbg 
 upon the difficulties of Real Property Law. It has 
 an unusually exhaustive index covering some fifty 
 pages. '—Law Times. 
 
 " In the parts which have been re-written, Mr. 
 Deape has preserved the same pleasant style marked 
 by simplicity and lucidity which distinguished his 
 first edition. After ' Williams on Real Property,' 
 there is no book which we should so strongly 
 recommend to the student entering upon Real Pro- 
 perty Law as Mr. Deane's ' Principles of Convey- 
 ancing,' and the high character which the first 
 edition attained has been fully kept up in this 
 second." — Law Journal. 
 
 Fourth Edition, in Svo, price lof., cloth. 
 
 A SUMMARY OF THE 
 
 LAW & PRACTICE IN ADMIRALTY. 
 
 FOR THE USE OF STUDENTS. 
 By EUSTACE SMITH, 
 
 OF THE INNER TEMPLE; AUTHOR OF "a SUMMARY OF COMPANY LAW."' 
 
 " The book is well arranged, and forms a good introduction to the subject." — Solicitors' JouniaU 
 
 " It is however, in our opinion, a well and carefully written little work, and should be in the hands of 
 
 every student who is taking up Admiralty Law at the Final." — Laiv Student^ Journal. 
 
 " Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. The 
 
 present work will doubtless be received with satisfaction equal to that with which his previous * Summaiy * 
 
 has been met." — Oxford attd Cambridge Undergraduates' Jourjuil, 
 
 Third Edition, in Svo, price ^s. 6d.^ cloth, 
 A SUMMARY OF THE 
 
 LAI AND PRACTICE IN THE ECCLESIASTICAL COURTS, 
 
 FOR THE USE OF STUDENTS. 
 By EUSTACE SMITH, 
 
 OF THE INNER TEMPLE; AUTHOR OF "a SUMMARY OF COMPANY LAW," AND "a SUMMARY CF 
 THE LAW AND PRACTICE IN ADMIRALTY." 
 
 " His object has been, as he tells us in his preface, to give the student and general reader a fair Duiline 
 of the scope and extent of ecclesiastical law, of the principles on which it is founded of the ( o irts by 
 which it is enforced, and the procedure by which these Courts are regulated. _We think the book well 
 fulfils its object. Its value is much enhanced fay a profuse citation of authorities for the propositions 
 contained in it." — Bar Exaini?tatioii Journal. 
 
 Fourth Edilion,.in Svo, price 7^. 6.^., cloth, 
 
 AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE, 
 
 FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION. 
 By J. CARTER HARRISON, Solicitor. 
 
 " I'he work k considerably enlarged, and we think improved, and will be found cf great assblance to 
 students." — Law Studf tits' Jonniat, 
 
2} WORKS FOR LAW STUDENTS. 
 
 Sixth Edition. In one volume, 8vo, piice 20J., cloth, 
 
 PRINCIPLES OF THE COMMON LAW. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 SIXTH EDITION. 
 
 I'.Y JOHN INDERMAUR, Solicitor, 
 
 AUTHOR OF " A MANUAL OF THE PRACTICE OF THE SUPREME COURT," 
 " EPITOMES OF LEADING CASES," AND OTHER WORKS. 
 
 "The Student will find in Mr. Indermaur's book a safe and clear guide to the Prin- 
 ciples of Common Law." — Law Journal, 1892. 
 
 "The present edition of this elementary treatise has been in general edited with praise- 
 worthy care. The provisions of the statutes affecting the subjects discussed, which have 
 been passed since the publication of the last edition, are clearly summarised, and the effect 
 of the leading cases is generally very well given. In the difficult task of selecting and 
 distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading 
 principles are clearly brought out, and very judiciously illustrated."— Solicitors' Journal. 
 
 "The work is acknowledged to be one of the best written and most useful elementary 
 works for Law Students that has been published." — Law Times. 
 
 " The praise which we were enabled to bestow upon Mr. Indermaur's very useful com- 
 pilation on its first appearance has been justified by a demand for a second edition." — 
 La-iV J 
 
 " We were able, four years ago, to praise the first edition of Mr. Indermaur's book as 
 likely to be of use to students in acquiring the elements of the law of torts and contracts. 
 The second edition maintains the character of the book." — Law Journal. 
 
 "Mr. Indermaur renders even law light reading. He not only possesses the faculty 
 of judicious selection, but of lucid exposition and felicitous illustration. And while his 
 works are all thus characterised, his ' Principles of the Common Law ' especially displays 
 those features. That it has already reached a second edition, testifies that our estimate of 
 the work on its first appearance was not unduly favourable, highly as we then signified 
 approval ; nor needs it that we should add anything to that estimate in reference to the 
 general scope and execution of the work. It only remains to say, that the present edition 
 evinces that every care has been taken to insure thorough accuracy, while including all 
 the modifications in the law that have taken place since the original publication ; and that 
 the references to the Irish c'ecisions which have been now introduced are calculated to 
 render the work of greater utility to practitioners and students, both English and Irish." 
 — Iris/i Law Times, 
 
 " This work, the author tells us in his Preface, is written mainly xvith a view to the 
 examinations of the Incorporated Law Society ; kit we think it is likely to attain a wider 
 usefulness. It seems, so far as 7ve can jttdge from the parts we have examined, to be a 
 careful and clear outline of the principles of the common law. It is very readable ; and 
 not only students, but many practitioners and the public, tiiight benefit by a perusal of its 
 pages." — Solicitors' Journal, 
 
WORKS FOR LAW STUDENTS. 
 
 25 
 
 I mr.vTT.T « ^'''* Edition, in 8vo, price 12^. 6</., cloth, 
 
 ?™™ ^^^^^^^^ OF THE SUPREME COURT OF JUDICATURE, 
 
 T™ QUEEN'S BENCH AND CHANCERY DIVISIONS. 
 Jntended for the ns, of Students and the Profession. 
 " The second d' " ^^ ^^^^ Indermaur, Solicitor. 
 
 Rood evidence t1i.-;l'°tL'''boSTas''bTJf I?."?,™ "V' C^'i ^"^'"^ ^^ ^^V&^\^^i in 1878. This fact affords 
 "V,''.?.°'.™ho masters the contends to turn to IV. „'^j"'-j " ?°"'^'ns sufficient information to enable the 
 " -1 his IS a very useful studentVboSk T, i! ^^f"^"^ ™'-'« ™ P/actice with advantage."-Za7<; Times. 
 requires, without bewilderiuK him wUh'dpfnlll "^J^f'y «■"■!"=". and gives such information as the student 
 excellent mtroduction to tht elempnT= ^f 1, -Tht! .Portion relating to the Chancery Division forms an 
 artided clerks, but also by p,yisTnterin^,h^.^P'^K'"- f^^ "^^^ ^ advantageously used, not only by 
 ! y P"Pi's entering the chambers of equit y draftsmen. "-.S-|>/tW/ayj' Joimial. 
 
 Seventh Edition, in 8vo, price 6x., cloth, 
 
 AN EPITOME OF LEADING COMMON LAW CASES- 
 
 WITH SOME SHORT NOTES THEREON. 
 Chiefly '"'ende^ ,s GuHe to " Smith's Leading Cases." By John Indermaur, 
 _ bolicitor (Chfiford s Inn Prizeman, Michaelmas Term, 1872). 
 
 maur, loUdtonThe fi^ eSn of lhU°^ "l' ' ^Pitome of Leading Common Law Cases,' by Mr. Inder- 
 and now we have a thWedition dated Senior' ?"'='■=>'=?' '" February 1873, the second in April, 1874: 
 
 Seventh Edition, in 8vo, price 6j., cloth, 
 
 AN EPITOME OF LEADING CONVEYANCING AND EQUITY CASES; 
 
 WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. 
 
 By John Indermaur, Solicitor, Author of "An Epitome of Leading 
 
 Common Law Cases. " 
 
 inte^"'r^:!L;!^-!3^-ri:^,f:^x?is;da^^^^^ 
 
 Fifth Edition, in 8vo, price 5^. dd., cloth, 
 
 SELF-PREPARATION FOR THE FINAL EXAMINATION. 
 
 CONTAINING A COMPLETE COURSE OF STUDY, WITH STATUTES 
 CASES AND QUESTIONS; ' 
 
 And intended for the use of those Articled Clerks who read by themselves. 
 By John Indermaur, Solicitor. 
 "In this edition Mr. Indermaur extends his counsels to the whole period from the Intermediate 
 examination to the Final. His advice is practical and sensible : and if the course of study he recommends 
 is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient 
 to carry him through the Final Examination."— ^o/!«<<7?-j' Journal. 
 
 " This book contains recommendations as to how a complete course of study for the above examination 
 should be carried out, with reference to the particular books to be read seriatim. We need only remark 
 that It is essential for a student to be set on the right track in his reading, and that anyone of ordinary 
 ability, who follows the course set out by Mr. Indermaur, ought to pass with great credit. "—Z.giD Journal. 
 
 Fourth Edition, in 8vo, price 8j., cloth, 
 
 SELF -PREPARATION FOR THE INTERMEDIATE EXAMINATION, 
 
 As it at present exists on Stephen's Commentaries. Containing a complete course of 
 Study, with Statutes, Questions, and Advice as to portions of the book which may 
 be omitted, and of portions to which special attention should be given ; also the 
 whole of the Questions and Answers at the Intermediate Examinations which 
 have at present been held on Stephen's Commentaries, and intended for the use of 
 all Articled Clerks who have not yet passed the Intermediate Examination. By 
 John Indermaur, Author of " Principles of Common Law," and other works. 
 
 In 8vo, 1875, price ts., cloth, 
 
 THE STUDENTS' GUIDE TO THE JUDICATURE ACTS, 
 
 AND THE RULES THEREUNDER: 
 
 Being a book of Questions and Answers intended for the use of Law Students. 
 
 By John Indermaur, Solicitor. 
 
26 WORKS FOR LAW STUDENTS. 
 
 Fifth Edition, in Crown 8vo, price . , cloth, nearly ready, 
 
 AN EPITOME OF CONVEYANCING STATUTES, 
 
 Extending from 13 Edw. I. to the End of 55 & 56 Victoria. Fifth 
 Edition, with Short Notes. By George Nichols Marcy, of Lincoln's Inn, 
 Barrister-at-Law. 
 
 Second Edition. In 8vo, price 26^., cloth, 
 
 A NEW LAW DICTIONARY, 
 
 AND INSTITUTE OF THE WHOLE LAW ; 
 
 EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO THE 
 AUTHORITIES, CASES, AND STATUTES. 
 
 SECOND EDITION, revised throughout, and considerably enlarged. 
 By ARCHIBALD BROWN, 
 
 H.A. BDIN. AND OXON., AND B.C.L. OXON., OF THE RUDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF 
 THE "law of FIXTURES," "ANALYSIS OF SAVIGNy's OBLIGATIONS IN ROMAN LAW," ETC. 
 
 Reviews of the Second Edition. 
 
 "50 far as we have been able to examine the work, it seems to have been most carefully 
 and acctirately executed, the present Edition, besides containing much new matter, having 
 been thoroughly revised in consequence of the recent changes in the law ; and we have no 
 doubt whatever that it will be found extremely useful, not only to students and practitioners, 
 but to public men, and men of letters." — Irish Law Times. 
 
 "Mr. Brown has revised his Dictionary, and adapted it to the changes effected by the 
 yudicature Acts, and it now constitutes a very useful work to put into the hands of any 
 student or articled clerk, and a work wh ich the practitioner will find of value for reference. " 
 — Solicitors' Journal. 
 
 " It 7uill prove a reliable guide to law students, and a handy book of reference for 
 practitioners. " — Law Times. 
 
 In Royal 8vo., price 5^., cloth, 
 
 ANALYTICAL TABLES 
 
 OF 
 
 THE LAW OF REAL PROPERTY; 
 
 Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. 
 By C. J. TARRING, of the Inner Temple, Barrister-at-Law. 
 
 CONTENTS 
 
 Table I. Tenures. 
 
 „ II. Estates, according to quantity of 
 
 Tenants' Interest. 
 
 III. Estates, according to the time at 
 
 which the Interest is to be enjoyed. 
 
 ,1 IV. Estates, according to the number and 
 
 connection of the Tenants. 
 
 Table V. Uses. 
 
 „ VI, Acquisition cf Estates in land of 
 
 freehold tenure. 
 ,, VII. Incorporeal Hereditaments. 
 ,, VIII. Incorporeal Hereditaments. ' 
 
 "GreM care and considerable skill have been shown in the compilation of these tables, which will be 
 found of much service to students of the Law of Real Property."— iaw Times. 
 
lI'OJiA'S FOR LAW STUDENTS. 
 
 27 
 
 Sixth Edition, in 8vo, price 20J., cloth, 
 
 PRINCIPLES OF THE CRIMINAL LAI. 
 
 INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR 
 THE USE OF STUDENTS AND THE PROFESSION. 
 
 By SEYMOUR F. HARRIS, B.C.L., M.A. (Oxon.), 
 
 AUTHOR OP "a concise DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN." 
 
 SIXTH EDITION. 
 Bv C. L. ATTENBOROUGH, of the Inner Temple, Barrister-at-Law. 
 
 REVIEWS. 
 
 ' T.*"? characteristic of the present Edition is the restoration to the book of the character of ' a concise 
 exposition proclaimed by the title-page. Mr. Attenborough has carefully pruned away the excrescences 
 wtlicn had arisen in successive editions, and has improved the work both as regards terseness and clearness 
 01 exposition. In both respects it is now an excellent student's book. The text is very well broken up 
 into headings and paragraphs, with short marginal notes— the importance of which, for the convenience 
 ot the student, is too often o\-zi\ao\xi."— Solicitors' youmal. 
 
 " We think the book— always a favourite with students— has got a new lease of life, and will now prove 
 the only text book which most men will care to study until they get beyond the examination stage of their 
 existence. ... On the whole our verdict is that the new Edition is distinctly a success, and we have no 
 hesitation in commending it to the student as the best text book that exists for his purposes."— iniu 
 Students Journal. 
 
 " The favourable opinion we expressed of the first edition of this work appears to have 
 been justified by the reception it has met with. Looking through this nezu Edition, we see 
 no reason to modify the praise we bestowed on the foi-mer Edition. The recent cases have 
 been added and the provisions of the Summary furisdiction Act are noticed in the chapter 
 relating to Summary Convictions. The book is one of the best manuals of Criminal Law 
 for the student." — Solicitors' Journal. 
 
 " There is no lack of Works on Criminal Law, but there was room for such a useful 
 handbook of Principles as Mr. Seymour Harris has supplied. Accustomed, by his previous 
 labours, to the task of analysing the law, Mr. Harris has brought to bear upon his present 
 work qualifications well adapted to secure the successful accomplishment of the object which 
 he had set before him. That object is not an ambitious one, jor if does not pretend to soar 
 above utility to the young practitioner and the student. For both these classes, and for the 
 yet wider class who may require a book of reference on the subject, Mr. Harris has produced 
 a clear and convenient Epitome of the Law. A noticeable feature oj Mr. Harrises work, 
 which is likely to prove of assistance both to the practitioner and the student, consists of a 
 Table of Offences, with their legal character, their punishment, and the statute under which 
 it is infiicted, together with a reference to the pages ivhere a Statement of the Law will be 
 found." — Law Magazine and Review. 
 
 " This work purports to contain 'a concise exposition of the nature of crime, the various offences punish- 
 able by the English law, the law of criminal procedure, and the law of summary convictions,' with tables 
 of offences, punishments, and statutes The work is divided into four books. Book I. treats of crime.its 
 divisions and essentials ; of persons capable of committing crimes ; and of principals and accessories. 
 Book II. deals with offences of a public nature ; offences against private persons ; and offences against the 
 property of individual;;. Each crime is discussed in its turn, with as much brevity as could well be used 
 consistently with a proper explanation of the legal characteristics of the several offences. Book III. 
 explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension 
 and trial of criminals from arrest to punishment. This part of the work is extremely well done, the 
 description of the trial being excellent, and thoroughly calculated to impress the mind of the uninitiated. 
 Book IV. contains a short sketch of ' summarj^ convictions before magistrates out of quarter sessions.' The 
 table of offences at the end of the volume is most useful, and there is a very full index. Altogether we 
 mast congratulate Mr. Harris on his adventure." — Law Journal. 
 
 "Mr. Harris has undertaken a work, in our opinion, so much needed thai he might 
 diminish its bulk in the next edition by obliterating the apologetic preface. The appearance 
 of his volume is as well timed as its execution is satisfactory. The author has shown an 
 aHlity of omission which is a good test of skill, and from the overwhelming mass of the 
 criminal law he has discreetly selected just so much only as a learner needs to know, and 
 has presented it in terms which render it capable of being easily taken into the mind."— 
 Solicitors' Journal. 
 
28 WORKS FOR LAW STUDENTS. 
 
 Second Edition, in crown 8vo, price 5^. td,, cloth, 
 
 THE STUDENTS' GUIDE TO BANKRUPTCY; 
 
 Being a Complete Digest of the Law of Bankruptcy in the shape of Questions and " 
 Answers, and comprising all Questions asked at the Solicitors' Final Examinations 
 in Bankruptcy since the Bankruptcy Act, 1883, and all important Decisions since 
 that Act. By John Indermaur, Solicitor, Author of " Principles of Common 
 Law,"&c., &c. 
 
 In l2mo, price ^s. del., cloth, 
 
 A CONCISE TREATISE ON THE LAW OF BILLS OF SALE, 
 
 FOR THE USE OF LAWYERS, LAW STUDENTS, & THE PUBLIC. 
 Embracing the Acts of 1878 and 1882. Part I.— Of Bills of Sale generally. Part II.— 
 Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction 
 thereof. Part HI.— Of the Effects of Bills of Sale as against Creditors. Part IV. 
 — Of Seizing under, and Enforcing Bills of Sale. Appendix, Forms, Acts, &c. 
 By John Indermaur, Solicitor. 
 
 ''The object of the book is thoroughly practical. Those who want to be told exactly what to do and 
 where to go when they are registering a bill of sale will find the necessary information in this little book." 
 — Law Jojinial, 
 
 In 8vo, price 2s. da., cloth, 
 
 A COLLECTION OF LATIN MAXIMS, 
 
 LITERALLY TRANSLATED. 
 INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS. 
 . "y^^ ho^ seems admirably adapted as a book of reference for students who come across a Latin maxim 
 m their readmg." — Law journal. 
 
 1 In one volume, 8vo, price gj., cloth, 
 
 LEADING STATUTES SUMMARISED, 
 
 FOR THE USE OF STUDENTS. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GKAv's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD ; 
 AUTHOR OF LEADING CASES IN CONSTITUTIONAL LAW BRIEFLY STATED." 
 
 Second Edition, in Svo, enlarged, price 6j-., cloth, 
 
 LEADING CASES IN CONSTITUTIONAL LAW 
 
 Briefly Stated, with Introduction and Notes. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GRAY's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. 
 
 stit'urio;,»^'T*;w'''^hriT=^f ■"" '°S='*'^.'' '" ^ Slim octavo a digest of the principal cases illustrating Con- 
 nl ™ J^^.? ► ' X fu ^' ?" '!"'=="'^"'^ "S '° 'hi: r'gh's or authority of the Crown or persons under it, 
 ii\^lt ""'''' "" '=?"^'"""°" ='".'1 structure given to the governing body, but a'^so the mode in 
 which the sovereign power is to be exercised. In an introductory eisay Mr. Thomas gives a vervclearLd 
 Lnd ISTfn;;^''' °^ *' 8="='-^/"".'^"°"= °^ 'S= Executive, and 2e principles by whclTe^arlTegulIted ; 
 Timts' ""^ ^"^ " ^°"''"° '""■°'^""'°° '">d ^ l^rief epitome of the familiar leading cases."-Z«j« 
 
 In Svo, price 8^., cloth, 
 
 AN EPITOME OF HINDU LAW CASES. With 
 
 Short Notes thereon. And Introductory Chapters on Sources of Law, Marriage, 
 Adoption,^ Partition, and Succession. By William M. P. Coghlan, Bombay 
 Civil Service, late Judge and Sessions Judge of Tanna. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 29 
 
 Second Edition, in crown 8vo, price I2s. 6d,, cloth, 
 
 THE BANKRUPTCY ACT, 1883, 
 
 With Notes of all the Cases decided under the Act ; 
 
 The consolidated RULES and FORMS, 1886 ; The Debtors Act, 1869, so 
 far as applicable to bankruptcy matters, with rules and forms 
 thereunder; the Bills of Sale Acts, 1878 and 1882; 
 Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, 
 Fees, and Percentages, 1886 ; Orders of the Bankruptcy Judge of the High 
 Court ; and a Copious Index. 
 
 By WILLIAM HAZLITT, ESQ., and RICHARD RINGWOOD, M.A., 
 
 SENIOR REGISTRAR IN BANKRUPTCY, OF THE MIDDLE TEMPLE, ESQ., IIARRISTER-AT-LAW. 
 
 Second Edition, by R. RINGWOOD, M.A., Barristerat-Law. 
 
 ** This is a very handy edition of the Act and Rules The cross references and marginal 
 
 references to corresponding provisions of the Act of iS6g are exceedingly useful There is a vcrj* 
 
 fuU index, atd. the book is admirably printed." — Solicitors' Journal 
 
 Part I., price 7j. 6^., sewed, 
 
 LORD WESTBURY'S DECISIONS IN THE 
 
 EUROPEAN ARBITRATION. Reported by Francis S. Reilly, 
 
 of Lincoln's Inn, Barrister-at-Law. 
 
 Parts I., II., and III., price 25^., sewed, 
 
 LORD CAIRNS'S DECISIONS IN THE ALBERT 
 
 ARBITRATION. Reported by Fkancis S. Reilly, of Lincoln's Inn, 
 Barrister-at-Law. 
 
 Second Edition, in royal 8vo, price 30J., cloth, 
 A TREATISE ON 
 
 THE STATUTES OF ELIZABETH AGAINST 
 FRAUDULENT CONVEYANCES. 
 
 The Bills of Sale Acts 1878 and 1882 and the LAW OF VOLUNTARY 
 DISPOSITIONS OF PROPERTY. 
 
 By the late H. W. MAY, B.A. (Ch. Ch. Oxford), 
 
 Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington, 
 of the Inner Temple, Barrister-at-Law. Editor of the "Married Women's 
 Property Acts," Sth edition, by the late J. R. Griffith. 
 
 "Mr. Worthington's work appears to have been 
 
 conscientious and exhaustive." — Saturday Review. 
 
 Examining Mr. May's book, we find it con- 
 
 "In conclusion, we can heartily recommend this 
 book to our readers, not only to those who are in 
 large practice, and who merely want a classified 
 list of cases, but to those who have both the desire 
 and the leisure to enter upon a systematic study of 
 ou-s\a.ii:'— Solicitors' Journal. 
 
 " As Mr Worthington points out, since Mr. May 
 wrote, the ' Bills of Sale Acts' of 1S78 and 1882 
 have been passed ; the ' Married Women's Property 
 Act, 1882 ' (making settlements by married wonien 
 void as against creditors in cases in which similar 
 settlements by a man would be void), and the 
 ' Bankruptcy Act, 1883.' These Acts and the deci- 
 sions upon them have been handled by Mr. Worth- 
 ington in a manner which shows that he is master 
 of his subject, and not a slavish copyist of sections 
 and head-notes, which 15 a vicious propensity of 
 many modern compilers of text-books. His Table 
 of Cases (with reference to all the reports), is 
 admirable, and his Index most exhaustive. —Law 
 
 Times. ... 1 i.„ 
 
 "The results of the authorities appear to be 
 given well and tersely, and the treatise will we 
 think be found a convenient and trustworthy book 
 of reference." — Law younial. 
 
 structed with an intelligence and precision which 
 render it entirely worthy of being accepted as a 
 guide in this confessedly difficult subject. The 
 subject is an involved one, but with clean and clear 
 handling it is here presented as clearly as it could 
 be. . . . On the whole, he has produced a very 
 useful book of an exceptionally scientific character." 
 — Solicitors' Joumal. 
 
 " The subject and the work are both very good, 
 The former is well chosen, new, and interesting ; 
 the latter has the quality which always distin- 
 guishes original research from borrowed labours." 
 — American Law Review. 
 
 "We are happy to welcome his(Mr. May's)work 
 as an addition to the, we regret to say, brief cata- 
 logue of law books conscientiously executed. We 
 can corroborate his own description of his labours, 
 ' that no pains have been spared^ to make the book 
 as concise and practical as fiossible, without doing 
 so at the expense of perspicuity, or by the omission 
 cf any important points.'" -' — v,™„ 
 
 " — Law Times. 
 
30 
 
 STEVENS &^ HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, medium 8vo., price 38^., Cloth ; or in Half-Roxburgh, 42J. 
 
 A HISTORY OF THE FORESHORE 
 
 AND THE LAW RELATING THERETO. 
 
 With a Hitherto Unpublished Treatise by Lord Hale, Lord Hale's 
 " De Jure Maris," and the Third Edition of Hall's Essay on the 
 
 RIGHTS OF THE CROWN IN THE SEA-SHORE. 
 
 With Notes, and an Appendix relating to Fisheries. 
 
 By STUART A. MOORE, F.S.A., 
 
 OF THE INNER TEMPLE, BAHRISTER-AT-LAW, 
 
 "This worlc is nominally a third edition of the 
 late Mr. Hall's essay on the rights of the Crown in 
 the Sea-shore, but in reality is an absolutely new 
 production, for out of some 900 odd pages Hall's 
 essay takes up but 227. Mr. Moore has written a 
 
 book of great importance, which should mark an 
 epoch in the history of the rights of the Crown and 
 the subject in the litvs maris, or foreshore of the 
 kingdom. Hall's treatise (with Loveland's notes) is 
 set out with fresh notes by the present editor, who 
 is anything but kindly disposed towards his author, 
 for his notes are nothing but a series of exposures 
 of what he deems to be Hall's errors and misrepre- 
 sentations. Mr. Moore admits his book to be a 
 brief for the opposite side of the contention sup- 
 ported by Hall, and a more vigorous and argu- 
 mentive treatise we have scarcely ever seen. Its 
 arguments are clearly and broadly disclosed, and 
 supported by a wealth of facts and cases which 
 show the research of the learned author to have 
 been most full and elaborate. . . . There is no 
 doubt that this is an important work, which must 
 have a considerable influence on that branch of the 
 law with which it deals. That law is contained in 
 ancient and most inaccessible records ; these have 
 now been brought to light, and it may well be 
 that important results to the subject may flow 
 therefrom. The Profession, not to say the general 
 public, owe the learned author a deep debt of 
 gratitude for providing ready to hand such a 
 
 wealth of materials for founding and building up 
 arguments. Mr. Stuart IMoore has written a work 
 which must, unless his contentions are utterly un- 
 founded, at once become the standard text-book on 
 the law of the Sea-shore." — Laiu Tiines^ Dec. ist. 
 
 " Mr. Stuart Moore in his valuable work on the 
 Foreshore." — The Times. 
 
 " Mr. Stuart Mooie's work on the title of the 
 Crown to the land around the coast of England 
 lying between the high and low water-mark is 
 something more than an ordinary law book. It is 
 a histoi-y, and a very interesting one, of such land 
 and the rights exercised over it from the earliest 
 times to the present day ; and a careful study of 
 the facts contained in the book and of the argu- 
 ments brought forward can scarcely fall to convince 
 the reader of the inaccuracy of the theoiy, now so 
 constantly put forward by the Crown, that without 
 the existence of special evidence to the contrary, 
 the land which adjoins riparian property, and 
 which is covered at high tide, belongs to the 
 Crown and not to the owner of the adjoining 
 manor. The Kst which Mr. Moore gives of places 
 where the question of foreshore has been already 
 raised, and of those as to which evidence on the 
 subject exists amongst the public records, is valu- 
 able, though by no means exhaustive ; and the 
 book should certainly find a place in the library of 
 the lord of every riparian manor." — Morniiig Post. 
 
 In one volume, 8vo, price I2j«, cloth, 
 A TREATISE ON THE LAW RELATING TO THE 
 
 POLLUTION AND OBSTRUCTION OF WATER COURSES ; 
 
 Together with a Brief Summary of the Various Sources of Rivers 
 
 Pollution. 
 
 By clement HIGGINS, M.A., F.C.S., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 " As a compendium of the law upon a special 
 and rather intricate subject, this treatise cannot 
 but prove of great practical value, and more 
 especially to those who have to advise upon the 
 institution of proceedings under the Rivers Pollu- 
 tion Prevention Act, 1876, or to adjudicate upon 
 those proceedings when brought." — Irish Law 
 Times. 
 
 "We can recommend Mr. Higgins Manual as 
 the best guide we possess." — Public Health. 
 
 "County Court Judges, Sanitary Authorities, 
 and Riparian Owners will find in Mr. Higgins' 
 Treatise a valuable aid in obtaining a clear notion 
 cf the Law on the Subject. Mr. Higgins has 
 accomplished a work for which he will readily be 
 recognised as having special fitness on account of 
 
 his practical acquaintance both with the scientific 
 and the legal aspects of his subject." — Law Maga- 
 zine and Keview. 
 
 ' ' The volume is very carefully arranged through- 
 out, and will prove of great utility both to miners 
 and to owners of land on the banks of rivers." — 
 The Mining youtnal. 
 
 "Mr. Higgins writes tersely and clearjy, while 
 his facts are so well arranged that it is a pleasure 
 to refer to his book for information ; and altogether 
 the work is one which will be found very useful by 
 all interested in the subject to which it relates." — 
 Engineer. 
 
 A compact and convenient manual of the law 
 on the subject to which it relates." — Solicitors' 
 Journal. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 31 
 
 In 8vo, Fourth Edition, price 253., cloth, 
 
 MAYNE'S TREATISE 
 
 ON 
 
 THE LAW OF DAMAGES. 
 
 FOURTH EDITION. 
 
 BY 
 
 JOHN D. MAYNE, 
 
 OF THE INNER TEMPLE, BARRISTEB-AT-LAW ; 
 
 AMD 
 
 LUMLEY SMITH, 
 
 OF THE INNER TEMPLE, Q.C. 
 
 " Few books have been better kept up to the current law than this treatise. The earlier part 
 of the book was remodelled in the last edition, and in the present edition the chapter on 
 Penalties and Liquidated Damages has been re-written, no doubt in consequence of, or with 
 regard to, the elaborate and exhaustive judgment of the late Master of the Rolls in Wallis v. 
 Smith (31 W. R. 214 ; L. R. 21 Ch. D. 243). The treatment of the subject by the authors is 
 admirably clear and concise. Upon the point involved in Wallis v. Smii/i they say ' The 
 result is that an agreement with various covenants of different importance is not to be governed 
 by any inflexible rule peculiar to itself, but is to be dealt with as coming under the general rule, 
 that the intention of the parties themselves is to be considered. If they have said that in the 
 case of any breach a fixed sum is to be paid, then they will be kept to their agreement, unless 
 it would lead to such an absurdity or injustice that it must be assumed that they did not mean 
 what they said." This is a very fair summary of the judgments in Wallis v. Smith, especially 
 of that of Lord Justice Cotton ; and it supplies the nearest approach which can be given at 
 present to a rule for practical guidance. We can heartily commend this as a carefully edited 
 edition of a thoroughly good book." — Solicitors' Journal, 
 
 " The editors have, with their well-known care, eliminated much obsolete matter, and revised 
 and corrected the text in accordance with the recent changes in procedure and legislation. The 
 chapter on penalties and liquidated damages has been to a great extent re-written, and a new 
 chapter has been added on breach of statutory obligations. As of former editions of this valua- 
 ble work, we can but speak of it with strong commendation as a most reliable authority on a 
 very important branch of our law — the Right to Damages as the result of an Action at Law." 
 — Law Journal. 
 
 " During the twenty-two years which have elapsed since the fublication of this well-known 
 work, its reputation has been steadily gi-o^oing, and it has long since become the recognised 
 authoiity on the important subject of which it treats." — Law Magazine and Revikw. 
 
 "This edition of what has become a standard 
 work has the advantage of appearing under the 
 supervision of the original author as well as of 
 Mr. Lumley Smith, the editor of the second edition. 
 The result is most satisfactory. Mr. Lumley 
 Smith's edition was ably and conscientiously pre- 
 pared, and we are glad to find that the reader still 
 enjoys the benefit of his accuracy and learning. 
 At the same time the book has doubtless been 
 improved by the reappearance of its author as co- 
 editor. The earlier part, indeed, has been to a 
 considerable extent entirely rewritten. 
 
 " Mr. Mayne's remarks on damages m actions of 
 tort are brief. We agree with him that in such 
 actions the courts are governed by far looser princi- 
 ples than in contracts ; indeed, sometimes it is 
 impossible to say they are governed by any princi- 
 ples at all. In actions for injuries to the person or 
 reputation, for example, a judge cannot do more 
 than give a general direction to the jury to give 
 
 what the facts proved in their judgment required. 
 And, according to the better opinion, they may give 
 damages 'for examples sake,' and mulct a rich 
 man more heavily than a poor one. In actions for 
 injuries to property, however, ' vindictive ' cr 
 ' exemplary ' damages cannot, except in very rare 
 cases, be awarded, but must be limited, as in con- 
 tract, to the actual harm sustained. 
 
 " It is needless tocomment upon the arrangement 
 of the subjects in this edition, in which no alteration 
 has been made. The editors modestly express a 
 hope that all the English as well as the principal 
 Irish decisions up to the date have been included, 
 and we believe from our own examination that the 
 hope is well founded. We may regret that, warned 
 by the growing bulk of the book, the editors have 
 not included any fresh American cases, but we feel 
 that the omission was unavoidable. We should add 
 that the whole work has been thoroughly revised." — 
 Solicitors' Jotimal. 
 
 ■ This text-book is so well known, not only as the highest authority on the subject treated 
 of but as one of the best text-books ever written, that it would be idle for iis to speak of it 
 in the words of commendation that it deserves. It is a work that no practising lawyer can 
 do without."— C\sKah Law Journal. 
 
32 
 
 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Now ready, in crown 8vo, price 4^. td., cloth. 
 
 ABSTRACT DRAWING. Containing Instructions on 
 
 Ihe Drawing of Abstracts of Title, and an Illustrative Appendix. By C. E. Scott, 
 Solicitor. 
 
 Second Edition, in crown 8vo, price 7^., cloth, 
 
 THE LAW RELATING TO CLUBS. 
 
 By the late JOHN WERTHEIMER, Barrister-at-Law. 
 Second Edition, by A. W. CHASTER, Barrister-at-Law. 
 
 " A convenient handbook, drawn up with great 
 judgment and perspicuity." — Morning Post. 
 
 " Both useful and interesting to those interested 
 in club management." — Lww Times. 
 
 " Mr. Wertheimer's history of the cases is com- 
 plete and well arranged." — Saturday Review, 
 
 " This is a very neat little book on an interesting 
 subject. The law is accurately and well expressed." 
 — Lavj Journal. 
 
 "This is a very handy and complete little work. 
 This excellent little treatise should lie on the table 
 of every club." — Puinfi Court. 
 
 In 8vo, price 2j., sewed, 
 
 TABLE of the POEEIGN MERCANTILE LAWS and CODES 
 
 in Force in the Principal States of EUROPE and AMERICA. By Charles 
 Lyon-Caen, Professeur agreg^ a la Faculty de Droit de Paris ; Professeur a 
 I'Ecole libre des Sciences politiques. Translated by Napoleon Argles, 
 Solicitor, Paris. 
 
 In one volume, demy 8vo, price \os, 6d., cloth, 
 
 PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, 
 
 RETENTION, and DELIVERY. By John Houston, of the Middle Temple, 
 Barrister-at-Law, 
 
 *' We have no hesitation in saying that we think 
 Mr. Houston's book will be a very useful accession 
 
 to the library of either the merchant or the lawyer." 
 — Solicitors' Jo7imal. 
 
 Just published, in 8vo, price loj., cloth, 
 
 THE TRIAL OF ADELAIDE BARTLETT FOR 
 
 MURDER ; Complete and Revised Report. Edited by Edward Eeal, B.A., 
 of the Middle Temple, Barrister-at-Law. With a Preface by Edward Clarke, 
 Q.C., M.P. 
 
 In 8vo, price 10^. 6n'., cloth, 
 A REPORT OF THE CASE OF" 
 
 THE QUEEN v. GURNEY AND OTHERS, 
 
 In the Court of Queen's Bench before the Lord Chief Justice Cockburn. With an 
 Introduction, containing a History of the Case, and an Examination of the Cases 
 at Law and Equity applicable to it ; or Illustrating THE DOCTRINE OF Com- 
 mercial Fraud. By W. F. Finlason, Barrister-at-Law. 
 
 In royal 8vo, price loj. iid., cloth, 
 
 THE PRACTICE OF EQUITY BY WAY OF REVIVOR AMD SUPPLEMENT. 
 
 With Forms of Orders and Appendix of Bills, 
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 By LoFTUs Leigh Pemberton, 
 
 " Mr. Pemberton has, with" great care, brought 
 together and classified all these conflicting cases, 
 and has, as far as may be, deduced principles which 
 
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 citors' JoumaL 
 
STEVENS &• HAYNES, BELL YARD, TEMPLE BAR, 33 
 
 In 8vo, price 6s. 6d., cloth, 
 
 THE ANNUAL DIGEST OF MERCANTILE 
 CASES FOR THE YEAR 1886. 
 
 Being a Digest of the Decisions of the English, Scotch and Irish Courts 
 ON Matters Relating to Commerce. 
 
 By JAMES A. DUNCAN, M.A., LL.B,, Trin. Coll., Camb., 
 
 AND OF THE INNER TEMPI E, BARRISTER-AT-LAW. 
 
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 the progress of t\m<,."Saturday Ra,ie^. ". ^ ^°'Y °^ ="f •'^"'ly ■"eference, well indexed, 
 
 "Tu t t .... and contammg the essence of a years decisions, 
 
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 decided one indeed, in favour of the value of this —Liverpool Daily Post. 
 
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 considerable pains to make his work a reliable ] and practice of election petitions." — Law Times. 
 
 Vols. I., II., & III., price 73J. ; and Vol. IV., Pts. I. to IV., price i+r. 
 REPORTS OF THE DECISIONS OF THE 
 
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 IN ENGLAND AND IRELAND. 
 
 PURSUANT TO THE PARLIAMENTARY ELECTIONS ACT, 1868. 
 
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 In 8vo, price 12s., cloth, 
 
 THE LAW OF FIXTURES, 
 
 IN the principal relation OF 
 LANDLORD AND TENANT, 
 and in all other or general relations. 
 FOURTH EDITION. 
 By ARCHIBALD BROWN, M.A. Edin. and Oxon., and B.C.L. Oxon. 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. 
 
 " A new chapter has been added with reference. I achieved." — Law Times. 
 to the Law of Ecclesiastical Fixtures and Dilapida- ' The treatise is commendable as well for ongi- 
 
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31 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 SIR BARTHOLOMEW SHOWER'S PARLIAMENTARY CASES. 
 
 In 8vo, 1876, price 4/. 4^., best calf binding, 
 
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 CONTAINING ADDITIONAL CASES NOT HITHERTO REPORTED. 
 
 REVISED AND EDITED BY 
 
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 " Messrs. Stevens & Haynes, the successful publishers of the Reprints of Bellewe, 
 Cooke, Cunningham, Brookes's New Cases, Choyce Cases in Chancery, William Kelynge 
 and Kelyng's Crown Cases, determined to issue a new or fourth Edition of Shower's Cases 
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 " The volume, although beautifully printed on old-fashioned Paper, in old-fashioned 
 type, instead of being in the quarto, is in the more convenient octavo form, and contains 
 several additional cases not to be found in any of the previous editions of the work. 
 
 " These are all cases of importance, worthy of being ushered into the light of the 
 world by enterprising publishers. 
 
 "Shower's Cases are models for reporters, even in our day. The statements of the 
 case, the argumentsof counsel, and the opinions of the Judges, are all clearly and ably given. 
 
 "This new edition with an old face of these valuable reports, under the able editorship 
 of R. L. Loveland, Esq., should, in the language of the advertisement, 'be welcomed by 
 the profession, as well as enable the custodians of public libraries to complete or add to 
 their series of English Law Reports.'" — Canada Law youmal. 
 
 BELLEWE'S CASES, T. RICHARD II. 
 
 In 8vo, 1869, price 3/. 3.?., bound in calf antique, 
 
 LES ANS DU ROY RICHARD LE SECOND. 
 
 Collect' ensembl' hors les abridgments de Statham, Fitzherbert et Brooke. Per 
 Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original 
 Edition. 
 
 " No public library in the world, where English 
 law finds a place, should be without a copy of this 
 edition of Bellewe," — Canada La-w youmai. 
 
 " We have here a.;&c-jz";«//e edition of Bellewe, 
 and it is really the most beautiful and admirable 
 reprint that has appeared at any time. It is a 
 perfect |;em of antique printing, and forms a most 
 interestmg monument of our early legal history. 
 It belongs to the same class of works as the Year 
 Book of Edward I. and other similar works which 
 have been printed in our own time under the 
 auspices of the Master of the Rolls ; but is far 
 superior to any of them, and is in this respect 
 
 highly creditable to the spirit and enterprise of 
 private publishers. The work is an important link 
 in our legal history ; there are no year books of the 
 reign of Richard II., and Bellewe supplied the only 
 substitute by carefully extracting and collecting all 
 the cases he could find, and he did it in the most 
 convenient form — that of alphabetical arrangement 
 in the order of subjects, so that the work is a digest 
 as well as a book of law reports. It is in fact a 
 collection of cases of the reign of Richard II., 
 arranged according to their subjects in alphabetical 
 order. It is therefore one of the most intelligible 
 and interesting legal memorials of the Middle 
 Ages." — Law Times. 
 
 CUNNINGHAM'S REPORTS. 
 
 In 8vo, 1 87 1, price 3/. 3^-., calf antique, 
 Cunningham's (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed a Proposal 
 for rendering the Laws of England clear and certain, humbly offered to the 
 Consideration of both Houses of Parliament. Third edition, with numerous 
 Corrections. By Thomas Townsend Buckmll, Barrister- at- Law. 
 
 '* The instructive chapter which precedes the 
 cases, entitled ' A proposal for rendermg the Laws 
 of England clear and certain,' gives the volume a 
 degree of peculiar interest, independent of the value 
 of many of the reported cases. That chapter begins 
 with words which ought, for the information of 
 every people, to be printed in letters of gold. They 
 are as follows: 'Nothing conduces more to the 
 
 peace and prosperity of every nation than good 
 laws and the due execution of them.' The history 
 of the civil law is then rapidly traced. Next a 
 history is given of English Reporters, beginning 
 with the reporters of the Year Books from i Edw. 
 III. to 12 Hen. VIII. — being near 200 years — and 
 afterwards to the time of the author. "--Ca»a.'/a 
 Laiv Journal. 
 
STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
 ^SUljtns stub Ijajjrtcs' §tx\t% ai aVcpfinta 0f tlte (Eavla glcportn-s, 
 CHOYCE CASES IN CHANCERY, 
 
 In 8vo, 1870, price 2/. 2s., calf antique, 
 
 THE PRAOTIOE OF THE HIGH COURT OF GHANOERT. 
 
 With the Nature of the several Offices belonging to that Court. And the Reports of 
 many Cases wherein Relief hath been there had, and where denyed. 
 
 "This volume, in paper, type, and binding (like 'Bellewe's Cases') is a fac-simile of the antique edition. 
 All who buy the one should buy the other."— CaM<K/a Law yournal. 
 
 In 8vo, 1872, price 3/. 3^-., calf antique, 
 
 SIR G. COOKE'S COMMON PLEAS REPORTS 
 
 IN THE REIGNS OF QUEEN ANNE, AND KINGS GEORGE I. and II. 
 
 The Third Edition, with Additional Cases and References contained in the Notes 
 taken from L. C. J. Eyre's MSS. by Mr. Justice Nares, edited by Thomas 
 TOWNSEND BuCKNiLL, of the Inner Temple, Barrister-at-Law. 
 " Law books never can die or remain long dead 
 so long as Stevens and Haynes are willing to con- 
 tinue them or revive them when dead. It is cer- 
 tainly surprising to see with what facial accuracy 
 
 an old volume of Reports maybe produced by these 
 modern publishers, whose good taste is only equalled 
 by their enterprise." — Canada- Lazv yoiirnal. 
 
 BROOKE'S NEW CASES WITH MARCH'S TRANSLATION. 
 
 In 8vo, 1873, price 4/. 4J., calf antique, 
 Brooke's (Sir Robert) New Cases in the time of Henry VIII., Edward VI.^ and 
 Queen Mary, collected out of Brooke's Abridgement, and arranged under years, 
 with a table, together with jMarch's (John) Translation (j/Brooke's New Cases 
 in the time of Henry VIII., Edward VI., and Queen Mary, collected out of 
 Brooke's Abridgement, and reduced alphabetically under their proper heads and 
 titles, with a table of the principal matters. In one handsome volume. 8vo. 1873. 
 
 " Both the original and the translation having 
 long been very scarce, and the mispaging and other 
 errors in March's translation making a new and 
 corrected edition peculiarly desirable, Messrs. 
 
 Stevens and Haynes have reprinted the two books 
 in one volume, uniform with the preceding volumes 
 of the series of Early Reports." — Canada Law 
 Journal. 
 
 KELYNGE'S (W.) REPORTS. 
 
 In 8vo, 1873, price 4/. +?., calf antique, 
 Kelynge's (William) Reports of Cases in Chancery, the King's Bench, &c., from the 
 3rd to the 9th year of his late Majesty King George II., during which time Lord 
 King was Chancellor, and the L«rds Raymond and Hardwicke were Chief 
 Justices of England. To which are added, seventy New Cases not in the First 
 Edition. Third Edition. In one handsome volume. 8vo. 1873. 
 
 KELYNG'S (SIR JOHN) CROWN CASES. 
 
 In 8vo, 1873, price 4/. i,s., calf antique, 
 
 Kely.ng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of King 
 Charles II., with Directions to Justices of the Peace, and others; to which are 
 added, Three Modern Cases, viz., Armstrong and Lisle, the King and Plummer, 
 the Oueen and Mawgridge. Third Edition, containing several additional Cases 
 ne-tier before printed, together with a Treatise upon the Law and Proceed- 
 ings IN Cases of High Treason, first published in 1793. The whole carefully 
 revised and edited by Richard Loa'ELAND Loveland, of the Inner Temple, 
 Barrister-at-Law. 
 "We look upon this volume as one of the most goodservicerenderedbyMessrs.StevensandHayneb 
 
 important and valuable of the unique reprints of 
 
 Ers. Stevens and Haynes. Little do we know 
 
 of the mines of legal wealth that he buried m the 
 
 rid law books. But a careful examination, either of 
 
 the reports or of the treatise embodied m the volume 
 
 now before us, will give the reader some idea of the 
 
 to the profession. . . . Should occasion arise, the 
 Crown prosecutor, as well as counsel for the prisoner, 
 will find in this volume a complete vade mecum of 
 the law of high treason and proceedings in relation 
 thereto," — Canada Law youmat. 
 
3(i STEVENS o- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Second Edition, in 8vo, price lAs., clolh, 
 A CONCISE TREATISE ON 
 
 PRIVATE INTERNATIONAL JURISPRUDENCE, 
 
 BASED ON THE DECISIONS IN THE ENGLISH COURTS. 
 By JOHN ALDERSON FOOTE, 
 
 OF Lincoln's inn, barrister- at-law ; chancellor's legal medallist and senior whewell scholar 
 
 OF international law, CAMBRIDGE UNIVERSITY, 1873 ; SENIOR STUDENT IN JURISPRUDENCE 
 AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY TERM, 1874. 
 
 ' ' This work seems to us likely to prove of considerable use to all English lawyers who have to deal with 
 questions of private international law. Since the publication of Mr. Westlake's valuable treatise, twenty 
 years ago, the judicial decisions of English courts bearing upon different parts of this subject have greatly 
 increased in number, and it is full time that these decisions should be examined, and that the conclusions 
 to be deduced from them should be systematically set forth in a treatise. Moreover, Mr. Foote has done 
 this well." — Solicitors' Journal. 
 
 " Mr. Foote has done his work very well, and the book will be useful to all who have to deal with the 
 class of cases in which English law alone is not sufficient to settle the question." — Saturday Review^ 
 March 8, 1879. 
 
 "The author's object has been to reduce into order the mass of materials already accumulated in the 
 shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a 
 framework of private international law, not from the dicta of jurists so much as from judicial decisions in 
 English Courts which have superseded them. And it is here, in compiling and arranging in a concise 
 form this valuable material, that Mr. Foote's wide range of knowledge and legal acumen bear such good 
 fruit. As a guide and assistant to the student of international law, the whole treatise will be invaluable : 
 while a table of cases and a general index will enable him to find what he wants without trouble."— 
 Standard. 
 
 " The recent decisions on points of international law (and there have been a large number since Westlake's 
 publication) have been well stated. So far as we have observed, no case of any importance has been 
 omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the 
 grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his 
 
 criticisms seem to us very just On the whole, we can recommend Mr. Foote's treatise as a useful 
 
 addition to our text-books, and we expect it will rapidly find its way into the hands of practising lawyers." 
 — The youmal of Jurisprudence and Scottish Law Magazine. 
 
 " Mr. Foote has evidently borne closely in mind the needs of Students of Jurisprudence as well as those 
 of the Practitioners. For both, the fact that his work is almost entirely one of Case-law will commend 
 it as one useful alike in Chambers and in Court." — Law Magazine and Review. 
 
 '* Mr. Foote's book will be useful to the student One of the best points of Mr. Foote's book 
 
 is the ' Continuous Summary,' which occupies about thirty pages, and is divided into four parts — Persons, 
 Property, Acts, and Procedure, Mr. Foote remarks that these summaries are not in any way intended as 
 an attempt at codification. However that may be, they are a digest which reflects high credit on the 
 author's assiduity and capacity. They are ' meant merely to guide the student ; ' but they will do much 
 more than guide him. They will enable him to get such a grasp of the subject as will render the reading 
 cf the text easy and fruitful." — Law Journal. 
 
 " This book is well adapted to be used both as a text-book for students and a book of reference for 
 practising liarristers." — Bar E.i-amination Journal. 
 
 " This is a book which supplies the want which has long been felt for a really good modern treatise on 
 Private International Law adapted to the every-day requirements of the English Practitioner. The 
 whole volume, although designed for the use of the practitioner, is so moderate in size — an octavo of 500 
 pages only— and the arrangairent and development of the subject so well conceived and executed, that it 
 will amply repay perusal by those whose immediate object may be not the actual decisions of a knotty 
 point but the satisfactory disposal of an examination 'pz.-^^x.'* —Oxford and Cambridge Undergraduates* 
 Journal, 
 
 "Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, 'r- 
 our opinion, the best work on private international law which has appeared in the English language. . . 
 The work is executed with much ability, and will doubtless be found of great value by all persons who 
 have to consider questions on private international laAv." — Athenceuin, 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAK. 87 
 
 THE 
 
 58.ato :Pagajine anli 3^ebieto, 
 
 AND 
 
 QUARTERLY DIGEST OF ALL REPORTED CASES. 
 
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 No. CCXVIII. (Vol. I, No. I. of the New Quarterly Series.) November, 1875. 
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 No. CCXX. (Vol. I, 4th Series No. III.) For May, 1876, 
 
 No. CCXXI. (Vol. I, 4th Series No. IV) For August, 1876. 
 
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38 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Fifth Edition, in one vol., 8vo. In preparation. 
 
 A TREATISE ON HINDU LAW AND USAGE. 
 
 By John D. Mayne, of the Inner Temple, Barrister-at-Law, Author of "A Treatise on 
 
 Damages," Sac. 
 
 "A new work from the pen of so established an authority as Jlr. Mayne cannot fail 
 to be welcome to the legal profession. In his present volume the late Officiating Advocate- 
 General at Madras has drawn upon the stores of his long experience in Southern India, 
 and has produced a work of value alike to the practitioner at the Indian Bar, or at home, 
 in appeal cases, and to the scientific jurist. 
 
 " To all who, whether as practitioners or administrators, or as students of the science 
 of jurisprudence, desire a thoughtful and suggestive work of reference on Hindu Law 
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 — Law Magazine and Review. 
 
 In 8vo, 1877, price 15/., cloth, 
 
 A DIGEST OF HINDU LAW, 
 
 AS ADMINISTERED IN THE COURTS of the MADRAS PRESIDENCY. 
 
 ARRANGED AND ANNOTATED 
 
 By H. S. CUNNINGHAM, M.A., Advocate-General, Madras. 
 
 DUTCH LAW. 
 
 In 2 Vols., Royal 8vo, price 90J., cloth, 
 
 VAN LEEUWEN'S COMMENTARIES ON THE ROMAN-DUTCH 
 
 LAW. Revised and Edited with Notes in Two Volumes by C. W. Deckek, 
 Advocate. Translated from the original Dutch by J. G. KoTZfi, LL.B., of the 
 Inner Temple, Barrister-at-Law, and Chief Justice of the Transvaal. With Fac- 
 simile Portrait of Decker from the Edition of 1 780. 
 
 * ^ Vol. II. can be had separately, price 50J-. 
 
 Buchanan (J.), Reports of Cases decided in the Supreme Court of the CAPE OF 
 GOOD HOPE. 1868, 1869, 1870-73, and 74. Bound in Three Vols. Royal 8vo. 
 
 1875, 1876, 1879, etc. 
 
 Menzies' (W.), Reports of Cases decided in the Supreme Court of the CAPE OF 
 GOOD HOPE. Vol. I., Vol. II., Vol. III. 
 
 Buchanan (J.), Index and Digest of Cases decided in the Supreme Court of the CAPE 
 OF GOOD HOPE, reported by the late Hon. William Menzies. Compiled 
 by James Buchanan, Advocate of the Supreme Court. In One Vol., royal 8vo. 
 
 In 8vo, 1878, cloth, 
 PRECEDENTS IN PLEADING: being Forms filed of Record in 
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 Arranged by James Buchanan. 
 
 In Crown 8vo, price y.s. dJ., boards, 
 
 THE INTRODUCTION TO DUTCH JURISPRUDENCE OF 
 
 HUGO GROTIUS, with Notes by Simon van Groenwegen van der Made, and 
 References to Van der Keesel's Theses and Schorer's Notes. Translated by 
 A. F. S. Maasdorp, B.A., of the Inner Temple, Barrister-at-Law. 
 
 In i2mo, price 15^. net, boards, 
 
 SELECT THESES ON THE LAWS OF HOLLAND & ZEELAND. 
 
 Being a Commentary of Hugo Grotius' Introduction to Dutch Jurisprudence, and 
 intended to supply certain defects therein, and to determine some of the more 
 celebrated Controversies on th; Law of Holland. By DiONYSins GoDEFRlDUs 
 VAN DER Kessel, Advocate, and Professor of the Civil and Modern Laws in the 
 Universities of Leyden. Translated from the original Latin by C. A. Lorenz, 
 of Lincoln's Inn, Barrister-at-Law. Second Edition, With a Biographical Notice 
 of the Author by Professor J. De Wal, of Leyden. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE. BAR. 39 
 
 THE 
 
 3$ar €]camination journal 
 
 No. 72. Price 3s. 
 HILARY, 1892. 
 
 CONTENTS :— 
 
 SUBJECTS OF EXAMINATION. 
 EXAMINATION PAPERS, WITH ANSWERS. 
 
 Real and Personal Property. 
 
 Equity. 
 
 Common Law. 
 
 Roman Law. 
 STUDENTSHIP EXAMINATION PAPERS. 
 LIST OF SUCCESSFUL CANDIDATES. 
 REVIEWS. 
 INDEX, TITLE, ETC., TO VOL. X. 
 
 Edited by 
 
 D. TYSSEN, D.C.L., M.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW ', AND 
 
 VV. D. EDWARDS, LL.B., 
 
 OF Lincoln's inn, barrister-at-law. 
 
 A. 
 
 *^* II is intended in future to publish a Ntimber of the Journal aftei- each Examination. 
 Now published, in 8vo, price \%s. each, cloth, 
 
 THE BAR EXAMINATION JOURNAL, VOLS. IV., V., 
 
 VI, VII., VIII. , IX. & X. Containing the Examination Questions and Answers 
 from Easter Term, 1878, to Hilary Term, 1892, with List of Successful Candidates 
 at each examination, Notes on the Law of Property, and a Synopsis of Recent Legis- 
 lation of importance to Students, and other information. 
 
 By a. D. TYSSEN and W. D. EDWARDS, Barristers-at-Law. 
 
 Fifth Edition. In 8vo, price 9s. cloth, 
 
 A SUMMARY OF JOINT STOCK COMPANIES' LAW. 
 
 By T. EUSTACE SMITH, 
 
 OF THE INNER TEMPLE, BAKRISTER-AT-LAW, 
 
 " The author of this hand-book tells us that, when 
 an articled student reading for the final examina- 
 tion he felt the want of such a work as that before 
 us wherein could be found the main prmciples of 
 law relating to joint-stock companies . . . Law 
 students may well read it ; for Mr Smith has very 
 wisely been at the pains of giving his authority for 
 all his statements of the law or of practice, as applietl 
 to joint-stock company business usually transacted 
 in solicitors 'chambers. In fact Mr Smith has 
 hv his little book offered a fresh inducement to 
 students to make themselves— at all events, to some 
 extent— acquainted with company law as a separate 
 branch of study."-Z««' Times. 
 
 " These pages give, in the words of the Preface, 
 ' as briefly and concisely as possible, a general 
 view both of the principles and practice of the law 
 affecting companies.' The work is excellently 
 printed, and authorities are cited ; but in no case 
 is the very language of the statutes copied. The 
 plan is good, and shows both grasp and neatness, 
 and, both amongst students and laymen, Mr. Smith's 
 book ought to meet a ready sale." — Law ymimal. 
 
 " The book is one from which we have derived 
 a large amount of valuable information, and we can 
 heartily and conscientiously recommend it to our 
 readers." — Oxford and Cambridge Undergrad- 
 uates' Jotirnal. 
 
40 
 
 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In 8vo, Sixth Edition, price gj., cloth, 
 
 THE MARRIED WOMEN'S PROPERTY ACTS ; 
 
 1870, 1874, 1882 and 1884, 
 
 With Copious and Explanatory Notes, and an Appendix of the Acts 
 Relating to Married Women. 
 
 By Archibald Brown, M.A., Edinburgh and Oxon., and the Middle Temple, 
 Barrister -at- Law. Being the Sixth Edition of The Married Women's Property 
 Acts. By the late J. R. Griffiths, B.A. Oxon., of Lincoln's Inn, Barrister- 
 at-Law. 
 
 " Upon the whole, we are of opinion that this is the best work upon the subject which has been issued 
 since the passing of the recent Act. Its position as a well-established manual of acknowledged worth gives 
 it at starting a considerable advantage over new books ; and this advantage has been well maintained by 
 the intelligent treatment of the Editor." — Solicitors' Jonmal. 
 
 "The notes are full, but anything rather than tedious reading, and the law contained in them is good, 
 and verified by reported cases. ... A distinct feature of the work is its copious index, practically a 
 summary of the marginal headings of the various paragraphs in the body of the text. This JDOok is worthy 
 of all success." — Law Magazine. 
 
 In Svo, price I2J., cloth, 
 
 THE LAW OF NEGLIGENCE. 
 
 SECOND EDITION. 
 
 By Robert Campbell, of Lincoln's Inn, Barrister-at-Law, and Advocate 
 of the Scotch Bar. 
 
 " No less an authority than the late Mr. Justice 
 Willes, in his judgment in Oppenkeim v. White 
 Lion Hotel Co., characterised Mr. Campbell's 
 ' Law of Negligence * as a * very good book ; ' and 
 since very good books are by no means plentiful, 
 when compared with, the numbers of indifferent 
 ones which annually issue from the press, we think 
 the profession will be thankful to the author of this 
 
 new edition brought down to date. It is indeed an 
 able and scholarly treatise on a somewhat difficult 
 branch of law, in the treatment of which the 
 author's knowledge of Roman and Scotch Juris- 
 prudence has stood him in good stead. We con- 
 fidently recommend it alike to the student and the 
 practitioner." — Law Magazine. 
 
 In royal Svo, 
 
 AN INDEX TO TEN THOUSAND PRECEDENTS 
 
 IN CONVEYANCING and to common and commercial 
 
 FORMS. Arranged in Alphabetical order with Subdivisions of an Analytical 
 Nature ; together with an Appendix containing an Abstract of the Stamp Act, 1870, 
 with a Schedule of Duties ; the Regulations relative to, and the Stamp Duties pay- 
 able on, Probates of Wills, Letters of Administration, Legacies, and Successions. 
 By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law. 
 
 BIBLIOTHECA LEGUM. 
 
 In i2mo (nearly 400 pages), price 2s., cloth, 
 
 A CATALOGUE OF LAW BOOKS, including aU the Reports 
 m the various Courts of England, Scotland, and Ireland ; with a Supplement lo 
 December, 1884. By Henry G. Stevens and Robert W. Haynes, Law 
 Publishers. 
 
 In small 4to, price 2J., cloth, beautifully printed, with a large margin, for the 
 special use of Librarians, 
 
 CATALOGUE OF THE REPORTS IN THE 
 
 VARIOUS COURTS OF THE UNITED KINGDOM OF GREAT 
 BRITAIN AND IRELAND, arranged both in alpha- 
 
 BETICAL &= CHRONOLOGICAL ORDER. By Stevens & Haynes 
 Law Publishers. ' 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 41 
 
 Second Edition, much enlarged. In 8vo. In preparation. 
 
 CHAPTERS ON THE 
 
 LAW RELATING TO THE COLONIES. 
 
 To which is appended a Topical Index of Cases decided in the Privy Council 
 on Appeal from the Colonies, the Channel Islands and the Isle of Man, reported 
 in Acton, Knapp, Moore, the Law Journal Reports, and the Law Reports. 
 
 By CHARLES JAMES TARRING, 
 
 OF THE INNER TEMPLE, ASSISTANT JUDGE H. B. M SUl'. CONSLLAR COLKT FOK THE OTTOMAN 
 DOMINION, AND H. M. CONSUL, CONSTANTINOPLE. 
 
 CONTENTS. 
 
 Table of Cases Cited. . Chapter V.— Appeals from the Colonies. 
 
 Table of Statutes Cited. , ChapterVI.— Section i.— Imperial Statutesrelating 
 
 Introductory. — Definition of a Colony. i to the Colonies in general. 
 
 Chapter I. — ^The laws to which the Colonies are Section2. — ImperialStatutesrelating 
 
 subject. to particular Colonies. 
 
 Chapter II.— The Executive. 
 
 Section i. — The Governor. , Topical Index of Cases. 
 
 Section 2. — The Executive Council, i Index of Topics of English Law dealt with 
 
 Chapter III. — ^The Legislative power. i in the Cases. 
 
 Section i. — Crown Colonies. i Index of Names of Cases. 
 
 Section 2. — Privileges and powers of 
 
 colonial Legislative Assemblies. GENERAL INDEX. 
 
 Chapter IV. — The Judiciary and Bar, 1 
 
 In 8vo, price lOf., cloth, 
 
 THE TAXATION OF COSTS IN THE CROWN OFFICE. 
 
 comprising a collection of 
 BILLS OF COSTS IN THE VARIOUS MATTERS TAXABLE IN THAT OFFICE; 
 
 including 
 
 COSTS UPON THE PROSECUTION OF FRAUDULENT BANKRUPTS, 
 
 AND ON APPEALS FROM INFERIOR COURTS ; 
 
 TOGETHER WITH 
 
 A TABLE OF COURT FEES, 
 
 AND A SC-VLE OF COSTS USUALLY ALLOWED TO SOLICITORS, ON THE TAXATION 
 
 OF COSTS ON THE CROWN SIDE OF THE QUEEN'S BENCH DIVISION 
 
 of the high court of justice. 
 By FREDK. H. short, 
 
 CHIEF CLERK IN THE CROWN OFFICE. 
 
 "This is decidedly a useful work on the subject of those costs which are liable to be taxed V'ff* ,"« 
 Oue^'i Coroner and Attorney (for which latter name that of ' Solicitor; raight now well be substituted), or 
 tefore the m?2ter of tCe Crown Office ; in fact, such a book is almost mdlspensab ewhen prepanng cosB 
 belore tne 5'/^^=/,°' '"^Toffice or when taxing an opponent's costs. Country solicitors will find the scale 
 SL^SrbLniJSp'r^efSonV^fespialfse.as^'uchcostsa^ 
 SservStions ' cons?itute'^a useful feature in this manual. "-Z.a«, Times. 
 
 " This book contains a collection of bills of costs in the various matters taxable in the Crown Office. When 
 
 inis DooKcomaiub^.^ of costs available for the use of the general body of solicitors is that pub- 
 
 SS Tn Mr'. clerVboL?n-Cr"wn Practice ' in 1844, we have said quite enough to prove the utility of 
 
 '''?M°^,fc.„°Mr"sbnrt deals with ' Perusals," Copies for Use,' 'Affidavits,' 'Agency,' 'Correspondence.' 
 'r„«Ses^''Coune?- Affidavit of Increase,' and kindred matters ; and adds some useful remarks on 
 taxa^o^lf^'CosS S. Bank"ptcy Prosecutions,' 'C"" Warranto,- ' Mandam,^,' 'Indictments, and 
 
 ' ^'"we have rarely seen a work of thU character better executed, and we feel sure that it will be thoroughly 
 
 ^fY!^^'^"~^'"^- ^"'"^'^'„u crale of costs in the Crown Office renders the appearance of this work 
 
 "The recent revision of the "W scale of J°«y° ',^|„^j ^y practitioners. Mr. Short gives, in the first 
 
 particularlyopportune and It cannot faU^o be w^^^^ ._^ ^^^ Crown Office, and then 
 
 ^S^kV^^'^'.',^:L^^lf^^^^^S^--^^^^ and clearly printed."-5»/,„-/»«' Jonnuil. 
 
42 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Just Published, in 8vo, price Is. dd., cloth, 
 
 BRITISH CONSULAR JURISDICTION IN THE EAST, 
 
 , WITH TOPICAL INDICES OF CASES ON APPEAL FROM, AND 
 j RELATING TO, CONSULAR COURTS AND CONSULS; 
 
 Also a Collection of Statutes concerning Consuls. 
 
 By C. J. TARRING, M.A., 
 
 ASSISTANT-JUDGE OF H.B.M. SUPREME CONSULAR COURT FOR THE LEVANT. 
 
 In one volume, 8vo, price Zs. 6d., cloth, 
 A COMPLETE TREATISE UPON THE 
 
 NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS, 
 
 CONSISTING OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 
 
 18S3, WITH THE RULES AND FORMS, FULLY ANNOTATED 
 
 WITH CASES, &c. 
 
 And a Statement of the Principles of the Law upon those subjects, '.vith a Time Table 
 
 and Copious Index. 
 
 By EDWARD MORTON DANIEL, 
 
 OF Lincoln's inn, barrister-at-law, associate of the institute of patent agents. 
 In 8vo, price 8j., doth, 
 
 The TRADE MARKS REGISTRATION ACT, 1875, 
 
 And the Rules thereunder ; THE MERCHANDISE MARKS ACT, 1862, with an 
 Introduction containing a SUMMARY OF THE LAW OF TRADE MARKS, 
 together with practical Notes and Instructions, and a copious Index. By 
 Edward Morton Daniel, of Lincoln's Inn, Barrister-at-Law. 
 
 Second Edition, in one volume, 8vo, price 16s., cloth, 
 A CONCISE TREATISE ON THE 
 
 STATUTE LAW OF THE LIMITATIONS OF ACTIONS. 
 
 With an Appendix of Statutes, Copious References to English, Irish, and American Cases, 
 and to the French Code, and a Copious Index. 
 
 By henry THOMAS BANNING, M.A., 
 
 OF THE INNER TEMPLE, BARKISTER-AT-LAW. 
 
 "The work is decidedly valuable." — Law Times. 
 
 " Mr. Banning has adhered to the plan of printing the Acts in an appendix, and making his book a 
 running treatise on the case-law thereon. The cases have evidently been investigated with care and 
 digested with clearness and intellectuality." — Law Journal. 
 
 In 8vo, price u., sewed, 
 AN ESSAY ON THE 
 
 ABOLITION OF CAPITAL PUNISHMENT. 
 
 Embracing more particularly an Enunciation and Analysis of the Piituiples of Law as 
 applicable to Criminals of the Highest Degree of Guilt. 
 
 By WALTER ARTHUR COPINGER, 
 
 OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. 
 
 Sixth Edition, in 8vo, price 3IJ. 6^/., cloth, 
 
 THE INDIAN CONTRACT ACT, No. IX., of 1872. 
 
 TOGETHER 
 
 Wim AN INTRODUCTION AND EXPLANATORY NOTES, TABLE OF 
 
 CONTENTS, APPENDIX, AND INDEX. 
 
 By H. S. CUNNINGHAM and H. H. SHEPHERD, 
 
 BARRISTERS-AT-LAW. 
 
STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 43 
 
 Second Edition, in 8vo, price 15^., cloth, 
 
 LEADING CASES and OPINIONS on INTERNATIONAL LAW 
 
 COLLECTED AND DIGESTED FROM 
 
 ENGLISH AND FOREIGN REPORTS, OFFICIAL DOCUMENTS, 
 PARLIAMENTARY PAPERS, and other Sources. 
 
 With NOTES and EXCURSUS, Containing the Views of the Text Writers on 
 the Topics referred to, together with Supplementary Cases, Treaties, and Statutes; 
 and Embodying an Account of some of the more important International Trans- 
 actions and Controversies. 
 
 By PITT COBBETT, M.A., D.C.L., 
 
 OF gray's inn, barristkr-at-law, professor of law, university of svdnev, n.s.w. 
 "The l)ook is well arranged, the materials well | "The notes are concisely written and trust- 
 selected, and the comments to the point, lluch worthy The reader will learn from them a 
 
 will I« r.^.....4 ■ ~ 11 •!_-...,. great deal on the subject, and the book as a 
 
 will be found m small space in this hMk."-Law , ^^ole seems a convenient introduction to fullerand 
 Jonnial. \ more systematic works." — Oxford Ma^aziite. 
 
 Second Edition, in royal 8vo. 1 100 pages, price 45^., cloth, 
 
 STORY'S COMMENTARIES ON EQUITY 
 JURISPRUDENCE. 
 
 Second English Edition, from the Tivelfth American Edition. 
 By W. E. GRIGSBY, LL.D. (Lond.), D.C.L. (Oxon.), 
 
 AND OF THE INNER TEMPLE, BARRISTER-AT-LAW, 
 
 " It is high testimony to the reputation of Story, I has been rendered more perfect by additional 
 and to the editorship of Dr. Grigsby, that another | indices." — Lam Times. 
 edition should have been called for. . , . The work | 
 
 Second Edition, in 8vo, price 8j., cloth, 
 
 THE PARTITION ACTS, 1868 & 1876. 
 
 A Manual of the Law of Partition and of Sale, in Lieu of Partition. With the Decided 
 
 Cases, and an Appendix containing Judgments and Orders. By W. Gregory 
 
 Walker, B.A., of Lincoln's Inn, Barrister-at-Law. 
 
 "This is a very good manual — practical, clearly 
 
 written, and complete. The subject lends itself 
 
 well to the mode of treatment adopted by Mr. 
 
 Walker, and in his notes to the various sections he 
 
 has carefully brought together the cases, and dis- 
 cussed the difficulties arising upon the language of 
 the different provisions." — Solicitors' Journal, 
 
 Second Edition. In 8vo, price izs. cloth, 
 A TREATISE ON THE 
 
 LAW AND PRACTICE RELATING TO INFANTS. 
 
 By ARCHIBALD H. SIMPSON, M.A., 
 
 OF Lincoln's inn, barrister-at-law, and fellow of Christ's college, caiMbridge. 
 SECOND EDITION. By E. J. Elgood, B.C.L., M.A., of Lincoln's Inn, 
 
 Barrister-at-Law. 
 
 " Mr. Simpson's book comprises the whole of the 
 law relating to infants, both as regards their per- 
 sons and their property, and we have not observed 
 any very important omissions. The author has 
 evidently expended much trouble and care upon 
 his work, and has brought together, in a concise 
 and convenient form, the law upon the subject down 
 to the present i\.m^"Solicitors' Journal. 
 
 "Its law is unimpeachable. We have detected 
 no errors and whilst' the work might have been 
 done more scientifically, it i.s, beyond all question, 
 a compendium of sound legal prmciples. —Laiv 
 
 " Mr Simpson has arranged the whole of the Law 
 relating to Infants with much fulness of detail, and 
 
 yet in comparatively little space. The result is 
 due mainly to the basinesslike condensation of his 
 style. Fulness, however, has by no means been 
 sacrificed to brevity, and, so far as we have been 
 able to test it, the work omits no point of any im- 
 portance, from the earliest cases to the last. In 
 the essential qualities of clearness, completeness, 
 and orderly arrangement it leaves nothing to be 
 desired. 
 
 " Lawyers in doubt on any point of law or prac- 
 tice will find the information they require, i£ it can 
 be found at all, in Mr. Simpson's book, and a 
 writer of whom this can be said may congratulate 
 himself on having achieved a considerable success." 
 — Law Magazine^ February, 1876. 
 
44 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, royal 8vo, 1877, price 30J'., cloth, 
 
 THE DOCTRINES & PRINCIPLES OF 
 THE LAW OF INJUNCTIONS. 
 
 By WILLIAM JOYCE, 
 
 OF Lincoln's inn, bakrister-at-law. 
 
 "Mr. Joyce, whose learned and exhaustive work on 'The Law and Practice of Injunctions has 
 gained such a deservedly high reputation in the Profession, now brings out a valuable companion volume 
 on the * Doctrines and Principles ' of this important branch of the Law. In the present work the Law is 
 enunciated in its abstract rather than its concrete form, as few cases as possible being cited ; while at the 
 same time no statement of a principle is made unsupported by a decision, and for the most part the very 
 language of the Courts has been adhered to. Written as it is by so acknowledged a master of his subject, 
 and with the conscientious carefulness that might be expected from him, this work cannot fail to prove of 
 the greatest assistance alike to the Student — who wants to grasp principles freed from their superincum- 
 bent details — and to the practitioner, who wants to refresh his memory on points of doctrine amidst the 
 oppressive details of professional work." — Law Magazine and Rei'iew. 
 
 BY THE SAME AUTHOR, 
 In two volumes, royal 8vo, 1872, price 70J., clolh, 
 
 THE LAW & PRACTICE OF INJUNCTIONS. 
 
 EMBRACING 
 
 ALL THE SUBJECTS IN WHICH COURTS OF EQUITY 
 AND COMMON LAW HAVE JURISDICTION. 
 
 By WILLIAM JOYCE, 
 
 OF Lincoln's inn, barrister-at-law. 
 
 REVIEWS. 
 
 A work which aims at being so absolutely 
 complete, as that of Mr. Joyce upon a subject 
 which is of almost perpetual recurrence in the 
 Courts^ cannot fail to be a welcome offering to the 
 profession, and doubtless, it will be well received 
 and largely used, for it is as absolutely complete as 
 
 it aims at being This work is, therefore, 
 
 eminently a work for the practitioner, being full of 
 practical utility in every page, and every sentence, 
 of it _We have to congratulate the pro- 
 fession on this new acquisition to a digest of the 
 law, and the author on his production of a work of 
 permanent utility and fame." — Law Magazine 
 and Review. 
 
 " Mr. Joyce has produced, not a treatise, but a 
 complete and compendious exposition of the Law 
 and Practice of Injunctions both in equity and 
 common law. 
 
 "Part III. is devoted to the practice of the 
 Courts. Contains an amount of valuable and 
 technical matter nowhere else collected. 
 
 " From these remarks it will be sufRciently per- 
 ceived what elaborate and painstaking industry, as 
 well as legal knowledge and ability, has been 
 necessary in the compilation of Mr. Joyce's work. 
 No labour has been spared to save the practitioner 
 labour, and no research has been omitted which 
 could tend towards the elucidation and exemplifi. 
 cation of the general principles of the Law and 
 Practice of Injunctions." — Law journal. 
 
 " He does not attempt to go an inch beyond that 
 for which he has express written authority ; he al- 
 lows the cases to speak, and does not speak for them, 
 
 "The work is something more than a treatise on 
 the Law of Injunctions. It gives us the general 
 law on almost every subject to which the process of 
 injunction is applicable. Not only English, but 
 American decisions are cited, the aggi-egate number 
 t=ing 3,500, and the statutes cited i6o, whilst the 
 index is, we think, the most elaborate we have ever 
 seen— occupying nearly 200 pages. The work is 
 probably entirf ly exhaustive." — Law Times. 
 
 This work, considered either as to its matter or manner of execution, is no ordinarv work It i? a 
 complete and exhaustive treatise both as to the law and the oractice nf ULfTn^ :„i,.i^,: t. ^ 
 
 supersede all other works on the subject. The terse statemenfof th^%™.F mFk T^j'°r^-- ?' !"?," 
 vafue. We know of no book as suitable to supply a knowl"d« nf ,1, P,™""^? .■"'." ''= .found "^ incalculable 
 law friends as Mr. Joyce's exhaustive work. It is alike incin>t,.^Li f . of injunctions to our common 
 and Equity Bars. Mr. Joyce's great work would be a casket w?Sf^f.° '"^"'.''ers of the Common Law 
 index. His index is very full and well arranged. We feel that ??• '' 1 "."'^^^ accompanied by a good 
 as a standard text-book, and the text-book on the particular siib^'^f™ < i.^- ''=s''n=d to take Its place 
 deserves great credit for the very great labour bestowed uoon it "i-^n'oh it treats. The author 
 
 a-quitted themselves in a manner deserving of the high reputation thevti,.,"'"?!'*"^' ^= usual, have 
 ' • —Cnrnirfa Zaja ymtrtutl. " 
 
STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 
 
 45 
 
 Third Edition, in 8vo, price 20s,, cloth. 
 A TREATISE UPON 
 
 THE LAW OF EXTRADITION, 
 
 ^MTH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN 
 
 ENGLAND AND FOREIGN NATIONS, 
 
 AND THE CASES DECIDED THEREON. 
 
 By Sir EDWARD CLARKE, 
 
 OF LINCOLN'S 
 
 Mr. Clarke's accurate and sensible book is the 
 best authority to which the English reader can 
 turn upon the subject of Extradition."— i'd^wrrf^j' 
 RevinTv. 
 
 "The opinion we expressed of the merits of this 
 work when it first appeared has been fully justified 
 by.the reputation it has gained. It is seldom we 
 come across a book possessing so much interest to 
 the general reader and at the same time furnishing so 
 useful a guide to the Xz^xy^x "Solicitors Journal. 
 
 "The appearance of a second edition of this 
 treatise does not surprise us. It is a useful book, 
 well arranged and well written. A student who 
 
 INN, S.-G., Q.C., M.P. 
 
 wants to learn the principles and practice of the 
 I law of extradition will be greatly helped by Mr, 
 I Clarke. Lawyers v/ho have extradition business 
 
 will find this volume an excellent book of reference. 
 . Magistrates who have to administer the extradition 
 I law will be greatly assisted by a careful perusal of 
 j 'Clarke upon Extradition.' This may be called a 
 
 warm commendation, but those who have read the 
 I book will not say it is unmerited." — Lauo Journal, 
 The Times of September 7, 1874, in a long 
 1 article upon "Extradition Treaties," makes con- 
 [ siderable use of this work and wTites of it as " Mr. 
 1 Clarke's useful Work on Extradition." 
 
 In 8vo, price 2.s. 6^., cloth, 
 
 TABLES OF STAMP DUTIES 
 
 FROM 181S TO 1878. 
 By WALTER ARTHUR COPINGER, 
 
 OF THE MIDDLE TEMPLE, ESQUIRE, BARRISTER-AT-LAW : AUTHOR OF " THE LAW OF COPYRIGHT IN 
 WORKS OF LITERATURE AND ART," " INDEX TO PRECEDENTS IN CONVEYANCING," " TITLE DEEDS," &C 
 
 "We think this Uttle book ought to find its way 
 into a good many chambers and offices." — Soli- 
 citors* Journal. 
 
 " This book, or at least one containing the same 
 amount of valuable and well-arranged information, 
 should find a place in every Solicitor's office. It is 
 of especial value when examining the abstract of a 
 
 large number of old title-deeds." — Laiu Times. 
 
 "His Tables 0/ Stamp Duties, from 1815 to 1878, 
 have already been tested in Qhambers, and being 
 now published, will materially lighten the labours 
 of the profession in a tedious department, yet one re- 
 quiring great care." — Law Magazine and Review. 
 
 In one volumej 8vo, price 14J., cloth, 
 
 TITLE DEEDS: 
 
 THEIR CUSTODY, INSPECTION, AND PRODUCTION, AT LAW, IN 
 EQUITY, AND IN MATTERS OF CONVEYANCING, 
 
 Including Covenants for the Production of Deeds and Attested Copies ; with an Appendix 
 of Precedents, the Vendor and Purchaser Act, 1874, &c., &c., &c. By Walter 
 Arthur Copinger, of the Middle Temple, Barrister-at-Law ; Author of "The 
 Law of Copyright " and " Index to Precedents in Conveyancing." 
 
 here. Mr. Copinger has supplied a much-felt want, 
 by the compilation of this volume. We have not 
 space to go into the details of the book ; it appears 
 
 "The literary execution of the work is good- 
 enough to invite quotation, but the volume is not 
 large, and we content ourselves with recommending 
 it to the profession," — Law Tivies. 
 
 " A really good treatise on this subject must be 
 essential to the lawyer : and this is what we have 
 
 well arranged, clearly written, and fully elaborated. 
 With these few remarks we recommend his volume 
 to our readers." — Law Journal. 
 
 Third Edition, in 8vo, considerably enlarged, in the press, 
 
 THE LAW OF COPYRIGHT 
 
 In Works of Literature and Art; including that of the Drama, Music, Engraving, 
 Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together 
 with International and Foreign Copyright, -nith the Statutes Relating thereto, and 
 References to the English and American Decisions. By Walter Arthur 
 Copinger, of the Middle Temple, Barrister-at-Law. 
 
 merits which will, doubtless, lead to the placing of 
 this edition on the shelves of the members of the 
 profession whose business is concerned with copy- 
 right ; and deservedly, for the book is one of con- 
 
 "Mr Copinger's book is very comprehensive, 
 dealing with every branch of his subject, and even 
 extending to copyright .n ore^n countnes So far 
 
 onthorities noted up with scrupulous care, and 
 there is an unusually good index. Ihese are 
 
 siderable value." — Solicitor^ Journal, 
 
46 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Third Edition, in One large Volume, Svo, price y.s., cloth, 
 
 A MAGISTERIAL AND POLICE GUIDE: 
 
 BEING THE LAW 
 
 RELATING TO THE 
 
 PROCEDURE, JURISDICTION, and DUTIES or MAGISTRATES 
 AND POLICE AUTHORITIES, 
 
 IN THE METROPOLIS AND IN THE COUNTRY. 
 
 With an Introduction showing the Gerieral Procedure before Magistrates 
 both in Indictable and Summary Matters. 
 
 By henry C. greenwood, 
 
 STIPENDIARY MAGISTRATE FOR THE DISTRICT OF THE STAFFORDSHIRE POTTERIES ; AND 
 
 TEMPLE CHEVALIER MARTIN, 
 
 CHIEF CLERK TO THE MAGISTRATES AT LAMBETH POLICE COURT, LONDON ; 
 AUTHOR OF "the LAW OF MAINTENANCE AND DESERTION," "THE NEW FORMULIST," ETC. 
 
 Third Edition. Including the Session 52 & 53 Vict., and the Cases Decided in the 
 Superior Courts to the End of the Year 1889, revised and enlarged. 
 
 By temple CHEVALIER MARTIN. 
 
 " A second edition has appeared of Messrs. Greenwood and Martin's valuable and 
 comprehensive magisterial and police Guide, a book which Justices of the peace should take 
 care to include in their U\\xm\e,%." ^Saturday Review. 
 
 " Hence it is that we rarely light upon a work which commands our confidence, not merely 
 by its research, but also by its grasp of the subject of which it treats. The volume before us 
 is one of the happy few of this latter class, and it is on this account that the public favour will 
 certainly wait upon it. We are moreover convinced tliat no effort has been spared by its 
 authors to render it a thoroughly efficient and trustworthy guide." — Law Journal. 
 
 "Magistrates will find a valuable handbook in Messrs. Greenwood and Martin's 
 ' Magisterial and Police Guide,' of which a fresh Edition has just been published." — The 
 Times. 
 
 "Avery valuable introduction, treating of proceedings before Magistrates, and largely of the 
 Summary Jurisdiction Act, is in itself a treatise which will repay perusal. We expressed our 
 high opinion of the Guide when it first appeared, and the favourable impression then produced 
 is increased by our examination of this Second Edition." — Law Times. 
 
 " For the form of the work we have nothing but commendation. We may say we have 
 
 here our ideal law book. It maybe said to omit nothing which it ought to contain." 
 
 Law Times. 
 
 " This handsome volume aims at presenting a comprehensive magisterial handbook 
 for the whole of England. The mode of arrangement seems to us excellent, and is well 
 carried out." — Solicitors' Journal. 
 
 " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple 
 Martin, is a model work in its conciseness, and, so far as we have been able to test it, 
 in completeness and accuracy. It ought to be in the hands of all who, as magistrates or 
 otherwise, have authority in matters of police."- — Daily News. 
 
 ' ' This work is eminently practical, and supplies a real want. It plainly and concisely 
 states the law on all points upon which Magistrates are called upon to adjudicate, syste- 
 matically arranged, so as to be easy of reference. It ought to find a place on every Justice's 
 table, and we cannot but think that its usefulness will speedily ensure for it as large a sale 
 as its merits deserve." — Midland Counties Herald. 
 
 " The exceedingly arduous task of collecting together all the enactments on the subject 
 has been ably and efficiently performed, and the arrangement is so methodical and precise 
 that one is able to lay a finger on a Section of an Act almost in a moment. It is wonderful 
 what a mass of information is comprised in so comparatively small a space. We have much 
 pleasure in recommending the volume not only to our professional, but also to our 
 general readers ; nothing can be more useful to the pubhc than an acquaintance with the 
 outUnes of magisterial jurisdiction and procedure." — Sheffield Post. 
 
STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 47 
 
 In one thick volume, 8vo, price 32J., cloth, 
 
 THE LAW OF RAILWAY COMPANIES. 
 
 Comprising the Companies Clauses, the Lands Clauses, the Railways Clauses Consoli- 
 tlalion Acts, the Railway Companies Act, 1867, and the Regulation of Railways 
 Act, 1868 ; with Notes of Cases on all the Sections, brought down to the end of the 
 year 1868 ; together with an Appendix giving all the other material Acts relating 
 to Railways, and the Standing Orders of the Houses of Lords and Commons ; 
 and a copious Index. By Henry Godefroi, of Lincoln's Inn, and John 
 SllOKTT, of the Middle Temple, Barristers-at-La\v. 
 
 In a handy volume, crown 8vo, 1870, price 10/. 6a'., cloth, 
 
 THE LAW OF SALVAGE, 
 
 As administered in the High Court of Admiralty and the County Courts ; with the 
 Principal Authorities, English and American, brought down to the present time ; 
 ' and an Appendix, containing Statutes, Forms, Table of Fees, etc. By EnWY.V 
 Jones, of Gray's Inn, Barrister-at-Law. 
 
 In crown 8vo, price 4^., cloth, 
 
 A HANDBOOK OF THE 
 
 LAW OF PARLIAMENTARY REGISTRATION. 
 
 WITH AN APPENDIX OF STATUTES AND FULL INDEX. 
 By J. R. SEAGER, Registration Agent. 
 
 In 8vo, price 5^., cloth, 
 
 THE LAW OF PROMOTERS OF PUBLIC COMPAHIES. 
 
 By NEWMAN WATTS, 
 
 OF Lincoln's inn, barrister-at-la\v. 
 
 " Some recent cases in our law courts, which at 
 the time attracted much public notice, have demon- 
 strated the want of some clear and concise exposi- 
 tion of the powers and liabilities of promoters, and 
 " this task has been ably performed by Mr. Newman 
 y^^Hs,."— Investor's Guardian. 
 
 " Mr. Watts has brought together all the lead- 
 ing decisions relating to promoters and directors, 
 and has arranged the information in a very satisfac- 
 tory manner, so as to readily show the rights of 
 different parties and the steps which can be legally 
 taken by promoters to further interests of new com- 
 panies." — Daily Chronicle. 
 
 Second Edition, in One Vol., 8vo, price I2J., cloth. 
 
 A COMPENDIUM OF ROMAN LAW, 
 
 Founded on the Institutes of Justinian ; together with Examination Questions 
 Set in the University and Bar Examinations (with Solutions), and Definitions of 
 Leading Terms in the Words of the Principal Authorities. Second Edition. By 
 Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, 
 Oxford; M.A., LL.D., Trinity College, Cambridge ; Author of "An Analysis of 
 Austin's Jurisprudence, or the Phil osophy of Positive Law." 
 
 In 8vo, price 7j. 6d., cloth, 
 
 TITLES TO MINES IN THE UNITED STATES, 
 
 with the 
 
 STATUTES AND REFERENCES TO THE DECISIONS 
 
 OF THE COURTS RELATING THERETO. 
 
 By W. a. HARRIS, B.A. Oxon., 
 
 OF Lincoln's inn, bareister-at-law ; and of the American bar. 
 
43 
 
 STEVENS &■ HA YNES, BELL YARD, TEMPLE BAR. 
 
 INDEX 
 
 To the Names of Authors and Editors of Works enumerated in this Catalogue. 
 
 Aldred (P. F.), page 21. 
 
 Argles (N.), 32. 
 
 Attenborough (C. L.), 27. 
 
 Baldwin (E. T.), 15. 
 
 Banning (H. T.), 42 
 
 Beal (E.), 32. 
 
 Bellewe (R.), 34. 
 
 Beven (T.) 14. 
 
 Blyth (E. E.), 22. 
 
 Brice (Seward), 9, 16. 
 
 Brooke (Sir R.), 35. 
 
 Brown (Archibald), 20, 22, 26, 33, 40. 
 
 Browne (J. H. Balfour), 19. 
 
 Buchanan (J.), 38. 
 
 Buckley (H. B.), 17. 
 
 BucKNiLL(T.T.), 34. 35- 
 
 Campbell (Gordon), 47. 
 
 Campbell (Robert), 9, 40. 
 
 Carmichael (C. H. E.), 21 
 
 Cecil (Lord R.), ii. 
 
 Chaster (A. W. ), 32. 
 
 Clarke (Edward), 45. 
 
 CoBBETT (Pitt), 43. 
 
 Coghlan (W. M.), 28. 
 
 CooKE (SirG.), 35. 
 
 Cooke (Hugh), 10. 
 
 CopiNGER (W. A.), 40, 42, 45. 
 
 Corner (R. J.), 10. 
 
 Craies (W. F.), 6, 9. 
 
 Cunningham (H. S.), 38, 42. 
 
 Cunningham (John), 7. 
 
 Cunningham (T.), 34. 
 
 Daniel (E. M.), 42. 
 
 Darling (C. J.), 18. 
 
 Deane (H. C), 23. 
 
 De Wal (J.), 38. 
 
 Duncan (J. A.), 33- 
 
 Edwards (W. D.), 16, 39. 
 
 Elgood (E. J.), 6, 18, 43. 
 
 Elliott (G.), 14. 
 
 Emden (A.), 8, II. 
 
 Eversley (W. p.), 9. 
 
 Finlason (W. F.), 32. 
 
 Foa(E.), II. 
 
 FooTE (J. Alderson), 36. 
 
 Forbes (U. A.), 18. 
 
 Forsyth (W. ), 14. 
 
 Frost (R.), 12. 
 
 Gibbs (F. \V.), 10. 
 
 GoDEFROi (H.), 47. 
 
 Greenwood (H. C.), 46 
 
 Griffith (J. R. ), 40. 
 
 Grigsby (W. E.), 43. 
 
 Grotius (Hugo), 38. 
 
 Hall (R. G.), 30. 
 
 Hanson (A.), 10. 
 
 Hardcastle (H.), 9, 33. 
 
 Harris (Seymour F.), 20, 27. 
 
 Harris (W. A.), 47. 
 
 Harrison (J. C), 23. 
 
 Harwood (R. G.), 10, 
 
 Hazlitt (W.), 29. 
 
 Higgins (C), 30. 
 
 Houston (J. ), 32. 
 Hudson (A. A.), 12. 
 Hurst (J.), 11. 
 
 Indermaur (John), 24, 25, 28. 
 Jones (E.), 47. 
 Joyce (W.), 44. 
 Kay (Joseph), 17. 
 Kelke(W. H.), 6. 
 Kelyng (Sir J.), 35. 
 Kelynge (W.), 35. 
 Kotz6 (J. G.), 38. 
 Lloyd (Eyre), 13. 
 Locke (J.), 32. 
 lorenz (c. a.), 38. 
 Loveland (R. L.), 30, 34, 35. 
 Maasdorp (A. F. S.), 38. 
 Macaskie (S. C), 7. 
 March (John), 35. 
 Marcy (G. N.), 26. 
 Marsh (Thomas), 21. 
 Martin (Temple C), 7, 46. 
 Mattinson (M. W. ), 7. 
 May (H. W.), 29. 
 Mayne (John D.), 31, 38. 
 Mellor (F. H.), 10. 
 Menzies (W. ), 38. 
 Moore (S.A.), 30. 
 O'Malley (E. L.), 33. 
 Peile (C. j.), 7. 
 Pemberton (L. L.), 18, 32. 
 Phipson (S. L.), 20. 
 Porter (T. B.), 6. 
 Reilly (F. S.), 29. 
 RiNGWooD (R.), 13, 15, 29. 
 Salkowski (C), 14. 
 Salmond (J. W.), 13 
 Savigny (F. C. Von), 20. 
 Scott (C. E.), 32. 
 Seager (J. R.), 47. 
 Short (F. H.), 10, 41. 
 Shortt (John), 47. 
 Shower (Sir B. ), 34 
 Simpson (A. H.), 43. 
 Slater (J.), 7. 
 Smith (Eustace), 23, 39. 
 Smith (F. J.), 6. 
 Smith (Lumley), 31. 
 Snell(E. H. T.), 22. 
 Story, 43. 
 
 Tarring (C. J.), 26, 41, 42. 
 Taswell-Langmead, 21. 
 Thomas (Ernest C), 28. 
 Tyssen (A. D.), 39- 
 Van der Keesel (D. G.), 38. 
 Van Leeuwen, 38. 
 Waite (W. T.), 22. 
 Walker (W. G.), 6, 18, 43. 
 Watts (C. N.), 47. 
 Wertheimer (J.), 32. 
 Whiteford (F. M.), 20. 
 Whitfield (E. E.), 14. 
 Williams (S. E.), 7. 
 Worthington (S. W.), 29. 
 
 LONDON: BRADUVKV, AGNEW, & CO. LD., PSINTEKS, WHITEF^ilARS, E.C. 
 
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