QjnrupU ICaui ^rl^ool Hibrary Cornell University Library KD 1949.P77 1901 The law of torts :a treatise on the prin 3 1924 022 356 012 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022356012 The Law of Toets: A TREATISE ON THE PRINCIPLES OF OBLIGATIONS ARISING FROM CIVIL WRONGS IN THE COMMON LAW : TO WHICH IS ADDED THE DRAFT OF A CODE OF CIVIL WRONGS rBEPAKED FOR THE GOVERNMENT OF INDIA. BY Sir FEEDERICK_PpLLOCK, Bart. OF LINCOLN'S INN, BARRISTER-AT-LAW ; CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD; CORRESPONDINli MEMBER OF THE INaTITUTE OF FRANCE ; LATE FELLOW OF TRINITY COLLEHE, CAMBRIDGE ; AND HONORARY DOCTOR OF LAWS IN THE UNIVERSITIISS OF EDINBURHH, DUBLIN, AND HARVARD. Autlwr of ^^ Principles of Contract,'" *M Digest of the Law of Partnership,^' dc. SIXTH EDITION. LONDON: STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, Haiij 33ublt5i)«5» 1901. m-b BRADBUBV, AGNEW, & CO. LD., PRINTEBS, LONDON ANU TONERIDGE. Wo tljE iHcmory OP THE RIGHT HONOURABLE SIR JAMES SHAW WILLES, Knt. SOMETIIEE A JUSTICE OP THE COMliION BENCH, A JIAN COURTEOUS AND ACCOMPLISHED, A JUDGE WISE AND VALIANT : AND TO MY FRIEND OLIVER WENDELL HOLMES, CHIEP JUSTICE OP THE SUPREME JUDICIAL COURT OP THE COMMONWEALTH OF MASSACHUSETTS. ADVEETISEMENT TO THE SIXTH EDITION. The chief alterations in this edition are due to what ^Yas decided, perhaps still more to what was suggested, in the House of Lords in the leading case of Alien V. Flood, shortly after the publication of the last edition. Cases reported down to March, 1901, have been noted. I am indebted to my learned friend, Mr. W. D. Dobell, of Lincoln's Lin, for the thorough revision and rearrangement of the Index. F. P. LmCOLN'S ISN, April, 1901. TABLE OF CONTENTS. Book I. GENEBAL PART. CHAPTER I. The Nature of Tokt ix General. PAGE Of tort in general ..... . . 1 Tort distinguished from breach of contract . . . 3 History of English classification . 3 Personal wrongs ... .7 "Wrongs to property . . .7 Wrongs affecting person and property . 8 Wilful wrongs ... . . . 9 Wrongs unconnected with moral blame . 9 Wrongs of imprudence and omission . 11 Relation of the law of Torts to moral duties 12 Early forms of action ... 13 Rationalized version of law of trespass . 15 Analogies of Roman law . . . .16 Dolus and Culpa ■ 17 Liability quasi ex delicto . 18 Summary of results . 19 CHAPTER II. Pbixciples of Liabilities. Want of generality in early law . . 21 General duty not to do harm in modern law . . 22 When malice material . . .23 Breach of specific legal duty . . . 25 Duty of respecting property . • 26 VIU TABLE OF CONTENTS. PAGE Duties of diligence . . 27 Assumption of skill . 27 Exception of action under necessity ... . . 28 Liability in relation to consequences of act or default 28 Measure of damages . . . . . 29 " Immediate cause " . . 30 Liability for consequences of willul act . 31 " Natural consequences " . . 33 " Natural and probable " consequence 34 Liability for consequences of trespass 37 Consequences too remote . 38 Liability for negligence . . 39 Contrasted cases of non-liability and liability : Cox r, Burbidge ; Lee V. Riley . . ... ... 44 Metropolitan Rail. Co. v. Jacksou ... 45 Non-liability for consequences of unusual state of things : Blyth. v, Birmingham "Waterworks Co. . . .... 46 Sharp V. Powell . . .46 Whether same rule holds for consequences of wilful wrong : Clark r. Chambers . . . 47 Consequences natural in kiiid though not in circumstance . 49 Damages for " nervous or mental shock " ... 60 CHAPTER III. Peuson.s affected by Tout.s. oo 1. Limitations of I'ersonal Ccqyacitij. Personal status immaterial in law of tort ; but capacity material Exceptions : Convicts and aliens . 54 Infants . 54 Married women : the common law 56 Married "Women's Property Act, 1882 56 Common law liability of infants and married women 58 Corporations . . . . .58 Responsibility of public bodies for management of works under their control . . . . . . 59 2. lEffect of a Party's Death. Actio personalis moritur cum persona . ... 60 Qu. of the extension of the rule in Osborn i: Gillett . 62 Exceptions: Statutes of Edw. III. giving executors right of suit for trespasses . .64 Of Will. IV. as to injuries to propel ty . . 65 TABLE OF COXTEXJ'S. ix PAGE 1^0 right of action for tlaniage to personal estate conseciuential on personal injury ... . 55 Lord Campbell's Act : rights created by it . (j6 Construction . Interest of survivors distinct . 69 Statutory cause of action is in substitution, not cumulative 69 Scottish and American laws ... . 70 Eight to follow property wrongfully taken or converted . 70 Rule limited to recovery of specific property or its value : Phillips c. Homfray . . , . . 71 3. LialiUty for the Torts of Aye 11 ts and Servants. Command of principal does not excuse agent's wrong ... 72 Cases of special duty, absolute or in nature of warrant}', distin- guished . . . . .73 Modes of liability for wrongful acts of others . 74 Command and ratification . . . 7t Master and servant . .75 Reason of master's liability 76 "Who is a servant . 78 Specific assumption of control 79 Temporary transfer of service . 80 " Power of controlling the work " explained 81 What is in course of employment 82 (a) Execution of specific orders . 82 (b) Negligence in conduct of master's business 83 Departure or deviation from master's business . 84 (c) Excess or mistake in execution of authority . 87 Inteifereuce with passengers by guards, &c. 87 Arrest of supposed olfenders ... 89 Act wholly outside authority : master not liable . . 89 (d) AVilful trespasses, &c., for master's purposes . 91 Fraud of agent or servant . . 92 Liability of firm for fraud of a partner 9-1 Injur'ies to servants by fault of fellow-servants 9.5 Common law rule of master's immunity . 95 Reason given in the later cases . 96 Servants need not be about same kind of work 97 Provided there is a general common object . 99 Relative rank of servants immaterial . 99 Sei'vants of sub-contractor .... lOU Volunteer assistant on same footing as servant 101 Exception where master interferes in person 101 Employers' Liability Act, 1880 . • 101 Resulting complication of the law . . . 102 Workmen's Compensation Act, 1897 lOi X TABLE OF CONTENTS. CHAPTER IV. General Exceptions. page Conditions excluding liability for act ^'ma /ffcj'c wrongful . . . 106 General and particular exceptions ... ... 107 1. Ads of State. Acts of state ... . 108 General ground of exemption ... . 109 Local actions against viceroy or governor . . Ill Power to exclude aliens . . Ill Acts of foreign powers . . 112 Summary ...... ... 113 2. Judicial acts. Judicial acts . . . 113 Liability by statute in special cases . 115 Judicial acts of persons not judges . . . 115 3. J^.yccutivc ads. Executive acts . .116 Acts of naval and military officers . . 118 Of other public authorities . 119 Indian Act XYIII. of 1850 . . 119 4. Quasi-jiulicial acts. Acts of quasi-]' udicial discretion 119 Rules to be observed . . . .121 Absolute discretionary powers . . . 122 AVhether duty judicial or ministerial : Asliby 1-. A¥hite . . 122 5. Parental and Qimsi-parcnlal Authorifi/. Authority of parents . . . 122 Of custodians of lunatics . 123 6. Authorities of Necessity. Of the master of a ship ... . 124 7. Damage incident to authorized acts. Damage incidentally resulting from lawful act . . . 125 Damage from execution of authorized works . 126 No action for unavoidable damage . 127 Care and caution required in exercise of discretionary powers . . 128 8. Inevitable Accident. Inevitable accident resulting from lawful act . . . 131 On principle such act excludes liability 132 Apparent conflict of authorities . 134 TABLE OF CONTENTS. xi I'AGE American decisions ; Tlie Nitro-Glyoerine Case (Sup. Ct. U. S.) . 135 Brown v. Kendall (Mass. ) . . 136 Other American eases .137 English authorities : cases of trespass and shooting . .139 Cases where exception allowed .... 143 9. Exercise of Common Biglitn. Immnnity in exercise of common rights 146 Digging wells, &c., in a man's own land . . . 150 Chasemore v. Richards ... .... 151 Other applications of same principle . . 152 Whether malice material in these cases . 154 Roman doctrine of " animus vicino nocendi " . . .155 No exclusive right to names ... . . 155 10. Leave and Licence : Volenti non fit ini aria. Consent or acceptance of risk ... . 156 Express licence . . 157 Limits of consent . .157 Licence obtained b}' fraud . . .160 Extended meeting of volenti non fit iniuria . 160 Eelatiou of these cases to inevitable accident 161 Knowledge of risk opposed to duty of warning . . 163 Cases between employers and workmen . Smith r. Baker . 164 Distinction where no negligence at all . . . . 166 Distinction from oases where negligence is ground of action. . . 166 11. TForl-s of NecessUij . . . 168 12. Private Defence. Self-defence ... . . .169 Killing of animals in defence of property . . 171 Assertion of rights distinguished from self-defence . . 172 Injury to third persons in self-defence . . . 172 13. Plaintiff a Wrong-doer. Harm suffered by a wrong-doer . . .173 Sunday travelling : conflict of opinion in II. S. . .175 Cause of action connected with unlawful agreement . . 176 CHAPTER V. Of Remedies foe Torts. Diversity of remedies . 177 Self-help . . . . . 17S Judicial remedies : damages . . . 1 79 Nominal damages . . . . . . 180 Xll TABLE OF CONTENTS. PAGE Nominal damages possible only when an absolute right is infringed 181 Cases where the damage is the gist of the action . . . 182 Peculiarity of law of defamation . 184 Ordinary damages . . 181 Exemplary damages . . . 185 Analogy of breach of promise of marriage to torts in this respect 188 Mitigation of damages 188 Concurrent but severable causes of action . 189 Injunctions . . . 190 On what principle granted . . • 191 Former concurrent jurisdiction of common law and equity to give compensation for fraud . • 191 Special statutory remedies, when exclusive 192 Joint wrong-doers . . . 194 Rules as to contribution and indemnity . 195 Supposed rule of trespass being " merged in felony " . 197 No known means of enforcing the rule if it exists . . . 198 Locality of wrongful act as affecting remedy in Euglisli Court 200 Acts not wrongful by English law 200 Acts justified by local law . 200 Act wrongful by both laws 201 Phillips V. Eyre . . 202 Limitation of actions 205 Suspension of the statute by disabiUties 206 From what time action runs . 206 Statutory penalties . . 206 Special protection of justices, constables, &c. 207 Exception of concealed fraud . 207 Conclusion of General Part 208 Book II. SPECIFIC WRONGS. ♦ CHAPTER VI. Personal AVroxos. I. Assault ciiul Battery. Wliat is a battery . _ 210 "What an assault . . 210 Excusable acts ... 212 Self-defence .... . 214 Menace distinguished from assault . 215 Summary proceedings when a bar to civil action 215 TABLE OF CONTEXTS. xiii II. Fcihi' Iiiinrisonmr)it. . r.'VGE \\ hat IS false iiupiisomneut . otk Justification of arrest and imprisonment . 217 AVho is answerable . . . oig Reasonable and probable cause . . 92o III. Injuries in Family Rclcdioiis. Protection in personal relations ... . ^21 Historical accidents of the common law herein 222 Trespass for taking away wife, &c., and per quod scrvitium amisll 223 "Criminal conversation " 224 Enticing away servants . . 225 x\ctions for seduction in modern practice . 226 Damages ... 22S Services of young child . 22S Capricious operation of the law . 229 Constructive service in early cases . . 229' Intimidation of servants and tenants 230 CHArXER. YII. Defaii.\tiox. Civil and criminal jurisdiction 233 Slander and libel . . 233 1. Slander. When slander is actionable . 235 Meaning of "^)/7'Hia/acie libellous ' , 23.'j Special damage . . 236 Repetition of spoken words 237 Special damage involves definite temporal loss . 237 Imputation of criminal offence . . 238 Charges of mere immorality not actionable 23^ Slander of Women Act . . 239 Imputation of contagious disease . 240 Evil-speaking of a man in the way of his busine'is . 241 AVords indirectly causing damage to a man in his business . . 243 2. Drfamaiion in General. Defamation . 244 " Implied malice " 244 What is publication . . 245 Vicarious publication 247 Construction of words : Innucmlu . ... 247 Libellous tendency must be probable in law and proved in fact . 249 Repetition and reports may be libellous . ... 24!) XIV TABLE OF CONTENTS. 3. Exceptions. page Exceptions : fair comment . . . . 251 What is open to comment, matter of law ..... 253 Wlietlier comment is fair, matter of fact . ... 253 Justification on ground of trutli . . . . . 254 Must be substantially complete . . 255 Defendant's belief immaterial . . . 256 Parliamentary and judicial immunity . . . . 256 Other persons in judicial proceedings . ... 257 Reports of officers, &c. . . . 258 Qualified immunity of " privileged communications " . . 259 Condition.s of the privilege .... ... 260 ' ' Express malice " . . . 260 What are pi'ivileged occasions . . 261 Moral or social duty . 261 Self-protection . 262 Information for public good . 263 Fair reports . . 264 Parliamentary papers . . 264 Parliamentary debates and judicial proceedings . 264 Volunteered reports ... . 267 Exce.'is of privilege . . . . 267 Honest belief is not necessarily reasonable belief . . . 268 Power of jury in assessing damages . . . . 269 Statutory defences .... . . 270 Limits of interrogatories in action for libel . . . . 270 Bad reputation of plaintiff . . . ... 271 Injunctions . . . 271 CHAPTER YIII. WrOXGS of FllAUD AND BaD FaITH. I. Deceit, Nature of the wrong . . ... . 272 Concurrent jurisdiction of common law and equity . . 273 Difficulties of the subject : complication with contract . . . 273 (Questions of fraudulent intent ... . . . 274 Fraud of agents ... 276 General conditions of right of action . 276 (a) Falsehood in fact . . . 277 Misrepresentations of law . 279 Falsehood by garbled statements . . 280 (b) Knowledge or belief of defendant . . . 280 Representations subsequently discovered to be untrne . 284 Reckless assertions . . . ... 285 TABLE O-F CONTENTS. xv PAGE Breach of special duty to give correct information . . 286 Estoppel. Burrowes v. Loeke : former supposed rule of equity ... 287 (e) Intention of the statement . 289 Representations to class : Tolliill v. 'Walter . 290 Denton r. G. N. R. Co. . . 290 Peek V. Gurney . . 2iil (d) Reliance on the representation . ... 292 Means of knowledge immaterial without independent inquiry . , . . 293 Perfunctory inquiry will not do . 293 Ambiguous statements . , . 295 (e) Lord Tenterden's Act . . . 295 Equity and law under Judicature Acts 297 Misrepresentation by agents . . 297 Liability of corporations herein , . 299 Reason of an apparently hard law . . 300 IL Slmulcr of Title. Slander of title ... . 301 Recent extensions of the principle . 302 Trade marks and trade names . 305 Unfair competition ... . 306 III. Malicious Prosecution and Abtise of Process. Malicious prosecution . . . 307 Malicious civil proceedings . . 310 IV. Other Malicious ]l^ro7igs. Conspiracy. . . . 313 Relation of conspiracy to lawful acts or forbearances of third person 316 Supposed cause of action for malicious interference with one's occupation ... . . . . 317 Actions for procui-ing breach of contract Remoteness of damage . . . . 319 Interference with franchi.se . . 320 Maintenance ... . 321 CHAPTER IX. WnoNG.s TO Possession axd Pkoi'erty. I. Duties regarding Property generally. Absolute duty to respect otheis' property ... . 323 Title, justification, excuse . . 323 Title dependent on contract . . . 324 XVI TABLE OF CONTENTS. PAGE Exeejitional protection of certain dealings in good faitli . 325 Common law rights and remedies . 326 Possession and detention . 327 Trespass and conversion 329 Alternative remedies . . 330 II. Trespass. What shall be said a trespass . 331 Quaere concerning balloons 332 Trespass to goods . . 334 III. Injuries to Reversion. Wrongs to an owner not in possession . . 335 IV. Waste. What is waste . . ' 337 Modern law of waste : tenants for life . 338 Landlord and tenant ... . 340 V. Conversion. Relation of trover to trespass . . 340 What amounts to conver.«ion 341 Acts not amounting to conversion 344 Dealings under authority of apparent owner 345 Acts of servants . . 347 Redelivery by bailees . 348 Abuse of limited interest 348 Conversion by estoppel 352 VI. Injuries between Tenants in. Common. Trespasses between tenants in common . . . 352 VII. Extended Protection of Possession. Rights of dc facto possessor against strangers 354 Rights of owner entitled to resume possession 356 Rights of derivative possessors . 358 Possession derived through tresj)asser . 358 VIII. Wrongs to Easements, Ac. Violation of incorporeal rights . . . 360 IX. Grounds of Justification and Evcnse. Licence .... . 361 Revocation of licence . 362 Executed licences . . 364 Distinction from grant as regards strangers . . 366 Justification by law ... . . 367 Re-entry : herein of forcible entry . 368 TABLE OF CONTENTS. xvii Fresh re-entry on trespasser , . . . .371 Hooaption of goods ... . 372 Process of law : breaking doors . . 373 Distress ..... . 374 Damage feasant ... , .^74 Entry of distrainor , 376 Trespasses justilied l)y necessity . 376 Fox-hnnting not privileged . . ... 378 Trespass «i ijiiVi'ti . . .379 X. Remedies. Taking or retaking goods . . .381 Costs where damages nominal . . . 382 Injunctions . 3S3 Effect of changes in procedure . .38-1 CHAPTER X. NiTSAXCE. Nuisance, public or private . 385 Private right of action for public nuisance . . 386 Special damage must be shown . . 387 Private nuisance, what . . ... 389 Kinds of nuisance affecting — 1. Ownership . . ... 390 2. lurCL in re aUoict, ... . . 391 3. Convenience and enjoyment . . 39] Mea.sure of nuisance . . . 392 Injury to health need not be shown . . . 392 Plaintiff not disentitled by having come to the nuisance . . 393 Innocent 'or necessary character of offensive .occupation, or con- venience of place, no answer ........ 39-1 Modes of annoyance . . • 396 Injury common to the plaintiff with others . . 398 Injury caused by independent acts of different persons . 398 Obstruction of lights . . ... 399 Nature of the right to light ... . 399 Any substantial diminution is a wiong . . 400 Supposed rule as to angle of forty-live degrees. . . 401 Enlargement or alteration of lights . . 401 " Nuisance " to market or ferry . . 403 Remedies for nuLsanee . . 403 Abatement .... . 403 Notice to wrong-doer. • 404 Nuisances of omission . . • 405 P.T. ^ xvni TABLE OF CONTENTS. PAGE Old writs . . ^07 Damages . . .... 407 Injunctions . . . . • . 408 Difficulty or expense of abatement no answer . . . • 413 Parties entitled to sue for nuisance . • 414 Parties liable . ... ... 415 CHAPTER XI. XEriLIOEXCE. I. Tlir General Conception. Omission contrasted with action as ground of liability . 417 General duty of caution in acts . 418 Overlapping of contract and tort 419 Definition of negligence . 420 Standard of dnty is external . . 422 Diligence includes competence 424 Degrees of negligence . . . 424 II. Evidence of Netjligencc. Negligence a question of mixed fact and law . 425 Burden of proof . . . 426 "Where there is a contract or undertaking 428 Things within defendant's control . . . 429 Common course of affairs judicially noticed . 430 On evidence sufficient in law, question is for jury . 430 Metropolitan R. Co. v. Jackson . 432 Cases of level crossings . 434 " Invitation to alight " . . 436 Complications with contributory negligence . 437 " Evidence of negligence : " Smith v. L. & S. W. 1!. Co. . . 437 No precise general rule . ... 439 Due care varies as apparent risk : application of this to accidents through personal iniirraity . ...... 439 Distinction where person acting has notice of special danger to infirm or helpless person . . 441 III. Contributory Negligence. Actionable negligence must be proximate cause of harm ; where plaintiff's own negligence proximate cause, no remedy . . . 441 Tuffi). "VVarnian . . . .443 Radley v. L. & N. W. R. Co. . . . . 444 " Proximate " or " decisive " cause . ... 446 TABLE OF CONTEXTS. XIX PAGE Self-created disability to avoid coiisoi^iienops of anotlier's negligence 447 Earlier illustrations : Davies r. ilann . . . 448 Buttfvtield ,-. Forrester ... 449 The exploded doctrine of " identiflcatiou " 4.o'2 .Vc'ridents to children in custody of adult 455 Children, &i'., unattended 456 Child c. Hearn . . . 4.-i7 .Vdiiiiralty rule of dividing loss . . 4"i8 lY. .LuxiUary Rules and Prcsampl/um^. Action under difficulty caused by another's negligence 459 Xo duty to anticipate negligence of others . . . 460 Choice of risks under stress of another's negligence 462 Clayards v. Dethick . . ■162 Doctrine of New York Courts . i'iS Separation of law and fact in United States 165 CHAPTER XII. Duties of Insuring Safcty. E.xceptions to general limits of duties of caution . 467 Rylands i: Fletcher . . -leS E.xeeption of act of God -175 Act of stranger, &p. -t'S Authorized works ... • -I'B G. W. li. Co. of Canada v. Braid -^77 Other cases of insurance liability. i'8 Duty of keeping in cattle . "1'9 Dangerous or vicious animals . ISO Fire, firearms, &c. . . ■''^■^ Duty of keeping in fire Carrying five in locomotives Fireai-ms : Dixon v. Bell . . ■'84 Explosives and other dangerous gnods . ^85 Gas escapes .... -186 Poisonous drugs : Thomas v. "Winchester . 186 Difficulties felt in England : George r. Skivingtou 488 Duties of occupiers of buildings in respect of safe repair . 489 ilodern date of the settled rule : InJermaur v. Dames 490 Persons entitled to safety . . . 49"2 Duty in respect of carriages, ships, &e. 494 Limits of the duty ... 496 Volenti nonfit hiiuria 497 Duty towards passers-by . 497 h '2 4S2 483 XX TABLE OF CONTENTS. I'AOE Presumption of negligence (?'«s y)s« ZojMiiiM") . 49& Distinctions . ... . 502 Position of licensees . . i^OS Host and giip.st . . . 505 Liability of licensor for " ordinal v negligence " 505 Owner not in occupation . 506 CHAPTER XIII. Special Relatioks of Contract and Tout. Original theory of forms of action . 507 Actions on the case ... . . 508 Causes of action : modern classification as founded on contract of tort 509 Classes of questions arising . .... . . 510 I. Alternative Forms of Semedy on the same Cause of Action. One cause of action and alternative remedies 510 Common law doctrine of mi.'^fcasance ... . 511 Special dutj' of carriers and innkeepers by " custom of the realm " 514 Alternative of form does not affect substance of duty or liability 515 In modern law obligation wholly in contract . 516 Limits of the rule . . . 517 II. Concurrent Causes of Action. Cases of tort, whether contract or no contract between tame parties . 518 Contract " implied in law " and waiver of tort 520 Implied warranty of ngent's authority : Collen r. Wright 521 Concurrent causes of action against different parties 522 Daly ell r. Tyrer 522 Ponlkes v. Metropolitan Dist. R. Co. . . 52-3 Causes of action in contract and tort at suit of different plaintifts 524 Alton V. Midland R. Co. . qu. whetlier good law . . 525 Winterbottom r. AVright, &c. . . . 527 Concurrence of breach of contract with delict in Roman law . 52!> III. Causes of Action in Tort de2)endent on a Contract not betu-een the same Parties. Causes of action dependent on a collateral contract .^.29 Procuring breach of contract . . .^)2ft Damage to stranger by breach of contract . . . 5.31 Position ofreceiverof erroneous telegram : different views in England and United States ... . 532 The conflict considered on principle . ... 534 Character of morally innocent acts affected by extraneous contract 536 TABLE OF CONTENTS. xxi IV. .l/i((ji()'c of Damages and other Idcidents of the Remedy. PAGE Jleasiire of ilaraages . . . . 538 Kule us to cousequential damage. , ... . 539 Penal character of action for breach of prouii.se of marriage . 540 Contracts on which executors cannot sue . 541 APPENDIX. A. — Historical note on the classification of the forms of personal action. (By Mr. F. W. Maitland.) . . 543 B. — Employers' Liability Act, 1880 . . 551 C. — Statutes of Limitation : 21 James I. c. Iti, ss. 3, 7 . 558 4 & 5 Anne, c. 3, s. 19 . . ... 559 19 & 20 ^'ict. c. 9 7 (Mercantile Law Amendment Act), ». 12 . 560 D. — Contributory negligence in Roman law ... . 561 INDIAN CIVIL WR(.)NL!S BILL. PitEFATOKY Note . 564 Gexekal Part — Chap. I. General principles of liability 569 II. General exceptions . . 578 Special Part — III. Assault and false imprisonment . 589 IV. Defamation . . 591 V. Wrongs against good faith . 602 \^1. Wrongs to property . 607 VII. Nuisance . • ^l^ VIII. Negligence . . . 618 IX. Of damages for civil wrongs . 629 INDEX OF CASES. Abdul Hakim v. Tej Chander Miikarji, 599. Abraham v. Reynolds, 505. Abrahams f. Deakin, 90. Abrath v. N. E. Rail. Co., 308, 605, 606. Ackers v. Howard, 122. Acton V. Blundell, 150, 151, 155. Adams v. L. & Y. Rail. Co., 461. Adamson v. Jarvis, 195, 196, 577. Addie v. Western Bank of Scot- land, 93. Agincourt, The, 124. Ajello V. Worsley, 149, 307. Alabaster v. Harness, 321. Alderson v. Waistell, 133. Aldred's Case, 394, 614. Aldrich v. Wright, 171. Alexander v. N. E. Rail. Co., 255. ['. Jenkins, 242. V. Southey, 343. Allbutt V. General Council of Jledical Education, 120, 265. Allen V. Flood, 153, 155, 232, 244, 252, 272, 309, 315, 317, 318, 606. r. L. & S. W. Rail. Co., 23, 24, 90, 576. V. Martin, 384. Allinson v. General Council, &c., 121. Allsop V. Allsop, 288. Alton V. M. Rail. Co., 525, 526, 527, 541. Amann v. Damm, 601. Ambergate v. M. Rail. Co., 375. Ames V. Union Rail. Co., 526. Anderson v. Gorrie, 114, 115. V. Radoliffe, 360. Andrews v. Mookford, 291. Angle V. Chicago, St. Paul, &o. Rail., 318. Angus V. Clifford, 283, 287. Anthony v. Haney, 373. Applebee v. Percy, 481. Arlett V. Ellis, 405. Armory v. Delamirie, 355, 367. Armstrong v. L. & Y. Rail. Co., 621. Arnold v. Holbrook, 377. Ash V. Dawnay, 380. Ashby V. White, 122, 182, 321, 606. Asher v. Whitlock, 355. Ashwoi'th V. Stanwix, 101. Atkinson I'. Newcastle Waterworks Co., 26, 193. Attack V. Bramwell, 380. A.-G. V. Brighton & Hove Co- operative Supply Association, 395. V. Cambridge Consumers' Gas Co., 409. V. Cole, 395. V. Colney Hatch Lunatic Asylum, 418. V. Gas Light and Coke Co., 129. I'. Horner, 361. V. Manchester, Corporation of, 410. r. Margate Pier, Co. 207. V. Metropolitan Rail. Co., 127. . ■ r. Sheflaeld Gas Co., 409. r, Tomline, 147. Austin I'. Dowling, 219. !■. G. W. Rail. Co., 515, 519, 520. Australian Newspaper Co. v. Ben- nett, 249. Avis V. Newman, 338. Aynsley v. Glover, 400, 402. B. Backhouse v. Bonomi, 188, 206. Baddeley v. Earl Granville, 497, 553 Baird v. Wells, 121. XXIV INDEX OF CASES. Baker v. Carrick, 263. V. Sebright, 339. Baldwin v. Casella, 481. V. Elphinston, 245. Ball, Ex parte, 198, 199. V. Ray, 897. Ballaoorkish Mining Co. v. Harri- son, 150. Ballantine v. Golding, 204. Ballard v. Tomlinson, 151, 474. Balme v. Hutton, 118, 343. Baltimore and Ohio R. E. Co. v. Baugh, 103. and Potomac R. R. V. Fifth Baptist Church, 129. and Potomac B. R. v. Cumberland, 441. Bamford v. Turnley, 394, 395, 396, 614. Bank of New South Wales v. Owston, 90. Barber v. Penley, 388. Barker r. Braham, 75, 218. V. Furlong, 342, 348, 357. Barnes v. Ward, 174, 497, 627. Barnett v. Guildford, 360. Barry v. Croskey, 277. Barton v. Taylor, 119. Barton's Hill Coal Co. v. Reid, 77. Barwick v. English Joint Stock Bank, 75, 93, 300, 301, 574. Bastard v. Hancock, 549. Batchelor v. Portescue, 504. Bateu's Case, 391, 407. Bavins, J., and Sims v. L. & S. W. Bank, 351. Bayley v. M. S. & L. R. Co., 88, 575. Beard v. L. General Omnibus Co., 80. Beasley v. Roney, 57. Beaumont v. Greathead, 181. Becher v. G. E. Rail. Co., 525. Beckett v. JI. Rail. Co., 388, 612. Beckham v. Drake, 541. Beddall v. Maitland, 368 369. Beddow t*. Beddow, 190. Bell I'. M. Rail. Co., 52, 188. Benjamin v. Storr, 389, 612. Benton v. Pratt, 303. Bernina, The, 443, 450, 465, 620. Berringer v. G. E. R. Co., 523. Berry v. Da Costa, 188, 540. Bessey v. OUiott, 141. Betts V. Gibbins, 195, 196, 577. Bbugwan Meetha v. Kasheeram Govurdhuu, 581. Bhyran Pershad v. Isharee, 590. Biddle v. Bond, 848. Bird V. Holbrook, 162, 174. V. Jones. 217. Biscoe V. G.' E. Rail. Co., 128, 129, 582, Bishop V. Balkis Consolidated Co. , 297. Black V. Christchurch Finance Co., 483. Blades v. Higgs, 359, 372. Blad's Case (Blad v. Bamfield), 201, 203. Blair v. Bromley, 94. Blake v. Barnard, 211. u. M. Rail. Co. , 66, 68. Blakemore v. Bristol and Exeter Rail. Co. , 505. Blamires v. L. & Y. Rail. Co. , 194. Blisset V. Daniel, 121. Bloodworth v. Gray, 241. Blj'th V. Birmingham Waterworks Co. , 39, 46, 420, 439. Boden v. Roscoe, 375. Bolch V. Smith, 504, 629. Bolingbroke v. Swindon Local Board, 90. Bonnard i'. Ferryman, 190, 271. Booth V Arnold, 242. Borrows v. Ellison, 206. Boson V. Sandford, 549. Bostock V. Ramsay U. D. C. , 207. Boston and Albany R. B. Co. v. Shanly, 486. Bound r. Lawrence, 556. Bourne v. Posbrooke, 855. Bowen v. Anderson, 415. V. Hall, 318, 580, 606. Bower v. Peate, 503. Bowker v. Evans, 60. Bowyer v. Cook, 372, 382. Box V. Jubb, 476. Boxsius V. Goblet Freres, 245. Boyson v. Thorn, 318. Bradford, Corporation of, v. Pickles, 28, 152, 154, 155. Bradlaugh v. Gossett, 119. V. Newdegate, 321. Bradshaw v. L. & Y. Rail. Co , 66. Brannigan v. Robinson, 551. Bray r. Ford, 270. Bridge v. Grand Junction Rail. Co., 449, 450, 459. Bridges v. N. L. Rail. Co., 431, 436. Briggs V. Union Street Rail. , 460. Brinsmead v. Harrison, 195, 344. INDEX OF CASES. XXV Bristol and W. of England Bank V. JI. Rail. Co., 352. British Mutual Banking Co. v. Charnwood Forest R. Co., 92, 94. British S. Africa Co. c. Companhia de Jlov-ambique, 202. Broadbent v. Ledward, 546. Broder v. Saillard, 394, 397. Bromage v. Prosser, 244. Brooker v. Coffin, 239. Broughton v. Jaokson, 220, 221. Brown v. Boormau, 512. V. Eastern and Midlands Rail. Co., 52. V. Kendall, 134, 136, 137, 140, 145, 473, 583. r. Notley, 885. Browne v. Dawson, 371. Brownlie v. Campbell, 274. Brunsden v. Humphrey, 189. Brunswick, Duke of, v. King of Hanover, 112. V. Harmer, 246. Bryant v. Herbert, 15, 546, 548. V. Lefever, 399. Bubb V. Yelverton, 339. Bucher v. Cheshire, 176. Buckley !'. Gross, 355. Buddie V. Willson, 518. BuUers v. Dickinson, 402. Bulmer v. Buhner, 67. Burdett v. Abbot, 374. Burgess v. Burgess, 156. V. Gray, 80. Burling v. Read, 404. Bumard v. Haggis, 55. Burns v. Poulson, 84. Buron v. Denman, 110. Burroughes v. Bayne, 336, 343. Burrowes v. Lock, 191, 287, 288. Burrows v. Erie Rail. Co., 464. V. March, &c. Gas Co., 487. V. Rhodes, 195, 196. Bush V. Steinman, 79. Butler V. M. S. & L. Rail. Co., 363. Butterfield v. Forrester, 449, 450, 621. Byrne v. Boadle, 499, 618, 628. ByweU Castle, The, 460, 622. C. Cabell V. Vaughan, 549. Calder v. Halket, 115. Caledonian Rail. Co. v. Walker's Trustees, 126. Calliope, The, 495. Cameron v. Nystrom, 81, 101. Campbell v. Spottiswoode, 251, 252. Canadian Pacific R. Co. v. Parke, 129. Cape V. Scott, 375. Capital and Counties Bank v. Henty, 244, 248, 592, 596. Carey v. Ledbitter, 396. Carpue v. L. & B. Rail. Co., 429. Carrington v. Taylor, 317. Carslake v. Mapledorum, 241. Carstairs v. Taylor, 476. Carter v. Drysdale, 556. V. Thomas, 169. Cartwright, Re, 388. Castle V. Duryee, 137, 138. Central Rail. Co. of Venezuela v. Kisch, 294. Chafiers v. Goldsmid, 321. Chamberlain v. Boyd, 238. V. Hazel wood, 225. V. Williamson, 62, 540, 541, 549. Chapman v. Auckland Union, 408. V. Roth well, 493, 627. Charles v. Taylor, 99. Chasemore v. Richards, 150, 151, 155, 471, 584. Chastey v. Ackland, 399. Chatham Furnace Co. r. Mofiatt, 282. Chatterton v. Secretary of State for India in Council, 259, 600. Chicago M. & S. Rail. Co. v. Ross, 103. Chifferiel v. Watson, 185. Child r. Hearn, 457, 481. V. Sands, 549. Chinery v. Yiall, 350, 516. Christie v. Davey, 392. Christopherson v. Bare, 213. Chunder Narain Singh v. Biijo BuUub Gooyee, 579. City of London Brewery Co. v. Tennant, 399, 400. Clark r. Chambers, 43, 44, 47, 48, 49, 50, 320, 455, 457, 572. V. Molyneux, 260, 264, 268, 269. V. Woods, 117. Clarkson v. Musgrave, 555. Clayards v. Dethick, 462, 464, 022, 023. Cleary v. Booth, 123. Cleat her v. Twisdcu, 94. Clements v. Flight, 546. XXVI INDEX OF CASES. Clements r. L. & N. W. Eail. Co., 552. Cliff V. M. Rail. Co., 619. Clifiord V. Holt, 400. Closson V. Staples, 311. Clough V. L. & N. W. Rail. Co., S78. Clowes V. Staffordshire Potteries Waterworks Co., 413. Clydesdale Bank v. Patoii, 297. Cobb V. G. W. Rail. Co., 45, 434. Cockle V. S. E. Rail. Co., 436. Colchester, Mayor of, v. Brooke, 449. Cole V. Turner, 210, 212, 589. CoUard v. Marshall, 190, 271. Collector of Sea Customs v. Pun- niar Chithanibaram, 579. Collen V. Wright, 63, 521. Collins V. Evans, 196, 280. Collis V. Selden, 497, 528. Commissioners of Sewers i\ Glasse, 405. Commonwealth v. CoUberg, 157. V. Pierce, 214, 424. Conroy v. Peacock, 554. Consolidated Co. v. Curtis, 346. Cook V. N. Met. Tramways Co., 556. V. Sprigg, 109. Cooke ['. Forbes, 409. Cooper V. Crabtree, 384, V. Willomatt, 345, 349. Corby r. Hill, 367, 498, 503, 627. Cornfoot r. Powke, 298, 299. Cornford v. Carlton Bank, 59, 309. Cornish t'. Accident Insurance Co., 166. V. Stubbs, 364, 611. Coryton r. Lithebye, 548. Cotterell r. Jones, 312. Cotton r. Wood, 426, 427, 619. Couch V. Steel, 193. Coulter r. Express Co., 464. Coupe Co. 1'. Maddick, 341. Courtenay v. Earle, 512. Coward i'. Baddeley, 213, 589. Cowley «. Newmarket Local Board, 194. Cox V. Burbidge, 44, 479, 572. V. G. W. Rail. Co., 552. Coxhead v. Richards, 262, 601. Crabtree v. Robinson, 376. Cracknell v. Corporation of Thet- ford, 128. Crafter v. Metrop. Rail. Co., 430, 439. Cripps V. Judge, 551. Croft V. Allison, 84. Crossley v. Lightowler, 393, 616. Crowhurst v. Amersham Burial Board, 474. Crumble v. Wallsend Local Board, 206. Crump V. Lambert, 392, 396. CuUen V. Thomson's Trustees and Kerr, 72. Cundy v. Lindsay, 325, 537. Cutts V. Spring, 355. D. Dalston v. Janson, 513. Dalton i: Angus, 361, 400. . V. Fitzgerald, 355. V. S. E. Rail. Co., 69. Dalyell v. Tyrer, 79, 522, 523. Danby v. Lamb, 546. Dand v. Sexton, 334. Daniel v. Ferguson, 409. V. Met. Raih Co., 461. Darley Main Colliery Co. v. Mit- chell, 183, 206, 571. Dashwood v. Maguiao, 339. Davey v. Askwith. 837. V. L. & S. W. Rail. Co., 435. Davies, Ex parte, 348. V. Mann, 448, 449, 451, 621. r. Marshall, 160. f. Snead, 262, 602. V. Solomon, 238. V. Williams, 404. Davis V. Duncan, 253. V. Gardiner, 240. V, Saunders, 143. V. Shepstone, 254, 264. Dawkins v. Antrobus, 121, 581. V. Paulet, Lord, 258. ■y.Rokeby, Lord, 116, 258. V. Saxe- Weimar, Prince Edward of, 116, 258. Day V. Brownrigg, 156, 305. Dean v. Bennett, 121, 122. V. Peel, 227. V. St. Paul Union Dep6t Co., 496. Dean of St. Asaph's Case, 139. Deane v. Clayton, 171. Degg. V. M. Rail. Co., 101. Denison v. Ralphson, 547. Denton v. G. N. Rail. Co., 290, 300, 518, 532. Derry v. Peek, 275, 276, 277, 281, 286, 287, 288, 291, 292, 299, 533, 602. IXDEX OF CASES. De Wahl v. Braune, 54. Dewey i'. White, 168. Dhurmcliuiid c. Nanabhaee Goo- balchund, 581. Dicker v. Popham, 401. Diokeson v. Watson, 141. Dickiu.son v. N. E. Eail. Co., 67. Dickon v. Clifton, 513. Dicks r. Brooks, 302, .303. Dickson r. Eeuter's Telegram Co 581. Ditcham v. Bond, 225. Dixou V. Bell, 189, 455, 457, 484 485, 487, 489, 625. Dobell V. Stevens, 298. Dobree v. Napier, 203. Donald v. Suckling, 349, 608. Donovan v. Laing. 81. Doss i\ Secretary of State in Council of India, 109. Doughty i\ Firbank, 552. Doulson V. Matthews. 202. Doyley r. Roberts, 242. Drake, Ex parte, .344. Dreyfus r. Peruvian Guano Co., 184, 408. Dublin, &c. Eail. Co. v. Slattery. 435, 451. 460. Du Boulay i\ Du Boulay, 156. Duckworth i: Johnson, 68. Dunn r. Birmingham Canal Co., 477. V. Devon, &c. Newspaper Co., 270. Dunston v. Paterson, 118. Dyer v. Hargrave. 294. V. Munday, 92. E. Eagar v. Grimwood, 228. Earle v. Kingscote, 56, 57. Ecclesiastical Commissioners v. Kino, 401, 402. Eckert v. Long Island R. R. Co., 464. Edgington r. Pitzmaurice, 277, 278, 286. Edwards v. L. & N. W. Rail. Co., 90. V. M. Rail. Co., 809. Edwick V. Hawkes, 368, 369. Elias V. Snowden Slate Quarries Co., 338. EUenwood 1). Marietta Chair Co., 202. Elliott, Ex parte, 200. Elliott r. Hall, 495, 626. Ellis r. G. W. Eail. Co., 436. V. Loftus Iron Co., 45, 479. V. Sheffield Gas Consumers' Co., 75. Emblen v. Myers, 187, 680. Emmens r. Pottle, 246. Engelhart v. Earrant & Co., 44, 85, 454. England i\ Cowley, 844. Englishman and Australia, The, 195, 196. Entick V. Carrington, 10, 110, 331. European and Australian Royal Mail Co. r. Royal Mail Steam Packet Co., 348. Evans v. Bicknell, 296. r. Edmonds, 286. V. Walton, 226. Eyre, Ex parte, 94. P. Pairhurst v. Liverpool Adelphi Loan Ass., 55, 56. Palvey v. Stanford, 180. Farrant v. Barnes, 485, 625. Farwell c. Boston and Worcester Railroad Corporation, 76, 96, 97, 98, 103, 576. Fay V. Prentice, 390, 614. Feltham r. England, 99. Penn v. Bittleston, 351, 854. Penna w. Clare, 427. Pergusson v. Earl of Kinnoul, 569. Pilburn v. Royal Aquarium Co., 481. Filer v. N. Y. Central R. R. Co., 464. Pilliter v. Phippard, 483. Pine Art Society r. Union Bank of London, 342. Finlay v. Chirney, 60, 541, 549. Firbank's Executors v. Hum- phreys, 279. Pirth r. Bowling Iron Co., 474. Fisher v. Jackson, 122. V. Keane, 121, 581. Fitzgerald v. Firbank, 361. Pitzjohn V. Mackinder, 219, 308. Fivaz V. NichoUs, 176. Fleming v. Dollar, 255. V. Hislop, 398, 408. V. M. S. & L. Rail. Co., 517. Fletcher, Ex parte, 371. V. Bealey, 410. XXVIU INDEX OF CASES. Fletcher v. Rylands, 468, 472. c. Smith, 472. Flewster v. Boyle, 220. Flood V. Jackson, 272. Fogg 1). Boston & Lowell Bail. Co., 59. Forsdike v. Stone, 186. Fouldes V. Willoughby, 334, 844. Foulger v. Newcomb, 242. Foulkes r. Met. D. Bail. Co., 494, 496, 519, 523, 525, 526, 626. Francis r. Cockrell, 490, 494, 628. Franconia, The, 67. Franklin v. S. E. Bail. Co., 68, 69. Fray v. Blackburn, 115. Freke v. Calmady, 338. Fremantle v. L. & N. W. Bail. Co., 477, 625. Fritz V. Hobson, 388, 389, 398, 408, 612. Frogley v. Earl of Lovelace, 363. G. Gallagher v. Piper, 100. Gandy v. Jubber, 415, 616. Ganesh Singh v. Bam Baja, 577. Gardner v. Michigan Central B. E., 431. Garland r. Carlisle, 373. Garnett v. Bradley, 182. Garret v. Taylor, 231. Gas Light and Coke Co. t\ Vestry of St. Mary Abbott's, 130. Gaunt i: Fynney, 409. Gautret v. Egerton, 503. Gayford i'. Chouler, 382. Gaylard v. Morris, 334. Geddis v. Proprietors of Bann Eeservoir, 126, 128. Gee V. Met. Rail. Co., 167, 461, 622. GehanAji bin Kes Patil v. Ganpati bin Lakshuman, 613. George and Bichard, The, 43, 67. V. Skivington, 488, 528. Gibbons r. Pepper, 143. Gibbs V. Guild, 208. V. G. W. Bail. Co., 552. Gibson v. Evans, 247. Giles V. Walker, 474. Girish Chunder Das r. Gillanders & Co., 573. Gladwell v. Steggall, 511, 515. Glasier v. Bolls, 281. Glasspoole v. Young, 118, 373. Gledstaue v. Hewitt, 546. Gloucester Grammar School Case, 148. Glover v. L. & S. W. Bail. Co., 38. Gofii). G.N. Bail. Co., 89. Goffin V. Donnelly, 258. Goldsmid v. Tunbridge Wells Im- provement Commissioners, 410. Goodson V. Bichardson, 383. Goodwin v. Cheveley, 375, 480. Gorham v. Gross, 472, 503. Gorris v. Scott, 26, 49, 194. Gosden v. Elphick, 220. Graham v. Peat, 355. Grainger v. HiU, 216. Grand Trunk Bail, of Canada v. Jennings, 69. Gray v. PuUen, 73. G. W. Bail. Co. of Canada v. Braid, 477, 624. Green v. Greenbank, 516. Greene v. Cole, 336. Greenland v. Chaplin, 40. Greenslade v. Halliday, 406. Greenwell v. Howell, 207. Greenwood v. Hornsey, 402. Gregory v. Duke of Brunswick, 314. V. Piper, 83, 575. Griffin v. Coleman, 218. Griffiths V. Dudley, 552. V. London & St.Katharine Docks Co., 100. Grinham v. Willey, 219, 220. GrinneU v. WeUs, 228, 229. Guille V. Swan, 37. Gully V. Smith, 26. Gwilliam v. Twist, 80. Gwinnell v. Eamer, 415. H. Hadley v. Baxendale, 29, 539, 540. Hailes i-. Marks, 220. Halestrap v. Gregory, 45. Halford v. E. I. Rail. Co., 619. Hall V. Pearnley, L43. V. Hollander, 228. V. Norfolk, Duke of, 183. Halley, The, 82, 200, 201, 203. Halliday v. Holgate, 349. Halsey v. Brotherhood, 802. Hambly v. Trott, 70, 71, 547, 548. Hamilton v. Pandorf, 476. Hammack v. White, 27, 426, 427, 618, 619. Hamm.ersmith Bail. Go. v. Brand, 127, 484. INDEX OF CASKS. XXIX Hai'daker (•. Idle District Council, 73, 501. Hardmau r. Booth, 537. Harman v. Johnson, 94. Harper v. Charlesworth, 355. V. Luffkin, 227. Harris , . Brisco, 322. !■. De Pinna, 399, 402. r. Mobbs, 41, 389. Harrison r. Bush, 263. r. Duke of Rutland, 181, 332. )'. Southwark & Vauxhall Water Co., 127, 392. Harrold c. \Yatnev, 43. Harrop i . Hirst, 360, 389, 391, 398, 614. Hart r. Gumpach, 258. V. Wall, 248. Hartlej' r. Cummings, 225. V. Herring, 243. Harvey r. Brydges, 370. ! . Dunlap, ] 37. r. Harvey, 374. Hatchard r. Mfege, 65. Hayoraft r. Creasy, 278. Hayes r. Michigan Central Rail- road Co., 42. HajTnan v. Governors of Rugby School, 122. Hayn v. Culliford, 495, 496. Hayvvard r. Hayward, 266. Heald i. Carey, 845. Heaven r. Pender, 418, 419, 488, 493, 569, 628: Hebditch r. Macllwaine, 247, 263, 268. Hedges v. Tagg, 227. Hedley v. Pinkney & Sons' S. S. Co., 100. Helsham v. Blackwood, 256. Henderson v. Williams, 348. Hendriks v. Montagu, 307. Henwood v. Harrison, 251, 252. Hepburn r. Lordan, 409. Hermann Loog v. Bean, 190. Heske v. Samuelson, 551. Hetheringtoni'.N. E. Rail. Co., 69. Hewitt V. Isham, 366. Heywood v. Tillson, 319. Hickman v. Maisey, 332. HiU V. Bigge, 111. V. New River Co., 41, 49, 572. Hillard v. Richardson, 79. Hinde v. Bandry, 599. Hiort V. Bott. 323, 340, 342, 607. V. L. & N. W. Rail. Co., 344. Hogg V. Ward, 217. Hole V. Barlow, 396. Holford r. Bailey, 358, 361, 587. HoUiday v. National Telephone Co., 73, 501. HoUins V. Fowler, 10, 323, 325 342, 343, 345, 5.38, 609. Holmes v. Mather, 27, 132, 143, 144, 163, 166, 473. V. N. E. Rail. Co., 498. V. Wilson, 372. Honywood v. Honywood, 339. Hope V. Evered, 219. Hopkins v. G. N. Rail. Co., 361. Home V. M. Rail. Co., 5.39, 540. Horsfall r. Thomas, 292. Hotchkys, Re, 338. Houlden v. Smith, 114. Houldsworth v. City of Glasgow Bank, 93, 300. Hounsell v. Smyth, 503, 628. Howard r. Shepherd, 528. Howe V. Finch, 552. Hubbock & Sons v. Wilkinson, Haywood & Click, 304. Huber v. Steiner, 204. Huckle V. Money, 186. Hughes r. Macfie, 455. r. Percival, 503. Humphries v. Cousins, 472. Hurdmau r. N. E, Rail. Co., 151, 472. Hurst V. Taylor, 498. Hutchins i\ Hutohins, 315. Huttley r. Simmons, 313. Hyams r. Webster, 73. Hyde v. Graham, 363. 366. Hydraulic Engineering Co. v. McHaffie, 539. Hyman v. Nye, 496. I. Illidge V. Goodwin, 572. Ilott V. Wilkes, iq2. Inchbald v. Barrington, 396. Indermaurt). Dames, 490, 491, 497 Inderwick v. Snell, 121, 560. Junes !'. Wylie, 213. Irwin V. Dearman, 228. Ivay V. Hedges, 504. Jackscn r. Adams, 239. V. Normandy Brick Co. 408. XXX INDEX OF CASES. Jacobs V. Seward, 352. James v. Campbell, 142. V. Jolly, 601. Jeffries v. G. W. Rail. Co., 355, 356. Jenks V. Viscount Clifden, 65, 408. Jenner v. A'Beckett, 254. Jemiings v. Rundall, 55, 516. Jenoure v. Delmege, 260, 268. Jina Ranchhod v. Johhi (rhellci, 613. Job V. Potton, 338, 353. Joel V. Morison, 84. John V. Bacon, 490. Johnson v. Diprose, 329. V. Emerson, 311. I'. Lancashire & Yorkshire Rail. Co., 350. !■. Lindsay, 81, 101. -u. Pie, 55, 58. V. Stear, 349. Johnston v. Consumers' Gas Go. of Toronto, 26, 193. Johnstone v. Sutton, 118. .Tones i'. Bird, 424. <'. Boyce, 462, 464. r. Chappell, 337, 389, 414. ! . Pestiniog Rail. Co., 483, 625. V. Foley, 368. V. Gooday, 192. r. Hough, 345, 607. V. Jones, 404. ('. Liverpool, Corporation of, 80. r. Powell, 394. Jordeson v. Sutton, 129. Jordin !'. Cramp, 171. K. Kane v. N. Central Rail. Co., 465. Karim Buksh v. Budha, 613. Kashirdm Krishna v. Bhadu, BApuji, 595. Kearney v. Lloyd, 313, 315. V. L. B. & S. C. Rail. Co., 500, 628. Keeble ■;;. Hickeringill, 231, 317. Keen v. Henry, 82. )'. Millwall Dock Co., 554. Keighley v. Bell, 118. Kelk V. Pearson, 400, 408. Kellard v. Rooke, 556. Kelly V. Met. Rail. Co., 524, 542. V. Sherlock, 181, 187, 253. V. Tinling, 258. Kemp V. Neville, 115. Kenyon v. Hart, 333. Kerrison v. Smith, 363. Kerry v. England, 487. Kettle V. Bromsall, 546. Kiddle v. Lovett, 553. Kimber v. Press Association, 265, 266. King V. London Improved Cab Co., 82. r. Pollock, 485. Kirk V. Gregory, 169, 323, 334. V. Todd, 72. Kleinwort v. Comptoir d'Es- compte, 342. Knott V. Morgan, 306. Labouohere c. Wharnclifie, 121, 581. Lambert v. Bessey, 141. Lambton v. Mellish, 398. Lancashire Waggon Co. v. Pitz- hugh, 345. Lane v. Capsey, 404. V. Cox, 415, 494, 506. Lanfranchi v. Mackenzie, 401. Langridge v. Levy, 289, 489, 5.''.3, 605. Laughton v. Bishop of Sodor and Man, 263, 269. Lax V. Corporation of Darlington, 167, 463, 495, 496, 622. Lazarus v. Artistic Photographic Go , 401. Lea V. Gharrington, 219. Leame v. Bray, 142. Lee !'. Riley, 44, 45, 479, 572. Leesont). General Medical Council, 120. Leggott V. G. N, Rail. Co., 66. Lehigh Zinc and Iron Co. u. Bam- ford, 282. Le Lievre v. Gould, 281, 287. Le Mason r. Dixon, 549. Lemmon v. Webb, 3.34, 404. Lempri^re v. Lange, 56. Lewis V. Levy, 265. Leyman v. Latimer, 240, 256. Liggins V. luge, 365. Lightly V. Clouston, 521. Limpus r. London General Omni- bus Co., 91. Lingwood v. Stowmarket Co., 408. Lister v. Perryman, 220, 221. Little V. Hackett, 80, 443, 450, 452. INDEX OF CASES. Llandudno Urban D. C. v. Woods, 409. Lock r. Ashton, 220. L. A- B. Rail. Co. i: Trueman, 130, 131, 582. London, ilavov of, v. Cox, 117. L. & N. \Y. Rail. Co. r. Bradley, 128. Longmeid v. Holiday, 489, 528. Lonsdale, Earl of, v. Nelson, 390, 404, 406, 614. Lord V. Price, 341. Losee v. Buchanan, 472, 484. r. Clute, 497. Lovell !•. Howell, 97. Low c. Bouverie, 281, 288, 291. Lowe V. Fox, 56. Lows V. Telford, 369. Lowther v. Earl of Radnor, 115. Luby V. Wodehouse, 111. Lumley v. Gye, 63, 224, 225, 231, 318, 319, 530, 531, 606. Luscombe v. G. W. R. Co., 875. Lvde V. Barnard, 296, 297. Lvell V. Ganga Dai, 136, 486, 625. Lynch v. Knight, 237, 238, 320. V. Nurdin, 43, 572. Lvon V. Fishmongers' Co., 389, "398, 612. Lyons v. Wilkins, 231. ilcCord r. Cammoll, 552. MCuUyi'. Clark, 431, 618. JIacdougall v. Knight, 265. Macfadzen v. Olivant, 224. JIcGifien i\ Palmer's Shipbuilding Co., 551. Mackay r. Commercial Bank of New Brunswick, 93, 300. M'Kenzie v. McLeod, 576. McLaughlin y. Pryor, 80. JIcMahon v. Field, 539. McManus v. Cooke, 366. JI'Manus v. Crickett, 91. ilcPherson v. Daniels, 244, 250. JIachado v. Pontes, 201, 203. Maddison v. Alderson, 95. Madras Rail. Co. i. Zemindar of Carvatenagaram, 476, 477, 623, 625. Malachy v. Soper, 301. Manchester Bonded "Warehouse Co. V. Carr, 338. -Mayor of v. Williams, 58, 239. Manchester South Junction Rail. Co. r. Pullarton,52. Mangan v. Atterton, 457, 572. Manley v. Field, 227. Manzoni !'. Douglas, 427. Marks .. Progley, 119. Jlainev v. Scott, 490, 495. Marsh" i'. Billings, 304. V. Joseph, 94. V. Keating, 197, 199. Marshall v. York, Newcastle, and Berwick Rail. Co., 520, 525, 526. JIarshalsea, The, 117. Martin v. G. I. P. Rail. Co., 525. V. Payne, 227. I'. Price, 410. Marzetti v. Williams, 516. Masper v. Brown, 215. Mather v. Rillston, 145. Maund v. Monmouthshire Canal Co., 58. May 1-. Burdett, 481. Meade's and Belt's Case, 213. Mears c. Dole, 472. V. L. & S. W. Rail. Co., 341. Meghraj i'. Zakir Hassain, 578. Mellor V. Spateman, 398. V. Watkins, 364, 611. Membery v. G. W. R. Co., 103. Mennie v. Blake, 336, 358. Merest r. Harvey, 186. Merivale r. Carson, 251, 254, 598. Merryweather v. Nixan, 195. Jlersey Docks Trustees -v. Gibbs, 59, 04, 126, 569. Metropolitan Association v. Petch, 414. ^letropolitan Asylum District o. Hill, 129, 130. Metropolitan Bank v. Poolev, 313, 321. Metrop. Rail. Co. v. Jackson, 45, 431, 432. V. Wright, 180. Meux V. Cobley, .387. ,,. G. E. Rail. Co., 525. Midland Ins. Co. v. Smith, 199. Jlighell V. Sultan of Johore, 113. Jlillen V. Fawdrv, 480. Slillor V. David, 241. V. Dell, 206, 344. V. Hancock, 494, 506. Millington v. Fox, 307. Mills, Case of, 148. V. Armstrong, 443, 452, 455, 465, 620, 621. XXXll INDEX OF CASES. Mills V. Graham, 546. Milhvard v. M. Eail. Co., 552. Milwaukee, &c. R. R. Co.z'.Arms, 186, 425. and St. Paul E. R. Co. r. Kellogg, 437. Mitchell ■!'. Crassweller, 84, 85. ('. Rochester Rail. Co., 53. Moffatt V. Bateman, 494, 505, 519, 629. Mogul Steamship Co. r. McGregor, Low & Co., 149, 191, .313, 316. Montgomery r. Thompson, 156, 306. Moorcock, The, 495. IMoore v. Hall, 401. V. Metrop. Rail. Co., 89. r. Rawscn, 399, 402. V. Robinson, 328. Morgan v. London Gen. Omnibus Co., 556. V. Vale of Neath Rail. Co., 99. Morris v. Piatt, 137. Moses V. Macferlan, 521. Mostyn v. Fabrigas, 111. Mott r. Shoolbred, 414, 616. Mouse's Case, 168. Mowbray v. Merryweather, 551. M. Moxham, The, 200, 201. Moyle V. Jenkins, 554. IMuhammad Ismail Khan v. IMu- hamniad Tahir, 595. Muhammad Yusuf r. P. & 0. Co., 576. Mullen V. St. John, 500. Mulligan r. Cole, 248. MuUiner r. Florence, 350. Mumford r. Oxford, 414. Munday r. Thames Ironworks Co., 555. Munster v. Lamb, 257, 599. Murphy v. Deane, 428. Murray v. Currie, 79, 80. V. Hall, 353. Musgrave v. Chung Teeong Toy, 112. N. Nash V. Lucas, 376. National Plate Glass Insurance Co. V. Prudential Assurance Co. , 402. National Telephone Co. v. Baker, 470. Neate v. Denman, 120. Nelson v. Liverpool Brewery Co., 415, 616. Nevill V. Fine Art, &c. Insurance Co., 248, 260, 601. Newoomb v. Boston Protective Department, 176. New England R. E. v. Courcy, 108. Newman v. Phillipsburg Horse Car Co., 457. Newson v. Pender, 402. Newton v. Harland, 370. Nichols V. Marsland, 132, 475, 476, 623. Nilmadhab Mookerjee v. Dookee- ram Khottah, 595. Nitro-Glycerine Case, 135, 145, 473, 625. N. 0. & N. E. R. R. Co. r. Jopes, 171. Noel ('. Redruth Foundry Co., 554. Norris v. Baker, 404. North Eastern Rail. Co. v. Wanless, 431, 460. Northampton's, Earl of. Case, 250. Netting Hill, The, 539. Nugent V. Smith, 475, 513. Nuttall V. Bracewell, 367. Nyberg v. Handelaar, 353. 0. Oakey v. Dalton, 65. Ogston r. Aberdeen District Tram- ways Co., 399. Oliver r. Local Board of Horsham, 194. Ormerod v. Todmorden Mill Co., 367. Osborn r. Gillett, 62, 63, 64, 224. Osborne v. Chocqueel, 481. Jackson, 552, 556. Oxley r. Watts, 380. Paley r. Garnett, 551. Palmer v. Thorpe, 240. r. Wick and Pulteney town Steam Shipping Co., 195. Pappa V. Rose, 116. Parankusam Narasaya Pantula v. Stuart, 590. Pardo V. Bingham, 206. Parker v. First Avenue Hotel Co., 401. INDEX OF CASES. XXXlll Parkes v. Presoott, 247. Parkins i\ Soott, '237, 250. Parlement Beige, The, 113. ParneU i'. Walter, 270. Parry r. Smith, 486. Partridge v. General Council, &o., 120, 121. Parvals v. iMannar, 592. Pasley v. Freeman, 278, 296. Pasmore v. Oswaldtwistle Urban Council, 26. Patrick i'. Coleriok, 372. Paul i'. Summerhaye.s, 379. Pearce v. Lansdowne, 556. Pearson v. Lemaitre, 269. Pease r. Gloahec, 536. Peek V. Derry, 192. i'. Gurney, 72, 191, 277, 281, 286, 291, 604. Pendarves v. Monro, 402. Pendlebury v. Greenhalgh, 79. Pennington v. Brinsop Hall Coal Co., 413. Penny v. Wimbledon Urban Coun- cil, 73, 501. Penruddock's Case, 890, 407, 416, 614. Perry v. Pitzhowe, 404. Perryman v. Lister, 221 . Petrel, The, 96. Phillips V. Barnet, 57. V. Eyre, 111, 201, 202. V. Homfray, 71, 548. V. L. & S. W. Rail. Co., 180, 185. Piokard v. Smith, 490. Pickering v. James, 122. . V. Rndd, 383. Piggott V. E. C. Rail. Co., 477. Pilcher v. Rawlins, 325. Pilgrim v. Southampton, &o. Co., 384. Pinchon's Case. 65, 548. Pinet & Cie. v. Maison Louis Pinet, 156, 306. Pippin V. Sheppard, 511. Pittard v. Oliver, 267, 268. PitumberDoss v. Dwarka Pershad, 595. Playford v. V. K. Electric Tele- graph Co., 531, 532. Plimmer v. Mayor of Wellington, 366. Polhill V. Walter, 276, 290, 602, 604. Ponnusdmy Tevar v. Collector of Madura, 570. Pontifex v. Bignold, 188. P.T. Pouting J'. Noakos, 474. Potter ('. Brown, 204. -v. Faulkner, 101, 188. Potts !'. Smith, 400. Poulton V. L. & S, W. Rail. Co., 8 J. Pounder v. N. E. Rail. Co., 434. Powell V. Birmingham Vinegar Brewery Co., 306. V. Deveney, 44. V. Pall, 483. V. Layton, 513. Powys V. Blagrave, 33S. Pozzi V. Shipton, 514, 515, 517. Praed v. Graham, 270. Pralhad MAhdrudra v A. C. Watt, 578. Presland v. Bingham, 402. Pretty v. Bickmore, 415, 617. Priestley v. Fowler, 95. Primrose v. Western Union Tele- graph Co., 536. Proctor I'. Webster, 263. Pugh V. L. B. & S. C. Rail. Co., 52. Pulling V. G. E. Rail. Co., 66. Pullman v. Hill & Co., 245. Purcell V. Sowler, 250, 253, 598. Pursell V. Home, 210. Pym V. G. N. Rail. Co., 68, 69. Q. Quarman v. Burnett, 79, 490. Quartz Hill, &c. Co. v. Beall, 190. V. Eyre, 811. R. Radley v. L. & N. W. Rail. Co., 443, 444, 450, 451. Raffey v. Henderson, 365. R. Ragunada Rau v. Nathamuni Thathamdyyangdr. 579. Raj Chuuder Roy i'. Shama Soon- dari Debi, 312, 606. Raj Koomar Singh v. Sahebzada Roy, 617. Rajmohun Bose v. E. I. Rail. Co., 129, 582. Raleigh v. Goscheu, 111. Ramsden i\ Dyson, 866. Randall v. Newson, 496. Rani Shamshoondri Deba ti.Dubhu Mundul, 578. Rapier v. London Tramways Co., 129 Rashdall r. Ford, 279. XXXIV INDEX OF CASES. Ratcliffe v. Evans, 237, 243, 302, 303, 527. Raymond v. Pitch, 541. Rayner v. Mitchell, 86. Rea V. Sheward, 376. Read v. Coker, 212. V. Edwards, 480. V. G. E. Rail. Co., 69. Readheadi!. Midland Rail. Co., 496. Reddaway v. Banham, 150, 306. Redgrave v. Hurd, 285, 294, 605. Reece v. Taylor, 215. Reed v. Nutt, 215. Reedie v. L. & N. W. R. Co., 79. Reese River Silver Mining Co. v. Smith, 286. R. V. Burdett, 595. — V. Commissioners of Sewers for Essex, 472, 475. — V. Coney, 157, 159. — V. Cotesworth, 210. — V. Duckworth, 211. — V. Harvey, 33. — V. Jackson, 123. — V. James, 211. — V. Judge of City of London Court, 555. — V. Latimer, 32, 142. — V. Lesley, 203. — V. Lewis, 158. — V. Munslow, 244. — V. Orton, 159. — V. Riley, 372. — V. St. George, 211, 589. — V. Sankara, 602. — V. Smith, .32. — V. Train, 386. — V. Williams, 59. Reinhardt v. Mentasti, 395. Rex V. Pease, 127, 130. Reynell v. Sprye, 285. Reynolds v. Edwards, 382. . V. Urban District Coun- cil of Presteign, 405. Rice V. Albee, 317. V. Corlidge, 257. . V. Manley, 303. V. Shuts, 549. Rich V. Basterfield, 415, 416, 617. V. Pilkington, 549. Ricket V. Met. Rail. Co., 388, 389, 612. Riding v. Smith, 237, 243. Rist V. Faux, 228. Robbins v, Springfield Street Rail. Co., 441. Robert Marys' Case, 224. Roberts v. Roberts, 238. Roberts v. Rose, 407. V. Wyatt, 358. Robinson v. Cone, 457. V. Kilvert, 395. Robson V. N. E. Rail. Co., 167, 436, 463, 622. Rogers v, Lambert, 348. — V. Eajendro Dutt, 153, 584. V. Spence, 186, 356. Romney Marsh, Bailiffs of, v. Trinity House, 43. Roope V. D'Avigdor, 199. Roscoe V. Boden, 375. Rose V. Miles, 388, 612. V. N. E. Rail. Co., 436, 463. Rosenberg v. Cook, 355. Rosewell v. Prior, 416, 616. Ross V. Rugge-Price, 193. Rourke v. White Moss Colliery Co., 81. Royal Aquarium Society v. Par- kinson, 258, 268. Rust V. Victoria Graving Dock Co., 184. Ryder v. Wombwell, 433. Rylands v. Fletcher, 12, 18, 142, 144, 163, 468, 471, 472, 473, 475, 476,477, 478, 483, 484, 490, 623. S. S. V. S. (16 Cox, 566), 199. Sadler v. G. W. Rail. Co., 189, 398. V. Heulock, 78. V. Staffordshire Tramways Co., 484. St. Asaph's, Dean of. Case, 139. St. Helen's Smelting Co. v. Tip- ping, 393, 396, 411, 614. St. Pancras, Vestry of, v. Batter- bury, 194. Salomons v. Knight, 191, 271. Salvin v. North Brancepeth Coal Co., 392, 395, 413, 613. Sanders v. Stuart, 536. V. Teape, 480. Saner r. Bilton, 338. Satku Valad Kadir Sausare v. Ibrahim Aga Valad MirzA Ag4, 613. Savile or Savill v. Roberts, 312. Saxby v. Manchester and Sheffield Rail. Co., 416. Scott V. Donald, 186. V. London Dock Co., 430, 439, 500, 619. INDEX OF CASES. XXXV Scott V. Pape, 402. V. Se\-mour, 201. V. Shepherd, 32, 48, 141, 172, 572, 586. V. Stansfield, 114, 115, 257. Scott's Trustees i\ Moss, 37. Seaman v, Netherclift, 257, 599. Searles v. Scarlett, 266. Secretary of State in Council of India ■u.Kamachee Boye Sahaba, 109. Selby V. Nettlefold, 378. Semayne's Case, 373. Serolca v. Kattenburg, 57. Seshaiyangar v. E. Ragunatha Row, 579. Seton V. Lafone, 35, 352. Seward v. The Vera Cruz, 67. Seymour r. Greenwood, 88, 91. Shaffers t. Gen. Steam Naviga- tion Co., 556. Shama Churn Bose r. Bhola Nath Dutt, 573. Sharp V. Powell, 46, 48, 49, 50, 572. Shaw V. Hertfordshire C. C, 207. ■ V. Port Philip Gold ilining Co., 92. Shelfer f. City of London Electric Lighting Co., 408, 413. Shepheard v. Whitaker, 248. Sheridan v. New Quay Co., 348, 609. Sherrington's Case, 548. Shiells V. Blackburne, 419, 511. Shipley v. Fifty Associates, 472. Shotts Iron Co. v. Inglis, 396. Simkin v. L. & N. W. Rail. Co., 52. Simpson r. Savage, 414. Siner v. N. E. Rail. Co., 436. Singer Jlanufacturing Co. v. Loog, 307. V. Wilson, 305. Singleton v. E. C. Rail. Co., 457. Six Carpenters' Case, The, 380. Skelton v. L. & N. W. Rail. Co., 440. Skinner r. L. B. & S. C. Rail. Co., 429. & Co. V. Shew & Co., 302. Skipp V. E. C. Rail. Co., 100. Slade's Case, 511. Slattery's Case, 435, 460. Slim V. Croucher, 191, 288. Smart v. Jones, 366. Smith V. Baker, 144, 164, 165, 166, 167, 497, 552, 558. Smith V. Baxter, 402. i". Birmingham Gas Co., 92, V. Boston Gas Co., 486. V. Brown, 67. V. Brownlow, Earl, 404. V. Chadwick, 277, 286, 292 295. V. Cook, 479. V. Green, 35, 540. V. L. & S. \V. Rail. Co., 40, 420, 437, 477, 619. i). London and St. Katharine Docks Co.. 493, 628. ■ V. Millea, 330. V. S. E. Rail. Co., 434. r. Sydney, 220. Snark, The, 495. Sneesby v. L. & Y. Rail. Co., 85. Snowden v. Baynes, 542. Soltau V. De Held, 396, 614. Somerville v. Hawkins, 263, 601. Southcote V. Stanley, 505. South Hetton Coal Co. v. N. E. News Association, 243. Spade V. Lynn and Boston R. R., 52. Speight V. Oliviera, 227, 229. Spill V. Maule, 263, 269. Staight V. Burn, 402. Stanley v. Powell, 144, 473. Stanton v. Scrutton, 551. Steele v. Brannan, 266. Stephens v. Elwall, 342, 348. V. Myers, 212. Stetson V. Faxon, 388, 612. Stevens v. Jeacocke, 193. ■ V. Sampson, 252, 267, 599. Stevenson v. Newnham, 155. ■ i\ Watson, 115. Steward v. Young, 302. Stewart v. Wyoming Ranche Co., 280. Stikeman v. Dawson, 55. Stone r. Denny, 282. V. Hyde, 555, 556. Storey v. Ashton, 85, 575. Street v. Union Bank, 156. Sturges L'. Bridgman, 393, 394, 615. Sullivan v. Spencer, 111. V. Waters, 490, 503. Sutton V. Town of Wauwatosa, 176. Swann v. Phillips, 297. Sweeney v. Old Colony and New- port B. R. Co., 498. Swift V. Jewsbury, 296. Swinfen v. Bacon, 382. INDEX OF CASES. Swire v. Francis, 93, 300. Sykes v. Sykes, 306. T. Tandy v. Westmoreland, 111. Tapling v. Jones, 401, 402. Tarini Charan Bose v. Debnrayan Mistri, 609. Tarleton v. McGawley, 231, 317. Tarry v. Ash ton, .500, 628. Tasmania, Tlie, 460. Tattan v.G.W. Rail. Co., 514. Taylor v. Ashton, 280, 286. V. Greenhalgh, 79. V. M. S. & L. Rail. Co., 517, 519, 524, 526. ■ V. Newman, 171. Temperton v. Russell, 317. Terry v. Hutchinson, 228. Tharsis Sulphur Co. v. Loftus, 116. Thomas v. Quartermaine, 100, 163, 164, 166, 497, 551, 553, 554. V. Sorrell, 362. V. Williams, 190. V. Winchester, 486, 487, 488, 528, 026. Thompson v. Brighton, Mayor of, l'J4. r. Gibson, 415. v. London County Council, 189. V. Ross, 227. Thomson v. Clanmorris, Lord, 207. Thorley's Cattle Food Co. v. Mas- sam, 190, 303. Thorogood v. Bryan, 452, 453. Thorpe v. Brumiitt, 398. Thrussell v. Handyside, 164, 167. Tillett V. Ward, 480, 572. Timothy v. Simpson, 218. Tipping V. St. Helen's Smelting Co., 393. Tod-Heatly v. Benham, 392. Todd V. Flight, 415, 616. ToUit V. Sherstone, 528. Tompson v. Dashwood, 247. Tozer i'. Child, 122, 321, 006. Traill v. Baring, 285. Tuberville v. Savage, 212. V. Stamp, 77, 482, 625. Tucker v. Linger, 340. Tuffr. Warman, 443, 448, 459, 620. Tullidge r. Wade, 186, 225. Tunney v. M. Rail. Co., 97, 576. Turner v. Ringwood Highway Board, 387, 391. V. S. P. & D. Rail. Co., 576. V. Stallibrass, 515, 517. Twomley v. Central Park R. R. Co., 464. Twycross v. Grant, 62, 65. Tyrringham's Case, 376. U. Udell V. Atherton, 276. Underwood v. Hewson, 141. Union Credit Bank v. Mersey Docks and Harbour Co., 342, 345, 352. Union S. S. Co. v. Claridge, 81. Usill V. Hales, 265. V. Vallance v. Falle, 194. Vandenburgh v. Truax, 36, 571. Vaspor V. Edwards, 876, 381. Vaughan v. Menlove, 422. V. TafE Vale Rail. Co., 127, 477, 483, 625. Vegelahn v. Guntner, 147, 317. Vernon v. Keys, 278. Vicars v. Wilcocks, 49, 236, 237, 320. Victorian Ry. Commissioners v. Coultas, 50. Vinayab Disakar v. Bil Itcha, 579. Vlranna v. Nagayyah, 573. Vithoba Malhari v. Corfield, 578. Vizetelly tJ. Mudie's Select Library, Ltd., 244, 246. W. Waite V. N. E. Rail. Co., 455, 621. Wakelin v. L. & S. W. Rail. Co., 426, 428, 435, 450, 619. Wakeman r. Robinson, 143. Walker v. Brewster, 396. V. Cronin, 319. V. Needham, 546. Wallis V. Harrison, 362. Walsh V. Whiteley, 166, 551. Walter v. Selfe, 392, 393, 613, 614. Walters v. Green, 189. Wandsworth Board of Works v. United Telephone Co., 333. INDEX OF CASES. Wanless i: N. E. Rail. Co., i31, 432, 434, 618, 622. Ward V. Hobbs, 26. t'. Lloyd, 199. Warlow !'. Harrison, 283. Warner v. Riddiford, 216. Warren v. Brown, 395, 401. Wasliington E. R. Co. v. McDade, 465. Wason V. Walter, 252, 265, 599. Watkin v. Hall, 250, 597. Wears, Re, 242. Weaver v. Ward, 140, 141. Webb V. Beavan, 288. V. Bird, 399. Weblin r. Ballard, 551, 553. Weems v. Mathieson, 100. Weir c. Bell, 275. Weldon v. JJe Bathe, 57. V. Neal, 208. ■ V. Winslow, 57. Welfare v. L. & B. Rail. Co., 502. Wellock V. Constantino, 199. Wells V. Abrahams, 198, 199. Wenman v. Ash, 247. Wennhak v. Morgan, 187, 247. West Ham Central Charity Board r. E. London Waterworks Co., 337. West V. Nibbs, 374, 380, 381. u. Smallwood, 219. Western Bank of Scotland v. Addie, 281, 300. West London Commercial Bank v. Kitson. 279. Whalley v. L. & Y. Rail. Co., 173. Whatman v. Pearson, 84, 575. Wheeler v. Mason Manufacturing Co., 103. White V. France, 493. V. Jameson, 416, 616. V. Lang, 176. V. Mellin, 296. ■ V. Spettigue, 197. Whiteley v. Pepper, 502. Whitham u. Kershaw, 184, 188, 192, 629. Whittaker, Ex parte, 278. V. Scarborough Post Newspaper Co., 270. Whitwham v. Westminster Brym- bo Coal and Coke Co., 185. Wicks V. Pentham, 308. Wiggett V. Fox, 101. Wigsell r. School for Indigent Blind, 192. Wilbraham ii. Snow, 340. Wild V. Waygood, 80, 552. Wilkes V. Hungerford Market Co., 388, 612. Wilkius V. Day, 389. Wilkinson v. Dounton, 62. V. Haygarth, 353. Willetts V. Watt, 551. Williams v. Birmingham Battery and Metal Co., 100, 165. V. East India Co., 625. u. G. W. Rail. Co., 42, 431. V. Jones, 86. V. Smith, 266. Williamson 1). Allison, 278, 284, 512. V. Freer, 245,268,602. Willis V. Maclachlan, 114. Wilson V. Barber, 358. V. McLaughlin, 344. r. Merry, 97, 99. V. Newberry, 474, 476. I'. Tumman, 75. V. Waddell, 472. Winsmore v. Greenbank, 226. Winter v. Brockwell, 365. Winterbottom v. Derby, 388, 613. i;. Wright, 497, 527. Wood V. Durham, 271. I: Leadbitter, 363, 864, 365, 366. V. Waud, 393, 616. ■«. Woad,121. Woodhouse v. Walker, 65, 336. Woodley v. Metr. Dist. Rail. Co., 168. Woodward iJ. Walton, 225. Worth V. GiUing, 481. Wren v. Weild, 302. Wright V. Leonard, 58. (.. Pearson, 481. V. Ramscot, 384. Yarborough v. Bank of England, 59. Yarmouth v. France, 163, 164, 497, 551, 653, 556. Yates V. Jack, 401. YEAE BOOKS CITED. PAGE 22 Ass. pi. 48 375 100, — 67 58 102, — 76 231 27 134, — 11 213 30 177, — 19 234 7 Edw. III. 65, — 67 148 48 20, — 8 357 2 Hen. IV. 18, — 5 482,514 11 1-2, — 2 229 47,— 21 148,592 75, — 16 380 19 Hen. YI. 33, — 68 480 45, — 94 223,357 66, — 10 61 21 26, — 9 231 22 14, — 23 149 31, 230 826, 230 33 27,— 12 .3.36,381 36 206,— 8 213 87 37, — 26 378 39 7, — 12 364 6 Edw. IV. 7, — 18 140 8, 378 8 23, — 41 168 9 35, — 10 372,377 12 13, — 9 3,59 14 7,— 13 2.31 15 1,-2 59 17 1, 3* 17 3,— 2 213 20 11,— 10 480 21 766,— 9 379 7 Hen. VII. 22, — 3 348 9 7_ _ 4 231 15 loi — 18 405 16 2,- 7 359 21 07 _ 5 140,168,378 28' 139,169 39, — 50 170 856, 378 866,- 19 378 27 39, — 49 359 12 Hen. VIII. 2, 169 27 27,— 10 887,389,612 THE LAW OF TOETS. Book I.— GENERAL PART. CHAPTEE I. THE NATURE OF TORT IN GENERAL. The law of Torts (a), or civil wrongs, is a collective Of tort in name for the rules governing many species of liability daty^ot which, although their subiect-matter is wide and varied, |° ''5" ""■ , . lawful have certain broad features in common, are enforced by harm. the same kind of legal process, and are subject to similar exceptions. All members of a civilized commonwealth are under a general duty towards their neighbours to do them no hurt without lawful cause or excuse. The precise extent of the duty, as well as the nature and extent of the recognized exceptions, varies according to the nature of the case. But this does not affect the generality of the principle, any more than the infinite variety of matters about which contracts may be made, and the considerable though finite number of different known kinds of contracts, with special rules as to the effect and fulfilment of each of them, affect the truth of the general proposition that we must perform our contracts. In fact the principle was enunciated long ago (a) It is a mere accident that tort, languagp. In Spenser's Faerie iis 11 synonym for uroncj, lias not Quncne it is freelj' used, become part of our cuiTent literary P.T. B THE KATUKE OF TORT I\ GENERAL. b}' Ulpian in his familiar statement of the command- ments of the law, preserved in the introductory chapter of Justinian's Institutes: "luris praecepta sunt haec : honestevivere,alterum non laedere,suumcuique tribuere." "Without endeavouring to force on Ulpian or his Stoic masters a more exact meaning than they had, ^\e may find in his words a broad summary of a lawful man's duties which is founded on the permanent elements in human affairs, and is therefore still true and useful. Iloneste virerc is to lead a life free from crime and scandal. Suum cuique tiihueri' is, literall_y, to give every man his due ; that is, in fact, not to encroach or make unfounded claims on what belongs to others, and to per- form whatever one has legally bound oneself to perfoi-m. Alterum non Lederc is to forbear from inflicting unlawful harm in general. As the English Church catechism has adapted Ulpian's words, it belongs to my duty towards iiay neighbour " To hurt nobody by word nor deed : To be true and just in all my dealing" (h). But neither the Latin nor the English phrase is clear enough to bring out the real fundamental distinctions implied in the fact that we recognise Torts as forming an indi- vidual branch of the law. We must briefly specify these. The duty is general and fixed by Jaw : distinc- tion from contract and familj' relations. The duty, whatever else it may be, is a duty towards our neighbour. Breach of it will entitle some one to bring an action for redress. An offence punishable by the State may not create any such private right. If it does not, it is no civil wrong ; and this is in fact the case with some of the gravest public offences. Also in cases of tort the duty that has been violated is general. It is owed either to all our fellow-subjects, or to some consider- (S) Goodricli. Bishop of Ely, by -was a learned civilian, and no other whom this was probably framed, origin has been suggested. DISTINCTION' FROM HREACH OF CONTRACT. 3 able class of them, and it is fixed by the law and the law alone. Here lies the difference between civil wrongs, properly so called, and breaches of contract. It is not right to break one's contract, though in cases of honest error due to the parties' intentions not being clearly expressed or otherwise, or of innocent disability prevent- ing performance, there may be legal liability without any moral blame. But breach of contract, wilful or not, is the breach of duties which the parties have fixed for themselves. Duties under a contract may have to be interpreted or supplemented by artificial rules of law, but they cannot be superseded while there is any con- tract in being. The duties broken by the commission of civil wrongs are fixed by law, and independent of the will of the parties ; and this is so even where they arise out of circumstances in which the responsible party's own act has placed him(c). Again, these general duties are different in other important respects from those which arise out of the domestic relations, although they agree with them in not depending on the will of the parties. For the mutual duties of husband and wife, parents and children, and the like, are strictly personal, and moreover only part of them can be or is dealt with at all by positive rules of law. Down to modern times they were regarded in this country as not belonging to the ordinary jurisdiction of temporal courts ; marital and parental authority were incidentally recog- nized, but matrimony and matrimonial causes were " spiritual matters." We shall not find laid down in our authorities any History such broad principles as are above indicated ; nor is there of English classifica- (c) The class of cases in which the here. It is consideroil in the last tion. suhstance of the duty arises out of chapter of this book, contract is too peculiar to detain us B 2 THE NATURE OF TORT IX GENERAL. anything surprising in this. The ancient common law knew nothing of large classifications founded on the sub- stantive nature of what was in issue. There were forms of action with their appropriate writs and process, and authorities and traditions whence it was known, or in theory was capable of being known, whether any given set of facts would fit into any and which of these forms. In early times it was the existence of a remedy in the King's Court, not the failure to provide a remedy for an apparent wrong, that was exceptional. No doubt the forms of action fell, in a manner, into natm*al classes or groups. But no attempt was made to discover or apply any general principle of arrangement. In modern times, that is to say, since the Kestoration, we find a certain rough classification tending to prevail (rf). It is assumed, rather than distinctly asserted or established, that actions maintainable in a court of common law must be either actions of contract or actions of tort. This division is exclusive of the real actions for the recovery of land, already becoming obsolete in the seventeenth century, and finally abolished by the Common Law Procedure Act, with which we ' need not concern our- selves : in the old technical terms, it is, or was, a division of personal actions only. Thus torts are distinguished from one important class of causes of action ; and the distinction is practical and reasonable, for the increased importance of contract in modern times has made it possible to set questions arising out of contracts against those not arising out of contracts with a fair appearance of equality. Upon the other hand, they are distinguished in the modern law from criminal offences. In the medieval period the procedure whereby redress was (rf) Appendix A. LIMITS OF TEEMIXOLOGV. obtained for many of the injuries now classified as torts bore plain traces of a criminal or quasi-criminal character, the defendant against whom judgment passed being hable not only to compensate the plaintiff, but to pay a fine to the king. Public and private law were, in truth, but imperfectly distinguished. In the modern law, however, it is settled that a tort, as such, is not a criminal offence. There are various acts which may give rise to a civil action of tort and to a criminal prosecution, or to the one or the other at the injured party's option; but the civil suit and the criminal prosecution belong to different jurisdictions, and are guided by different rules of procedure. Torts belong to the subject-matter of Common Pleas as distinguished from Pleas of the Crown. Again, the term and its usage are derived wholly from the Superior Courts of "West- minster as they existed before the Judicature Acts. Therefore the law of torts is necessarily confined by the limits within which those courts exercised their juris- diction. Divers and weighty affairs of mankind have been dealt with by other courts in their own fashion of procedure and with their own terminology. These lie wholly outside the common law foi'ms of action and all classifications founded upon them. According to the common understanding of words, breach of trust is a wrong, adultery is a wrong, refusal to pay a just com- pensation for saving a vessel in distress is a wrong. An order may be made compelling restitution from the defaulting trustee ; a decree of judicial separation may be pronounced against the unfaithful wife or husband ; and payment of reasonable salvage may be enforced against the ship-owner. But that which is remedied in each case is not a tort. The administration of trusts belongs to the law formerly peculiar to the Chancellor's b THE NATUKE OF TORT IN GENERAL. Court ; the settlement of matrimonial causes between husband and wife to the law formerly peculiar to the King's Ecclesiastical Courts ; and the adjustment of salvage claims to the law formerly peculiar to the Admiral's Court. These things being unknown to the old common law, there could be no question of tort in the technical sense. It is to be observed, however, that in every such case there is a real distinction from the torts known to the Common Law. The law of trusts is concerned with duties created by the will of the parties, and the law of husband and wife, as we have said, with a strictly personal relation. The law of salvage belongs by its character to the depart- ment of what is now called quasi-contract, where duties analogous to those of a promisor are imposed, for reasons of convenience and equity, on a person who has not made any promise. The The general principle that one must not do unlawful genera nf o j. torts in harm to one's neighbour will of course not tell us in ia"\ '^ detail what harm is unlawful. It may now be useful, accordingly, to examine what are the leading heads of the English law of torts as commonly received. The civil wrongs for which remedies are provided by the common law of England, or by statutes creating new rights of action under the same jurisdiction, are capable of a threefold division according to their scope and effects. There are wrongs affecting a man in the safety and freedom of his own person, in honour and reputa- tion (which, as men esteem of things near and dear to them, come next after the person, if after it at all), or in his estate, condition, and convenience of life generally : the word estate being here understood in its widest sense, as when we speak of those who are " afflicted or CLASSIFICATION OF TORTS. 7 distressed in mind, body, or estate." There are other Avrongs which affect specific rights of possession and property, or rights in the nature of property. There are yet others which may affect, as the case happens, person or property, either or both. We may exhibit this division by arranging the famiUar and typical species of torts in groups, saying nothing for the present as to the various possible grounds of justifica- tion or excuse. Group A. Personal Wrongs. Personal wrongs. 1. Wrongs a Meeting safety and freedom of the person : Assault, battery, false imprisonment. 2. Wrongs affecting personal relations in the family : Seduction, enticing away of servants. 3. Wrongs affecting reputation : Slander and libel. 4. Wrongs affecting estate generally : Deceit, slander of title, fraudulent competition by colourable imitation, &c. Malicious prosecution, conspiracy. Group B. Wrongs to Possession and Property. Wrongs to property. 1. Trespass : (a) to land. (b) to goods. Conversion and unnamed wrongs ejusdem generis. Disturbance of easements, &c. 2. Interference with rights analogous to property, such as private franchises, patents, copyrights, trade- marks. o the nature of tort in general. Group C. Wrongs Wrongs to Person, Estate, and Property qenerally. affecting person and -• -kt • property. 1- NuisailCe. 2. Negligence. 3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings. This kind of liability results, as will be seen hereafter, partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negligence. The general rule of law that a master is answerable for the acts and defaults of his servants in the course of their employment operates to extend liability under all these heads in various degrees. Group C. would be insignificant without it. All the acts and omissions here specified are un- doubtedly torts, or wrongs in the technical sense of English law. They are the subject of legal redress, and under our old judicial system the primary means of redress would be an action brought in a common law court, and governed by the rules of common law pleading (e). Character The groups above shown have been formed simply with fui acts, ' reference to the effects of the wrongful act or omission. &c., under g^^j. ^^^^^ appear, on further examination, to have certain (e) In some cases the really effec- tual remedies were administered by the Court of Chancery, but only as auxiliary to the legal right, which it was often necessary to establish in an action at law before the Court of Chancery would interfere. MORAL ELEMENTS. 9 distinctive characters with reference to the nature of the the several act or omission itself. In Gronp A., generally speaking, Wilful' the wrong is wilful or wanton. Either the act is intended ^''°"='*- to do harm, or, being an act evidently likely to cause harm, it is done with reckless indifference to what may befall by reason of it. Either there is deliberate injury, or there is something like the self-seeking indulgence of passion, in contempt of other men's rights and dignity, which the Greeks called vjSpis. Thus the legal wrongs are such as to be also the object of strong moral con- demnation. It is needless to show by instances that violence, evil-speaking, and deceit, have been denounced, apart from any secular legal prohibition, by righteous men in all ages. If any one desires to be satisfied of this, he may oi^en Homer or the Psalter at random. AVhat is more, we have here to do with acts of the sort that are next door to crimes. Many of them, in fact, are criminal offences as well as civil wrongs. It is a common border-land of criminal and civil, public and private law. In Group B. this element is at first sight absent, or at Wrongs any rate indifferent. "Whatever may or might be the rentiy un- case in other legal systems, the intention to violate ^y'Jmorai another's rights, or even the luiowledge that one is blame. violating them, is not in English law necessary to constitute the wrong of trespass as regards either land or goods, or of conversion as regards goods. On the contrary, an action of trespass — or of ejectment, which is a special form of trespass — has for centuries been a common and convenient method of trying an honestly disputed claim of right. Again, it matters not whether actual harm is done. "By the laws of England, every invasion of private property, be it ever so minute, is a 10 THE XATURE OF TORT IN GENERAL. trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing ; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil" (/). Nor is this all; for dealing with another man's goods without lawful authority, but under the honest and even reasonable belief that the dealing is lawful, may be an actionable wrong notwithstanding the innocence of the mistake (g). Still less will good intentions afford an excuse. I find a watch lying in the road ; intending to do the owner a good turn, I take it to a watchmaker, who to the best of my knowledge is competent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on it, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word, the duty which the law of England enforces is an absolute duty not to meddle without lawful authority with land or goods that belong to others. And the same principle applies to rights which, though not exactly property, are analogous to it. There are ex- ceptions, but the burden of proof lies on those who claim their benefit. The law, therefore, is stricter, on the face of things, than morality. There may, in particular circumstances, be doubt what is mine and what is my neighbour's ; but the law expects me at my peril to know what is not mine in every case. To some extent this must obviously be so, lest wrong-doers should go scot-free under cover of pretended ignorance. It may seem unreasonable, at first sight, to expect a man to know at his peril what things are his neighbour's ; but (/) PerCuv. Enticlcx.Currington, {(/) Sqb HoUitis v. Fovln; L. R. 19 St. Tr. 1066. 7 H. L. 757, 44 L. J. Q. B. 169. MOE.VL ele:mexts. 11 it is not evidently unreasonable to expect him to know what is his own, and this is only the statement of the same rule from the other side. The prominence of the rule m the Common Law, and in this department of it more than another, depends on historical causes to be mentioned presently. In Group C. the acts or omissions complained of Wrongs oe have a kind of intermediate character. They are not ,ience and as a rule wilfully or wantonly harmful ; but neither ^""ssion. are they morally indifferent, save in a few extreme cases under the third head. The party has for his own purposes done acts, or brought about a state of things, or brought other people into a situation, or taken on himself the conduct of an operation, which a prudent man in his place would know to be attended with certain risks. A man who fails to take order, in things within his control, against risk to others which he actually foresees, or which a man of common sense and competence would in his place foresee, will scai-cely be held blameless by the moral judgment of his fellows. Legal liability for negligence and similar wrongs corresponds approximately to the moral censure on this kind of default. The commission of something in itself forbidden by the law, or the omission of a positive and specific legal duty though without any intention to cause harm, can be and is, at best, not more favourably con- sidered than imprudence if harm happens to come of it ; and here too morality will not dissent. In some con- ditions, indeed, and for special reasons which must be considered later, the legal duty goes beyond the moral one. There are cases of this class in which liability cannot be avoided, even by proof that the utmost diligence in the way of precaution has in fact been used. 12 THE NATURE OF TORT IN GENERAL. and yet the party liable has done nothing which the law condemns (li). Except in these cases, the liability springs from some shortcoming in the care and caution to which, taking hmiian affairs according to the common knowledge and experience of mankind, we deem om-selves entitled at the hands of om* fellow-men. There is a point, though not an easily defined one, where such shortcoming gives rise even to criminal liabilitj^ as in the case of manslaughter by negligence. Eolation We have, then, three main divisions of the law of of the law i • i • n i of torts to torts, in one of them, which may be said to have a dutSs quasi-criminal character, there is a very strong ethical element. In another no such element is apparent. In the third such an element is present, though less mani- festly so. The apparent absence of intelligible relation to moral conceptions in the second group may well seem at first sight to stand in the way of ascribing rational unity to our law of torts as a whole. A right of property is interfered with ' ' at the peril of the person interfering with it, and whether his. interference be for his own use or that of anybody else"(i). And whether the interference be wilful, or reckless, or innocent but imprudent, or innocent without imprudence, the legal consequences and the form of the remedy are for English justice the same. This may appear inelegant if not unjust. {h) How far such a doctrine can oCLovds: Bi/lands v. Fletcher (1SS8] be theoretically or historically justi- L. E. 3 H. L. 330, 37 L. J. Ex. fied is not an open question for 161. English courts of justice, for it has (i) Lord O'Hagan, L. R. 7 H. L. beenexiilicitlyaffirmedbytheHouse at page 799. FORMS OF ACTION. 13 The truth is that we have here one of the historical Eaiiy curiosities of English law. Formerly there was a clear of forms of distinction in the forms of procedure (the only evidence ^°*'°'^- we have for much of the older theory of the law) between the simple assertion or vindication of title and claims for redress against specific injuries. It is true that the same facts would often, at the choice of the party wronged, afford ground for one or the other kind of claim, and the choice would be made for reasons of practical convenience, apart from any scientific or moral ideas. But the distinction was in itself none the less marked. For assertion of title to land there was the writ of right ; Writs of and the writ of debt, with its somewhat later variety, the writs of WTrit of detinue, asserted a plaintiff's title to money or rgstftiuion goods in a closely corresponding form (k). Injuries to °^' punish- person or property, on the other hand, were matter for the writ of trespass and certain other analogous writs, ' and (from the thirteenth century onwards) the later and more comprehensive writ of trespass on the case (l). In the former kind of process, restitution is the object sought ; in the latter, some redress or compensation which, there is (k) The writ of riglit (Glauvill, histe ei sine dilatiuuc. Bk. i. c. 6) runs thus : " Rex vice- (1) Bkckstone iii. 122 ; F. N. B. comiti saluteni : Praecipe A. quod 92. Tlie mark of this class ofactions siue dilationereddat B. unam hidam is tlie conclusion of the writ contra terrae in villa ilia, unde idem B. parem. Writs of assize, including queritur quod praedictus A. ei de- the assize of nuisance, did not so forceat : et nisi fecerit, summone conclude, but show analogies of form eum," &c. I'hewritof debt (Bk. X. to the writ of trespass in other re- c. 2) thus: "Rex vicecomiti saluteni: spects. Actions on the case might Praecipe N. quod iuste et sine dila- be founded on other writs besides tione reddat R. centum marcasquas that of trespass, e.g., deceit, which ei debet, ut dicit, et unde queritur contributed largely to the formation quod ipse ei iniuste deforceat. Et of the action of assumpsit. The nisi fecerit, summone eum," &c. writ of trespass itself is by no means The writs of covenant and account, one of the most ancient. See F. "W. which were developed later, also Jlaitland in Harv. Law Rev. iii. contain the characteiistie words 217-219. !•! THE NATURE OF TORT IN GENERAL. great reason to believe, was originally understood to be a substitute for private vengeance (hi) . Now the writs of resti- tution, as we may collectively call them, were associated with many cumbrous and archaic points of procedure, exposing a plaintiff to incalculable and irrational risk; while the operation of the writs of penal redress was by comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of trespass and its kind upon the writ of right and its kind. Not only was the writ of right first thrust into the back- ground by the various writs of assize and entry — forms of possessory real action which are a sort of link between the writ of right and the writ of trespass — and then superseded by the action of ejectment, in form a pure action of trespass ; but in like manner the action of detinue was largely supplanted by trover, and debt by assumpsit, both of these new-fashioned remedies being varieties of action on the case (n). In this way the dis- tinction between proceedings taken on a disputed claim of right, and those taken for the redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed ; and therefore, as the distinction of remedies was lost, the distinction between the rights which they protected was lost also. By a series of shifts and devices introduced into legal practice for the ease of litigants a great bulk of what really belonged to the law of property was trans- (in) Not retaliation. Early Gcr- case over the older forms of actions, manic law shows no trace of retalia- see Blackstone, iii. 153, 155. The tion in the strict sense. A passage reason given at p. 152 for the wa<,'er of in tlie introduction to Alfred's laws, law (as to which see Co. Lift. 295 a) copied from the Book of Exodus, is being allowed in debt and detinue no real exception. is some one's idle guess, due to mere (n) I''or tiie advantages of suing in ignorance of the earlier history. AXOJIALIES OB" TRESPASS. 15 ferred, in forensic usage and thence in the traditional habit of mind of Enghsh lawyers, to the law of torts. In a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor's intention ; hence the archaic law of injuries is a law of absolute liability for the direct consequences of a man's acts, tempered only by partial exceptions in the hardest cases. These archaic ideas of absolute liability made it easy to use the law of wrongful injuries for trymg what were really questions of absolute right ; and that practice again tended to the preservation of these same archaic ideas in other departments of the law. It will be observed that in our early forms of action contract, as such, has no place at all (o) ; an additional proof of the relatively modern character both of the importance of contract in practical life, and of the growth of the corresponding general notion. We are now independent of forms of action. Trespass Kationa- and trover have become historical landmarks, and the version oE question whether detinue is, or was, an action founded j^.^^ "[j^ on contract or on tort (if the foregoing statement of the history be correct, it was really neither) survives only to raise difficulties in applying certain provisions of the County Courts Act as to the scale of costs in the Superior Courts (p). It would seem, therefore, that a rational exposition of the law of torts is free to get rid of the extraneous matter brought in, as we have shown, by the practical exigency of conditions that no longer exist. At the same time a certain amount of excuse may be made on rational grounds for the place and function of the law (o) Except what may be implied parties to tlie contract : F. N. B. from the technical rale tliatthe word U9 ; Blaokstone, iii. 156. dcArf was proper only ill an action for {p) Bryant v. Hcrhoi (1878), :l- a sum of money between the original C. P. Div. 389, 47 L. J. C. P. 670. 16 THE NATURE OF TORT IN GENERAL. of trespass to property in the English system. A man can but seldom go by pure tmwitting misadventure beyond the limits of his own dominion. Either he knows he is not within his legal right, or he takes no heed, or he knows there is a doubt as to his right, but, for causes deemed by him sufficient, he is content to abide (or perhaps intends to provoke) a legal contest by which the doubt may be resolved. In none of these cases can he complain with moral justice of being held to answer for his act. If not wilfully or wantonly injurious, it is done with some want of due circumspection, or else it involves the conscious acceptance of a risk. A form of procedure which attempted to distinguish between these possible cases in detail would for practical purposes hardly be tolerable. Exceptional cases do occur, and may be of real hardship. One can only say that they are thought too exceptional to count in determining the general rule of law. From this point of view we can accept, though we may not actively approve, the inclu- sion of the morally innocent with the morally guilty trespasses in legal classification. Analogy We may now find it interesting to compare the Eoman Eomanob- System with our own. There we find strongly marked ^eTddll^to ^^^ distinction between restitution and penalty, which was apparent in old forms of action, but became obsolete in the manner above shown. Dr. Moyle (q) thus describes the specific character of obligations ex delicto : — " Such wrongs as the withholding of possession by a defendant who bond fide believes in his own title are not delicts, at any rate in the specific sense in which the term is used in the Institutes ; they give rise, it is true, to a right of action, but a right of action is a different thing (q) 111 his edition of the Institutes, note to Blc. iv. tit. 1, p. 613, 2nd ed. DOLUS AND CILPA. 17 from an ohligatio e.r delicto ,■ they are redressed by mere reparation, by the wrong-doer bemg compelled to put the other in the position in which he would have been had the wrong never been committed. But delicts, as contrasted with them and with contracts, possess three peculiarities. The obligations which arise from them are independent, and do not merely modify obligations already subsisting; thci/ always involve dolus or ctdpa; and the remedies hy tvJiich they are redressed are pe7ial." The Latin dolus, as a technical term, is not properlj' Bniiii.- and rendered by " fraud " in English ; its meaning is much ^"^^*" wider and answers to what we generally signify by " un- lawful mtention." Culpa is exactly what we mean by " negligence," the falling short of that care and circum- spection which is due from one man to another. The rules specially dealing with this branch have to define the measure of care which the law prescribes as due in the case in hand. The Eoman conception of such rules, as worked out by the lawj'ers of the classical period, is excellently illustrated by the title of the Digest " ad legem Aquiliam," a storehouse of good sense and good law (for the principles are substantially the same as ours) deserving much more attention at the hands of English lawyers than it has received. It is to be observed that the Eoman theory was built up on a foundation of archaic materials by no means unlike our own ; the compensation of the civilized law stands instead of a primitive retaliation which was still recognized by the law of the Twelve Tables. If then we leave aside the English treatment of rights of property as being accounted for by peculiar historical causes, we find that the Eoman conception of delict agrees very well with the conception that appears really to underlie the English laAV of tort. Liability for P.T. c quasi e.x delicto. 18 THE NATURE OF TOBT IN GENERAL. delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them (dolus), or of a failure to observe due care and caution which has similar though not intended or expected consequences (culpa). In the Common Law we have, apart from the law of trespass. Liability an exceptionally stringent rule in certain cases where liability is attached to the befalling of harm without proof of either intention or negligence, as was mentioned under Group C. of our outline. Such is the case of the landowner who keeps on his land an artificial reservoir of water, if the reservoir bursts and floods the lands of his neighbours. Not that it was wrong of him to have a reservoir there, but the law says he must do so at his own risk ()•). This kind of liability, too, has its parallel in Eoman law, and the obligation is said to be not ex delicto, since true delict involves either dolus or culpa, but quasi e.r delicto (s) . Whether to avoid the difficulty of proving negligence, or in order to sharpen men's precaution in hazardous matters by not even allowing them, when harm is once done, to prove that they have been diligent, the mere fact of the mischief happening gives birth to the obligation. In the cases of carriers and innkeepers a similiar liability is a very ancient part of our law. What- ever the original reason of it may have been as matter of history, we may be sure that it was something quite unlike the reasons of policy governing the modern class of cases of which Rylands v. Fletcher (t) is the type and leading authority ; by such reasons, nevertheless, the (r) Rylands v. Fletcher, L. E. 3 It is true, however, that the appli- H. L. 330, 37 L. J. Ex. 161. cation of the term in the Institutes (s) Austin's perverse and unin- is not quite consistent or comjilete. telligent criticism of this perfectly See Dr. Moyle's notes on I. iv. 5. rationalterminologyhasbeentreated (t) L. E. 3 H. L. 330. See Ch. withfarmorerespectthanitdeserves. XII. below. RELATION OF WRONG TO DAMAGE. 19 rules must be defended as part of the modern law, if they can be defended at all. The ways in which a right of action for a tort can Summary, arise in our law may be summed up in the following manner (if) : — Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including interference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person : — (a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of. (b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting. (c) It may be an act violating an absolute right (especially rights of possession or property) , and treated as wrongful without regard to the actor's intention or knowledge. This, as we have seen, is an artificial extension of the general conceptions which are common to English and Koman law. (d) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should with due dili- gence have foreseen and prevented. (e) It may, in special cases, consist merely in not (i() It may be worth while to analytical classification of the point out that this is not intended grounds of liability in tort, as a definition of tort, but as an , c 2 20 THE NATURE OF TORT IN GENERAL. avoiding or preventing harm which the party was bound, absokitely or within Kmits, to avoid or prevent. A special duty of this last kind may be (i) absolute, (ii) limited to answering for harm which is assignable to some one's negligence. In some positions a man becomes, so to speak, an insurer to the public against a certain risk, in others he warrants only that all has been done for safety that reasonable care can do. Connected in principle with these special liabilities, but running through the whole subject, and of constant occurrence in almost every division of it, is the rule that a master is answerable for the acts and defaults of his servants in the course of their employment. It will now be proper, before enumerating the several classes of torts, to investigate first the common principles of liabilitj^ and then the common principles of immunity which are known as matter of justification and excuse. We shall then proceed to the particular branches of the subject, together with the conditions and exceptions which specially belong to them. 21 CHAPTER II. rniNClPLES OF LIABILITY. Xo express authority has been found for stating as a Want of general proposition of English law that it is a wrong to do fn^arty*"*" wilful harm to one's neighbour without lawful justification ''''''• or excuse. Neither is there any express authority for the general proposition that men must perform their con- tracts. Both j)rinciples are in this generality of form or conception modern, and there was a time when neither was true. Law begins not with authentic general prin- ciples, but with enumeration of particular remedies. There is no law of contracts in the modern lawyer's sense, only a list of certain kinds of agreements which may be enforced. Neither is there any law of dehcts, but only a list of certain kinds of injury which have certain penalties assigned to them. Thus in the Anglo- Saxon and other early Germanic laws we find minute assessments of the compensation due for hurts to every member of the human body, but there is no general prohibition of personal violence ; and a like state of things appears in the fragments of the Twelve Tables (a) . ^Vhatever agreements are outside the specified forms of («) 111 Gaius iii. 223, 224, tlie moJerii than the English law of contrast between the ancient law of the Year-Books. Perhaps the his- fixed penalties and the modern law torical contrast holds only in Europe: of damages assessed by judicial see a note in L. Q. li. ix. 97, show- authority is clearly shown. The ing that among the Kachins on the student will remember that, as Bunnese frontier claims for nn- regards the stage of development liquidated damages are not only attained, the law of Justinian, and known but freely assignable, often that of Gaius, is far more 22 PRINCIPLES OF LIABILITY. obligation and modes of proof are incapable of enforce- ment ; whatever injuries are not in the table of com- pensation must go without legal redress. The phrase damnum sine iniuria, which for the modern law is at best insignificant, has meaning and substance enough in such a system. Only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy. General Such is not the modern way of regarding legal duties to do harm 01-" remedies. It is not only certain favoured kinds of in modern agreement that are protected, but all agreements that satisfy certain general conditions are valid and binding, subject to exceptions which are themselves assignable to general principles of justice and policy. So we can be no longer satisfied in the region of tort with a mere enumeration of actionable injuries. The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe in varying circum- stances an appropriate measure of prudence to avoid causing harm to one another. The situations in which we are under no such duty appear at this day not as normal but as exceptional. A man cannot keep shop or walk into the street without being entitled to expect and bound to practise observance in this kind, as we shall more fully see hereafter. If there exists, then, a posi- tive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of dntj with which the law of torts is concerned — namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others — are all alike of a comprehensive nature. As our law of con- MOTIVE AS ELEMENT OF LIABILITY. 23 tract has been generalized hj the doctrine of considera- tion and the action of assumpsit, so has our law of civil ■wrongs bj the wide and various applications of actions on the case (b). If there is a general duty not to do wilful harm, it Malice would seem on principle that the law need not regard ^^Jy in ^ the motive, in the sense of personal disposition, from '^'^'^^P^ tional which such an act proceeds, though the discretion of a oases. judge as to costs, or a jurj- as to damages, may do so. Harm done without excuse cannot be made more wrongful than it is by the addition of bad faith or per- sonal ill-will, nor made lawful by its absence. Again, it is a settled general rule in our law that when an act is done in the exercise of a common right, the motive is immaterial (c). Such an act may be discreet, courteous or neighbourly, or not, but calling it malicious will not make it unlawful. The use of such terms as " malice " and "maliciously" appears therefore more likely to per- plex the law and hinder the study of its true principles than to advance justice in any substantial manner. Unluckily the terms have been freely employed, and without any clear or constant meaning, and this has been the cause of great confusion which is not yet wholly removed (d). Eecent authority has made it clear, however, that the consideration of personal motive as a determining element of liability is at any rate exceptional. (5) The developed Eomaii Law [1895] A. C. 587, 64 L. J. Ch. 759 ; had either attained or was on the AUen v. Flood [1898] A. C. 1, 67 point of attaining a like generality L. J. Q. B. 119. of application. " Denique aliis (d) See Mr. W. F. Craies' learned pluribus modis admitti iniuriam articles oii "Malice" and "Mali- manifestum est :" I. iv. 4, 1. cioiis Prosecution " in Encycl. Laws (c) Brad/wdCorporatwnv. Tickles of Kngland. 2J! PRINCIPLES OF LIABILITY. The difficulty is to know whether any ground of principle can be assigned as common to these excep- tional cases (it is certain that none is yet established by authority) ; and this cannot be ascertained until their nature and incidents have been separately con- sidered. It may be provisionally suggested in this place that for certain purposes and on certain occasions, not many, a somewhat extensive liberty of interference with individual rights and convenience is deliberately allowed in the public interest. Being so allowed, it is in the nature of a special privilege — which indeed it is regularly called in one class of cases — rather than of a common right, and it is subject to the condition of being exercised in good faith and not abused for ends of personal enmity. Such abuse is called "malice" or "express malice," and deprives the act of justification; and reasons of the same kind seem to apply to all the cases in which, according to the modern decisions, malice, in any definite sense, can be really material (e). The words "malice," "malicious," and "maliciously" were formerly used in pleading, and thence in forensic and judicial language; in many places where they were superfluous. This usage has been sometimes explained away by saying that malice means only the want of excuse for an unlawful act wilfully done ; sometimes it has been frankly discredited. We are not here concerned with the fortunes of the same words in criminal law, where the disregard of their ordinary meaning has been extreme; but the common law doctrine of "malice aforethought " in murder and the statutory offence of " malicious damage " have no doubt contributed to the general obscurity of the subject. (c) Cp.thedictaofLorilHerschell, AUcn v. Flood [1900] A. C. 1, 93, Lord Watson, and Lord Davey, in 125, 172. SPECIFIC DUTIES. 25 Very little light is to be obtained from the history of the Latin word malitia. Classical usage, oftener than not, makes it import fraud or underhand contrivance as well as ill-will ; but sometimes it means vice or wickedness in general, and in the Vulgate we read Siifficlt dlei malitla siiu. The original intention of its use as a legal term was pro- bably to exclude reference to acts which were not wilful a all, or which were honestly done under a claim of right or in ignorance of the facts by reason of which the act was unlawful. In the result, the incautious adoption of popular language led to the worst kind of technicality. The commission of an act specifically forbidden by law, Acts iu or the omission or failure to perform any duty specifically ^^ep^gg"^ imposed by law, is generally equivalent to an act done legal duty with intent to cause wrongful injury. "Where the harm that ensues from the unlawful act or omission is the very kind of harm which it was the aim of the law to pre- vent (and this is the commonest case), the justice and necessity of this rule are manifest without further com- ment. Where a statute, for example, expressly lays upon a railway company the duty of fencing and watching a level crossing, this is a legislative declaration of the diligence to be required of the company in providing against harm to passengers using the road. Even if the mischief to be prevented is not such as an ordinary man would foresee as the probable consequence of dis- obedience, there is some default in the mere fact that the law is disobeyed; at any rate a court of law cannot admit discussion on that point ; and the defaulter must take the consequences. The old-fashioned distinction between mala proldUta and mala in se is long since exploded. The simple omission, after notice, to perform a legal duty, may be a wilful offence within the meaning 26 PRINCIPLES OF LIABILITY. of a penal statute (/) . As a matter of general policy, there are so many temptations to neglect public duties of all kinds for the sake of private interest that the addition of this quasi-penal sanction as a motive to their observ- ance appears to be no bad thing. Many public duties, however, are wholly created by special statutes. In such cases it is not an universal proposition that a breach of the duty confers a private right of action on any and every person who suffers particular damage from it. The extent of the liabilities incident to a statutory duty must be ascertained from the scope and terms of the statute itself. Acts of Parliament often contain special provisions for enforcing the duties declared by them, and those pro- visions may be so framed as to exclude expressly, or by implication, any right of private suit (g). The provision of a specific remedy for the breach of duties created by the Act is generally held to exclude other remedies (h) . Also there is no cause of action where the damage com- plained of "is something totally apart from the object of the Act of Parliament," as being evidently outside the mischiefs which it was intended to prevent. What the Legislature has declared to be wrongful for a definite purpose cannot be therefore treated as wrongful for another and different purpose (0- Duty of As to the duty of respecting proprietary rights, we property." have already mentioned that it is absolute. I'urther illustration is reserved for the special treatment of that division of the subject. {/) Gully Y. Smith (1883) 12 394, 67 L. J. Q. B. 635 ; cp. JoJm- Q. \>. D. 121, 53 L. J. Jl. C. 35. ston v. Consumers' Gas Co. of Toronto (g) Atkinson v. Newcastle Water- [1898] A. C. 447, 67 L. J. P. C. 33. works Co. (1877) 2 Ex. Div. 441, (i) Gorris v. Scott (1874) L. E. 46 L. J. Ex. 776. 9 E.\-. 125, 43 L. J. Ex. 92 ; TVard (h) Fa.wiore v. Oswaldticistlc v. Hobbs (1S78) 4 App. Ca. 13, 23, Urban Council [1898] A. C. 387, 48 L. J. Q. B. 281. DILIGENCE AND COMPETENCE. 27 Then we have the general duty of using due care and Duties of caution. What is due care and caution under given cir- *^'genoe. cumstances has to be worked out under the head of neghgence. Here we maj' say that, generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence. Moreover, if the party has taken in hand the conduct Assump- of anything requiring special skill and knowledge, we sldli.° require of him a competent measure of the skill and knowledge usually found in persons who undertake such matters. And this is hardly an addition to the general rule ; for a man of common sense knows wherein he is competent and wherein not, and does not take on himself things in which he is incompetent. If a man will drive a carriage, he is bound to have the ordinary competence of a coachman ; if he will handle a ship, of a seaman ; if he will treat a wound, of a surgeon ; if he will lay bricks, of a bricklayer ; and so in every case that can be put. Whoever takes on himself to exercise a craft holds him- self out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He must be reasonably skilled at his peril. As the Eomans put it, impciitia cid])ae adniimeratur (L). A good rider who goes out with a horse he had no cause to think ungovernable, and, notwithstanding all he can do to keep his horse in hand, is run away with by the horse, is not liable for what mischief the horse may do before it is brought under control again (/) ; but if a (k) D. 50. 17, dc (liv. reg. iuris (/) Eammaclc v. While (1862) 11 antiqui, 132 ; cf. D. 9. 2, ad legem 0. B. N. S. 588, 31 L. J. C. P. Aquiliam, 8. Both jiassages arefrom 129; Holmes v. Mather (1875) L. R. Gaius. 10 Ex. 261, 44 L. J. Ex. 176. *2S PRINCIPLES OF LIABILITY. bad rider is run away with by a horse which a fairly good rider could have kept in order, he will be liable. Exception An exception to this principle appears to be admissible of I16CGS- sity. in one uncommon but possible kind of circumstances, namely, where in emergency, and to avoid imminent risk, the conduct of something generally entrusted to skilled persons is taken by an unskilled person ; as if the crew of a steamer were so disabled by tempest or sickness that the whole conduct of the vessel fell upon an engineer without knowledge of navigation, or a sailor without knowledge of steam-engines. So if the driver and fireman of a train were both disabled, say by sun- stroke or lightning, the guard, who is presumabty unskilled as concerns driving a locomotive, is evidently not bound to perform the driver's duties. So again, a person who is present at an accident requiring immediate "first aid," no skilled aid being on the spot, must act reasonably according to common knowledge if he acts at all ; but he cannot be answerable to the same extent that a surgeon would be. There does not seem to be any distinct authority for such cases ; but we may assume it to be law that no more is required of a person in this kind of situation than to make a prudent and reasonable use of such skill, be it much or little, as he actually has. Liability We shall now consider for what consequences of his to conse- acts and defaults a man is liable. When complaint is quences niade that one person has caused harm to another, the of act 01- ■■- ' default. first question is whether his act {m) was really the cause of that harm in' a sense upon which the law can take action. The harm or loss may be traceable to his act, (m) For shortness' sake I shall often use the word "act" alone as et\uivalent to " act or default." MEASURE OF DAMAGES. 29 but the connexion may be, in the accustomed phrase, too remote. The maxim " In iure non remota causa sed proxima spectatnr " is EngUshed in Bacon's con- stantly cited gloss : "It were infinite for the law to judge the causes of causes, and their impulsions one of another : therefore it contenteth itself with the immediate cause ; and judge th of acts by that, with- out looking to any further degree " (;/). Liability must be founded on an act which is the "immediate cause" of harm or of injury to a right. Again., there may have been an undoubted wrong, but it may be doubted how much of the harm that ensues is related to the wrongful act as its "immediate cause," and therefore is to be counted in estimating the wrong- doer's liability. The distinction of proximate from remote consequences is needful first to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle the footing on which compensation for the wrong is to be awarded. The normal form of Measure of compensation for wrongs, as for breaches of contract, in ^ "■^^S'^^- the procedure of our Superior Courts of common law has been the fixing of damages in money by a jury under the direction of a judge. It is the duty of the judge (o) to explain to the jurors, as a matter of law, the footing upon which they should calculate the damages if their verdict is for the plaintiff. This footing or scheme is called the " measure of damages." Thus, in the common case of a breach of contract for the sale of goods, the measure of damages is the difference between the price named in («) Maxims of the Law, Keg. 1. tratiou of the extvcinely modern It is remarkable that nut one of the character of the whole subject as examples adduced by Bacon belongs now understood, to the law of torts, or raises a ques- {o) Hadley v. Ba xcndah (iSti) tion of the measure of damages. 9 Ex. 341, %'i L. J. Ex. 179. There could be no stronger illus- 30 PRIN'CIPLES OF LIABILITY. the contract and the market value of the like goods at the time when the contract was broken. In cases of contract there is no trouble in separating the question whether a contract has been made and broken from the question what is the i^roper measure of damages {p). But in cases of tort the primary question of liability may itself depend, and it often does, on the nearness or remoteness of the harm complained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of compensation. The measure of damages, a matter appearing at first sight to belong to the law of remedies more than of " antecedent rights," constantly involves, in the field of torts, points that are in truth of the very substance of the law. It is under the head of " measure of damages " that these for the most part occur in practice and are familiar to lawyers ; but their real connexion with the leading principles, of the subject must not be overlooked here. Meaning of "imme- diate cause." The meaning of the term "immediate cause " is not capable of perfect or general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the same. In fact, our maxim only points out that some consequences are held too remote to be counted. What is the test of remoteness we still have to inquire. The view which I shall endeavour to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed " immediate," " proximate," or, to anticipate a little, "natural and probable," which a (^) Whether it is practicallyworth of damages. But this need not while to sue on a contract must, concern us here, indeed, often turn on the measure CONSEQUENCES. 31 person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was " immediate" or not does not matter. That which a man actually foresees is to him, at all events, natural and probable. In the case of wilful wrong-doing we have an act Liability for C0I1S6" intended to do harm, and harm done by it. The inference quences of liability from such an act (given the general rule, and "^.^^T' " assuming no just cause of exception to be present) may seem a plain matter. But even in this first case it is not so plain as it seems. We have to consider the relation of that which the wrong-doer intends to the events which in fact are brought to pass by his deed ; a relation which is not constant, nor always evident. A man strikes at another with his fist or a stick, and the blow takes effect as he meant it to do. Here the connexion of act and consequence is plain enough, and the wrongful actor is liable for the resulting hurt. But it extends the consequence may be more than was intended, or conse- different. And it may be different either in respect of lUf^^ the event, or of the person affected. Nym quarrels with tended. Pistol and knocks him down. The blow is not serious in itself, but Pistol falls on a heap of stones which cut and bruise him. Or they are on the bank of a deep ditch ; Nym does not mean to put Pistol into the ditch, but his blow throws Pistol off his balance, whereby Pistol does fall into the ditch, and his clothes are spoilt. These are simple cases where a different consequence 32 PRINCIPLES OF LIABILITY. from that which was intended happens as an incident of the same action. Again, one of Jack Cade's men throws a stone at an alderman. The stone misses the alderman, but strikes and breaks a jug of beer which another citizen is carrying. Or Nym and Bardolph agree to waylay and beat Pistol after dark. Poins comes along the road at the time and place where they expect Pistol ; and, taking him for Pistol, Bardolph and Nym seize and beat Poins. Clearly, just as much wrong is done to Poins, and he has the same claim to redress, as if Bardolph and Nym meant to beat Poins, and not Pistol (r/). Or, to take an actual and well- known case in our books (?■), Shepherd throws a lighted squib into a building full of people, doubtless intend- ing it to do mischief of some kind. It falls near a person who, by an instant and natural act of self- protection, casts it from him. A third person again does the same. In this third flight the squib meets with Scott, strikes him in the face, and explodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such grave harm to any one ; but he is none the less liable to Scott. {q) In criminal law there is some modern controversy on the subject, difficulty in the case of attempted See Dr. R. Franz, " Vorstellungiind personal offences. There is no Wille indermodernen Doluslelire," donbt that if A. shoots and kills or Ztsch. fiir die gesanite Strafreclits- wounds X., iinder the belief that wissenschaft, .v. 169. the man he shoots at is Z. . lie is in (r) Scott y. Sltrpherd, 2 W. Bl. no way excused by the mistake, 892 ; and in 1 Sm. L. C. ISfo and cannot be heard to say that he doubt was entertained of Sheplierd's had no unlawful intention as to X.: liability ; the only question being in li. V. Smith (1855) Dears. 559. But what form of action he was liable, if he niisseSj it seems doubtful The inference of wrongful intention whether he can bo said to have is in this case about as obvious as attempted to kill either X. or Z. it can be .: it was, however, not ne- Cf. JL V. Latimer (1886) 17 Q. B. D. cessary, squib-throwing, as Nares J. 359, 55 L. J. L. M. 135. In Ger- pointed out, having been declared a many there is a whole literature of nuisance by statute. XATURAL CONSEQUENCES. 33 And so in the other cases put, it is clear law that the ■wTong-doer is liable to make good the consequences, and it is likewise obvious to common sense that he ought to be. He went about to do harm, and having begun an act of wrongful mischief, he cannot stop the risk at his pleasure, nor confine it to the precise objects he laid out, but must abide it fullj- and to the end. This principle is commonly expressed in the maxim "Natural that "a man is presumed to intend the natural conse- *^°°^n'eg." quences of his acts ; " or, in the terms of a judicial relation of the rule to statement, "a party must be considered, in point of the actor's law, to intend that which is the necessary and natural consequence of that which he does " (s) ; a proposition which, with due explanation and within due limits, is acceptable, but which in itself is ambiguous. To start from the simplest case, we may know that the man intended to produce a certain consequence, and did produce it. And we may have independent proof of the intention ; as if he announced it beforehand by threats or boasting of what he would do. But oftentimes the act itself is the chief or sole proof of the intention with • which it is done. If we see Nym walk up to Pistol and knock him down, we infer that Pistol's fall was intended by Nym as the consequence of the blow. We may be mistaken in this judgment. Possibly Nym is walking in his sleep, and has no real intention at all, at any rate none which can be imputed to Nym awake. But we do naturally infer intention, and the chances are greatly in favour of our being right. So nobody could doubt that when Shepherd threw a lighted squib into a crowded («) Bayley J. in E. v. Harvey case, and therefore applies a fortiori (1823) 2 B. & C. 257, 264, 26 R. E. to civil liability, at J). 343. This was in a criminal P.T. D 34 PRINCIPLES OF LIABILITY. place he expected and meant mischief of some kind to be done by it. Thus far it is a real inference, not a presumption properly so called. Now take the case of Nym knocking Pistol over a bank into the ditch. We will suppose there is nothing (as there well may be nothing but Nym's own worthless assertion) to show whether Nym knew the ditch was there ; or, if he did know, whether he meant Pistol to fall into it. These questions are like enough to be insoluble. How shall we deal with them ? We shall disregard them. From Nym's point of view his purpose may have been simply to knock Pistol down, or to knock him into the ditch also ; from Pistol's point of view the grievance is the same. The wrong-doer cannot call on us to perform a nice discrimination of that which is willed by him from that which is only consequential on the strictly wilful wrong. We say that intention is presumed, meaning that it does not matter whether intention can be proved or not ; nay, more, it would in the majority of cases make no difference if the wrong-doer could disprove it. Such an explanation as this — " I did mean to knock you down, but I meant you not to fall into the ditch " — would, even if believed, be the lamest of apologies, and it would no less be a vain excuse in law. Meaning of " na- tural and probable " conse- quence. The habit by which we speak of presumption comes probably from the time when, inasmuch as parties could not give evidence, intention could hardly ever be matter of direct proof. Under the old system of pleading and procedure, Brian C. J. might well say " the thought of man is not triable" {t). Still there is more in our maxim than this. For although we do not care whether (0 Year-Book 17 Edw. IV. 1, translated in Blackburn on Sale, at p. 193 in 1st ed., 261 in 2nd ed, by Graham. "NATURAL AND PROBABLE" 35 the man intended the particular consequence or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contem- plated as possible ; so that it -^vould not be absurd to infer as a fact that he either did mean them to ensue, or recklessly put aside the risk of some such conse- quences ensuing. This is the limit introduced by such terms as "natural" — or more fully "natural and probable " — consequences ((6). What is natural and probable in this sense is commonh', but not always, obvious. There are consequences which no man could, with common sense and observation, help foreseeing. There are others which no human prudence could have foreseen. Between these extremes is a middle region of various probabilities divided by an ideal boundary which will be differently fixed by different opinions; and as we approach this boundary the difficulties increase. There is a point where subsequent events are, according to common understanding, the conse- quence not of the first wrongful act at all, but of something else that has happened in the meanwhile, though, but for the first act, the event might or could not have been what it was (x). But that point cannot be defined by science or philosophy (]/) ; and even if it could, the definition would not be of much use for the (m) "Xormal, or likely or prob- 9 Q. B. at p. 268) : "In tort the able of occun'euce in the ordinary defendant is liable for all the con- course of things, would perhaps be sequences of his illegal act, where the more correct expression " : Grove they are not so remote as to have no J. in Smith v. Green (1875), 1 direct connection with the act, as C. P. D. at p. 96. But what is bj' the lapse of time for instance." normal or likely to a specialist may (j/) "The doctrine of causation," not be normal or likely to a plain said Fry L. J., "involves much man's knowledge and experience. difficulty in philosophy as in law" : (a;) Thus Quain J. said {Sneeshy Seton v. Lafonc (1887) 19 Q. B. V. L. & Y. Hail. Co. (1874), L. R. Div. at p. 1i, 56 L. J. Q. B. il5. D 2 36 PRINCIPLES OF LIABILITY. guidance of juries. If English law seems vague on these questions, it is because, in the analysis made necessaiy by the separation of findings of fact from conclusions of law, it has grappled more closely with the inherent vagueness of facts than any other system. We may now take some illustrations of the rule of " natural and probable consequences " as it is generally accepted. In whatever form we state it, we must remember that it is not a logical definition, but only a guide to the exercise of common sense. The lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause. Vandcn- In Vandenburgh v. Truax {z), decided by the Supreme iriax. Court of New York in 1847, the plaintiff's servant and the defendant quarrelled in the street. The defendant took hold of the servant, who broke loose from him and ran away; "the defendant took up a pick-axe and followed the boy, who fled into the plaintiff's store, and the de- fendant pursued him there, with the pick-axe in his hand." In running behind the counter for shelter the servant knocked out the faucet from a cask of wine, whereby the wine ran out and was lost. Here the de- fendant (whatever the merits of the original quarrel) was clearly a wrong-doer in pursuing the boy ; the plaintiff's house was a natural place for his servant to take refuge in, and it was also natural that the servant, "fleeing for his life from a man in hot pursuit armed with a deadly weapon," should, in his hasty movements, do some damage to the plaintiff's property in the shop. (z) i Deuio, 464. The decision seems to be generally accepted as good law. DUTY OF PREVISION. 37 There was a curious earlier case in the same State («) , GuUle v. where one Guille, after going up in a balloon, came down *"""'• in Swan's garden. A crowd of people, attracted by the balloon, broke into the garden and trod down the vege- tables and flowers. Guille's descent was in itself plainly a trespass : and he was held liable not only for the damage done by the balloon itself but for that which was done by the crowd. "If his descent under such circum- stances would ordinarily and naturally draw a crowd of people about him, either from curiosity, or for the pur- pose of rescuing him from a perilous situation ; all this he ought to have foreseen, and must be responsible for" {h). In both these cases the squib case was commented and relied on. Similarly it has many times been said, and it is undoubted law, that if a man lets loose a dangerous animal in an inhabited place he is liable for all the mischief it may do. The balloon case illustrates what was observed in the Liability first chapter on the place of trespass in the law of torts, quences of The trespass was not in the commoia sense wilful ; Guille ^'-'^'^P'^^^- certainly did not mean to come down into Swan's garden, which he did, in fact, with some danger to himself. But a man who goes up in a balloon must know that he has to come down somewhere, and that he cannot be sure of coming down in a place which he is entitled to use for that purpose, or where his descent will cause no damage and excite no objection. Guille's liability was accord- ingly the same as if the balloon had been under his (a) Guille V. Swan (1822) 19 later Scottish case of Scott's John's. 381. Triistces v. Moss (1889) 17 R. 32, (6) Per Spencer C. J. It appeared is hardly so strong, for there a that the defendant (plaintiff in parachute descent was not only eiTor) had called for help ; but this contemplated but advertised as a was treated as immaterial. The public entertainment. 38 PEINCIPLES OF LIABILITY. control, and he had guided it into Swan's garden. If balloons were as manageable as a vessel on the sea, and by some accident which could not be ascribed to any fault of the traveller the steering apparatus got out of order, and so the balloon drifted into a neighbour's garden, the result might be different. So, if a landslip carries away my land and house from a hillside on which the house is built, and myself in the house, and leaves all overlying a neighbour's field in the valley, it cannot be said that I am liable for the damage to my neigh- bour's land; indeed, there is not even a technical trespass, for there is no voluntary act at all. But where trespass to property is committed by a voluntary act, known or not known to be an infringement of another's right, there the trespasser, as regards liability for conse- quences, is on the same footing as a wilful wrong-doer. Coiise- A simple example of a consequence too remote to be remote : ground for liability, though it was part of the incidents L "x^s \v following on a wrongful act, is afforded by Glover v. B. Cii. London and South Western Railway Company (c). The plaintiff, being a passenger on the railway, was charged by the company's ticket collector, wrongly as it turned out, with not having a ticket, and was removed from the train by the company's servants Avith no more force than was necessary for the purpose. He left a pair of race-glasses in the carriage, which were lost ; and he sought to hold the company liable not only for the personal assault committed by taking him out of the train, but for the value of these glasses. The Court held without difficulty that the loss was not the "necessary consequence" or "immediate result" of the wron ful (c) (1867) L. R. 3 Q, B. 25, 37 L. J. Q. B. 57. PROXIMATE Oi; REMOTE C:AUSE. 39 act : for there was nothing to show that the plamtiff was prevented from taking his glasses with him, or that he would not have got them if after leaving the carriage he had asked for them. In criminal law the question not unfrequently occurs, Question on a charge of murder or manslaughter, whether a kiuTngin* certain act or neglect was the "immediate cause" of ^^^"^^ the death of the deceased person. We shall not enter here upon the cases on this head; but the comparison of them will be found interesting. They have been collected by Sir James Stephen (d). The doctrine of " natural and probable consequence " Liability is most clearly illustrated, however, in the law of gence^ ^" negligence. For there the substance of the wrong itself on^'^roba is failure to act with due foresight : it has been defined '^^''ty «* conse- as " the omission to do something which a reasonable quencc, man, guided upon those considerations which ordinarily eajJabtiity regulate the conduct of human affairs, would do, or °^ being " foreseen doing something which a prudent and reasonable man by a TGilSO n tLl)lG would not do" (e). Now a reasonable man can be man. guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour we are to look as the standard of duty, will neither neglect what he can forecast as (d) Digest of the Criminal Law, This is not a complete Jeflnition, Arts. 219, 220. since a man is not liable for even (e) Alderson B. in JShjth v. Bir- wilful omission without some ante- mi'iujhain Waterworks Co. (1856) cedent ground of duty. But of 11 Ex. 781, 25 L. J. Ex. 212. that hereafter. 40 PRINCIPLES OF LIABILITY. probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reason- able man in the defendant's place should have foreseen as likely to happen, there is no wrong and no liability. And the statement proposed, though not positively laid down, in Grmilandv. Chaplin (f) ,iiSi-me\j, "that a person is expected to anticipate and guard against all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur," appears to contain the only rule tenable on principle where the liability is founded solely on negligence. " Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated," may be the ground of legal compensation under some rule of exceptional severity, and such rules, for various reasons, exist ; but under an ordinary rule of due care and caution it cannot be taken into account ((/). It is suggested by an author whose opinions are always deserving of attention that this rule applies only " in determining what is negligence," and " not in limiting the consequences flowing from it when once established : " and the learned author works out this position in an ingenious and elaborate argument (. B, 335. jiiilitiiii 11 ij. Co. \. ■hickson. 46 PRINCIPLES OF LIABILITY. certainly enough connected with it to give him a cause of action. It was an accident which might no less have happened if the carriage had not been overcrowded at all. Non- liability for con- sequences of unusual state of things : Blyth V. Hirnting- lui m Water- worlts Co. Unusual conditions brought about by severe frost have more than once been the occasion of accidents on which untenable claims for compensation have been founded, the Courts holding that the mishap was not such as the party charged with causing it by his negligence could reasonably be expected to provide against. In the memorable " Crimean winter " of 1854-5 a fire-plug attached to one of the mains of the Birmingham Water- works Company was deranged by the frost, the expansion of superficial ice forcing out the plug, as it afterwards seemed, and the water from the main being dammed by incrusted ice and snow above. The escaping water found its way through the ground into the cellar of a private house, and the occupier sought to recover from the company for the damage. The Court held that the accident was manifestly an extraordinary one, and beyond any such foresight as could be reasonably required (s) . Here nothing was alleged as constituting a wrong on the company's part beyond the mere fact that they did not take extraordinary precautions. Sharp T. The later ease of Sharp v. Powell (t) goes farther, as the PuweU. gtory begins with an act on the defendant's part which was a clear breach of the law. He caused his van to be washed in a public street, contrary to the Metropolitan (s) Bhjtli V. Birmingham Watcr- vjorks Co. (1856) 11 Ex. 781, 25 L. J. Ex. 212. The question was not really of remoteness of damage, but whether there was any evidence the case is instructive for com- parison with the others here cited. Cp. Mayne on Damages, Preface to the first edition. (t) L. E. 7 C. P. 253, 41 L. .1. of negligence at all ; nevertheless C. P. 95 (1872). PROXIMATE OR REMOTE CAUSE. 47 Police Act. The water ran down a gutter, and would in fact («) (but for a hard frost which had then set in for some time) have run harmlessly down a grating into the sewer, at a corner some twenty-five yards from where the van was washed. As it happened, the grating was frozen over, the water spread out and froze into a sheet of ice, and a led horse of the plaintiff's slipped thereon and broke its knee. It did not appear that the defen- dant or his servants knew of the stoppage of the grating. The Court thought the damage M-as not "within the ordinary consequences " (x) of such an act as the defen- dant's, not " one which the defendant could fairly be expected to anticipate as likely to ensue from his act "(?/): he "could not reasonably be expected to foresee that the water would accumulate and freeze at the spot where the accident happened " (.?). Home doubt appears to be cast on the rule thus laid Question, down — which, it is submitted, is the right one — by what same rule was said a few years later in Clark v. Chambers (a), conse- ""^ though not by the decision itself. This case raises the l"f "^^^ °* ° ■' wilful question whether the liability of a wrong-doer may not wrong extend even to remote and unlikely consequences where the original wrong is a wilful trespass, or consists in the unlawful or careless use of a dangerous instrument. The main facts were as follows : — 1. The defendant without authority set a barrier, partly armed with spikes (chevaux-de-frise), across a road subject to other persons' rights of way. An opening was at most times left in the middle of the (u) So the Court found, having (~) Bovill C. J. power to draw inferences of fact. (a) 3 Q. B. D. 327, 47 L. J. (a-) Grove J. Q. IJ. 427 (1878). {y) Keating J. Clark V. C'taniViirs. 48 PRINCIPLES OF LIABILITY. barrier, and was there at the time when the mischief happened. 2. The plaintiff went after dark along this road and through the opening, by the invitation of the occupier of one of the houses to which the right of using the road belonged, and in order to get to that house. 3. Some one, not the defendant or any one authorized by him, had removed one of the chevaux-de-frise barriers, and set it on end on the footpath. It was suggested, but not proved, that this was done by a person entitled to use the road, in exercise of his right to remove the unlawful obstruction. 4. Eeturning later in the evening from his friend's house, the plaintiff, after safely passing through the central opening above mentioned, turned on to the footpath. He there came against the chevaux-de-frise thus displaced (which he could not see, the night being very dark), and one of the spikes put out his eye. After a verdict for the plaintiff the case was reserved for further consideration, and the Court (h) held that the damage was nearly enough connected with the defendant's first wrongful act — namely, obstructing the road with instruments dangerous to people lawfully using it — for the plaintiff to be entitled to judgment. It is not obvious why and how, if the consequence in Clark V. Chambers was natural and probable enough to justify a verdict for the plaintiff, that in Sharp v. Powell was too remote to be submitted to a jury at all. The Court did not dispute the correctness of the judgments in Sliarp v. Powell "as applicable to the circumstances (J) Cockburn C. J. and Manisty act prevented him from being J. The point chiefly argued for the liable : a position which is clearly defendant seems to have been that nntenable (see Scott v. SkqiJierd) ; the intervention of a third person's bnt the judgment is of wider scope. REMOTE COXSEQUEN'CES. 49 of the particular case; " but their final observations (c) certainly tend to the opinion that in a case of active ■wrong-doing the rule is different. Such an opinion, it is submitted, is against the general -weight of authority, and against the principles underlying the authorities (rf) . However, their conclusion maybe sup- ported, and may have been to some extent determined, by the special rule imposing the duty of what has been called "consummate caution" on persons dealing with dangerous instruments. Perhaps the real solution is that here, as in Hill Conse- Cl UGDCGS V. Xeiu River Co. (e), the kind of harm which in fact natural in happened might have been expected, though the precise [l^^^„\^ manner in which it happened was determined by an notin extraneous accident. If in this case the spikes had not stance. been disturbed, and the plaintiff had in the dark missed the free space left in the barrier, and run against the spiked part of it, the defendant's liability could not have been disputed. As it was, the obstruction was not exactly where the defendant had put it, but still it was an obstruction to that road which had been wrongfully brought there by him. He had put it in the plaintiff's way no less than Shepherd put his squib in the way of striking Scott ; whereas in Sharp v. Poicell the mischief was not of a kind which the defendant had any reason to foresee. The turn taken by the discussion in Clark v. Chambers was, in this view, unnecessary, and it is to be regretted that a considered judgment was delivered in a form (c) 3 Q. B. D. at p. 338. for disregard of statutory provi- (d) Compare the cases on slander sions, Go7-ris v. ScoU (1874) L. E. coUected in the notes to Ficars v. 9 Ex. 125, 43 L. J. Ex. 29. IVilcocTcs, 2 Sm. L. C. Compare (c) P. 41, above. also, as to consequential liability P.T. E 50 PRINCIPLES OF LIABILITr. tending to unsettle an accepted rule without putting anything definite in its place. On the whole, I submit that, whether Clark v. Chamhcrs can stand with it or not, both principle and the current of authority concur to maintain the law as declared in Sharp v. I'owell. for " ner- vous or mental shock" whether too re- mote. Where a wrongful or negligent act of A., threatening Z. with immediate bodily hurt, but not causing such hurt, produces in Z. a sudden terror or "nervous shock" from which bodily illness afterwards ensues, is this damage too remote to enter into the measure of damages if A.'s act was an absolute wrong, or to give Z. a cause of action if actual damage is the gist of the action ? The Judicial Committee decided in 1888 (/) that such consequences are too remote ; but it is submitted that the decision is not satisfactory. A husband and wife were driving in a buggy across a level railway crossing, and, through the obvious and admitted negligence of the gatekeeper, the buggy was nearly, but aiot quite, run down by a train ; the husband " got the buggy across the line, so that the train, which was going at a rapid speed, passed close to the back of it, and did not touch it." The wife then and there fainted, and it was proved to the satisfaction of the Court below " that she received a severe nervous shock from the fright, and that the illness from which she afterwards suffered was the consequence of the fright." It may be conceded that the passion of fear, or any other emotion of the mind, however painful and distressing it be, and however reasonable the apprehension which causes it, cannot in itself be regarded as measurable temporal damage ; and that the judgment appealed from, if and so far as it (/) Victorian Bailways Commissioners v. Conltcts, 13 App. Ca. 222 57 L. J. P. C. 69. NERVOUS SHOCK. 51 purported to allow any distinct damages for "mental injuries" (g), was erroneous. But their Lordships seem to have treated this as obviously involving the further proposition that physical illness caused by reasonable fear is on the same footing. This does not follow. The true question would seem to be whether the fear in which the plaintiff was put by the defendant's wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might thereupon naturally and probably lead, in the plaintiff's case (/t), to the physical effects complained of. Fear taken alone falls short of being actual damage, not because it is a remote or unlikely consequence, but because it can be proved and measured only by physical effects. The opinion of the Judicial Committee, outside the Colony of Victoria, is as extra-judicial as the contrary and (it is submitted) better opinion expressed in two places (i) by Sir James Stephen as to the possible commission of murder or manslaughter by the wilful or reckless inflic- tion of " nervous shock," or a later contrary decision in Ireland (k). And if the reasoning of the Judicial Com- mittee be correct, it becomes rather difficult to see on what principle assault without battery is an actionable wrong (k). So far as I have been able to learn, the (g) It is by no means clear that So, as regards the measure of such was the intention or effect. damages when liability is not See the report, 12 V. L. R. 895. denied, the defendant has to take The physical injuries were sub- his chance of the person disabled stantial enough, for they included a being a workman, or a tradesman miscarriage {ibid. ). Whether that in a small way, or a physician with was really due to the fright was a large practice, eminently a question of fact, and (i) Dig. Cr. Law, note to art. this was not disputed or discussed. 221 ; Hist. Cr. Law, iii. 5. (h) This must be so unless we go (Jc) Cp. Jlr. Beven's criticism of back to the old Germanic method tliis case, Negligence in Law, i. of a iixed scale of compensation. 70, 84. As he justly points out, it E 2 62 PRINCIPLES OF LIABILITY. decision is generally disapproved. Wright J. has lately refused to follow it (l). But the point must, in the present state of authority, be regarded as doubtful. ]ias never been questioned that an action raaj' lie for damage done by an animal which has been frightened by the defendant's negligent act : Manchester South Jn. R. Co. v. FuUarton (1863) 14 C. B. K. S. 54 ; Simkin v. L. & N. W. R. Co. (1888) 21 Q. B. Div. 453 ; 59 L. T. 797 ; Brown v. Eastern and iiicllanrh E. Co. (1889) 22 Q. B. Div. 391 ; 58 L. J. Q. B. 212. The Exchequer Division in Ireland has refused to follow this doctrine of the Judicial Committee : Bell v. G. N. E. Co. (1890) 26 L. R. Jr. 428. And see Ames, Sel. Ca. on Torts, 15, 16. In Fii^jli V. L. B. & S. 0. R. Co. [1896] 2 y. B. 248, 65 L. J. (,l. B. 521, the C. A. avoided e-xpressiug any opinion on the point. In New York, however, a similar case has been decided in accordance with the Judicial Committee's view : Mitchell V. Tx,. E. Co., 151 K. Y. 107 ; and the same line has |been taken in Massachusetts : S'pade v. Lynn ) . There is not anything in the Act to prevent a husband and wife from suing or being sued jointly according to the old practice ; the husband is not relieved from liability for wrongs committed by the wife during coverture, and may still be joined as a defendant at need. If it were not so, a married woman having no separate property might commit wrongs with impunity Qj). If husband and wife are now jointly sued for the wife's wrong, and {I) 45 & 46 Vict. e. 75, s. 1. not justify under the husband's The right of action given by tlie authority. Whether the husband statute applies to a cause of action himself could justify entering a which arose before it came into house, his wife's separate property, operation : Wddun v. IVlnslow acquired as such before or since tlie (1884j 13 Q. B. Div. 784, 33 L. J. Act, in which she is living apart, Q. B. .528. In such case the Statute qtmcrc: ]\'rjdun v. De Bat/'ie {188i) of Limitation runs not from the 14 Q. B. Div. 339, 64 L. J. Q. ]!. committing of the Avrong, but from 113. the commencement of the Act : (o) Phillips v. Banul (1S76) 1 LoKK V. Fox (1885) 15 (j. B. Div. Q. B. Div. 435, 4.5 L. J. IJ. B. 277. 667, 54 L. J. Q. B. 561. {p) Scroka v. Kaltcnhurg (1886) (m) Beasley v. Money [1891] 1 17 q. B. Div. 177, 55 L. J. (,i. B. Q. B. 509, 60 L. J, Q. B. 408, 375, apjiroved in C. A. Earle v. (/() Sect. 12. A trespasser on Kinijsmtc [1900] 2 Ch. 585, 69 L. J. the wife's separate property can- Ch. 725. 58 PEESONS AFFECTED BY TORTS. Common law lia- bility of infants and married women limited, according to some, to wrongs contra IJacew. Corpora- tions. execution issues against the husband's property, a ques- tion may possibly be raised whether the husband is entitled to indemnity from the wife's separate property, if in fact she has any (g). There is some authority for the doctrine that by the common law both infants (r) and married women (s) are liable only for "actual torts" such as trespass, which were formerly laid in pleading as cuntra pacevi, and are not in any case liable for torts in the nature of deceit, or, in the old phrase, in actions which " sound in deceit." But this does not seem acceptable on principle. As to corporations, it is evident that personal injuries, in the sense of bodily harm or offence, cannot be inflicted upon them. Neither can a corporation be injured in respect of merely personal reputation. It can sue for a libel affecting property, but not for a libel purporting to charge the corporation as a whole with corruption, for example. The individual officers or members of the corporation whose action is reflected on are the only proper plaintiffs in such a case (t). It would seem at first sight, and it was long supposed, that a corporation also cannot be liable for personal wrongs {u). But this is really part of the larger question of the liability of (g) Sect. 18, which expressly ])rovides for ante-nnptial liabilities, is rather against the existence of such a right. ()■) Johnson y. Pie, p. 55, su2}ra (a dictiim wider than the decision). (y) JFright y. Leonard {1861) 11 C. B. N. S, 258, 30 L. J. C. P. 365, by Erie C. J. and Byles J., against Willes J. and Williams J. The judgment of Willes J. seems to me conclusive. {t) Mayor of Mancliestcrx. Williams [1891] 1 Q. B. 94, 60 L. J. Q. B. 23. {ii) The difficulty felt in earlier times was one purely of process ; not that a corporation was metar physically incapable of doing wrong, but that it was not physically amenable to capias or exigent: 22 Ass. 100, ph 67, and other autho- rities collected by Serjeant Manning in the notes to Maund v. Monmouth- shire Canal Co., i Man. & G. 452. The metaphysical fallacy seems however to have prevailed in the CORPORATIONS. 59 principals and employers for the conduct of persons employed by ' them ; for a corporation can act and become liable only through its agents or servants. In that connexion we recur to the matter further on. The greatest difficulty has been felt in those kinds of cases where "malice in fact" — actual ill-will or evil motive— has to be proved ; but in the strongest case, that of malicious prosecution, the objection seems to be now thought untenable (.r). Where bodies of persons, incorporated or not, are intrusted with the management and maintenance of works, or the performance of other duties of a public nature, they are in their corporate or quasi-corporate capacity respon- sible for the proper conduct of their undertakings no less than if they were private owners : and this whether they derive any profit from the undertaking or not (y) . The same principle has been applied to the manage- ment of a public harbour by the executive government of a British colony (z). The rule is subject, of course, to the special statutory provisions as to liability and remedies that may exist in any particular case (a). Responsi- bility o£ public bodies for manage- ment of works, &c. under their control. fifteenth century : Y. B. 15 Ed. IV. 1, pi. 2, per Brian C. J. and the Court. But it was decided in the case just cited (1842) that trespass, as earlier in Yarloroucjh v. Bank of Eiiijland (1812) 16 East 6, 14 E. K. 272, that trover would lie against a corporation aggregate. In Jlassa- chusetts a corporation Iia.s been held liable for the publication of a libel : Fiiiiii V. Boston and Lowell 11. Co. (1S89) 148 Mass. 513. And see per Lord Bramwell, 11 App. Ca. at p. 254. On the whole, the Common Law, whether it has any definite theory about the nature of corpora- tions or not, has not accepted the "iietion" theory of the medieval civilians in its conseijuencos. {x) It was abandoned b}' counsel in Corvfm-d v. CarUon Bank [1900] 1 Q. B. 22, 68 L. J. Q. B. 1020, C. A. (y) Mcrscji Docks Trustees v. Gibhs (1864-6) L. R. 1 H. L. 93, 35 L. J. E.\. 225 ; see the? very full and careful opinion of the judges de- livered by Blackburn J., L. If. 1 H. L. pp. 102 sqq., in wliicli the previous authorities are reviewed. (.:) Rerj.Y. ?/-'i?/irt«is (appeal from Kew Zealand) (1884) 9 App. Ca. 41 S, {a) L. R. 1 H. L. 107, 110. 60 PERSONS AFFECTED BY' TORTS. 2. — Effect ()f a Party's Death. Effect of death of either party. Actio imr- sonalis moritur cum per- sona. We have next to consider the effect produced on liabihty for a wrong by the death of either the person wronged or the wrong-doer. This is one of the least rational parts of our law. The common law maxim is actio personalis moritur cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. The maxim " is one of some antiquity, but its origin is obscure and post-classical" (Z)). Causes of action on a contract are quite as much "personal" in the technical sense, but, with the exception of promises of marriage, and (it seems) injuries to the person by negligent performance of a contract, the maxim does not apply to these. In cases of tort not falling within statutory exceptions, to be presently mentioned, the estate of the person wronged has no claim, and that of the wrong-doer is not liable. Where an action on a tort is referred to arbitration, and one of the parties dies after the hearing but before the making of the award, the cause of action is extinguished notwithstanding a clause in the order of reference providing for delivery of the award to the personal representatives of a party dying before the award is made. Such a clause is insensible with regard to a cause of action in tort ; the agreement for reference being directed merely to the mode of trial, and not extending to alter the rights of the parties (c). A very similar rule existed in Eoman law, with the modi- fication that the inheritance of a man Avho had increased (b) Bowenand Fry L. JJ., i^JHfai/ maxim generally. V. Chiructj (1888) 20 Q. B. Div. (c) BoicUr v. Evans (1885) 15 494, 502, 57 L. J. Q. B. 247 : see (,). B. Div. 565, 54 L. J. Q. B. this judgment on the history of the 421. ACTIO PERSONALIS, ETC. 61 his estate by dolus -n-as bound to restore the prolit so gained, and that in some cases heirs might sue but could not be sued (-. G. N. li. Co. (1876) Act, 1846. It appears to have 1 1,1. B. D. 599, 45 L. J. Q, B. 557 ; been suggested by the law of the earlier case of Bradshaio v. Scotland, Avliich already crave a Lancashire aiid YurlsJitJ-i' ij. Co. remedy : see Campbell on Neowen and of an act of their testator in his Cotton L. JJ. As to allowinj; in- lifetime in any form of action in terest in such cases, sec Phillips v. ivhich the plea was not guilty : Homfray [1892] 1 Ch. 465, CI L. J. Hmnhly v. Trott, 1 Cowp. 375. Cli. 210, C. A. (o) Phillips V. Homfray (1883)24 {p) 3 & 4 ^Vill. IV. c. 42, p. 6 5, Ch. Div. 439, 454, 52 L. J. Ch. 833. above. 72 PERSONS AFFECTED BY TOETS. of action against A.'s representatives, for there lias been no specific benefit to A.'s estate, only a wrong for ^Yhich B. might in A.'s lifetime have recovered unliquidated damages (q). The like law holds of a director of a company who has committed himself to false representations in the prospectus, whereby persons have been induced to take shares, and have acquired a right of suit against the issuers. If he dies before or pending such a suit, his estate is not liable (r). In short, this right against the executors or administrators of a wrong-doer can be maintained only if there is "some beneficial property or value capable of being measured, followed, and recovered" (.s). For the rest, the dicta of Sir George Jessel and of the Lords Justices are such as to make it evident that the maxim which they felt bound to enforce was far from commanding their approval. 3. — Liability for the Torts of Agents and Servants. Command Whoever commits a wrong is liable for it himself. It pal does is no excuse that he was acting, as an agent or servant, not excuse \,Q]ya^ii and for the benefit of another (t). But that agent s ^ ' wrongs. other may also well be liable : and in many cases a man is held answerable for wrongs not committed by himself. The rules of general application in this kind are those concerning the liability of a principal for his agent, and of a master for his servant. Under certain conditions responsibility goes farther, and a man may have to {q) Kirl- V. Todd (1882) 21 Oh. and Ken; 4 ilacq. 424, 432. '■ For Div. 484, 52 L. J. Ch. 224. the contract of agency or service (}■) Peek V. Giirney (187-3) L. E. cannot impo.'ie any obligation on 6 H. L. at p. 392. the agent or servant to commit or (s) 24 Ch. D. at p. 463. assist in the committing of frand," {t) C'ullen V. Tliomson's Trustees or any other wrong. LIABILITV FOR OTHERS' ACTS. 73 answer for wrongs which, as regards the immediate cause of the damage, are not those of either his agents or his servants. Thus we have cases where a man is Cases of subject to a positive duty, and is held Hable for failure positive to perform it. Here, the absolute character of the duty !}[!,'■[„. being once established, the question is not by whose guished: hand an unsuccessful attempt was made, whether that of the party himself, of his servant, or of an " indepen- dent contractor" («), but whether the duty has been adequately performed or not. If it has, there is nothing more to be considered, and liability, if anj^ must be sought in some other quarter (.r). If not, the non- performance in itself, not the causes or conditions of non-performance, is the ground of liability. Special duties created by statute, as conditions attached to the grant of exceptional rights or otherwise, afford the chief examples of this kind. Here the liability attaches, irrespective of any question of agency or personal negligence, if and when the conditions imposed by the Legislature are not satisfied (//). There occur likewise, though as an exception, duties also duties in nature of this kind imposed by the common law. buch are ot ^Yal■- the duties of common carriers, of owners of dangerous ^"■'■'^>- animals or other things involving, by their nature or position, special risk of harm to their neighbours ; and such, to a limited extent, is the duty of occupiers of fixed property to have it in reasonably safe condition («) The distinction will be ex- JJurihilrr v. T,!!c District Oouncil plained below. [189H] 1 (,>. B. 335, 65 L. J. Q. B. (j.) Sec Hijan-i^ V. /nW-r (1808) 363, C. A. ; ci). P.;i,i!i v. IJ'imblc- Ex. Ch. L. R. i 1,1. B. 138, 38 rln,i Vrhan CoiinrU [1899] 2 Q. B. L J Q. B. 21. '"'-. HoUiday v. JS'atiinml 'fclcithunc (y) Gray v. Viillr.n (186-1) Ex. Gli. CV. ih. 392, both in C. A. ; 68 L. J. 5 B. & S. 970, 3i L. J. i,i. B. 256 ; Q. B. 704, 1016. 74 PERSONS AFFECTED BY TORTS. Modes of liability for wrong- ful acts, &c. of others. Command and ratifi- cation. and repair, so far as that end can be assured by the due care on the part not only of themselves and their servants, but of all concerned. The degrees of responsibility may be thus arranged, beginning with the mildest : (i) For oneself and specifically authorized agents (this holds always), (ii) For servants or agents generally (limited to course of employment), (iii) For both servants and independent contractors (duties as to safe repair, &c.). (iv) For everything but vis major (exceptional : some cases of special risk, and, anomalously, certain public occupations). Apart from the cases of exceptional duty where the responsibility is in the nature of insurance or warranty, a man may be liable for another's wrong — (1) As having authorized or ratified that particular wrong : (2) As standing to the other person in a relation making him answerable for wrongs committed by that person in virtue of their relation, though not specifically authorized. The former head presents little or no difficulty. The latter includes considerable difficulties of principle, and is often complicated with troublesome questions of fact. It scarce needs authority to show that a man is liable for wrongful acts which have been done according to his express command or request, or which, having been done on his account and for his benefit, he has adopted as his own. "A trespasser may be not only he who does the act, but who commands or procures it to be done . . . who aids or assists in it . . . or who assents master's responsibilitv. 75 afterwards" {■). This is not the less so because the person employed to do an unlawful act may be employed as an "independent contractor," so that, supposing it lawful, the employer would not be liable for his negli- gence about doing it. A gas company employed a firm of contractors to break open a public street, having therefor no lawful authority or excuse : the thing con- tracted to be done being in itself a public nuisance, the gas company was held liable for injury caused to a foot passenger by falling over some of the earth and stones excavated and heaped up by the contractors (a). A point of importance to be noted in this connexion is that only such acts bind a principal by subsequent ratification as were done at the time on the principal's behalf. "What is done by the immediate actor on his own account cannot be effectually adopted by another ; neither can an act done in the name and on behalf of Peter be ratified either for gain or for loss by John. " Eatum quis habere non potest, quod ipsius nomine nou est gestum " (b). The more general rule governing the other and more jiaster difficult branch of the subject was expressed by Willew J. ^JJf^.^nt^ in a judgment which may now be regarded as a classical authority. " The master is answerable for every such 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" (<). No reason for the rule, at any rate no satisfying one, Reason of the master's liabilitv. is commonly given in our books. Its importance belongs Master's {:) De Gvey C. J. in Barker v. (). B. 42. Braham (1773) 2 W. Bl. 866, {b) Wilson \. Tuiaman [liiZ) Q Bigelow L. C, 235. Mim. & G. 236 ; and Serjeant (a) Ellisy. ShefieldGasCoiismners Manning's nolo, ib. 239. Co. (1853) 2 E. & B. 767, 23 L. J. {c)BarwickY. English Joint Slock 76 PERSONS AFFECTED BY TORTS. altogether to the modern law, and it does not seem to be illustrated by any early authority (rf). Blackstone (i. 417) is short in his statement, and has no other reason to give than the fiction of an " implied command." It is currently said, Ilcspondeat superior ; which is a dogmatic statement, not an explanation. It is also said, (Jiii favit [)cr alium farit per se ; but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant "in the course of the service," are specifically unauthorized or even forbidden. Again, it is said that a master ought to be careful in choosing fit servants ; but if this were the reason, a master could discharge himself by showing that the servant for whose wrong he is sued was chosen by him with due care, and was in fact generally well conducted and competent : which is certainly not the law. A better account was given by Chief Justice Shaw, of Massachusetts. "This rule," he said, "is obviously founded on the great principle of social duty, that every man in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it '■ (('). This is, indeed, somewhat too widely expressed, for it does not in terms limit the responsibility to cases where at least negligence is proved. But no reader is i?ffi/(/j (1867) Ex. Ch. L. R. 2 Ex. {c) Farmllv.BostouandlVorccstcr 259, 265, 36 L. J. Ex. 147. The rMilroad Corporcdion (1842) 4 Jlet. point of tlie decision is that frand is 49, and Bigelow L. C. 688. Tlie herein on the same footing as other jndgmentis also reprinted in 3 Macq. wrongs: of which in due course. 316. So, too, M. Sainctelette, a ((?) Joseph Brown Q.C. in evidence recent Continental writer on tlie sub- before Select Committee on Em- jeet, well says : " La responsabilite ployers' Liability, 1876, p. 38; Brett du fait d'autrui n'est pas uiie iiction L. J., 1877, p. 114. inventee par la loi positive. C'est MASTER AND SERVANT. 77 likely to suppose that, as a general rule, either the servant or the master can be liable ^Yhere there is no default at all. And the true principle is otherwise clearly enounced. I am answerable for the wrongs of my servant or agent, not because he is authorized by me or personally represents me, but because he is about my affairs, and I am bound to see that xaj affairs are conducted with due regard to the safety of others. Some time later the rule was put by Lord Cranworth in a not dissimilar form : the master " is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself or of those acting under his orders in the course of his business " (/). The statement of "Willes J. that the master "has put the agent in his place to do that class of acts " is also to be noted and remembered as a guide in many of the questions that arise. A just view seems to be taken, though artificially and obscurely expressed, in one of the earliest reported cases on this branch of the law : "It shall be intended that the servant had authority from his master, it being for his master's benefit " (r/). The rule, then (on whatever reason founded), being Question that a master is liable for the acts, neglects, and defaults giaered of his servants in the course of the service, we have to '^'^''em- define further — 1. Who is a servant. 2. What acts are deemed to be in the course of service. 3. How the rule is affected when the person injured is himself a servant of the same master. tme exigence de Tordre social : " De (/) Barton'sHill Coal Co. v. Rcid la Responsabilit6 et de la Garantie, (1858) 3 Macq. 266, 283. p. 124. Paley (Mor. Phil. bk. 3, c. ((/) Tid)erviUe v. Stampe (end of 11) found it difficult to refer the rule 17th century) 1 Ld. Raym. 264. to any principle of natural justice. order and control. /O PERSONS AFFECTED BY TOUTS. Who;is a i_ j^g to the first TDoint, it is quite possible to do work servant: ± ' j. j. responsi- for a man in the popular sense, and even to be his agent witV ^°'^^ iov some purposes, without being his servant. The rela- tion of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs, or at any moment may direct the means also, or, as it has been put, " retains the power of controlling the work" (/() ; and he who does work on those terms is in law a servant for whose acts, neglects, and defaults, to the extent to be specified, the master is liable. An independent contractor is one who undertakes to produce a given result, but so that hi the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand. For the acts or omissions of such a one about the performance of his undertaking his employer is not liable to strangers, no more than the buyer of goods is liable to a person who may be injured by the careless handling of them by the seller or his men in the course of delivery. If the con- tract, for example, is to build a wall, and the builder " has a right to say to the employer, ' I will agree to do it, but I shall do it after my own fashion ; I shall begin the wall at this end and not at the other ; ' there the relation of master and servant does not exist, and the employer is not Hable " [i). "In ascertaining who is liable for the act of a wrong-doer, you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. {h) CvomiitoTi J. , Sadlcrv. HfiiJork 1877, p. 58: an extra-judicial (lS.i5) 4 E. & B. 570, 578, :i4 statement, but made on au occasion L. J. Q. B. 138, 141. of importance by a great master of (i; Bramwell L. J., Emp. L. the common Law. MASTER AND SERVANT. 79 You cannot go further back and make the employer of that person liable " {li). He who controls the work is answerable for the workman ; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law ; the difficulties that may arise in applying it are difficulties of ascertaining the facts (I). It may be a nice question whether a man has let out the whole of a given work to an "independent contractor," or reserve so much power of control as to leave him answerable for what is done (/;0- It must be remembered that the remoter employer, Specific if at any point he does interfere and assume specific tl'on'or control, renders himself answerable, not as master, but as control. principal. He makes himself " dominus pro tempore." Thus the hirer of a carriage, driven by a coachman, who is not the hirer's servant but the letter's, is not, generally speaking, liable for harm done by the driver's negligence (h). But if he orders, or by words or conduct at the time sanctions, a specific act of rash or careless (k) Willes J., Murray v. Currie 127. (1870) L. R. 6 C. P. 24, 27, 40 (m) PendUhury v. Greculudgli L. J. C. P. 26. (1875) 1 Q. B. Div. 36, 45 L. J. Q. P>. (Z) One comparatively early case, 3, differing from the view of the Bxtshy. Stcinman{11^'Si) 1 B. & P. same facts taken by the Court of 404, disregards the rule ; but that Queen's Bench in Taylor f. Grccu- case has been repeatedly commented lialgli (1874) L. E. 9 ij. B. 487, 43 on with disapproval (see Rcedic v. L. J. Q. B. 168. L. tfc jV. W. E. Co. (1849) 4 Ex. («) Even if the driver was selected 244, 20 L. J. Ex. 05), and is not by himself : Quarman v. Biinicll, now law. See the modem authori- (1840) 6 M. & W. 499, So where ties well reviewed in Slllard v. a vessel is hired with its creiv : Uichardson (Sup. Court, JIass. 1855) Dal yell v. Tyrcr (1858) S E. B. & E. 3 Gray 349 ; and in Bigelow L. C. 899, 28 L. J. Q. li. 52. So where Exactly the same distinction appears a contractor finds horses and drivers to be taken under the Code Xapoleon to draw watering-carts for a muni- in fixing the limits within wliich the cipal corporation, the driver of such very wide langnage of Art. 1384 is a cart is not the servant of the to be applied : Sainctelette, o^j. ciL corporation : Jones v. Coriioration 80 PERSONS AFFECTED BY TORTS. driving, he may well be liable (o). Eather slight evidence of personal interference has been allowed as sufficient in this class of cases (j)). Deiega- It is doubtful whether a servant has any authority di°ty°* implied by law to delegate his duty to a stranger, even in case of sudden necessity, so as to make his employer liable for that stranger's acts and defaults. At all events he has not such authority where it is possible to com- municate with the employer (q). Tempo- One material result of this principle is that a person rary trans- ^^,j-^q ^g habitually the servant of A. may become, for service. a Certain time and for the purpose of certain work, the servant of B. ; and this although the hand to pay him is still A.'s. The owner of a vessel employs a stevedore to unload the cargo. The stevedore employs his own labourers ; among other men, some of the ship's crew work for him by arrangement with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner (r). There is no nf Liverpool (1885) 14 Q. B. D. 890, assumed, without either authority .^4 Jj. J. Q. B. S45 ; cp. Liltlc v. or necessity, by a servant employed Hackdt (1886) 116 U.S. at pp. by him for other purposes : Bland :j71-3, 377. v. London General Omnibus Co. (o) iMeLaughlin v. Pnjur (1842) [1900] 2 Q. B. 530, 69 L. J. Q. B. 4 Man. & G. 48. 895, C.A. (conductor driving omni- ij}) lb. ; Burgess v. Gratj (1845) bus between regular journeys). 1 C. B. 578, 14 L. J. C. P. 184. It (r) Murrayv. Ourrie {IS7 0)1,. n. is difficult iu either case to see 6 C. P. 24, 40 L. J. C. P. 26. lii proof of more than adoption or this case the man was actuallj- paid acc[uiescence. Cp. Jones v. Corpo- by the owuer's agent and his wages ration of Liverpool (W?i5)li Q.B. D. deducted in account with the steve- at pp. 893-4, 54 L. J. Q. B. 345. dore, which of course makes no [q) Gwilliam v. Twist [1895] 2 difference ia principle. Cp. IVild Q. B. 84, 64 L. J. Q. B. 474, C. A. v. Waygood [1892] 1 (J. B. 783, 61 A fortiori the master is not liable L. J. Q. B. 391, C. A. where control of his property is MASTER AND SERVANT. 81 "common employment" between the stevedore's men and the seamen on board (s). Owners of a colliery, after partly shikmg a shaft, agree with a contractor to finish the work for them, on the terms, among others, that engine power and engineers to work the engine are to be provided by the owners. The engine that has been used in excavating the shaft is handed over accordingly to the contractor ; the same engineer remains in charge of it, and is still paid hj the owners, but is under the orders of the contractor. During the continuance of the work on these terms the engineer is the servant not of the colliery owners but of the contractor (f). But where iron-founders execute specific work about the structure of a new building under a contract with the architect, and without any contract with the builder, their workmen do not become servants of the builder {u). It is proper to add that the " power of controlling the "Power of work" which is the legal criterion of the relation of a nngthe master to a servant does not necessarily mean a present ^^"''J^jned. and physical ability. Shipowners are answerable for the acts of the master, though done under circumstances in which it is impossible to communicate with the owners (.r) . It is enough that the servant is bound to obey the master's directions if and when communicated to him. The legal power of control is to actual supervision what in the doctrine of possession the intent to possess is to (s) Caiaemn v. Nysirom (J. C. L. J. C. P. 283. Sec also Donovan from X. Z.) [1893] A. C. 308, 62 v. Lalug [1893] 1 (J. B. 629, 63 L. J. P. C. 85 ; cp. Union Steam- L. J. Q. B. 25, C. A. ship Co. V. Claridge [1894] A. C. (m) Johnsmi v. Lindsay [1891] 185, 63 L. J. P. C. 56. A. C. 371, 66 L. T. 97. {t) Eourke v. White Moss Colliery (x) See Maude and Pollock, Mer- Co. (1877) 2 C. P. Div. 205, 46 cliant Shipping, i. 158, 4th ed. P.T. G 82 PERSONS AFFECTED BY TORTS. physical detention. But this much is needful : therefore a compulsory pilot, who is in charge of the vessel inde- pendently of the owner's will, and, so far from being bound to obey the owner's or master's orders, supersedes the master for the time being, is not the owner's servant, and the statutory exemption of the owner from liability for such a pilot's acts is but in affirmance of the common law {ij). What is in 2. Next we have to see what is meant by the course of course of . . j. i • i employ- Service or employment. The mjury m respect oi which a master becomes subject to this kind of vicarious liability may be caused in the following ways : (a) It may be the natural consequence of something being done by a servant with ordinary care in execution of the master's specific orders. (b) It may be due to the servant's want of care in carrying on the work or business in which he is employed. This is the commonest case. (c) The servant's wrong may consist in excess or mistaken execution of a lawful authority. (d) Or it may even be a wilful wrong, such as assault, provided the act is done on the master's behalf and with the intention of serving his purposes. Let us take these heads in order. Execution (g^) Here the servant is the master's agent in a proper of specific • 1 ■ 1 1 1. 1 orders. sense, and the master is liable for that which he has truly, not by the fiction of a legal maxim, commanded (y) MerchantShipping Act, 1894, for the purpose of creating a duty s. 633; The Balleij (1S6S) Jj. R. 2 to the public: King v. London P. C. at p. 201. And see Marsden Improved Gab Co. (1889) 24 Q. B. ou Collisions at Sea, 4th ed. ch. 3. Div. 281 ; Keen r. Henry [1894] On the other hand there may be 1 Q. B. 292, 63 L. J. Q. B. 211, a statutory relation which does re- C. A, semble that of master and servant COURSE OF EJIPLOYMENT. 83 to be done. He is also liable for the natural consequences of his orders, even though he wished to avoid them, and desired his servant to avoid them. Thus, in Gregory v. Pqicr (~), a right of way was disputed between adjacent occupiers, and the one who resisted the claim ordered a labourer to lay down rubbish to obstruct the way, but so as not to touch the other's wall. The labourer executed the orders as nearly as he could, and laid the rubbish some distance from the wall, but it soon "shingled down" and ran against the wall, and in fact could not by any ordinary care have been prevented from doing so. For this the employer was held to answer as for a trespass which he had authorized. This is a matter of general principle, not of any special kind or liability. No man can authorize a thing and at the same time affect to disavow its natural consequences ; no more than he can disclaim responsibility for the natural consequences of what he does himself. (b) Then comes the case of the servant's negligence in Negli- the performance of his duty, or rather while he is about Conduct of his master's business. What constitutes negligence does !?;^f„^-*fi'^ not just now concern us ; but it must be established that the servant is a wrong-doer, and liable to the plaintiff, before any question of the master's liability can be entertained. Assuming this to be made out, the question may occur whether the servant was in truth on his master's business at the time, or engaged on some pursuit of his own. In the latter case the master is not liable. "If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence {:) 9 B. & C. 591, 33 E. R. 208 (1829). 84, PERSONS AFFECTED BY TORTS. of his servant in doing it "(a). For example: "If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, . . . 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 " (b). Departure or devia- tion from master's business. "Whether the servant is really bent on his master's affairs or not is a question of fact, but a question which may be troublesome. Distinctions are suggested by some of the reported cases which are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master's responsibility. But where there is not merely deviation, but a total departure from the course of the master's business, so that the servant may be said to be " on a frolic of his own " (c), the master is no longer answerable for the servant's conduct. A few modern cases on either side of the line will illustrate this distinction. y.Pcar.-iOf/, Whitmuii In Whatman v. Pearson (. B. 534, 36 L. ,J. ((?) /*., following Goff V. G. y. Q. B. 294. E. Co. (1861) 3 E. & E. 672, 30 90 PERSONS AFFECTED BY TORTS. if the particular servant's act is plainly beyond his authority, as where the officer in charge of a railway station arrests a man on suspicion of stealing the com- pany's goods, an act which is not part of the company's general business, nor for their apparent benefit (s). In a case not clear on the face of it, as where a bank manager commences a prosecution, which turns out to be groundless, for a supposed theft of the bank's property — a matter not within the ordinary routine of banking business, but which might in the particular case be within the manager's authority — the extent of the servant's authority is a question of fact (t). Much must depend on the nature of the matter in which the authority is given. Thus an agent intrusted with general and ample powers for the management of a farm has been held to be clearly outside the scope of his authority in entering on the adjacent owner's land on the other side of a boundary ditch in order to cut underwood which was choking the ditch and hindering the drainage from the farm. If he had done something on his employer's own land which was an actionable injury to adjacent land, the employer might have been liable. But it was thought unwarrantable to say " that an agent intrusted with authority to be exercised over a particular piece of land has authority to commit a trespass on other land " (?()- More generally, an authority cannot be implied for acts not neces- sary to protect the employer's property, such as arresting a customer for a supposed attempt to pass bad money (.r) . (.s) Edwards v. L. i:tre a shareholder to contribute to the V. Frinicis (1877) 3 App. Ca. 106, company's debts : this liability 47 L. J. P. C. 18. being of the essence of a share- (li) Aihllr V. Western Bank of holder's position, claiming com- Scotlaad (1867) L. R. 1 Sc. & J). pensatiou from the company for it 145, dicta at pp. 15s, 166, 167. involves him in a new liability to (i) Houldsworth v. City of contribute to that compensation Glasgoiv Bank (1880) 5 App. Ca. itself, which is an absurd circuity. 317. But if his liability as a shiiru- (k) lb.. Lord Selborne at p. 326, holder has ceased, he is no longer Lord Hatherley at p. 331 ; Lord damnified. Therefore restitution Blackburn's language at p. 339 is only (by rescission of his contract), more cautious, perhaps for the very not compensation, is the share- reason that he was a party to the holder's remedy as against the com- decision of .Sarwici v. English Jo-iut pany : though the fraudulent agent Stock Bank. Shortly, tlie share- remains personally liable, holder is in this dilemma : while ho 94 PERSONS AFFECTED BY TORTS, But conversely a false and fraudulent statement of a servant made for ends of his own, though in answer to a question of a kind he was authorized to answer on his master's behalf, will not render the master liable in an action for deceit (Q . The leading case of Mersey Docks Trustees v. Gibbs (in) may also be referred to in this connexion, as illustrating the general principles according to which liabilities are imposed on corporations and public bodies. Liability There is abundant authority in partnership law to fraud of show that a firm is answerable for fraudulent misappro- a partner, p^iation of funds, and the like, committed by one of the partners in the course of the firm's business and within the scope of his usual authority, though no benefit be derived therefrom by the other partners. But, agreeably to the principles above stated, the firm is not liable if the transaction undertaken by the defaulting partner is outside the course of partnership business. Where, for example, one of a firm of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion («). Again, the firm is not liable if the facts show that exclusive credit was given to the actual wrong-doer (u). In all these cases the wrong is evidently wilful. In all or most of them, however, it is (l) British Mutual Banking Co. L. J. (,). B. '297. \. Cluirnwood Forest R. Go. (li?,l)\S, (o) E.c parte Eyre (1842) 1 Ph. Q. ]1 Div. 714, 56 L. J. Q. B. 449. 227. See more illustrations in my (hi) L. R. 1 H. L. 93 (1864-6). " Digest of the Law of Partner- (/i) Partnership Act,lS90, ss. 10 — ship," 7th ed., pp. 45 — 48. A 12. Cp. Blair v. Bromley (1847) recent and very peculiar case of 2 Ph. 354, and Cleather v. Tioisden this class is Marsh v. Joseph [1897] (1883) 24 Ch. D. 731, with Harman 1 Ch. 213, 66 L. J. Ch. 128, C. A. V. Johison (1853) 2 E. & B. 61, 22 PARTNERS. 95 at the same time a breach of contract or trust. And it seems to be on this ground that the firm is held liable even when the defaulting partner, though professing to act on behalf of the firm, misapplies funds or securities merely for his own separate gain. The reasons given are not always free from admixture of the Protean doctrine of " making representations good," which is now, I venture to think, exploded {j}). 3. There remains to be considered the modification of Injuries to a master's liability for the wrongful act, neglect, or byfauitof default of his servant when the person injured is himself ^'^11°^^; m and about the same master's service. It is a topic far from clear in principle ; the Employers' Liability Act, 1880, has obscurely indicated a sort of counter principle, and introduced a number of minute and empirical exceptions, or rather limitations of the exceptional rule in question; while the Workmen's Compensation Act, 1897, has taken a wholly new departure as regards the cases within it, but leaves resort to other remedies, if any, optional, and does not cover the same ground as the Employers' Liability Act. The old rule, as it stood Common before the Act of 1880, is that a master is not liable to of master's his servant for injury received from any ordinary risk of ™™™i'y- or incident to the service, including acts or defaults of any other person employed in the same service. Our law can show no more curious instance of a rapid modern development. The first evidence of any such rule is in Primthy v. Fotvler (q), decided in 1837, which proceeds on the theory (if on any definite theory) that the master (p) I have discussed it in Appen- (?) 3 M. & "W. 1, 49 R. R. 495. All dix K. to "Principles of Contract," the case actually decided was that 6th ed., p. 711. See now Markllson a master does not warrant to his V. Alderson (1883) 8 App. Ca. at servant the sufficiency and safetj' of p. 473, 51 L. J. Q. B. 737. a carriage in which he sends him out. 96 PERSONS AFFECTED BY TORTS. Reason given in the later " cannot be bound to take more care of the servant than he may reasonably be expected to do of himself ; " that a servant has better opportunities than his master of watching and controlling the conduct of his fellow- servants ; and that a coiitrary doctrine would lead to intolerable inconvenience, and encourage servants to be negligent. According to this there would be a sort of presumption that the servant suffered to some extent by want of diligence on his own part. But it is needless to pursue this reasoning; for the like result was a few years afterwards arrived at by Chief Justice Shaw of Massachusetts by another way, and in a judgment which is the fountain-head of all the later decisions (/■); and has now been judicially recognized in England as "the most complete exposition of what constitutes common employment " (s). The accepted doctrine is to this effect. Strangers can hold the master liable for the negligence of a servant about his business. But in the case where the person injured is himself a servant in the same business he is not in the same position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to the master. You shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claims on the master depend on the contract of service. "Why should it be an implied term of that contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk ? It is rather to be implied that he contracted with the risk before his eyes, and (r) FarireU v. Boston and U'nr- cesUr Fiailroad Corporation, 4 Met. 49. (s) Sir Francis Jeune in Tlic Pclrd [1893] P. 320, 323. " COMMON EMPLOYMENT." 97 that the dangers of the service, taken all round, were considered in fixing the rate of payment. This is, I believe, a fair summary of the reasoning which has prevailed in the authorities. With its soundness we are not here concerned. It was not only adopted by the House of Lords for England, but forced by them upon the reluctant Courts of Scotland to make the juris- prudence of the two countries uniform {t). No such doctrine appears to exist in the law of any other country in Europe. The following is a clear judicial statement of it in its settled form: " A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both " (»). The phrase " common employment " is frequent in The ser- this class of cases. But it is misleading in that it notbe"'^'^ suggests a limitation of the rule to circumstances where ai^oiit the the injured servant had in fact some opportunity of of work : observing and guarding against the conduct of the negligent one ; a limitation rejected by the Massachusetts Court in FarweU's case, where an engine-driver was injured by the negligence of a switchman (pointsman as we say on English railways) in the same company's service, and afterwards constantly rejected by the English Courts. " When the object to be accomplished is one and the (t) See JFilson v. Merry (1868) at p. 296 ; Archibald J. used very L K 1 Sc. & D. 326. similar language in Lovell v. HoioM (m) Erie C.J. in Timney v. Mid- (1876) 1 C. P. D. at p. 167, 4.5 land -fi. Co. (1866) L. R. 1 C. P. L. J. C. P. 387. P.T. H 98 PERSONS AFFECTED BY TORTS. same, when the employers are the same, and the several persons employed derive their authority and their com- pensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments. In a blacksmith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight or voice, and yet acting together. "Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connexion with those from whose negli- gence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself ; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied " (.r). (.)_•) Shaw C. J. , Farwcll v. Boston, lawyers, and agree with Shaw C. J. cU. Cojjioriction, i Met. 49. Jl. niid our Courts, in referring- the Sainctelette of Brussels, and M. whole raatterto the contract between Sauzet of Lyons, whom he quotes the master and servant ; but they {op. cit. p. 140), differ from the arrive at the widely different result current view amongFrench-speaking of holding the master bound, as an common object. " OOSniON EMPLOYMENT.'' 99 So it has been said that " we must not over-refine, provided but looli at the common object, and not at the common general '^ immediate object "(7/). All persons engaged under the same employer for the purposes of the same business, however different in detail those purposes may be, are fello\Y-servants in a common employment ^Yithin the meaning of this rule : for example, a carpenter doing ■work on the roof of an engine-shed and porters moving an engine on a turntable (;/). "Where there is one common general object, in attaining -which a servant is exposed to risk, he is not entitled to sue the master if he is injured by the negligence of another servant ■whilst engaged in furthering the same object " (a). It makes no difference if the servant by ■whose negli- Relative gence another is injured is a foreman, manager, or other ^^^^ ^ " superior in the same employment, -whose orders the ^ei'^ants ^ X ^ ' imma- other ■was by the terms of his service bound to obey, teriai. The foreman or manager is only a servant having greater authority : foremen and workmen, of -whatever rank, and however authority and duty may be distributed among them, are "all links in the same chain" (h). So the captain employed by a shipowner is a fellow-servant of the crew, and a sailor injured by the captain's negligence implied term of the contract, to (J) Fdtham v. Emjland (1866) insure the servant against all acoi- L. R. 2 Q. B. 33, 36 L. J. Q. B. 14 ; dents in the course of the service, Wilson v. Merrij (18CS) L. K. 1 and not due to the servant's own Sc. & D. 326 : see per Lord Cairns fault or vis major ; -which is very at p. 333, and pci- Lord Colonsay at neartheprincipleof our Workmen's p. 345. The French word colla- Corapensation Act. horateur, which does not mean (;/) Pollock C.B., il/or^/jmv. Vale "fellow-workman" at all, -ivas at ufXeathE. Co. (1865) Ex. Ch. L. R. one time absurdly introduced into 1 y. B. 149, 155, 35 L. J. Q. B. 23. these cases, it is believed by Lord (a) Thesiger L. J., Cliarhs v. Brougham, and occurs as late as 'I'aylor (1878) 3 C. P. Div. 492, Wilson v. Merry. 498. H 2 100 PERSONS AFFECTED BY TORTS. has no cause of action against the owner (c). The master is bound, as between himself and his servants, to exercise due care in selecting proper and competent persons for the work (whether as fellow-workmen in the ordinarj- sense, or as superintendents or foremen), and to furnish suitable means and resources to accomplish the work (d), and he is not answerable further (e) . Servants of sub- con- tractor. Attempts have been made to hold that the servants of sub-contractors for portions of a general undertaking were for this purpose fellow-servants with the servants directly employed by the principal contractors, even without evidence that the sub-contractors' work was finder the direction or control of the chief contrac- t )rs. This artificial and unjust extension of a highly (c) Hcdley x. Pinlcney tC- Sons' S. S. Co. [1892] 1 Q. B. 58, 61 L. J. Q. B. 179, C. A., affd. in H. L. [1894] A. C. 22-2, 63 L. J. Q. B. 419. (cl) According to some decisions, which seem on principle doubtful, he is bound only not to furnish means or resources which are to his own knowledge defective: Gallagher V. Fiper (1864) 16 C. B. N. S. 669, 33 L. J. C. P. 329. And more lately it has been decided in the Court of Appeal that where a servant seeks to hold his master liable for injury caused by the dangerous condition of a building where he is employed, he must allege distinctly both that the master knew of the danger and that he, the servant, was ignorant of it : Griffiths v. London and St. Katharine Docks Co. (1884) 13 Q. B. biv. 259, 53 L. J. Q. B. 504. ])Ut this does not seem to extend beyond the case of appliances originally sufficient falling out of repair : Williams v. Birmingham Batlenj and Metal Co. [1899] 2 Q. B. 338, 68 L. J. Q. B. 918, C.A. Cp. TJwmasv. Qaartermaine {1S87) 18 Q. B. Div. 685, 56 L. J. Q. B. 340. (c) Lord Cairns, as above: to same effect Lord Wensleydalc, Weems v. Mathieson (1861) 4 Macq. at p. 227 ; ' ' All that the master is bound to do is to provide machinery fit and proper for the work, and to take care to have it superintended by himself or his workmen in a fit and proper manner." In Skippx. E. C. R. Co. (1853) 9 Ex. 223, 23 L. J. Ex. 23, it was said that this duty does not extend to having a sufficient number of servants for the work : sed qu. The decision was partly on the ground that the plaintiff was in fact well acquainted with the risk and had never made any complaint. "COMMON EMPLOYMENT." 101 artificial rule was fortunately stopped by the House of Lords (/). Moreover, a stranger who gives his help without Volunteer reward to a man's servants engaged in any work is fg^onsame held to put himself, as regards the master's liability £oot'iigas ° •' servant, towards him, in the same position as if he were a servant. Having of his free will (though not under a contract of service) exposed himself to the ordinary risks of the work and made himself a partaker in them, he is not entitled to be indemnified against them by the master any more than if he were in his regular employment {g). This is really a branch of the doctrine " volenti non fit iniuria," discussed below under the title of General Exceptions. On the other hand, a master who takes an active part Exception in his own work is not only himself liable to a servant master* ^^ injured by his negligence, but, if he has partners in the jnterferes business, makes them liable also. For he is the agent of the firm, but not a servant (li) : the partners are generally answerable for his conduct, yet cannot say he was a fellow- servant of the injured man. Such were the results arrived at by a number of Em- modern authorities, which it seems useless to cite in Li°biuty more detail {i) : the rule, though not abrogated, being ^^^' i^^o. greatly limited in application by statute. The Employers' (/} Johnson v. Lindsay [1891] 30, approving Deqg v. Midland R. A. C. 371, 6.5 L. T. 97, overruling Co. (1857) 1 H. & N. 773,28 L. J. WUjgelt V. Fox, 11 Ex. 832, 25 Ex. 174. L. J. Ex. 188. Cp. Cameron v. (h) Ashworih v. S/aiuci.c (1861) Nystrovi (J. C.) [1893] A. C. 308, 3 E. & E. 701, 30 L. J. Q. B. 183. 62 L. J. P. C. 85, p. 81, above. li) They are well collected by Mr. (•. 409. QUASI-JUDICIAL POWERS. 121 civil liability if they observe the rules of natural justice, special and also the particular statutory or conventional rules, if any, if any, which may prescribe their course of action. The Xerved rules of natural justice appear to mean, for this purpose, that a man is not to be removed from office or member- ship, or otherwise dealt with to his disadvantage, without having fair and sufficient notice of what is alleged against him, and an opportunity of making his defence ; and that the decision, whatever it is, must be arrived at in good faith with a view to the common interest of the society or institution concerned. If these conditions be satisfied, a court of justice will not interfere, not even if it thinks the decision was in fact wrong (»). If not, the act complained of will be declared void, and the person affected by it maintained in his rights until the matter has been properly and regularly dealt with (.c). These principles apply to the expulsion of a partner from a private firm where a power of expulsion is conferred by the partnership contract {y). (u) Iiidcrioirk V. SneU. (1850) 2 AlUnson v. Iteneral Medical Ooun- Mac. & G. 216 (removal of a direc- idl [1894] 1 (,i. B. 75ii, 63 L. J. tor of a company) ; Dau-kins v. Q. B. 534, C. A. Antrohus (1881) 17 Ch. Div. 615 {x) Fisher v. Kcaiw (1878) 11 (expulsion of a member from a Cli. D. 353, 49 L. J. Ch. 11 (a club club) ; cf. 13 Ch. D. 352 ; Farlriilgc case, no notice to the member) ; Y. General Council, ). And even where a particular thing is required to be done, the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance {q) . A railway company is authorized to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house (r). (n) Biscoe v. G. E. R. Co. (1873) /.'. Co. (High Court, Calcutta), 10 L. R. 16 E^. 636. Ben. L. R. 341. Qa. whether tliis (o) 6 App. Ca. 203. he consistent with Lmuhjn avil {p) Metropolitan Asijlum Di.':! rid Brighton R. Gn. v. Truman, cited V. Sill (1881) 6 App. Ca. 193 ; in the next note. In Jonleson v. cp. Rapkr v. London Tramways Sutlon, iL-c. Gas Co. [1899] 2 Ch. Co. [1893] 2 Ch. 588, 63 L. J. Ch. 217, 68 L. J. Ch. 457, C. A., liability 36 ; C. P. R. Co. v. Parke [1899] for any nuisance hail been expressly A. C. 535, 68 L. J. P. C. 89. preserved by the governing statute. (q) A ttornry- General V. Gaslir/Jit See,\wwever,BaltimoreandPotamac and Cuke Co. (1877) 7 Ch. D. 217, R. R- v. Fifth BiqAlsl Church iWSS) 221, 47 L. J. Ch. 634. 108 U. S. 317. !r) Rdjmohun Bone v. East India P.T. ^^ 130 GENERAL EXCEPTIONS. But a statutory power to carry cattle by railway, and provide station yards and other buildings for the recep- tion of cattle and other things to be carried (without specification of particular places or times) , is incidental to the general purposes for which the railway was authorized, and the use of a piece of land as a cattle yard under this power, though such as would be a nuisance at common law, does not give any right of action to adjoining occupiers (s). Such a case falls within the princijole not of Mi'tropolitan Asylum District V. Hill, but of Rex v. Pease. A gas company was authorized by statute to have its pipes laid under certain streets, and was required to supply gas to the inhabitants. The vestry, being charged by statute with the repair of the streets, but not required or authorized to use any special means, used steam rollers of such weight that the company's pipes were often broken or injured by the resulting pressure through the soil. It was held that, even if the use of such rollers was in itself the best way of repairing the streets in the interests of the ratepayers and the public, the act of the vestry was wrongful as against the gas company, and was properly restrained by injunction (0- " An Act of Parliament may authorize a nuisance, and if it does so, their the nuisance which it authorizes may be lawfully committed. But the authority given by the Act may be an authority which falls short of (s) London ami Brighton R. Co. 15 Q. B. Div. 1, 54 L. J. Q. B. y. Truman (1885) 11 App. Ca. 45, 414. The Couvt also relied, but 55 L. J. Ch. 354, reversing the onlj' by way of confirmation, on decision of the Court of Appeal, 29 certain special Acts dealing with Ch. Div. 89. the relations between the vestry and (<) Gas Light and Colcr Co. v. the company. See 15 Q. B. Dir. at Vestry of St. Mary Abbott's (1885) p. INEVITABLE ACCIDENT. 131 authorizing a nuisance. It may be an authority to do certain works provided that they can be done without causing a nuisance, and whether the authority falls within that category is again a question of construction. Again the authority given by Parliament may be to carry out the works without a nuisance, if they can be so carried out, but in the last resort to authorize a nuisance if it is necessary for the construction of the works " (m). An authority accompanied by compulsory powers, or to be exercised concurrently with authorities cjusdcm i/encris which are so accompanied, will, it seems, be generally treated as absolute ; but no single test can be assigned as decisive (x). 8. — Incvitahle Accident. In the case we have iust been considering the act by inevitable which the damage is caused has been specially authorized, rcsultini,' Let us now turn to the class of cases which differ from f'„i™ct."" these in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there ; or (it is perhaps better to say) which he may do without breaking any positive law. "We shall assume from the first that there is no want of reasonable care on the actor's part. For it is undoubted that if, by failure in due care I cause harm to another, however innocent my intention, I am liable. This has already been noted in a general way (y). No less is it certain, on the other hand, that I am not answerable for mere (m) Bowen, L. J., 29 Cli. Div. at burn's opinion in Lmi'hm and p, X08. Bricjhtiiu J!. Co. v. Tru-nan. (x) See esiiecially Lord Black- {y) Pp. 34, 3", above. K 2 132 GENERAL EXCEPTIOXS. Condi- tions o£ the in- quiry. On prin- ciple such accident excludes liability. omission to do anything whicli it was not nij^ specific duty to do. It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the " consummate care " of an expert using his best precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only with the class of cases where the facts are so given or determined as to exclude any negligence whatever. The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead ; it does not mean absolutely inevitable (for, by the sup- position, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw, of Massa- chusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed. It may seem to modern readers that only one solution of the problem thus stated is possible, or rather that there is no problem at all (z). No reason is apparent for (:;) This, at any rate, is the view p. 2.56, 46 L. ,T. Ex. 174 ; Holmes of modern juries ; see JYicho/s v. v. Mather, L. 1!. 10 Ex. at p. 262. Marsland (1875) L. li. 10 Kx. at INEVITABLE ACCIDENT. - 133 not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law ; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbour against harm which (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man's hand (a). If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Eoman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man's death, under the name of deodand. But this is matter of history, not , of modern legal policy. So much we may concede, that (a) Trespass for assault by strik- ior wliich the defendant was not ing the plaintiff with a stick thrown answerable: Alderson v. Waistell by the defendant. Plea, not guilty. (1844) 1 C. & K. 358 (before Kolfe The jury were directed that, in the B. ). Tin's, if it could be accepted, absence of evidence for what pur would prove more than enough, pose the defendant threw the stick, But it is evidently a rough and thi.-y might conclude it was for a ready summing-up given without proper purpose, and the striking reference to the books, the plaintiff was a mere accident 134 GENERAL EXCEPTIONS. when a man's act is the apparent cause of mischief, the bm-den of proof is on him to show that the consequence was not one which by due diligence he could have pre- vented (b) . But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed. Apparent conflict of authori- ties. We believe that our modern law supports the view now indicated as the rational one, that inevitable accident is not a ground of liability. But there is a good deal of appearance of authority in the older books for the con- trary proposition that a man must answer for all direct consequences of his voluntary acts at any rate, or as Chief Justice 0. W. Holmes (c) has put it " acts at his peril." Such seems to have been the early Germanic law (d), and such was the current opinion of English lawyers until about a century ago, if not later. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Eoman or modern Continental jurisprudence (c) . And, what is more impor- (6) Sliaw C. J. would not con- cede even this in the leading Massacliusetts case of Srown v. Ketulall, 6 Gush, at p. 297. (c) See on the whole of this matter Chief Justice Holmes's chapter on " Trespass and Negli- gence," and Mr. Wigmore's articles in Harv. Law Rev. vii. 315, 383, 441, where materials are fully collected. {d) Heusler, Inst, des deutschen Privatrechts, ii. 263 ; LI. Hen. Primi, e. 88 § 6, 90 § 11 ; see p. 140, below. (c) ''Inpunitus est qui sine culpa et dolo malo casu quodam damnum committit." Gai. 3. 211. Paulus indeed says (D. 9. 2, ad legem Aquiliam, 45, § 4), "Si defendendi mei causa lapidem in advcrsarium misero, sed non cum f'fjii, AMERICAN CASES ON ACCIDENT. 135 tant for our purpose, the point has been decided in the sense here contended for by Courts of the highest authority in the United States. To these decisions we shall first call attention. In the Xitro-gli/cerinc Case (/) the defendants, a firm of American carriers, received a wooden case at New York to be carried ,„, ' ^°^^ ' TlieAitv't- to California. " There was nothing in its appearance (jiyceri calculated to awaken any suspicion as to its contents," and in fact nothing was said or asked on that score. On arriving at San Francisco it was found that the contents (which " had the appearance of sweet oil ") were leaking. The case was then, according to the regular course of business, taken to the defendants' offices (which they rented from the plaintiff) for examination. A servant of the defendants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last- mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namely, in 1866) become a generally known article of commerce, nor were its properties well known. It was found as a fact that the defendants had not, nor had sed praetereuntem percussero, tene- himself says there is no iniuria if bor lege Aquilia ; ilium enim solum the master of a slave, meaning to qui vim infert ferire conceditur." strike the slave, accidentally strikes But various explanations of this a free mau : D. 47, 10, de iniuriis, are possible. I'erhaps it shows 4. Accordingto the current English what kind of cases are referred to theory of the 16th— IStli centuries by the otherwise unexplained die- an action on the case would not lie tum of Ulpian in the preceding on such facts, but trespass vi ct fragment, " in lege Aquilia et armis would, levissima culpa venit." Taulus (/) 15 Wall. 524 (1872). 136 GENERAL EXCEPTIONS. any of the persons concerned in handling the case, knowledge or means of knowledge of its dangerous character, and that the case had been dealt with " in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their contents." The defendants admitted their liability as for waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the building. Doctrine of Su- preme Court ; no liability for acci- dental result of lawful act without negli- gence. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage : and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident ((/) . "No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. . . . The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own." £row)i V. Kendall (Massa- ciiusetts). The Court proceeded to cite with approval the case of ((/) The plaintiflf's proper remedy would have been against the con- signor who despatched the explosive without informing the carriers of its nature. See Lijell v. Ganga Dai (1875) Indian Law Rep. 1 AIL 60. AMERICAN CASES ON ACCIDENT. 137 Brown v. Krndall in the Supreme Court of Massachu- setts (/i). There the plaintiff's and the defendant's dogs were iightmg : the defendant was beating them in order to separate them, and the plaintiff looking on. " The defendant retreated backwards from before the dogs, striking them as he retreated ; and as he approached the plaintiff", with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he acci- dentally hit the plaintiff in the eye, inflicting upon him a severe injury." The action was trespass for assault and battery. It was held that the act of the defendant in itself " was a lawful and proper act which he might do by proper and safe means ; "' and that if " in doing this act, using due care and all proper precautions necessary to the exigencies of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable (i) , and therefore the action would not lie." All that could be required of the defendant was " the exercise of due care adapted to the exigency of the case." The rule in its general form was thus expressed : "If, in the prose- cution of a lawful act, a casualty purely accidental arises, no action can be supported for an inj ury arising therefrom." There have been like decisions in the Supreme Courts other of New York (/.•) and Connecticut. And these rulings caTesT"^" appear to be accepted as good law throughout the United contrary '^ '- 1 o o ^ opinion 111 States. The general agreement of American authority O/stu v. (//) 6 Cusli. 292 (1850). veutable by reasonable diligence. ( • •)• (i) The conscQucnce was involiin- (k) Harvey v. Dunlap, Lalorl93, tary or rather unintended, though. cited 15 AVall. 539 ; Murris v. Piatt, the act itself was voluntary ; and it 32 Conn. 75, was also unavoidable, i.e., not pre- 138 GENERAL EXCEPTIONS. and opinion is disturbed, indeed, by one modern case in tbe Court of Appeal of New York, that of Castle v. BuryccQ). But the conflicting element is not in the decision itself, nor in anything necessary to it. The defendant ^Yas the colonel of a regiment of New York militia, who at the time of the cause of action were firing blank cartridge under his immediate orders in the course of a review. The plaintiff was one of a crowd of spec- tators who stood in front of the firing line and about 350 feet from it. Upon one of the discharges the plaintiil was wounded by a bullet, which could be accounted for only by one of the men's pieces having by some misadventure been loaded with ball cartridge. It appeared that one company had been at target practice an hour or two before, and that at the end of the practice arms had been examined in the usual way {m), and surplus ammunition collected. Moreover, arms had again been inspected by the commanding officers of companies, in pursuance of the colonel's orders, before the line was formed for tbe regimental parade. The plaintiff sued the defendant in an action " in the nature of trespass for an assault." A verdict for the plaintiff was ultimately affirmed on appeal, the Court being of opinion that there was evidence of negligence. Knowing that some of the men had within a short time been in possession of ball ammunition, the defendant might well have done more. He might have cleared the front of the line before giving orders to fire. The Court might further have supported its decision, though it did not, by the cases which show that more than ordinary care, nay " consummate cau- tion " («)) is required of persons dealing with dangerous [l) 2 Keyes 169 (1865). ever, have been known to happen {m) It will be remembered that with modern arms. tliis was in the days of muzzle- (n) Erie C. J. obiter, in Potter v. loaders. Similar accidents, how- FcmlJcner, 1 B. & S. at p. 805, 31 INEVITABLE ACCIDENT. 139 weapons. The Chief Judge added that, as the injury ■svas the result of an act done by the defendant's express command, the question of negligence was immaterial. But this was only the learned judge's individual opinion. It was not necessary to the decision, and there is nothing tu show that the rest of the Court agreed to it (o). We may now see what the English authorities amount English to. They have certainly been supposed to show that yeg ': cases inevitable accident is no excuse when the immediate °' trespass ami shoot- result of an act is complained of. Erskine said a century ias. ago in his argument in the celebrated case of Tlie Dean oj St. Asaph {p) (and he said it by way of a familiar illustration of the difference between criminal and civil liability) that " if a man rising in his sleep walks into a china shop and breaks everything about him, his being asleep is a complete answer to an indictment for tres- pass (5), but he must answer in an action for everything he has broken." And Bacon had said earlier to the same purpose, that " if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course : but if a man be hurt or maimed only, an action of tres- pass lieth, though it be done against the party's mind and will"(r). Stronger examples could not well be propounded. For walking in one's sleep is not a L. J. Q. B. ZO ; Dixon y. Bell, 5 any authority that it would, though M. & S. 198, 17 R. E,. 308. the action of trespass originally (0) The reporter adds this signifi- had, and retained in form down to cant note : " The Court did not pass modern times, a public and penal upon the first branch of the case, character. discussed by the Chief Judge, as to (»•) Maxims of the Law, Eeg. 7, the question of the general liability following the dictum of Rede J. in of the commanding officer." 21 Hen. VII. 28. "We cite Bacon, (p) 21 St. Tr. 1022 (a.d. 1783). not as a writer of authority, but as (j) "Would an indictment ever lie showing, like Erskine, the average for simple trespass ? I know not of legal mind of his time. 140 GENERAL EXCEPTIONS. voluntary act at all, though possibly an act that might have been prevented : and the practice of archery was, ■when Bacon wrote, a positive legal duty under statutes as recent as Henry VIII.'s time, though on the other hand shooting is an extra-hazardous act (s) . We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I. (t), and in the arguments of counsel in a case in the Year-Book of Edward IV., where the general question was more or less discussed (u) . Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Broun v. Ki'udaU. But the decision was only that if A. cuts his hedge so that the cuttings yjso invito fall on B.'s land, this does not justify A. in entering on B.'s land to carry them off. And by Choke C. J., it is said, not that (as Brian's view would require) A. must keep his thorns from falling on B.'s land at all events, but that " he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out." Wein-er Y. Another case usually cited is- M'caver v. Ward{x). The plaintiff and the defendant were both members of a train-band exercising with powder, and the plaintiff was hurt by the accidental discharge of the defendant's piece. It is a very odd case to quote for the doctrine of absolute liability, for what was there hoklen was that in trespass (s) 0. W. Holmes 103. wetilJes, bete gewcaldes." («) C.88§6. "Siquisinludo.sagit- {u) 6 Edw. IV. 7 pi. 18 ; 0. W. tandi vel alicuius exeroitii laculo Holmes 85 ; cf. 21 Hen. VII. 27, vel huiusmodi casu aliquem occidat, pi. 5, a case of trespass to goods reddat eum ; legis euim est, quiiu- which does not really raise the scienter peccat, scienter emendet." question. C. 99 § 11 adds an English form of {x) Hob. 134, a.d. 1616. the maxim " et qui brecht unge- INEVITABLE ACCIDENT. 141 no man shall be excused, " except it may be judged utterly without his fault ; " and the defendant's plea was held bad because it only denied intention, and did not properly bring before the Court the question whether the accident was inevitable. A later case {y), which professes to follow Wearer v. Ward, really departs from it in holding that " unavoidable necessity " must be shown to make a valid excuse. This in turn was apparently followed in the next century, but the report is too meagre to be of any value (z) . All these, again, are shooting cases, and if they occurred at this day the duty of using extraordinary care with dangerous things would put them on a special footing. In the celebrated squib case they are cited and more or less relied upon (a). It is not clear to what extent the judges intended to press them. According to Wilson's report, inevitable accident was allowed by all the judges to be an excuse. But Blackstone's judgment, according to his own report, says that nothing but "inevitable necessity " will serve, and adopts the argument of Brian in the case of the cut thorns, mistaking it for a judicial opinion ; and the other judgments are stated as taking (y) Did-csoH V. Watson, Sir T. for the judgment of the Coui-t. At Jones 205, A. D. 1682. Lii.nibcrtx. most, therefore, his illustration': are Bessctj, T. Raym. 421, a case of false evidence of the notions current at imprisonment in the same period, the time. cites the foregoing authorities, (;.) Underwood v. Ilcwson^ 1 and Raymond's opinion rertiiinly Strange 596, a.d. 1723 (defendant assumes the view that inevitable was uncocking a gun, plaintiff look- accident is no excuse even when the ing on). It looks very like con- act is one of lawful self-defence. tributory negligence, or at any rate But then Raymond's opinion is .a voluntary exposure to the risk, dissenting one ; s. c. nom. JBcs^ry on the plaintiff's part. But the V. Olliotl, T. Raym. 467. Being law of negligence was then quite given in the former place alone undeveloped. and without explanation, it has («) Scott v. Shepherd (1773) 2 W. apparently been sometimes taken Bl. 892, 3 Wils. 403. 142 GENERAL EXCEPTIONS. the same line, though less explicitly. For the decision itself the question is hardly material, though Blackstone may be supposed to represent the view which he thought the more favourable to his own dissenting judgment. His theory was that liability in tres^jass (as distinguished from an action on the case) is unqualified as regards the immediate consequences of a man's act, but also is limited to such consequences. Lmme v. Then comes Leame v. Bray (b), a comparatively modern "^' case, in which the defendant's chaise had run into the plaintiff's curricle on a dark night. The defendant was driving on the M-rong side of the road, which of itself is want of due care, as every judge would now tell a jury as a matter of course. The decision was that tha proper form of action was trespass and not case. Grose J. seems to have thought inevitable accident was no excuse, but this was extra-judicial. Two generations later, in Jii/hdids V. Fletcher, Lord Cranworth inclined, or more than inclined, to the same opinion (c). Such is the authority for the doctrine of strict liabilitj-. A'ery possibly more dicta to the same purpose might be col- lected, but I do not think anything of importance has been left out(rf)- Although far from decisive, the weight of opinion conveyed by these various utterances is certainly respectable. {h) 3 East 593 (A.]). 1803), cp. allcgoil -were that A. in a quarrel Prelace to 7 E. R. at p. vii. with B. sti-uck C. Nothing shows (c) (1868) L. R. 3 H. L. at p. that A. would have been justified 311. or excused in striking B. And if {d) Sometimes tlie case of James the blow he intended was not lawful V. Camplcll (1832) 5 C. & P. 372, it was clearly no excuse that he is cited in this connexion. But not struck the wrong man (pp. 31, 32 only is it a Nisi Prius case with above, and see ij. v. Latimrr (\9,&6) nothing particular to recommend it, 17 Q. B. D. 359, 55 L. J. M, C. but it is irrelevant. The facts there 135). INEVITABLE ACCIDENT. liZ On tlie other hand we have a series of cases which Cases where ex- appear even more strongly to imply, if not to assert, the ception contrary doctrine. A. and B. both set out in their ^l'°^^'^'i- vessels to look for an abandoned raft laden with goods. A. first gets hold of the raft, then B., and A.'s vessel is damaged by the wind and sea driving B.'s against it. On such facts the Court of Kinf;'s Bench held in 1770 that A. could not maintain trespass, " being of opinion that the original act of the defendants was not unlaw- ful "(f). Quite early in the century it had been held that if a man's horse runs away with him, and runs over another man, he is not even lyvima facie a trespasser, so that under the old rules of pleading it was wrong to plead specially in justification (/). Here, however, it may be said there was no voluntary act at all on the defendant's part. In Wakeman v. Rohinaon, a modern running- down case ifi), the Court conceded that " if the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie"; thinking, however, that on the facts there was proof of negligence, they refused a new trial, which was asked for on the ground of misdirection in not putting it to the jury whether the accident was the result of negligence or not. In 1842 this declaration of the general rule was accepted by the Court of Queen's Bench, though the decision again was on the form of pleading (k) . Lastlv, we have two decisions well within our own time ifoime-i v. -' Mnthei: {(•) Davis V. Saunders, 2 Chitty defendant seems to have been very g39_ well reasoned. (/) Gibbo-iis V. Pepper, 1 Loid (A) Hall v. Fmrnlc)/, 3 Ij. B. Raym. 38. 91", 12 L. J. Q. B. 22. The line (g) 1 Bing. 213, 25 R. R. 618 between this and '/i/<4«»v v. /'rpper (1823). The argument for the is rather fine. 1-14 GENERAL EXCEPTIONS. which are all but conclusive. In Holmes v. Mather (?) the defendant was out with a pair of horses driven b.y his groom. The horses ran away, and the groom, being unable to stop them, guided them as best he could ; at last he failed to get them clear round a corner, and they knocked down the plaintiff. If the driver had not attempted to turn the corner, they would have run straight into a shop-front, and (it was suggested) would not have touched the plaintiff at all. The jury found there was no negligence. Here the driver was certainly acting, for he was trying to turn the horses. And it was argued, on the authority of the old cases and dicta, that a trespass had been committed. The Court refused to take this view, but said nothing about inevitable accident in general. "For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid " (/<;). Thus it seems to be made a question not only of the defendant being . free from blame, but of the accident being such as is incident to the ordinary use of public roads. The same idea is expressed in the judgment of the Exchequer Chamber in Ri/lands v. Fletcher, where it is even said that all the cases in which inevitable accident has been held an excuse can be explained on the principle "that the circumstances w'ere such as to show that the plaintiff had taken that risk upon himself" (I). Stanley v. More lately, m... Stanley v. Poircll (m), Denman J. came, Potccll. (i) L. E. 10 Ex. 261, 44 L. J. >-. Baker [1891] A. C. 325, 337, 60 Ex. 176 (187.'0- I- J- Q- B. 683. {k) Brfimivell B. at p. 267. («i) [1891] 1 Q. B. 86, 60 L. J. (l) L. R. 1 Ex. at p)). 286, 287. Q. B. 52. This was a shooting But see per Lord Halsbury in Smith case (a pellet glanced from a bough INEVITABLE ACCIDENT. 145 on the English authorities alone, to the conclusion above maintained, namelj' that, ■where negligence is negatived, an action does not lie for injury resulting by accident from another's lawful act. These decisions seem good warrant for saying that Conolu- the principle of llie Xitiv-filtjccrinc Casi' and Brown v. Kendall is now part of the common law in England as well as in America. Negligent acts are of course not free from liability ; and in deciding whether a given act is negligent the act must be considered with regard to its necessity, propriety, or conformity to common usage, in all the circumstances of the case. All these elements count towards finding as a fact whether a man acts with due care or not. It may be negligent to do risky things at all without good cause, as well as to do them care- lessly, or to do some common thing so carelessly as to make needless risk. But this is no ground for laying down, as a rule of law, that there is a graduated scale of immunity or privilege according to the nature of the occasion. Such a rule is not to be found in any decision, and would be far too elaborate for practice («). What is here said seems in accordance with a recent opinion of the Supreme Court of the United States : " Occupations, however important, which cannot be con- ducted without necessary danger to life, body or limb, should not be prosecuted at all without all reasonable precautions against such dangers afforded by science " (o). Acts done without such precaution, and causing damage, are actionable not as unexcused trespasses, but on the and wounded the plaintiff s eye). A (m) Mr. Beven has made the point might have been made for the attempt, Negligence in Law, i. plaintiff, but apparently was not, 663—685. on the "extra-hazardous" character (o) Matlixr v. Rillslon (1894) 156 of firearms. U- S. 391, 399. P.T. L 146 GENERAL EXCEPTIONS. ground of culpable negligence. All this inquiry may be thought to belong not so much to the head of exceptions from liability as to the fixing of the principles of liability in the first instance. But such an inquiry must in practice always present itself under the form of deter- mining whether the particular circumstances exclude liability for an act or consequence which is at first sight wrongful. The same remark applies, to some extent, to the class of cases which we take next in order. 9. — Exercise of common Rifihts. Immunity We have just left a topic not so much obscure in itself lU GXGrcisG of com- as obscured by the indirect and vacillating treatment of rio-hts, ^^ "^ ^^^' authorities. That which we now take up is well settled in principle, and the difficulties have been only in fixing the limits of application. It is impossible to carry on the common affairs of life without doing various things which are more or less likely to cause loss or inconvenience to others, or even which obviously tend that vv^ay ; and this in such a manner that their tendency cannot be remedied by any means short of not acting at all. Competition in business is the most obvious example. If John and Peter are booksellers in the same street, each of them must to some extent diminish the custom and profits of the other. So if they are shipowners employ- ing ships in the same trade, or brokers in the same market. So if, instead of John and Peter, we take the three or four railway companies whose lines offer a choice of routes from London to the north. But it is needless to pursue examples. The relation of profits to competi- tion is matter of common knowledge. To say that a man shall not seek profit in business at the expense of others is to say that he shall not do business at all, EXEKCISE OF EIGHTS. 147 or that the whole constitution of society shall be altered. Short of a fundamental reconstruction of the common- wealth, the law must assume that " free competition is worth more to society than it costs" (jj). Like reasons apply to a man's use of his own land in the common way of husbandry, or otherwise for ordinary and lawful pur- poses. In short, life could not go on if we did not, as the price of our own free action, abide some measure of inconvenience from the equal freedom of our neighbours. In these matters vemam petimusque damusquc ricissiiii. Hence the rule of law that the exercise of ordinary rights in an ordinary manner is no wrong even if it causes damage (q). It is chiefly in this class of cases that we meet with the phrase or formula damnum sine iniuria; a form of words which, like many other Latin phrases and maxims, is too often thought to serve for an explana- tion, when in truth it is only an abridgment or iiiemorta tcchnica of the things to be explained. It is also of doubtful elegance as a technical phrase, though in general Latin literature iniuria no doubt had a sufficiently wide meaning (?•)• In English usage, however, it is of long standing (s). (p) 0. W. Holmes J., Vcgelahii datum, nee eniiu potest animal V. Gantiur, 167 Mass. 92, 106. iniuii.i fecisse, ijuod seusu caret." (y) A.-O. V. Tuinliiie (1880) 14 This is in a very special coute.Kt, and Cli. Div. 58, 49 L. J. Ch. 377, is a is far IVom warranting the use of curious case, but does not make any ''damnum sine iuiuria"as a com- real exception to this. It shows that men formula. ISeing, however, (1) the Crown iis owner of foreshore adopted in the Institutes, 4, 9, pr. has duties for the protection of the (with the unidiomatic variant " i'/t- land, though not enforceable duties ; iuriam fecisse"), it probably became, (2) those duties, where the Crown throughAzo, the orii^in of the phrase rights have become vested in a sub- now current. In Gaius 3. 211 (on ject, are laid upon and Tnay be the lex Aijuilia) we read " Iniuria enforced against that subject. autem occidere intellegitur cuius (r) Ulpian wrote (D. 9. 1, si dolo aut culpa id acoiderit, nee uUa quadrupes, 1, § 3) : " Pauperies est damnum sine iniuria facientis {s) 8cc note (t) on next page. L 2 148 GENERAL EXCEPTIONS. The case of Glou- cester Grammar School. A classical illustration of the rule is given by a case in the Year-Book of Henry IV., which has often been cited in modern books, and which is still perfectly good authority (u). The action was trespass by two masters of the Grammar School of Gloucester against one who had set up a school in the same town, whereby the plaintiffs, having been wont to take forty pence a quarter for a child's schooling, now got only twelve pence. It was held that such an action could not be maintained. " Damnum," said Hankford J., "may be absque iiuttria, as if I have a mill and my neighbour build another mill, whereby the profit of my mill is diminished, I shall have no action against him, though it is damage to me . . . but if a miller disturbs the water from flowing to my mill, or doth any nuisance of the like sort, I shall have such action as the law gives." If the plaintiffs here had shown a franchise in themselves, such as that claimed by the Universities, it might have been otherwise. Case of mills. A case very like that of the mills suggested by Hankford actually came before the Court of Common alia lege damnum quod sine iniuria datur reprehenditur.'' This shows that '•'damnum sine iniuria dare" was a correct if not a common phrase ; though it could never have for Gains or TJlpian the wide mean- ing of " harm [of any kind] which gives no cause of action." "Dam- num sine iniuria '' standing alone as a kind of compound noun, according to the modern use, is hardly good Latin (t] Bracton says, fo. 221 a: "Si quis in fundo proprio construat ali- quod molendinum, et sectam suani et alicrum vicinorum subtrahat vicmo, facit vicino damnum et non iniuriam." " Darnpnum sine in- iuria " occurs in 7 Ed. III. 65, pi. 67, "damnum absque iniuria" in 11 Hen. IV. 47, pi. 21 (see below). (u) Hil. n Hen. IV. 47, pi. 21 (a.d. l'410-ll). In the course of argument the opinion is thrown out that the education of children is a spiritual matter, and therefore the right of appointing a schoolmaster cannot be tried by a temporal court. The plaintiff tried to set up a qiiasi franchise as holding an ancient office in the gift of the Prior of Lantone, near Gloucester (sic- probably Llanthony is meant). TKADE COMPETITION. 149 Pleas a generation later (.r), and Newton C. J. stated the law in much the same terms. Even if the owner of the ancient mill is entitled to sue those who of right ought to grind at his mill, and grind at the new one, he has not any remedy against the owner of the new mill. "He who hath a freehold in the vill may build a mill on his own ground, and this is wrong to no man." And the rule has ever since been treated as beyond question. Competition is in itself no ground of action, whatever damage it may cause. A trader can complain of his rival only if a definite exclusive right, such as a patent right, or the right to a trade mark, is infringed, or if there is a wilful attempt to damage his business by injurious false- hood {" slander of title ") or acts otherwise unlawful in themselves. Underselling is not a wrong, though the seller may purposely sell some article at unremunerative prices to attract custom for other articles (i/) ; nor is it a wrong even to offer advantages to customers who will deal with oneself to the exclusion of a rival (z). " To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract their business to his own shop, would be a strange and impossible counsel of perfection " (a). "To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the Courts. Com- petition exists where two or more persons seek to possess or to enjoy the same thing ; it follows that the success of one must be the failure of another, and no principle of law enables us to interfere with or to moderate that (,t) 22 Hen. YI. 14, pL 23 (a.d. McGregor (1889-91) 23 Q. B. Div. 1443). The school case is cited. 598, affirmed in H. L. [1892] A. C. (ij) Jjcllo V. Worsley [1898] 1 25. Ch. 274, 67 L. J. Ch. 172. (a) Bowen L.J., 23 (,). B. Div. at [z) Mogul Steamship Co. v. p. 615. 150 GENERAL EXCEPTIONS. success or that failure so long as it is due to mere com- petition " {h). There is " no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself " (r) . But this must be taken subject to the principle that competition must be fair in the sense of being open. A man may not benefit himself at the expense of another and a rival trader by passing off his goods or business as being that other's {d). Digging Another group of authorities of the same class is that wells, &c. ' . in a man's wlucli establishes "that the disturbance or removal of the soil in a man's own land, though it is the means (by process of natural percolation) of drying up his neigh- bours spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And, further, that it makes no difference whether the damage arise by the water percolating away, so that it ceases to flow along channels through which it previously found its way to the spring or well ; or whether, having found its ^\aJ to the spring or well, it ceases to be retained there" (c). The leading cases are Action v. Blunddl (/) and Chase- vtore V. Richards (g). In the former it was expressly laid down as the governing principle " that the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such right he intercepts or drains off the water collected from under- ground springs in his neighbour's well, this inconvenience (i) Fry L. J., ihid. at pp. 625, Q. B. 381. 626. («) Per Cuv. Ballacorkish Mining (cl Lord Hanncn, s. c. in H. L. Go. v. //arrisoB (1873) L. E. 5 P. C. [1892] A. C. at p. 59. at p. 61, 43 L. J, P. C. 19. (d) We shall return to this later (/) 12 M. & W. 324, 13 L. J. under the head of Deceit. Arecent Ex. 289 (1843). leading authority is jReddairay v. {g) 7 H. L. C. 349, 29 L. J. Ex. Baiiliam [1896] A. C. 199, 65 L. J. 81 (1859). rsE OF ONES OWN LAND. 151 to his neighbour falls -within the description of damnum absijiir inittiia Avhich cannot become the ground of an action." In this case the defendant had sunk a deep pit' on his own land for mining purposes, and kept it dry hf pumping in the usual way, with the result of drying np»" a well which belonged to the plaintiff and was used by him to supply his cotton mill. Chascmore v. Ulchards Chase- carried the rule a step further in two directions. It settled Richards. ■ that it makes no difference if the well or watercourse whose supply is cut off or diminished is ancient, and also (notwithstanding considerable doubt expressed by Lord Wenslej'dale) that it matters not whether the operations carried on by the owner of the surface are or are not for any purpose connected with the use of the land itself. The defendants in the cause were virtually the Local Board of Health of Croydon, who had simk a deep well on their own land to obtain a water sujjply for the town. The making of this well, and the pumping of great quantities of water from it for the use of the town, intercepted water that had formerly found its way into the river Wandle by underground channels, and the supply of water to the plaintiff's ancient mill, situated on that river, was diminished. Here the defendants, though using their land in an ordinary way, were not using it for an ordinary purpose. But the House of Lords refused to make any distinction on that score, and held the doctrine of Acton v. Blvndell applicable (It). The right claimed by the plaintiff was declared to be too large and indefinite to have any foundation in law. (/(.) Cp., as to the distinction 47 L. J. C. V. 268 ; and further as between the "natural riser," of to the limits of "natural user,"' land and the maintenance of arti- Ballard v. Tomlinson (1885) 29 ficial works, Hurdman v. N. E. 1!. Ch. Div. 115, 5-1 L. J. Ch. it>i. Co. (1878) 3 C. P. Div. at p. 174, 152 GENERAL EXCEPTIONS. No reasonable limits could be set to its exercise, and it could not be reconciled with the natural and ordinary rights of landowners. And now the House of Lords has decided that it does not matter with what motive or intention a landlord exercises the right in question. An aggrieved neighbour will not better his case by averring that the right was exercised "maliciously " (i). The law is believed to be understood to the same effect in the United States. other applica- tions of same principle. There are many other ways in which a man may use his own property to the prejudice of his neighbour, and yet no action lies. I have no remedy against a neigh- bour who opens a new window so as to overlook my garden : on the other hand, he has none against me if, at any time before he has gained a prescriptive right to the light, I build a wall or put up a screen so as to shut out his view from that window. But the principle in question is not confined to the use of property. It extends to every exercise of lawful discretion in a man's own affairs. A tradesman may depend in great measure on one large customer. This person, for some cause of dissatisfaction, good or bad, or without any assignable cause at all, suddenly withdraws his custom. His con- duct may be unreasonable and ill-conditioned, and the manifest cause of great loss to the tradesman. Yet no legal wrong is done. And such matters could not be otherwise ordered. It is more tolerable that some tradesmen should suffer from the caprice of customers than that the law should dictate to customers what reasons are or are not sufficient for ceasing to deal with a tradesman. So an employer entitled to dismiss a workman at a week's or a day's notice, or a workman (i) Mayor of Bradford v. Pickles [1895] A. C. 587, 64 L. J. Ch. 759. EXERCISE OF RIGHTS. 153 entitled to leave on notice, has only to give the proper amount of notice; his reasons and motives are im- material. Choosing when, where, or with ^Yhom one will work is as much a matter of common right (subject to any binding contract) as the choice of an occupation itself (/i). (ogcrs V. A curious case of this class arose at Calcutta at the no time of the Indian Mutiny, and was taken up to the nutt.^'" Privy Council. Eajendro Dutt and others, the plain- tiffs below, were the owners of the Vudi'viniter, a tug employed in the navigation of the Hoogly. A troopship with English troops arrived at the time when they were most urgently needed. For towing up this ship the captain of the tug asked an extraordinary price. Failing to agree with him, and thinking his demand extor- tionate. Captain Eogers, the Superintendent of Marine /-,r.s v. najcndiv Dull, 8 see per Lord Herschell, at p. 138, JIoo. I. A. 103. 67 L. J. Q. B. 119. 154 GENERAL EXCEPTIONS. India, rightly or wrongly, thought the terms unreason- able, they might decline to deal with the plaintiffs both on the present and on other occasions, and restrain public servants from dealing with them. " The Government certainly, as any other master, may lawfully restrict its own servants as to those whom they shall employ under them, or co-operate with in perform- ing the services for the due performance of which they are taken into its service. Supposing it had been believed that the Unchrirriter was an ill-found vessel, or in any way unfit for the service, might not the pilots have been lawfully forbidden to employ her until these objections were removed ? Would it not indeed have been the duty of the Government to do so ? And is it not equally lawful and right when it is honestly believed that her owners will only render their services on exorbitant terms ? " ();0- Even In this last case the harm suffered by the plaintiff in mata'inT* ^^^^ Court below was not only the natural, but apparently in these ^^q intended consequence of the act complained of. The defendant however acted from no reason of private hostility, but in the interest (real or supposed) of the public service. Xot that even averment and proof of" malice, in the sense that the act complained of was done with the sole or chief intention of causing harm to the plaintiff as a private enemy, could make any difference in such a case. "No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious" (»)• And it is generally true that "an act (/«) 8 Moo. I. A. at p. 134, 598. To the same effect Lord. {n) Lord Watson, il/nj/oj'o/i?™!?- Macuaghtcn at p. 601. ford V. PicJdes [1895] A. C. 5S7, cases. MALICE AND EXERCISE OF RIGHTS. 155 ^vhich does not amount to a legal injury cannot be actionable because it is clone with a bad intent" (o). As regards the use of property, the Eoman la^vyers Roman held that " animus vicino nocendi" did or might make a of "ani- difference. In a passage cited and to some extent I'elied ""ena;'"'^ on (in the scantiness, at that time, of native authority) in Acton v. Blunddl, -we read: " Denique Marcellus scribit, cum eo qui in suo fodiens vicini iontem avertit, nihil posse agi, nee de dolo actionem : et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit " {p). And this view was supposed to be followed ])y recognized authorities in the law of Scotland, who say that an owner using his own land must act "not in mere spite or malice, in annuln- tioncm vicini " (q). But it is now explained that this refers only to the limited class of cases where a land- owner can as well do the thing he wants to do, such as burning limestone, without nuisance to his neighbour, and yet wantonly or recklessly does it at a place whei'e it causes annoyance (/■)• It seems then that in Scotland, as in England, abuse of an owner's common rights may be actionable as a nuisance, but inconvenience not amounting to nuisance cannot be made to give a right of action by any allegation of evil motive. Again our law does not in general recognize any exclu- Cases of sive right to the use of a name, personal or local. I may n^es. use a name similar to that which my neighbour uses — (o) SUvciisrifi V. A'l-wnham (1853) (Ulpian). 13 C. B. 285, 297, 22 L. J. C. P. (q) Bell's Princiiiles, 966 (refrncd 110 ; approved per Lord Herscliell to by Lord A\'i-iipleydale in Chase- in Allen V. Flood [1898] A. C. 1, innrc v. Itirlmnl.i, supra, p. 151). 124, 67 L. J. Q. B. 119. (r) Lord Watson in Mnyi}!- of (p) D. 39, 3, de aqua, 1, §12 Bradford y. Piclhs. note (n)-Aho\ii. 16G GENERAL EXCEPTIONS. and that whether I inherited or found it, or have assumed it of my own motion — so long as I do not use it to pass off my wares or business as being his, which is quite another matter. The fact that inconvenience arises from the similarity will not of itself constitute a legal injury (.s), and allegations of pecuniary damage will not add any legal effect. " You must have in our law injury as well as damage " (0- 10. — Leave and Licence : Volenti luit fit ininria. t;onsentoi- Harm suffered by consent is, within limits to be nnce''of mentioned, not a cause of civil action. The same is "^^^ , true where it is met with under conditions manifesting (leave and _ _ '^ licence), acceptance, on the part of the person suffering it, of the risk of that kind of harm. The maxim by which the rule is commonly brought to mind is " A'olenti non fit iniuria." "Leave and licence" is the current English phrase for the defence raised in this class of cases. On the one hand, however, volenti non fit iniuria is not universally true. On the other hand, neither the Latin nor the English formula provides in terms for the state of things in which there is not specific will or assent to suffer something which, if inflicted against the party's will, would be a \wong, but only conduct showing that, for one reason or another, he is content to abide the chance of it (ii). {s) See Burgess v. Burgess (1853) and dist. Pinei's ca. [1898] 1 C'li. 3 D. M. G. 896, 22 L. J. Cli. 675, 179, 67 L. J. Ch. 41, where a name a ckssical case ; Dtt Boulay v. Du was assumed for a fraudulent Botilny (1869) L. R. 2 P. C. 430, purpose. 38 L. .r. P. C. 35 ; Day v. Brown- (t) JesseUI. R., 10 Ch. Div. 304. rigg (1878) 10 Ch. Div. 294, 48 [u) Unless we said that leave L. J. Ch. 173 ; Street v. Union Bank, points to specific consent to an act, inai v. Quartermaine note (rj). Lord Bramwell's extra- (1887) T^JPSR. Div, 685, 56 L. J. judicial remarks cannot be sup- 31 2 164 GENERAL EXCEPTIONS. Cases between employers and their workmen : Smith V. Balder. The principle expressed by volenti non fit initina is different from that of contributory negligence (t), as it is in itself independent of the contract of service or any other contract (n). It does not follow that a man is negligent or imprudent because he chooses to encounter a risk which he knows and appreciates ; but, if he does voluntarily run the risk, he cannot complain after- wards (x). At the same time, knowledge is not of itself conclusive. The maxim is volenti — not scienti — non fit iniuria ; " the question whether in any particular case a plaintiff was rolens or nolens is a question of fact and not of law" {y). A workman is not bound, for example, to throw up his employment rather than go on working with appliances which he knows or suspects to be dangerous ; and continuing to use such appliances if the employer cannot or will not give him better is not conclusive to show that he voluntarily takes the attendant risk {z). As between an employer and his own workmen, it is hardly possible to separate the question of knowledge and acceptance of a particular risk from the question whether it was a term in the contract of service (though it is seldom, if ever, an express term) that the workman should accept that risk. Since the Employers' Liability Act deprived the master, as we have already seen, of the defence of "common employment" in a con- siderable number of cases, the defence of volenti non fit iniuria has several times been resorted to, with ported : see per Lord' Herschell, 14 App. Ca. at pp. 192, 193 ; and Smith V. Baker, pp. 165, 166, below. (i;) Boiven L. J. in Thomas v. Qiiartermaine (1887) 18 Q. B. Div. 685, 694, 697, 56 L. J. Q. B. 340. («) 18 Q. B. Div. at p. 698. {x) Boweu L. J. 18 Q. B. Diy. at p. 695. ()/) Ibid, at p. 696 ; Lindley L. J. in Yarmouth r. France (1887) 19 Q. B. D. 647, 659, before judges of the C. A. sitting as a divisional Court. (s) Yarmouthv. France, lustJiote ; Thrusscll V. Handysidc (1888)20 CJ. B. D. 359, 57 L. J. Q. B. 347 ; Smith V. Baker [1591] A. C. 325, 60 L. J. q. B. 083. TAKING RISK. 1G5 the effect of raising complicated discussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then con- struing it largely, something very like the old doctrine of " common employment " might have been indirectly restored. For some time there was appreciable danger of this result. But the tendency was effectually checked by the decision of the House of Lords in Smitli v. Baker (a). Except where there is an obvious and necessary danger in the work itself, it must be a question of fact in every case whether there was an agreement, or at any rate consent, to take the risk (b). "Where a person undertakes to do work which is in- trinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action:" as in the case of works unavoidably producing noxious fumes. But where " a risk to the employed, which may or may not result in injury, has been created or enhanced by the neghgence of the employer," there "the mere continuance in service, with knowledge of the risk," does not "preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty" (c). And it seems that (apart from contracts to take a class of risks) there must be consent to the particular act or operation which (a) [IS'.iljA. C. 325. Romei- L. J. (6) Williams v. Birminglwni (c) Lord Herschell [1891] A. C. at JJattenjaiLd Mctid Go. [1899] 2 i,i. B. pp. 360, 362. -338, 345, 68 L. J. Q. H. 918, per 166 GENERAL EXCEPTIONS. is hazardous, not a mere general assent inferred from knowledge that risk of a certain kind is possible (d). Distinc Cases of volenti non fit iniuria are of course to be nonegli- distinguished from cases of pure unexpected accident, gence at ^yj^gre there is no proof of any negligence at all on the defendant's part (e). It seems that Thomas v. Quartermaine, though not so dealt with, was really a case of this latter kind (/). In the construction of a policy of insurance against death or injury by accident, an exception of harm " happening by exposure of the insured to obvious risk of injury" includes accidents due to a risk which would have been obvious to a person using common care and attention (g). of action. Distinc- We now see that the whole law of negligence assumes cases "^"^ the principle of volenti non fit iniuria not to be appli- where cable. It was suggested in Holmes v. Mather (It) that, Degbgence °° is ground when a competent driver is run away with by his horses, and, in spite of all he can do, they run over a foot-passenger, the foot-passenger is disabled from suing, not simply because the driver has done no wrong, but because people who walk along a road must take the ordinary risks of traffic. But, if this were so, why stop at misadventure without negligence '? It is common knowledge that not all drivers are careful. It is known, {d) Lord Halsbury [1891] A. C. trial Lelow, was not open on tlie at pp. 336 — 338. appeal. It was nevertheless extra- (e) Walsh T. ir/MteZct/ (1888) 21 judicially discussed, with consider- Q. B. Div. 371, 57 L. J. Q. B. 586. able variety of opinion. (/) See Lord Morris's remarks iu [g] Cornish Accident Ins^irancc Smith V. Baker [1891] A. C. at Co. (1889) 23 Q. B. Div. 453, 58 L. p. 369. In Smith v. Baker its. B. 673 (judgment of Kennedy it cannot be a trespass or a lawful J.). act to save a man's goods according (q) Cf. the Indian Penal Code, as they are or are not insured. s. 92, and the powers given to the Cj.. Y. B. 12 Hen. VIII. 2, whore London Fire Brigade by 28 & 29 there is some curious discussion on Vict. c. 90, s. 12, which seems the theory of trespass generally. rather to assume a pre-existing A mere volunteer may not force right at common law. his way into a house on fire (r) See Kirk v. Grajory (1876) 1 already under the control of per- Ex. D. 55, 59. sons who are lawfully endeavouring (s) This is the terra adopted in to put down the fire, and are not the Indian Penal Code. defence. 170 GENERAL EXCEPTIONS. nay approved, by the law. Sudden and strong resist- ance to unrighteous attack is not merely a thing to be tolerated ; in many cases it is a moral duty. Therefore it would be a grave mistake to regard self-defence as a necessary evil suffered by the law because of the hardness of men's hearts. The right is a just and perfect one. It extends not only to the defence of a man's own person, but to the defence of his property or possession. And what may be lawfully done for oneself in this regard may likewise be done for a wife or husband, a parent or child, a master or servant (t). At the same time no right is to be abused or made the cloak of wrong, and this right is one easily abused. The law sets bounds to it by the rule that the force employed must not be out of proportion to the apparent urgency of the occasion. We say apparent, for a man cannot be held to form a precise judgment under such conditions. The person acting on the defensive is entitled to use as much force as he reasonably believes to be necessary. Thus it is not justifiable to use a deadly weapon to repel a push or a blow with the hand. It is even said that a man attacked with a deadly weapon must retreat as far as he safely can before he is justified in defending him- self by like means. But this probably applies (so far as it is the law) only to criminal liability (;()• On the other hand, if a man presents a pistol at my head and threatens to shoot me, peradventure the pistol is not loaded or is [t] Blackstone iii. 3 ; and see the that a lord might fight in defence opinion of all the justices of K. B., of his men as well as the}' in his. 21 Hen. VII. 39, pi. 50. There LI. Alf. c. 42, § 5. has been some donbt whether a ' {u) See Stephen, Digest of mastei- could justify on the ground Criminal Law, art. 200. Most of of the defence of his servant. But the authority on this subject is the practice and the better opinion in the early treatises on Pleas of have always been otherwise. Before the Crown, he Conquest it was understood DEFENCE AND NECESSITY. 171 not in \\orldng order, but I shall do no wrong before the law by actmg on the supposition that it is really loaded and capable of shooting. " Honest and reasonable belief of immediate danger " is enough (x). Cases have arisen on the killing of animals in defence Killing of of one's propert}^ Here, as elsewhere, the test is whether defence of the party's act was such as he might reasonably, in the propi^i'ty- circumstances, think necessary for the prevention of harm which he was not bound to suffer. Within our own time the subject was elaborately discussed in New Hampshire, and all or nearly all the authorities, English and American, reviewed (^/). Some of these, such as Deanc V. Clayton {z), turn less on what amount of force is reasonable in itself than on the question whether a man is bound, as against the owners of animals which come on his land otherwise than as of right, to abstain from making the land dangerous for them to come on. And in this point of view it is immaterial whether a man keeps up a certain state of things on his own land for the purpose of defending his property or for any other purpose which is not actually unlawful. As to injuries received by an innocent third person from an act done in self-defence, they must be dealt with on the same principle as accidental harm proceeding {x) N. 0. & aV. E. R. E. Co. V. inan resp. (1863) 4 B. & S. 89, 32 Jopes (1891) 142 U". S. 18. L. J. M. C. 186. ()/) Aldrich V. JFright (1873) 53 (s) (1817) 7 Taunt. 489, 18 R, R. K. H. 398, 16 Am. Eep. 339. Tlio ofj.'i, the case of dog-spears, -n-here decision was that the penalty of a the Court was equally divided ; statute ordaining a close time for JordhiY. Crump (1841) 8 M. & "\V. minks did not apply to a man who 782, ivhere the Court took the view shot on his own land, in the close of Gibbs C. J. in the last case, on season, minks which he reasonably the gi'ound that setting dog-spears thought were in pursuit of his was not in itself illegal. Notice, geese. Compare Taylor app. ^'eu;- however, was pleaded. 172 GENERAL EXCEPTIONS. from any other act lawful in itself. It lias to be con- sidered, however, that a man repelling imminent danger cannot be expected to use as much care as he would if he had time to act deliberately. Assertion of rights distin- guished from self- defence. Self-defence does not include the active assertion of a disputed right against an attempt to obstruct its exercise. I am not justified in shooting, or offering to shoot, one who obstructs my right of way, though I may not be able to pass him otherwise, and though I am justified in resisting, within due bounds, any active force used on his part. It seems the better opinion " that the use of force which inflicts or may inflict grievous bodily harm or death — of what in short may be called extreme force — is justifiable only for the purpose of strict self-defence " (a). I may be justified in pushing past the obstructor, but this is not an act of self-defence at all ; it is the pure and simple exercise of my right itself (6). Many interesting questions, in part not yet settled, may be raised in this connexion, but their interest belongs for most practical intents to public and not to private law. It must not be assumed, of course, that whatever is a sufficient justification or excuse in a criminal prosecution will equally suffice in a civil action. Injury to third per- sons from acts of self- defence. Some of the dicta in the well-known case of Scott v. S]irj)]tcrcl{c) go the length of suggesting that a man acting on the spur of the moment under " compulsive necessity" (the expression of De Grey C. J.) is excusable as not being a voluntary agent, and is therefore not bound to take any care at all. But this appears very doubtful. In that («) Dicey, Law of the Constitu- tion, 5th ed. 1897, appx. note iv., which see for fuller discussion. [h) Dicey, op. cit. 428. (c) 2 'W. Bl. 892. WHEEE PLAINTIFF A WRONG-DOER. 173 case it is hard to believe that WiUis or Ryal, if he had been worth suing and had been sued, could have success- fullj- made such a defence. They " had ... a right to protect themselves by removing the squib, but should have taken care " — at any rate such care as was practi- cable under the circumstances — " to do it in such a manner as not to endamage others" (rf). The Roman lawj'ers held that a man Avho throws a stone in self- defence is not excused if the stone bj' misadventure strikes a person other than the assailant (e). Perhaps this is a harsh opinion, but it seems better, if the choice must be made, than holding that one may with impunity throw a lighted squib across a market-house full of people in order to save a stall of gingerbread. At all events a man cannot justify doing for the protection of his own property a deliberate act whose evident tendency is to cause, and which does cause, damage to the property of an innocent neighbour. Thus if flood water has come on my land by no fault of my own, this does not entitle me to let it off by means which in the natural order of things- cause it to flood an adjoining owner's laiid (/). 13. — Plaintiff a icrong-docr. Language is to be met with in some books to the effect Harm suf- that a man cannot sue for any injury suffered by him at a, wrong- a time when he is himself a wrong-doer. But there is no J^o^^jfui such general rule of law. If there were, one consequence whether special {d) Blaokstone J. in Ms dissent- 131, 53 L. J. Q. B. 285, distin- disability. ing judgment, 2 W. Bl. at p. 895. guishing the case of acts lawful in (e) D. 9. 2, ad. 1. Aqiiil. 45, § 4 ; themselves which are done by way supra, p. 134. of precaution against an impending (/) Whalley v. Lmic. and YorJc- common danger. shire R. Co. (1884) 13 Q. B. Div. 174 GEXEEiL EXCEPTIONS. would be that an occupier of land (or even a fellow tres- passer) might beat or wound a trespasser without being liable to an action, whereas the right of using force to repel trespass to land is strictly limited ; or if a man is riding or driving at an incautiously fast pace, anybody might throw stones at him with impunity. In Bird v. Holhrooli (g) a trespasser who was wounded by a spring- gun set without notice was held entitled to maintain his action. And generally, "a trespasser is liable to an action for the injury which he does : but he does not forfeit his right of action for an injury sustained " (/i). It does not ajjpear on the whole that a plaintiff is disabled from recovering by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction : and even then it is difficult to find a case where it is necessary to assume any special rule of this kind. It would be no answer to an action for killing a, dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory state- ments concerning B., and reads the letter aloud in the presence of several persons, he may be doing wrong to B. But this will not justify or excuse B. if he seizes and tears up the letter. A. is unlawfully possessed of ■explosives which he is carrying in his pocket. B., walking or running in a hurried and careless manner, jostles A. and so causes an explosion. Certainly A. cannot recover against B. for any hurt he takes by this, or can at most recover nominal damages, as if he had received a (g) (1828) 4 Bing. 62S, 29 R. R. which made the setting of spiing- 657. Cp. p. 162, above. The cause guns unlawful, of action arose, and the trial took {h) Barnes v. Ward (1850) 9 C. B. place, before the passing of the Act 392, 19 L. J. C. P. 195. UNLAWFUL CONDUCT OF PLAINTIFF. 175 liarmless push. But would it make any difference if A.'s possession ^Ye^e lawful '? Suppose there were no statutory regulation at all : still a man going about with sensitive explosives in his pocket would be exposing himself to an unusual risk obvious to him and not obvious to other people, and on the principles already discussed would have no cause of action. And on the other hand it seems a strong thing to say that if another person does know of the special danger, he does not become bound to take answerable care, even as regards one who has brought himself into a position of danger by a wrongful act. Cases of this kind have sometimes been thought to belong to the head of contributory negligence. But this, it is submitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the doctrine ; as if contributory negligence were a sort of positive wrong for which a man is to be punished. This, however, we shall have to con- sider hereafter. On the whole it may be doubted whether a mere civil wrong-doing, such as trespass to land, ever has in itself the effect now under consideration. Almost ■every case that can be put seems to fall just as well, if not better, under the principle that a plaintiff who has "voluntarily exposed himself to a known risk cannot recover, or the still broader rule that a defendant is liable only for those consequences of his acts which are, in the sense explained in a former chapter (i), natural and probable. In America there has been a great question, upon conflict of which there have been many contradictory decisions, u'lJ"^",^ "^ whether the violation of statutes against Sunday travelling states in . cases of is in itself a bar to actions for injuries received in the Sunday- travelling. (i) Pp. 34-36, above. 176 GENERAL EXCEPTIONS. course of such travelling through defective condition of roads, negligence of railway companies, and the like. In Massachusetts (where the law has since been altered by statute), it was held that a plaintiff in such circumstances could not recover, although the accident might just as well have happened on a journey lawful for all purposes. These decisions must be supported, if at all, by a strict view of the policy of the local statutes for securing the observance of Sunday. They are not generally considered good law, and have been expressly dissented from in some other States (k). The principle now defined by the Supreme Court of Massachusetts as generally applicable is that illegal con- duct of the plaintiff which contributed directly and proxi- mately to the injury suffered by him is equivalent, as matter of law, to contributory negligence (/). Cause of action connected with un- lawful agree- ment. It is a rule not confined to actions on contracts that " the plaintiff cannot recover where in order to maintain his supposed claim he must set up an illegal agreement to which he himself has been a party "(?«): but its application to actions of tort is not frequent or normal. The case from which the foregoing statement is cited is; the only clear example known to the writer, and its facts Avere very peculiar. (k) Sutton\. Town of Jl'a ujrnfosn (Wisconsin, 1871) Bigelow L. C. 711, and notes thereto, pp. 721-2 ; s. f. in Jer. Smitli's Cases on Torts, ii. 115, see note, ib. And see White v. Laiui, 12S Mass. 598 ; Bucher v. Cheshire R. I!. Co., 125 IT. S. 555. (l) Neiixoml ^. Boston Protective Depart. (1888) 146 Mass. 596, Jer. Smith, op. cit. ii. 123. {in) Jlaiile J., Fivax v. Nkholls^ (1846) 2C. B. 501, 512. 177 CHAPTER Y. OF REMEDIES FOR TORTS. At common law there were only two kinds of redress for Diversity of remc- an actionable %Yrong. One was in those cases — excep- dies. tional cases according to modern law and practice — where it was and is lawful for the aggrieved party, as the common phrase goes, to take the law into his own hands. The other way was an action for damages (a). Not that a suitor might not obtain, in a proper case, other and more effectual redress than money compensa- tion ; but he could not have it from a com't of common law. Specific orders and prohibitions in the form of injunctions or otherwise were (with few exceptions, if any) (b) in the hand of the Chancellor alone, and the principles according to which they were granted or with- held were counted among the mysteries of Equity. But no such distinctions exist under the system of the Judica- ture Acts, and every branch of the Court has power to {a) Possession could be recovered luands {e.g. mandamus) were appli- from an early time, though not at cable to the redress of purelj' private first in an action of ejectment. But wrongs, though they might be avail- this was an action of trespass in form able for a private person wronged by only. Insubstanceit took the place a breach of public duty. Under the of the old real actions, and it is some- Common Law Procedure Acts, from times called a real action. Detinue 1854 to 1875, the superior courts of was not only not a. substantial ex- common law had limited powers of ception, but hardly even a formal granting injunctions and adminis- one, for the action was not really in tering equitable relief. These were tort. found of little importance in prac- (6) I do not think any of the tice, and there is now no reason for powers of the superior courts of dwelling on them, common law to issue specific com- P.T. N 178 EEMEDIES FOR TORTS. administer every remedy. Therefore we have at this day, in considering one and the same jurisdiction, to bear in mind the manifold forms of legal redress which for our predecessors were separate and unconnected incidents in the procedure of different courts. Self-help. Eemedies available to a party by his own act alone may be included, after the example of the long-established German usage, in the expressive name of self-help. The right of private defence appears at first sight to be an obvious example of this. But it is not so, for there is no question of remedy in such a case. We are allowed to repel force by force "not for the redress of injuries, but for their prevention "(c); not in order to undo a wrong done or to get compensation for it, but to cut wrong short before it is done ; and the right goes only to the extent necessary for this purpose. Hence there is no more to be said of self-defence, in the strict sense, in this connexion. It is only when the party's lawful act restores to him something which he ought to have, or jjuts an end to a state of things whereby he is wronged, or at least puts pressure on the wrong-doer to do him right, that self-help is a true remedy. And then it is not necessarily a complete or exclusive remedy. The acts of this nature which we meet with in the law of torts are expulsion of a trespasser, retaking of goods by the rightful possessor, distress damage feasant, and abatement of nuisances. Peaceable re-entry upon land where there has been a wrongful change of possession is possible, but hardly occurs in modern experience. Analogous to the right of retaking of goods is the right of appropriating or retaining debts under certain con- ditions ; and various forms of lien are more or less (c) This is well noted in Cooley on Torts (1st ed.) 50. DAMAGES. 179 analogous to distress. These, however, belong to the domain of contract, and we are not now concerned with them. Such are the species of remedial self-help recog- nized in the law of England. In every case alike the right of the party is subject to the rule that no greater force must be used, or damage done to property, than is nfecessary for the purpose in hand. In some cases the mode of exercising the right has been specially modified or I'egulated. Details will best be considered hereafter in relation to the special kinds of wrong to which these kinds of redress are applicable (d). We pass, then, from extra-judicial to judicial redress, Jmliciai rGniGdics i from remedies by the act of the party to remedies by the damages. act of the law. The most frequent and familiar of these is the awarding of damages (e). Whenever an actionable wrong has been done, the party wronged is entitled to recover damages ; though, as we shall immediately see, this right is not necessarily a valuable one. His title to recover is a conclusion of law from the facts determined in the cause. How much he shall recover is a matter of judicial discretion, a discretion exercised, if a jury tries the cause, by the jury under the guidance of the judge. As we have had occasion to point out in a former chapter (/), the rule as to " measure of damages" is laid down by the Court and applied by the jury, whose appli- cation of it is, to a certain extent, subject to review. The grounds on which the verdict of a jury may be set aside are all reducible to this principle : the Court, namely, must be satisfied not only that its own finding would have been different (for there is a wide field within which (d) Cp. Blaokstone, Bk. iii. c. 1. the subject to so well known a work (c) It is hardly needful to refer as "Mayne on Damages. " the reader for fuller illustration of (/) P. 29, above. N 2 180 KEMEDIES FOR TORTS. opinions and estimates may fairly differ) {{/), but that the jury did not exercise a due judicial discretion at all (/(). Among these grounds are the awarding of manifestly excessive or manifestly inadequate damages, such as to imply that the jury disregarded, either by excess or by defect, the law laid down to them as to the elements of damage to be considered (i), or, it may be, that the ver- dict represents a compromise between jurymen who were really not agreed on the main facts in issue [k). ^°^™^l Damages may be nominal, ordinary, or exemplary. Nominal damages are a sum of so little value as com- pared with the cost and trouble of suing that it may be said to have " no existence in point of quantity " (l), such as a shilling or a penny, which sum is awarded with the purpose of not giving any real compensation. Such a verdict means one of two things. According to the nature of the case it may be honourable or contu- melious to the plaintiff. Either the purpose of the action is merely to establish a right, no substantial harm or loss having been suffered, or else the jury, while unable to deny that some legal wrong has been done to the plaintiff, have formed a very low opinion of the general merits of his case. This again may be on the ground that the harm he suffered was not worth suing for, or that his own conduct had been such that what- ever he did suffer at the defendant's hands was morally deserved. The former state of things, where the verdict really operates as a simple declaration of rights between {(j) The principle is fiuuiliar. Sec 233, ivhere, on the fact;; shown, it stated, c.ij. 5 Q. B. Div. 85. .. verdict for 7,000?. was set aside (h) See iIetro2mlitan 11. Go. v. on the ground of the damages beino- Wright (1886) 11 App. Ca. 152, 55 insufficient. L. J. Q. B. 401. (Ic) Fah-cii v. Stanford (187i) (i) Phillip.^ V. L. & S. JF. R. Co. L. E. 10 {}. B. 54, 44 L. J. Q. B. 7. (1879) 5 Q. B. Div. 78, 49 L. J. Q. B. (/) Maule J. 2 C. B. 499. ' XOMIXAL DAMAGES. 181 the parties, is most commonly exemplified in actions of trespass brought to settle disputed claims to rights of way, rights of common, and other easements and profits. It is not uncommon to give forty shillings damages in these cases if the plaintiff establishes his right, and if it is not intended to express any disapproval of his con- duct (m). The other kind of award of nominal damages, where the plaintiff's demerits earn him an illusory sum such as one farthing, is illustrated chiefly by cases of defamation, where the words spoken or written by the defendant cannot be fully justified, and yet the plaintiff has done so much to provoke them, or is a person of such generally worthless character, as not to deserve, in the opinion of the jury, any substantial compensation (n). This has happened more than once in actions against the publishers of newspapers which were famous at the time, but have not found a place in the regular reports. Nominal damages may also be given where there has been some excess in generally justifiable acts of self- defence or self-help (o). The enlarged power of the Court over costs since the Nominal Judicature Acts has made the question of nominal possible damages, which under the old procedure, were described only/'hen ° •■■ ' an abso- as " a mere peg on which to hang costs " Q)), much less lute right is in- ()/t) Under the various statutes R. 1 Q. B. 686, 35 L. J. <}, B. '209, fi''nged. as to costs which were in force is a case of this kind where, not- hefore tlie Judicature Acts, 40s. witlistanding that the libels sued was, subject to a few exceptions, for were very gross, the jury gave the least amount of daniage.s which a farthing damages, and the Court, carried costs without a special though not satisfied with the ver- certilicate from the judge. Fre- diet, refused to disturb it. quently juries asked before giving (o) Harrison v. Dulcc of Eidland their verdict what was the least [1893] 1 Q. B. 142, 62 L. J. Q. B. sum that would carry costs ; the 117, C. A. general practice of the jndges was (p) By Maule J. (1846) in Bcau- to refuse this iufonnation. mont v. Grcathcad, 2 C. B. 499. {n) Kelly v. Sherlock (1866) L. Under the present procedure costs 182 REMEDIES FOR TORTS. important than it formerly was. But the possibility of recovering nominal damages is still a test, to a certain extent, of the nature of the right claimed. Infringements of absolute rights like those of personal security and property give a cause of action without regard to the amount of harm done, or to there being harm estimable at any substantial sum at all. As Holt C. J. said in a celebrated passage of his judgment in Ashhy v. White (q), " a damafic is not merely pecuniary, hut an injury imports a damage, when a man is therehy hindered of Ids right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage ; for it is an invasion of his property, and the other has no right to come there." Cases On the other hand, there are cases even in the law of damage is property where, as it is said, damage is the gist of the the action S'Ction, and there is not an absolute duty to forbear from doing a certain thing, but only not to do it so as to cause actual damage. The right to the support of land as between adjacent owners, or as between the owner of the surface and the owner of the mine beneath, is an example. Here there is not an easement, that is, a positive right to are in the discretion of the Court ; statutes was settled in 1S7S by the costs of a cause tried by jury Garnelt y. Bradley, 3 App. Ca. 9ii, follow the event (without regard 48 L. J. Ex. 186. A sketch of the to amount of dam a^'es ) unless the history of the subject is given in judge or the Court otherwise orders : Lord Blackburn's judgment, 3 App. Order LXV. r. 1, &c. The effect Ca. pp. 962 sqq. of the Judicature Acts and Rules {q) 2 Lord Raym. at p. 955. of Court in abrogating the older NOMINAL DAMAGES. ] 83 restrain the neighbour's use of his land, but a right to the undisturbed enjoyment of one's own. My neighbour may excavate in his own land as much as he pleases, unless and until there is actual damage to mine : then, and not till then, a cause of action arises for me (r). Negligence, again, is a cause of action only for a person who suffers actual harm by reason of it. A man who rides furiously in the street of a town may thereby render himself liable to penalties under a local statute or by-law ; but he does no wrong to any man in particular, and is not liable to a civil action, so long as his reckless behaviour is not the cause of specific injury to person or property. The same rule holds of nuisances. So, in an action of deceit, the cause of action is the plaintiff"' s having suffered damage by acting on the false statement made to him by the defendant {$). In all these cases there can be no question of nominal damages, the proof of real damage being the foundation of the plaintiff's right. It may happen, of course, that though there is real damage there is not much of it, and that the verdict is accordingly for a small amount. But the smallness of the amount will not make such damages nominal if they are arrived at by a real estimate of the harm suf- fered. In a railway accident due to the negligence of the railway company's servants one man may be crippled for life, while another is disabled for a few days, and a third only has his clothes damaged to the value of five (?■) BaxkJwuse V. Bonomi (\S61) 9 himself but of a predecessor in H. L. C. 503, 34 L. J. Q. B. 181 ; title). Darley Main Colliery Co. Y.Mitchell (s) Ponlifex v. Bicjnold (1S41) 3 (1886) 11 App. Ca. 127, 55 L. J. Q. Man. & G. 63, is sometimes quoted B. 529. Dist. Hall v. DuTce of Nor- as if it were an authority that no folk [1900] 2 Ch. 493, 69 L.J. Ch. actual damage is necessary to sus- 671 (no cause of action at all against tain an action of deceit. But careful the owner at the date of the damage, examination will show that it is far which was caused by the acts not of from deciding this. 184 REMEDIES FOR TORTS. shillings. Every one of them is entitled, neither more nor less than the others, to have amends according to his loss. Peculia- In the la^Y of slander we have a curiously iine line ofdefama- between absolute and conditional title to a legal remedj' ; *'""■ some kinds of spoken defamation being actionable with- out any allegation or proof of special damage (in which case the plaintiff is entitled to nominal damages at least), and others not ; while as to written words no such dis- tinction is made. The attempts of text-books to give a rational theory of this are not satisfactory. Probably the existing condition of the law is the result of some obscure historical accident (0- Ordinary Ordinary damages are a sum awarded as a fair measure amages. ^| compensation to the plaintiff, the amount being, as near as can be estimated, that by which he is the worse for the defendant's wrong-doing, but in no case exceeding the amount claimed by the plaintiff himself (u). Such amount is not necessarily that which it would cost to restore the plaintiff to his former condition. Where a tenant for years carried away a large quantity of valuable soil from his holding, it was decided that the reversioner could recover not what it would cost to replace the soil, but only the amount by which the value of the reversion was diminished (.r). In other words, compensation, not (t) See more in Cli. VII. beloAV. or for tliis Court, to exercise that (u) A jury has been known to lind unknown equity which is sometimes a verdict for a greater .sum than was exercised by juries : " Cotton L. J., claimed, and the judge to amend tiie Drey/us v. Peruvian Guano Co. statement of claim to enable himself (1889) id Oh. Div. 316, 327, G2 to give judgment for that greater L. T. 518. sum. But this is an extreme use of {x) ]Vhithamv.Kershaw{lSS5-6) the power of the Court, justifiable 16 Q. B. Uiv. 613, 54 L. T. 124 ; only in an extraordinary case. "It cp. Jlust v. Victoria Graving Dock will not do for Mr. Justice Kay, Co. (1887) 36 Ch. Div. 113, 56 L. T. EXEMPLARY DAMAGES. 185 restitution, is the proper test. Beyond this it is hardly possible to lay down any universal rule for ascertaining the amount, the causes and circumstances of actionable damage being infinitely various. And in particular classes of cases only approximate generalization is pos- sible. In proceedings for the recovery of specific property or its value there is not so much difficulty in assigning a measure of damages, though here too there are unsettled points {y). But in cases of personal injury and conse- quential damage by loss of gains in a business or profession it is not possible either completely to separate the elements of damage, or to found the estimate of the whole on anything like an exact calculation {z). There is little doubt that in fact the process is often in cases of this class even a rougher one than it appears to be, and that legally irrelevant circumstances, such as the wealth and condition in life of the parties, have much influence on the verdicts of juries : a state of things which the law does not recognize, but practically tolerates within large bounds. One step more, and Ave come to cases where there Exem- is great injury without the possibility of measuring damages. compensation by any numerical rule, and juries have been not only allowed but encouraged to give damages that express indignation at the defendant's wrong rather than a value set upon the plaintiff's loss. Damages 216; Cliifferiely. IVatson (1888) 40 [1896] 2Cli. 538, 65 L. J. Ch. 741, Ch. D. 45, 58 L. .T. Ch. 137 (com- C. A. pensation under conditions of sale). (y) See Mayne on Damages, 5tli But wliere anotlior man's land is ed. i;. 13. used without right, its value for (,-;) See the summing-up of Field J. the purpose for which it is so used in Phillips v. L. <£ S. n\ R. Co. is taken into account in assessing (1879) 5 Q. B. Div. 78, 49 L. J. damages : Whilwham v. West- <,>. B. 233, which was in the main minster Brymbo Coal -shaif{\SS6) C. P. 191 ; and the last chapter of 16 Q. B. Div. at p. 618. the present work, ad fin. (Ic) Sellv. Midland R. Co. (1861) (m) Mayne on Damages, 119 (5th 10 C. B. N. S. 287, 307, 30 L. J. ed.). C. P. 273, 281. CONCUKRENT CAITSES OF ACTION. 189 "Damages resulting from one and the same cause of Concur- action must be assessed and recovered once for all"; severaM but where the same facts give rise to two distinct causes °^?.^'^^ °^ action. of action, though between the same parties, action and judgment for one of these causes will be no bar to a subsequent action on the other. A man who has had a verdict for personal injuries cannot bring a fresh action if he afterwards finds that his hurt was graver than he supposed. On the other hand, trespass to goods is not the same cause of action as trespass to the person, and the same principle holds of injuries caused not bj^ voluntary trespass, ))ut by negligence ; therefore where the plaintiff, driving a cab, was run down by a van negligently driven by the defendant's servant, and the cab was damaged and the plaintiif suffered bodily harm, it was held that after suing and recovering for the damage to the cab the plaintiff was free to bring a separate action for the personal injury [ii). Apart from questions of form, the right to personal security certainly seems distinct in kind from the right to safe enjoyment of one's goods, and such was the view of the Eoman lawyers (o). Where several persons have committed several distinct wrongs, though of the same kind and in the same matter, claims for damages against them cannot be combined in the same action (p). (n) £ runsdenv. Humphrey (ISSi) {p) Sadler v. G. W. I!. Co. 14 Q. B. Div., 141, 53 L. J. Q. B. [1896] A. C. 450, 65 L. J. Q. li. 476, by Brett M. R. and Bowen 462, where two defendants had in- L. J., rf^'ss. Lord Coleridge C. J. Cp. dependently but simultaneously per Lord Bramwell, 11 App. Ca. at obstructed the access to the phdn- p. 144. tiff's shop: followed in Thompson (o) Liber homo suo nomine utilem v. L. 0. C. [1899] 1 Q. B. 840, 68 Aquiliae habet actionem ; directam L. J. Q. B. 625, C.A. ; dist. JFallers enim non habet, quoniam dominus v. Green [1899] 2 Ch. 696, 68 niembrorum suorum nemo videtiir : L. J. Ch. 730. Ulpian, D. 0. 2, ad 1. Aquil. 13 pr. 190 REMEDIES FOR TORTS. Injunc- Another remedy which is not, like that of damages, universally applicable, but which is applied to many kinds of wrongs where the remedy of damages would be inadequate or practically worthless, is the granting of an injunction to restrain the commission of wrong- ful acts threatened, or the continuance of a wrongful course of action already begun. There is now no positive limit to the jurisdiction of the Court to issue injunctions, beyond the Court's own view (a judicial view, that is) of what is just and convenient (q). Prac- tically, however, the lines of the old equity jurisdiction have thus far been in the main preserved. The kinds of tort against which this remedy is commonly sought are nuisances, violations of specific rights of property in the nature Of nuisance, such as obstruction of light and disturbance of easements, continuing trespasses, and infringements of copyright and trade-marks. In one direction the High Court has, since the Judicature Acts, distinctly accepted and exercised an increased jurisdiction. It will now restrain, whether by final (r) or interlocutory (s) injunction, the publication of a libel or, in a clear case, the oral uttering of slander (i) calculated to injure the plaintiff in his business. In interlocutory proceedings, however, this jurisdiction is exercised with caution (s), and only in a very clear case (u), and not where the libel, however unjustifiable, {(j) Judicature Act, 1873, s. 25, (s) Quartz Hill Consolidated Gold sub-s. 8. PerJcsselM. R.,£eddoiv Mining Co. v. Beall (1882) 20 Ch. V. Beddow (1878) 9 Cb. D. 89, 93, Div. 601, 51 L. J. Cb. 874 ; Collard 47 L. J. Ch. 588 ; Q2iartr. Hill, i-c. v. Marshall [1892] 1 Ch. 571, 61 Co. V. Bcall (1882) 20 Cb. Div. at L. J. Ch. 268. p. 507. (i) Hermann Loog v. Bean (1884) (r) Thorlcy's Cattle Food Co. v. 26 Ch. Div. 306, 53 L. J. Ch. 1128. Massam (1880) 14 Ch. Div. 763; (?i) Bonnardv. FerryvianllSQl] Tliomas v. Williams, ib. 864. 2 Ch. 269, 60 L. J. Ch. 617, C. A. INJUNCTIONS. 191 does not threaten immediate injury to person or property (.r). The special rules and principles by which the Court is On what guided in administering this remedy can be profitably giantedr discussed only in connexion with the particular causes of action upon which it is sought. All of them, however, are developments of the one general principle that an injunction is granted only where damages would not be an adequate remedy, and an interim injunction onlj' where delay would make it impossible or highly difficult to do complete justice at a later stage {y). In practice very many causes were in the Court of Chancery, and still are, really disposed of on an application for an injunction which is in form interlocutory : the pro- ceedings being treated as final by consent, when it appears that the decision of the interlocutory question goes to the merits of the whole case. In certain cases of fraud (that is, wilfully or recklessly' Former false representation of fact) the Court of Chancery had i-gnt before the Judicature Acts concurrent jurisdiction with i""s), nor, it is conceived, to executors in the cases where executors can sue. On the whole there is apparent in quarters of high authority a strong though not unani- mous disposition to discredit the rule as a mere tradition of text-writers founded on ambiguous or misapprehended cases, or on dicta which themselves were open to the same objections {c). At the same time it is certain that the judges consulted by the House of Lords in Marsh v. (!/) ItoopeY. D'Avirjdor (1883) 10 667, 48 L. J. Bk. 57. Q.H. J). il2,cp. Mklhmd Znsiirancc (c) See the liistorical discussion Co. V. Smith (1881) 6 Q. B. D. 561, in the judgment of Blaekbiun J. in 50 L. J. Q. B. 329. JI'clls v. Abraltams, L. R. 7 Q. B. (;) IVclls V. Abrahams (1872) 560 sqq. And see per Maule J. in L. E. 7 Q. B. 554, 41 L. J. Q. B. 306, JVard v. Lhyd (1843) 7 Scott K". K. Aisaentrngimm Wellock Y. Coitstan- 499, 507, a case of alleged com- tinc (1863) 2 H. & C. 146, 32 L. J. pounding of felony : " It would be Ex. 285, a very indecisive case, but a, strong thing to say tliat eveiy the nearest approach to an authority man is bound to prosecute all the for tbe enforcement of the supposed felonies that come to his knowledge; rule in a court of common law. and I do not know why it is the (a) Blackburn J., L. R. 7 Q. B. at duty of the party who sufiei'S by p. 559. In a later Irish case, 5'. V. ,S'. the felony to prosecute the felon, (1882) 16 Cox, 566, it was said that, rather than that of any otherperson : in a proper case, the Court might on the contrary, it is a Christian stay the action of its own motion ; duty to forgive one's enemies ; and and one member thought the case I think he does a veiy humane and before them a proper one, but the charitable and Christian-like thing majority did not. in abstaining from prosecuting.'' (i) E..: parte Ball (1879) 10 Ch.D. 200 REMEDIES FOR TORTS. Keating (d) thought such a rule existed, though it was not apphcable to the case in hand ; and that in Ex parte Elliott (e) it was effectually applied to exclude a proof in bankruptcy. Locality Lastly we have to see under what conditions there fuiTct^ifs ^'^y ^® ^ remedy in an English court for an act in the affecting nature of a tort committed in a place outside the terri- remccly in _ _ -^ _ English torial jurisdiction of the court. It is needless to state formally that no action can be maintained in respect of an act which is justified or excused according to both English and local law. Besides this obvious case, the following states of things are possible. Acts not 1. The act may be such that, although it may be bvEn^Fsii wrongful by the local law, it would not be a wrong if law. fione in England. In this case no action lies in an English court. The court will not carry respect for a foreign munitiipal law so far as to " give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed " (/). It is generally held, hov/ever, in America that an action may be maintained in one State, if not contrary to its own policy, for a wrong done in another and actionable there, even if it would not be actionable by the lex foridi). Acts 2. The act, though in itself it would be a trespass by by local ^^^ ^^^ o^ England, may be justified or excused by the law. local law. Here also there is no remedy in an English id) 1 Bing. N. C. 198, 217, 2 CI. P. C. 193, 204, 37 L. J. Adm. 33 ; & F. 250, 286, 37 E. 11. 75, 103- The M. Moxham (1876) 1 V. Div. 104 (1834). 107. (c) 3 Mont. & A. 110 (1837). (g) See American note to Dicey (/) The Hallcy (1868) L. R. 2 en Conflict of Laws, p. 670. LOCALITY OF WRONGS. 201 court (/(). And it makes no difference whether the act was from the first justifiable by the local law, or, not being at the time justifiable, was afterwards ratified or excused by a declaration of indemnity proceeding from the local sovereign power. In the well-known case of PhiUqjs V. Eijrc (j), where the defendant was governor of Jamaica at the time of the trespass complained of, an Act of indemnity subsequently passed by the colonial Legislature was held effectual to prevent the defendant from being liable in an action for assault and false imprisonment brought in England. But nothing less than justification by the local law will do. Conditions of the lex fori suspending or delaying the remedy in the local courts will not be a bar to the remedy in an English court in an otherwise proper case (A). And our ■courts would possibly make an exception to the rule if it appeared that by the local law there was no remedy at all for a manifest wrong, such as assault and battery committed without any special justification or excuse (0- 3. The act may be wrongful by both the law of England Act and the law of the place where it was done. In such a igy i^oth case an action lies in England, without regard to the '^^^' nationality of the parties (m), provided the cause of action is not of a purely local kind, such as trespass to land. This last qualification was formerly enforced by the technical rules of venue, with the distinction thereby (A) SkuVs CcLie, Blcul v. liamfichl {!■) lb. per Wiglitman and Willes (1673-4) in P. C. and Cli. , 3 Swanst. JJ. •603-4, 19 R. R. 285, from Lord (m) Per Cur., The Hal ley, 1,. R. Kottingham's JISS. ; ThcM.Mnx- 2 P. C. at p. 202. "Wrongful," Mm, 1 P. Div. 107. as regards the foreign country, (i) Ex. Ch. L. R. 6 Q. P). 1, 40 includes acts which are punishable L. J. Q. B. 28 (1870). thougli Jiot actionable : Machado v. ik) Scott V. Seymour (1862) Ex. Pontes [1897] 2 Q. B. 231, 66 L. J. €h. 1 H. & C. 219, 32 L. J. Ex. 61. q. B. 542, C. A. 202 REMEDIES FOR TORTS. made between local and transitory actions : but the grounds were substantial and not technical, and when the Judicature Acts abolished the technical forms (n) they did not extend the j urisdiction of the Court to cases in which it had never been exercised. The result of the contrary doctrine would be that the most complicated questions of local law might have to be dealt with here as matters of fact, not incidentally (as must now and then unavoidably happen in various cases), but as the very substance of the issues ; besides which, the Court would have no means of ensuring or supervising the execution of its judgments. Judgment We have stated the law for convenience in a series of mPhilli]}'s distinct propositions. But, considering the importance of y-Eyre. ^j^g subject, it seems desirable also to reproduce the con- tinuous view of it given in the judgment of the Exchequer Chamber, delivered by Willes J. in Phillips v. Eyre : — " Our courts are said to be more open to admit actions founded upon foreign transactions than those of anj' other European country ; but there are restrictions in respect of locality which exclude some foreign causes of action altogether, namely, those which would be local if they arose in England, such as trespass to land : Doidson v. Matthews (u) ; and even with respect to those not falling within that description our courts do not under- take universal jurisdiction. As a general rule, in order («) Brilisli South Africa Oo. v. trespass to land is maintained in Compankia dc Moramhique [1893] llie United States, Ellcnwood \. A. C. 602, 63 L. J. Q. B. 70. Mariclla Chaii- Co. (1895) 158 U. (o) i T. R. 503, 2 R. R. 448 S. 105. As to the antiquity of the (1792 : no action here lor trespass rule in England, see tlie case of 9 & to land in Canada) ; approved in 10 Ed. I. cited in Pollock k llait- Britlsh South Africa Co. v. Com- land, Hist. Eng. Law, i. 448 (465, panhia de Moramhique, last note. 2nd ed. ). The local character of actions for LOCALITY OF WRONGS. 203 to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England : therefore, in The Hallcij (p) the Judicial Committee pro- nounced against a suit in the Admiralty founded upon a liability by the law of Belgium for collision caused by the act of a pilot whom the shipowner was compelled by that law to employ, and for whom, therefore, as not being his agent, he was not responsible by English law. Secondly, the act must not have been justifiable (q) by the law of the place where it was done. Therefore in BlacVs Case (r),and Blad Y.Bamfield (.s),Lord Nottingham held that a seizure in Iceland, authorized by the Danish Government and valid by the law of the place, could not be questioned by civil action in England, although the plaintiff, an Englishman, insisted that the seizure was in violation of a treaty between this country and Denmark — a matter proper for remonstrance, not litigation. And in Dohree v. Napier {t), Admiral Napier having, when in the service of the Queen of Portugal, captured in Portuguese water an English ship breaking blockade, was held by the Court of Common Pleas to be justified by the law of Portugal and of nations, though his serving under a foreign prince Avas contrarj' to English law, and subjected him to penalties under the Foreign Enlistment Act. And in Raj. v. Lesley {u) an imprisonment in Chili on board a British ship, lawful there, was held by Erie C. J., and the Court for Crown Cases Keserved, to ip) L. E. 2 P. C. 193, 37 L. J. 285 (1674). Adm. 33(1868). [t) 2 Bing. N. C. 781 (1836), 42 {q) See Ifachado V. Pontes [1897] R. K. 598. 2 Q. E. 231, 234. (u) Bell C. C. 220, 29 L. J. M. C. (r) 3 Swaust. 603. ;)7 (1860). (s) 3 Swaust. 604, 19 R. R. 204 REMEDIES FOK TORTS. be no ground for an indictment here, there being no independent law of this country making the act wrongful or criminal. As to foreign laws affecting the liability of parties in respect of bygone transactions, the law is clear that, if the foreign law touches only the remedy or pro- cedure for enforcing the obligation, as in the case of an ordinary statute of limitations, such law is no bar to an action in this country ; but if the foreign law extinguishes the right it is a bar in this country equally as if the extinguishment had been by a release of the party, or an act of our own Legislature. This distinction is well illustrated on the one hand by Hnbery. Stciner (x), where the French law of five years' prescription was held by the Court of Common Pleas to be no answer in this country to an action upon a French promissory note, because that law dealt only with procedure, and the time and manner of suit {tempus ct mixliun actionis institnendae) , and did not affect to destroy the obligation of the contract {ralorem contractus) ; and on the other hand by Potter V. Broini (y), where the drawer of a bill at Baltimore upon England was held discharged from his liability for the non-acceptance of the bill here by a certificate in bankruptcy, under the law of the United States of America, the Court of Queen's Bench adopting the general rule laid down by Lord Mansfield in Ballantinc V. Golding {z), and ever since recognized, that, ' what is a discharge of a debt in the country where it is contracted is a discharge of it everywhere.' So that where an obligation by contract to pay a debt or damages is dis- charged and avoided by the law of the place where it was made, the accessory right of action in every court (,e) 2 Bing. N. Q. '202, 42 R. E. E. E. 663. 598. (-) Cooke's Bankrupt Law, 487 ; (»/) 5 East 124, 1 Smith 351. 7 noted 5 E. E. at pp. 500, 501. LIMITATION OF ACTIONS. 205 open to the creditor unquestionably falls to the ground. And by strict parity of reasoning, where an obligation c-r delicto to pay damages is discharged and avoided by the law of the country where it was made, the accessory right of action is in like manner discharged and avoided. Cases may possiblj- arise in which distinct and inde- pendent rights or liabilities or defences are created by positive and specific laws of this country in respect of foreign transactions ; but there is no such law (unless it be the Governors Act already discussed and disposed of) applicable to the present case" («). The times in which actions of tort must be brought Limita- are fixed by the Statute of Limitation of James I. (21 actions, Jac. 1, c. 16) as modified bj' later enactments (/j). No general principle is laid down, but actionable wrongs are in effect divided into three classes, with a different term of limitation for each. These terms, and the causes of action to which they apply, are as follows, the result being stated, without regard to the actual words of the statute,, according to the modern construction and practice : — Si.v yearn. Trespass to land and goods, conversion, and all other common law wrongs (including libel) except slander by AYords actionable j)c7' se (c) and injuries to the person. Four years. Injuries to the person (including imprisonment). Tiro years. Slander by words actionable j^cr se. (a) L. R. 6 Q. B. at pp. 28—30. (c) Sec Blake Odgere, Digest of (6) See the text of tlie statutes, Law of Libel, 3r(l ed 5. Appendix C. 206 REMEDIES FOR TORTS. Suspen- Persons who at the time of their acquiring a cause of statute by action are infants, or lunatics (d), have the period of disabiii- limitation reckoned' against them only from the time of the disability ceasing ; and if a defendant is beyond seas at the time of the right of action arising, the time runs against the plaintiff only from his return. No part of the United Kingdom or of the Channel Islands is deemed to be beyond seas for this purpose (d). Married women are no longer within this provision since the Married Women's Property Act of 1882 («). If one cause of dis- ability supervenes on another unexpired one (as formerly where a woman married under age), the period of limita- tion probably runs only from the expiration of the latter disability (/). From what time action runs. Statutory penalties. "Where damage is the gist of the action, the time runs only from the actual happening of the damage (r/). In trover the statute runs from demand on and refusal l)y the defendant, whether the defendant were the first converter of the plaintiff's goods or not (/t). Actions for statutory penalties are subject to a two [d] Plaintiffs imprisoned or being beyond the seas had the same right by the statute of James I., but this ■was abrogated by 19 & 20 ^'ict. 0. 97 (tlie Mercantile Law Amend- ment Act, 1856), s. 10. The existing law as to defendants beyond seas is tlie result of -t & 5 Anne, c. 3 [al. 16], s. 19, as explained by 19 & 20 Vict. c. 97, s. 12. As to the retrospective effect of s. 10, see Fanlo V. Biiujhani (lS69j L. II. 4 Oh. 73."), 39 L. J. Ch. 170. (c) See p. 56, above. (/) Cp. Bonvii;sy. iV/isoit(1871) L. R. 6 Ex 128, 40 L. J. Kx. 131 (on tlie Ileal Property Limitation Act, 3 & 4 VVm. IV. c. 27) ; but the language of the two statutes might be distinguished. [ff) Backhouse V. Bonomi (1861) 9 H. L. C. 503, 34 L. J. (J. B. 181 ; Darlcy Main Colliery Co. v. Mitchell (18S6) 11 App. Ca. 127, 55 L. J. Q. B. ;;29, affirming s. c. 14 Q. B. Div. 125. The same principle ap- plies, of course, to special periods of limitation of actions against public bodies or officers ; see Cruinhie V. Tl'allscnd Local Board [1891] 1 Q. B. 503, 60 L. J. i}. B. 392, (A) JWlcr V. UcJl [1S91] 1 Q. B. 468, 60 L. J. Q. B. 404, C. A. LIMITATION OF ACTIONS. 207 years' limitation by the Civil Procedure Act, 1833 (i). The compensation given by the Directors Liability Act, 1890, is not a penalty within the Act (k). Justices of the peace were (/) and constables {m) are I'lotection protected by general enactments that actions against officers, them for any thing done in the execution of their office must be brought within six months of the act complained of ; and a similar rule has now been made extending to all acts done in execution or intended execution of statutory and other public duties or authorities (n). The Act also makes a specially favourable provision for the costs of successful defendants (o). The enforcement of statutory duties is often made subject, by the same Acts which create the duties, to a short period of limitation. For the most part these provisions do not really belong to our subject, but to various particular branches of public law. The existence of such provisions in Lord Campbell's Act and the Employers' Liability Act has already been noticed. The operation of the Statute of Limitation is further Exception subject to the exce^jtion of concealed fraud, derived from ceaied fraud. (t) 3 & 4 AVm. IV. c. 42, s. .3. be of public utility and authorized (it) Thoiasoii V. Lunl C'lunviorris by statute : ^l.-O. v. Margate Pier [1900] 1 Ch. 718, 69 L. J. Ch. [1900] 1 Ch. 749, 69 L. J. Ch. 331. 337, C. A. (o) See as to this Bostoek v. {l) 11 & 12 Vict. c. 44, s. 8 : tbis laitiisoj Urban Ditlrlet Council s. was rep., as being no longer [1900] 2 (,). V,. 616, 69 L. J. (^i. B. needed, by S. L. R. Act, 1894. 945, C. A. It (l>.cs not destroy the (m) 24 Geo. II. c. 44, s. 8. judge's rcfjular discretionary puwer. (;() Public Authorities Protection Dismissal of an action by consent Act, 1893, 56 & 57 Vict. c. 61. As is equivalent for this purpose to a to what kinds of acts are included, "judgment obtained" by the defen- Grrenwell v. Howell [1900] 1 Ij. B. dants, and carries tiie statutory 535, 69 L. J. Q. B. 461, C. A. A solicitor and client costs : Shaw v. company earning profit is not within Hcrtfurdshirc 0. C. [1899] 2 Q. B. the Act, though its operations may 282, 68 L. J. Q. B. 857, C. A. 208 REMEDIES FOR TORTS. the doctrine and practice of the Court of Chancery, which, whether it thought itself bound hy the terms of the statute, or onl}- acted in analogy to it (p), considerably modified its literal application. "Where a wrong-doer fraudulently conceals his own wrong, the period of limitation runs only from the time when the plaintiff discovers the truth, or with reasonable diligence would discover it. Such is now the rule of the Supreme Court in every branch of it and in all causes (q). A plaintiff may not set up hj way of amendment claims in respect of causes of action which are barred by the statute at the date of amendment, though they were not so at the date of the original writ (r). It has often been remarked that, as matter of policy, the periods of limitation fixed hy the statute of James are unreasonably long for modern usage ; but modern legis- lation has done nothing beyond removing some of the privileged disabilities, and attaching special short periods of limitation to some special statutory rights. The Statutes of Limitation ought to be systematically revised as a w4iole. Conciii- We have now reviewed the general principles which General ai'e common to the whole law of Torts as to liability, as ^^^^'^' to exceptions from liabilitj-, and as to remedies. In the following part of this work we have to do with the several distinct kinds of actionable wrongs, and the law peculiarly applicable to each of them. (23) See 9 Q. B. Diy. 68, per to tlie question whether before the Brett L. J. Judicature Acts the Court of Clian- ((7) Gibbs V. Guild (1882) 9 Q. B. eery would or would not have had Div. r)9, 51 L. J. Q. B. 313, which jurisdiction in the case, makes the equitable doctrine of (r) TFeldonv. A^cal{lS87)19Q.'B. general application without regard Div. 394, 56 L. J. Q. B. 621. 209 Book II.— SPECIFIC WBOITGS. CHAPTER YI. PERSONAL WRONGS. I. — Assault and Batter//. Secueity for the person is among the first conditions of Prelimi- civilized life. The law therefore protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehension of any of these things. The application of unlawful force to another constitutes the wrong called battery : an action which puts another in instant fear of unlawful force, though no force be actually applied, is the wrong called assault. These wrongs are likewise indictable offences, and under modern statutes can be dealt with by magistrates in the way of summary jurisdiction, which is the kind of redress most in use. Most of the learning of assault and battery, considered as civil injuries, turns on the determination of the occasions and purposes by which the use of force is justified. The elementary notions are so well settled as to require little illustration. P.T. P 210 PERSONAL WRONGS. What " The least touching of another m anger is a battery' ' (a) ; said a " for the law cannot draw the line between different battery. degrees of violence, and therefore totally prohibits the first and lowest stage of it ; every man's person being sacred, and no other having a right to meddle with it in any the slightest manner "(?)). It is immaterial not only whether the force applied be sufficient in degree to cause actual hurt, but whether it be of such a kind as is likely to cause it. Some interferences with the person which cause no bodily harm are beyond comparison more insulting and annoying than others which do cause it. Spitting in a man's face is more offensive than a blow, and is as much a battery in law ((■) . Again, it does not matter whether the force used is applied directly or indirectly, to the human body itself or to anything in contact with it ; nor whether with the hand or anything held in it, or with a missile (d). What au Battery includes assault, and although assault strictly means an inchoate battery, the word is in modern usage constantlj^ made to include battery. No reason appears for maintaining the distinction of terms in our modern practice : and in the draft Criminal Code of 1879 "assault" is deliberately used in the larger popular sense. "An assault" (so runs the proposed definition) " is the act of intentionally applying force to the person of another directly or indirectly, or attempting or {a) Holt C. J., Cole y. Turner But there is much older authorit}-, (1705) 6 Mod. 149, and Bigelow see Reg. Brev. 108 b, a writ for L. C. 218. throwing "queudani liquorem cali- (J) Blackst. Comm. iii. 120. dum " on the plaintiff: "casus (c) R. V. Cotesfvorth, 6 Moil 172. erat Imiusniodi praecedentis brevis: (d) Pnrscll \\ Some (1838) 3 X. quaedam niulier proiecit super & P. 564 (throwing water at a per- aliam mulierem yjromellnm quod .son is assault ; if the water falls on anglioe dicitur worte quod erat him as intended, it is battery also). nimis calidum." ASSAULT. 211 threatening by any act or gesture to apply such force to the person of another, if the person making the threat causes the other to believe (c) upon reasonable grounds that he has present ability to effect his purpose "(/). Examples of acts ^vhich amount to assaulting a man are the following : " Striking at him with or without a weapon, or presenting a gun at him at a distance to which the gun will carry, or pointing a pitchfork at him, standing within the reach of it, or holding up one's fist at him, or drawing a sword and waving it in a menacing manner " (f/). The essence of the wrong is putting a man in present fear of violence, so that any act fitted to have that effect on a reasonable man may be an assault, though there is no real present ability to do the harm threatened. Thus it may bo an assault to present an unloaded fire-arm (/t), or even, it is appre- hended, anything that looks like a fire-arm. So if a (c) One might expect "believes or causes," &c. ; but this would be an extension of the law. Ko assault is committed by presenting a gun at a man who cannot see it, any more than by forming an inten- tion to shoot at him. (/) Criminal Code (Indictable Oftences) Bill, s. 203. Sir James Stephen's definition in his Digest (art. 241) is more elaborate ; and the Indian Penal Code has an ex- tremely minute definition of " using force to another " (s. 349). As Sir James Stephen remarks, if legislators begin defining in this way it is hard to see what they can assume to be known. (g) Bacon Abr. "Assault and Battery," A ; Hawkins P. C. i. 110. (A) 11 V. James (1844) 1 C. & K. 530, is apparently to the contrary. Tindal C. J. held that a man could not be convicted of an attempt to discharge a loaded fire-arm under a criminal statute, nor even of an assault, if the arm is (as by defec- tive priming) not in a state capable of being discharged ; bnt this opinion (also held by Lord Abinger, Blake v. Barnard, (1840) 9 C. & P. at p. 628) is against that of Parke B. in Jt. V. St. George (1840) 9 C, & P. 483, 493, which on this point would almost certainly be followed at this day. The case is overruled on another point, purely on the words of the statute, and not here material, in B. v. Duekworth [1892J 2 Q. B. 83, 66 L. T. 302. P 2 212 PERSONAL WRONGS. man is advancing upon another with apparent intent to strike him, and is stopped by a third person before he is actually within striking distance, he has com- mitted an assault (i). Acts capable in themselves of being an assault may on the other hand be explained or qualified by words or circumstances contradicting what might otherwise be inferred from them. A man put his hand on his sword and said, "If it were not assize-time, I would not take such language from you ; " this was no assault, because the words excluded an intention of actually striking (A-) . Excusable Hostile or unlawful intention is necessary to constitute an indictable assault ; and such touching, pushing, or the like as belongs to the ordinary conduct of life, and is free from the use of unnecessary force, is neither an offence nor wrong. "If two or more meet in a narrow passage, and without any violence or design of harm the one touches the other gently, it will' be no battery" (l). The same rule holds of a crowd of people going into a theatre or the like(»0- Such accidents are treated as inevitable, and create no right of action even for nominal damages. In other cases an intentional touching is justified by the common usage of civil intercourse, as when a man gently lays his hand on another to attract attention. But the use of needless force for this pur- pose, though it does not seem to entail criminal liability (i) Stephens y. Myers {ISSO) i 0. English Case Law, ed. Mews. Some & P. 349, 34 E. R. 811 ; Bigelow of the dicta, as might be expected, L. C. 217. A large proportiou of are in conflict. the authorities on this subject are {k) Tubervllle v. Savage (1669) 1 Nisi Prius cases (cp. however Read Mod. 3. V. Coker (1853) 13 C. B. 850, 22 L. (I) Holt C. J., Cole v. Turner; 6 J. C. P. 201) : see the sub-title of Mod. 149. Assault under Criminal Law (iv, (m) Steph. Dig. Cr. Law, art. 1450, sqq.) and the title Trespass 241, illustrations. (xiv, 224—234) in the Digest of ASSAULT. 21'3 where no actual hurt is done, probably makes the act civilly ^Yrongf ul (n) . Mere passive obstruction is not an assault, as where a man by standing in a doorway prevents another from coming in (o). Words cannot of themselves amount to an assault under any circumstances, though there is evidence of an earlier contrary opinion : "For Meade's case proves, or my Eeport's in fault, That singing can't be reckoned an assault " (p). There is little direct authority on the point, but no doubt is possible as to the modern law. Consent, or in the common phrase " leave and licence," will justify many acts which would otherwise be assaults (q) , striking in sport for example ; or even, if coupled with reasonable cause, wounding and other acts of a dangerous kind, as in the practice of surgery. But consent will not make acts lawful which are a breach of the peace or otherwise criminal in themselves, or unwarrantably dangerous. To the authorities already cited (r) under the head of General Exceptions we may add Hawkins' paragraph on the matter. (ii) C'oivard V. Baddelei/ (1859) i assault," per Holroyd J. Cji. H. & N". 478, 28 L. J. Ex. -ISO. Hawkins P. C. i. 110. That it was (o) Innes v. Wylie (184-3) 1 C. & formerly held otherwise, see 27 Ass. K. 257. But it seems the other, if 134, pi. 11, 17 Ed. \\. 8, pi. 2, 36 he is going whei'e he has a right to Hen. YI. 20 b, pi. 8. go, is justified in pushing him asidi.', (q) Underthe old systemof plead- though not in striking or other ing this was not a matter of special violence outside the actual exercise justification, but evidence underthe of his right : see p. 172, above. general issue, an assault by consent (]]) The Circuiteers, by John being a. contradiction in terms : Leycester Adolphus (the supposed Christopheraon v. Bun: (1848) 11 speaker is Sir Gregory Lewin), L. <,'. B. 473, 17 L. J. Q. B. 109. Q. K. i. 232; Meade's and Bell's lint this has long ceased to be of any en,, 1 Lewin C. C. 184 : "no ivords importance in England, or siiujing are equivalent to an (?•) P. 157, above. 214 PERSONAL WRONGS. " It seems to be the better opinion that a man is in no danger of such a forfeiture [of recognizances for keeping the peace] from any hurt done to another by- playing at cudgels, or such like sport, by consent, because the intent of the parties seems no way unlawful, but rather commendable, and tending mutually to promote activity and courage. Yet it is said that he who wounds another in fighting with naked swords does in strictness forfeit such a recognizance, because no consent can make so dangerous a diversion lawful" (s). It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect (t) . The same principles would no doubt be applied by courts of civil jurisdiction if necessary. Sei£- When one is wrongfully assaulted it is lawful to repel force by force (as also to use force in the defence of those whom one is bound to protect, or for keeping the peace), provided that no unnecessary violence be used. How much force, and of what kind, it is reasonable and proper to use in the circumstances must always be a question of fact, and as it is incapable of being concluded before- hand by authority, so we do not find any decisions which attempt a definition. We must be content to say that the resistance must " not exceed the bounds of mere defence and prevention " (w), or that the force used in defence must not be more than "commensurate" with (s) Hawkins, P. C. i. 48i. Tlie operation or treatment by one who Roman Law went oven farther in relies on the prisoner's skill, it encouraging contests "gloriae causa does not excuse him from the guilt et virtutis," D. 9. 2, ad. 1. Aquil. of manslaughter if death ensues : 7j § 4. Commonwealth v. Pierce, 138 Mass. (t) Similarly where consent is 165, 180. given to an unreasonably dangerous {it) Blackst. Comm. iii. 4. SELF-DEFENCE. 215 that -^'hicli provoked it (x). It is obvious, however, that the matter is of much greater importance in criminal than in civil law ()/). Menace without assault is in some cases actionable. Jtcnace But this is on the ground of its causing a certain special o-uished kind of damage ; and then the person menaced need _^™™ ,, not be the person who suffers damage. In fact the old authorities are all, or nearly all, on intimidation of a man's servants or tenants whereby he loses their service or dues. Therefore, though under the old forms of action this wrong was of the same genus with assault and battery, we shall find it more convenient to consider it under another head. Verbal threats of personal vio- lence are not, as such, a ground of civil action at all. If a man is thereby put in reasonable bodily fear he has his remedj^ but not a civil one, namely by security of the peace. AVhere an assault is complained of before justices Summary urocGGti- under 24 & 25 Vict. c. 100, and the complaint has been jngg ,5-hen dismissed (after an actual hearing on the merits) (£:), gj^jj'^*'' either for want of proof, or on the ground that the action, assault or battery was "justified or so trifling as not to merit any punishment," or the defendant has been convicted, and paid the fine or suffered the sentence, as the case may be, no further proceedings either civil or criminal can be taken in respect of the same assault {a). (x) Heecev. Taylor (1835) 4. '^ . k. decisioii.SjChieflyintheSoiithernand JI. at }>. 470. AVestern States. iy) See Stephen's JJigest of the (-.) Jiced v. Nalt (1890) 24 Q. V>. Criminal Law, art. 200, and cp. D. 669, 59 L. J. Q. B. 311. Criminal Code Bill, ss. 55—57 ; and (a) 24 & 25 Vict. ^. 100, ss. 42— for full discussion Dicey, Law of the 45. MasiKi- v. Brouyn (1876) 1 C. Constitution, 5th ed. appx. note iv. V. D. 97, decides that the Act is There are many modern American not confined to suits strictly for the 216 PERSONAL WRONGS. False imprison- ment. II. — False Imprisonment . Freedom of the person includes immunity not only from the actual ai^plication of force, but from every kind of detention and restraint not authorized by law. The infliction of such restraint is the wrong of false imprison- ment ; which, though generally coupled with assault, is nevertheless a distinct wrong. Laying on of hands or other actual constraint of the body is not a necessary element ; and, if " stone walls do not a prison make " for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. "Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets " (?>). And when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is (c). The detainer, however, must be such as to limit the party's freedom of motion in all directions. It is not an imprisonment to obstruct a man's passage in one direction only. "A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only ; it may in itself be moveable or fixed ; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping : he must be prevented from leaving that place within the limit of which the party imprisoned could be confined." same cause of action, biit extends to bar actions by a Imsbaiid or jiiastev for consequential damage : the words of the Act are "same cause," but they are equivalent to " same assault " in the earlier Act, 16 & 17 Vict. c. 30, s. 1, repealed by 24 & 25 Vict. c. 9r.. (h) Blackst. Comm. iii. 127. (c) JJ'arner v. Iliddifonl, 4 C. B. X. S. 180 ; even if he is disabled by sickness frona moving at all ; the assumption of control is the main thing: Graiiujcrx. HiJl{\m) 4 Bin" N. C. 212. FALSE IMPRISONMENT. 217 Othei-M'ise every obstruction of the exercise of a right of ^\ay may be treated as an imprisonment (d) . A man is not imprisoned who has an escape open to him (c) ; that is, we apprehend, a means of escape which a man of ordinary ability can use without peril of life or limb. The verge of a cliff, or the foot of an apparently impracticable wall of rock, would in law be a sufficient boundary, though peradventure not sufficient in fact to restrain an expert diver or mountaineer. So much as to what amounts to an imprisonment. When an action for false imprisonment is brought and Justifica- defended, the real question in dispute is mostly, though arrest and not always, whether the imprisonment was justified, ^"e'n"*^""" One could not account for all possible justifications except by a full enumeration of all the causes for which one man may lawfully put constraint on the person of another : an undertaking not within our purpose in this work. We have considered, under the head of G-eneral Exceptions (/), the principles on which persons acting in the exercise of special duties and authorities are entitled to absolute or qualified immunity. With regard to the lawfulness of arrest and imprisonment in particular, there are divers and somewhat minute distinctions between the powers of a peace-officer and those of a private citizen (g) : of which the chief is that the officer may without a warrant arrest on reasonable suspicion of felony, even though a felony has not in fact been committed, whereas (d) Bird v. Johci (1845) 7 Q. B. sented. 742, 15 L. J. Q. B. 82, per Cole- (/) Ch. IV., p. 106, above, ridge J. iff) Stephen, Dig. Crim. Proe. (<■) Williams J., ih. To the same u. 12, 1 Hist. Cr. Law, 193 : andsei; effect Patteson J. : "Imprisonment Hoffff v. lFar<1 (1858) 3 H. & N. is a total restraint of liberty of per- 417, 27 L; J. Ex. 443. son." Lord Denman C. J. dis- answer- able. 218 PERSONAL WRONGS. a private person so arresting, or causing to be arrested, an alleged offender, must show not only that he had reasonable grounds of suspicion but that a felony had actually been committed (/t). The modern policeman is a statutory constable having all the powers which a constable has by the common law (;'), and special statutory powers for dealing with various particular offences (k). Who is Every one is answerable for specifically directing the arrest or imprisonment of another, as for any other act that he specifically commands or ratifies ; and a superior officer who finds a person taken into custody by a constable under his orders, and then continues the custody, is liable to an action if the original arrest was unlawful [l). Nor does it matter whether he acts in his own interest or in another's (;»)• But one is not answer- able for acts done upon his information or suggestion by an officer of the law, if they are done not as merely ministerial acts, but in the exercise of the officer's proper authority or discretion. Eather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this sense discretionary, or ministerial only. The distinction between a servant and an " independent contractor " (n) with regard to the (/t) This applies only to felony : which seem not free from doubt, "the law [i.e., common law] docs see Timothy v. Simpson (1835) 1 not excuse constables for arresting C. M. & R. 757, 40 E. R. 72:2, persons on the reasonable belief Bigelow L. C. 257, per Parke B. that they have committed a mis- (Jc) Stephen, 1 Hist. Ur. Law, demeanour:" see Griffin v. Cole- 200. v/iait (1859) 4 H. & N. 265, 28 L. J. [l) Griffin v. Coleman, note (A). Ex. 134. (ill) Barhcr v. BrciJiam (1773) 2 (j) Stephen, 1 Hist. Cr. Law, AV. Bl. 866 (attorney suing out and 197, 199. As to the common law procuring execution of void process), powers of constables and otliers to [n) Pp. 78, 79, above, arrest for preservation of the peace, BWLSE IMPRISONMENT. 219 employer's responsibility is in some measure analogous. A party who sets the law in motion without making its act his own is not necessarily free from liability. He may be liable for malicious prosecution (of which hereafter) (o) ; but he cannot be sued for false imprisonment, or in a •court which has not jurisdiction over cases of malicious prosecution. " The distinction between false imprison- ment and malicious prosecution is well illustrated by the case w'here, parties being before a magistrate, one makes a charge against another, whereupon the magistrate ■orders the person charged to be taken into custody and ■detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment " (j)). Where an officer has taken a supposed offender into custody of his ■own motion, a person who at his request signs the charge-sheet does not thereby make the act his own (q), any more than one who certifies work done under a ■contract thereby makes the contractor his servant. But where an officer consents to take a person into custody ■only upon a charge being distinctly made by the com- plainant, and the charge-sheet signed by him, there the person signing the charge-sheet must answer for the imprisonment as well as the officer (;■). (o) See Pitzjohii v. Maclcindcr lias held on a true statement of the ■(1861) Ex. Ch. 9 C. B. N. S. 505, facts that there is reasonable cause : 30 L. J. C. P. 257. Hope v. Eccrcd (1886) 17 Q. B. D. (p) ^\^iUes J., Austin V. Dowli II rj 338, 55 L. J. M. C. 146; Zca v. .(1870) L. R. 5 C. P. at p. 540 ; Charvinijton (1889) 23 Q. B. Div. West V. Smallwood (1838) 3 M. & 45, 272, 58 L. J. Q. B. 461. W. 418 ; Bigelow L. C. 237 ; nor (?) Gnnham v. JFillei/ (1859) 4 does an action for malicious prose- H. & N. 496, 28 L. J. Ex. ■Zi'Z. cution lie -where the judicial officer (r) Austin v. Doioliiuj (1870) L. 220 PERSONAL WRONGS. Again, where a man is given into custody on a mis- taken charge, and then brought before a magistrate who remands him, damages can be given against the prose- cutor in an action for false imprisonment onh' for the trespass in arresting, not for the remand, which is the act of the magistrate (s). Reason- able and probable cause. What is reasonable cause of suspicion to justify arrest may be said, paradoxical as the statement looks, to be neither a question of law nor of fact, at any rate in the common sense of the terms. Not of fact, because it is for the judge and not for the jury (t) ; not of law, because ' ' no definite rule can be laid down for the exercise of the judge's judgment " (»)• It is a matter of judicial discretion such as is familiar enough in the classes of cases which are disposed of by a judge sitting alone ; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury and the determination of the law to the judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority {x). The truth seems to be that the question R. 5 C. P. 53i, 3fl L. J. C. P. 260. As to the jirotection of parties issuing an execution in legular course, tliougli tlie judgment is after- wards set aside on other grounds, see Smith v. Sydney (1870) L. E. 5 1,1. B. 203, 39 L. J. i}. B. 14.1. Cue case often cited, Fleustcr v. RoyU (1808, Lord EUenborongli) 1 Camp. 187, seems not good autho- rity : see Gosdenv. Elphkl: (1849) 4 Ex. 445, 19 L. J. Ex. 9 ; and Grinhan v. JJ'illey, last note. (s) Lock V. Ashton (1848) 12 Q. B. 871, 18 L. J. Q. B. 76. {t) HaiUs 1-. Marks (1861) 7 H. & N. 56, 30 L. J. Ex. 389. (u) Lister V. Ferryman (1870) L. R. 4 H. L. 521, 535, per Loril Chelmsford. So per Lord Colonsay at p. 540. (,!■) Lord Campbell in BrougMon ■s . Jackson (1852) 18 Q. B. 378, 383, 21 L. J. Q. B. 266 ; Lord Hatherley, Lord Westbury, and Lord Colonsay (all familiar with procedure in which there was no jury at al!) in Lister r. Pen-yman, L. R. 4 H. L. 531, 538, 539. REASONABLE CAUSE FOR ARREST. 221 was formerly held to be one of law, and has for some time been tending to become one of fact, but the change has never been formally recognized. The only thing which can be certainly affirmed in general terms about the meaning of " reasonable cause " in this connexion is that on the one hand a belief honestly entertained is not of itself enough (y) ; on the other hand, a man is not bound to wait until he is in possession of such evidence as would be admissible and sufficient for prosecuting the offence to conviction, or even of the best evidence Avhich he might obtain by further inquiry. " It does not follow that because it would be very reasonable to make further inquiry, it is not reasonable to act without doing so " {z). It is obvious, also, that the existence or non- existence of reasonable cause must be judged, not by the event, but by the party's means of knowledge at the time. Although the judge ought not to leave the whole ques- tion of reasonable cause to the jury, there seems to be no objection to his asking the jury, as separate questions, whether the defendant acted on an honest belief, and whether he used reasonable care to inform himself of the facts (a). III. — Injuries in FamiJij Relations. Next to the sanctity of the person comes that of the Protection of DGrsciml personal relations constituting the family. Depriving a relations. husband of the society of his wife, a parent of the com- panionship and confidence of his children, is not less a (y) Broughton v. Jackson (1852) Lister (1868) L. R. 3 Ex. at p. 202, 18 Q. B. 378, 21 L. J. Q. B. 266 : approved by Lord Hatherley, s. c. tlie defendant must show "facts nom. Lister v. Ferryman, L. R. 4 which would create a reasonable H. L. at p. 533. suspicion in the mind of n reason- (a) H. Stephen on Malicious able man," per Lord Campbell C. J. Prosecution, oil, vii. (z) Bi-amwell B., Ferryman v. 222 PERSONAL WRONGS. personal injury, though a less tangible one, than beating or imprisonment. The same may to some extent be said of the relation of master and servant, which in modern law is created by contract, but is still regarded for some purposes as belonging to the permanent organism of the family, and having the nature of status. It seems natural enough that an action should lie at the suit of the head of a household for enticing away a person who is under his lawful authority, be it wife, child, or servant : there may be difficulty in fixing the boundary where the sphere of domestic relation ends and that of pure con- tract begins, but that is a difficulty of degree. That the same rule should extend to any wrong done to a wife, child, or servant, and followed as a proximate conse- quence by loss of their society or service, is equally to be expected. Then, if seduction in its ordinary sense of physical and moral corruption is part of the wrong- doer,' s conduct, it is quite in accordance with principles admitted in other parts of the law that this should be a recognized ground for awarding exemplary damages. It is equally plain that on general principle a daughter or servant can herself have no civil remedy against the seducer, though the parent or master may : no civil remedy, we say, for other remedies have existed and exist. She cannot complain of that which took place by her own consent. Any different rule would be an anomaly. Positive legislation might introduce it on grounds of moral expediency ; the courts, which have the power and the duty of applying known principles to new cases, but cannot abrogate or modify the principles themselves, are unable to take any such step. Historical There seems, in short, no reason why this class of orthe" wrongs should not be treated by the common law in LOSS OF SERVICE. 223 common law hci'Oin. a fairly simple and rational manner, and with results generally not much unlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cum- brous fictions. But as matter of history (and pretty modern history) the development of the law has been strangely halting and one-sided. Starting from the particular case of a hired servant, the authorities have dealt with other relations, not by openly treating them as analogous in principle, but by importing into thorn the fiction of actual service ; with the result that in the class of cases most prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff's right has come to be, not whether he has been injured as the head of a family, but whether he can make out a constructive "loss of service " (b). The common law provided a remedy by writ of tres- Tiespa^^ pass for the actual takmg away of a wiie, servant, or away wife, heir, and perhaps younger child also (c). An action of f^^;.^^,'^fi tresj)ass also lay for wrongs done to the plaintiff's wife »■'■'■'(""»■ or servant (not to a child as such), whereby he lost the society of the former or the services of the latter. The language of pleading was 2^er quod consortium, or ser- ritium amisit. Such a cause of action was quite distinct from that which the husband might acquire in right of the wife, or the servant in his own right. The trespass is one, but the remedies are " diversis respectibus" (d). (b) Christian's note on Blackstone ^vas de iixore ahduda cum bonis viri iii. 142 is still not amiss, though sui, or an ordinary vivii of trespass the amendments of the 19th centnry (F. N". B. 52 K) ; a case as late as in the law of evidence have removed the Eestoration is mentioned in some of the grievances mentioned. Bac. Abr. v. 328 (ed. 1832). (c) F. N. B. 89 0, 90 H, 91 I ; [d) Y. B. 19 Hen. VI. 45, pi. 94. Blackst. Conira. iii. 139. The writ 224 PERSONAL WRONGS. "If my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself for every small battery shall have an action ; and the reason of the difference is, that the master has not any damage by the personal beating of his servant, but by reason of a per quod, viz. 2^er quod scrvitiwn, dx. ami sit ; so that the original act is not the cause of his action, but the consequent upon it, viz. the loss of his service, is the cause of his action ; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action" (e). The same rule applies to the beating or maltreatment of a man's wife, provided it be " very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife " (/). "Criminal Against an adulterer the husband had an action at tion'"'^^' common law, commonly known as an action of criminal conversation. In form it was generally trespass vi et armis, on the theory that "a wife is not, as regards her husband, a free agent or separate person " ( {g) Alexander v. Jenlelns [1892] L. R 2 Ex. 327, 36 L. J. Ex. 169. 1 Q. B. 797, 61 L. J. ij. B. 634, business. SLAXDER : IN OFFICE OK BUSINESS. 243 insolvencj^ to a tradesman, in any form whatever, is actionable. Substantial damages have been given by a jury, and allo\Yed bj^ the court, for a mere clerical error l)y \\hich an advertisement of a dissolution of partnership was printed among a list of meetings under the Bank- ruptcj' Act {!). A trading corporation may be defamed in relation to the conduct of its business (in). There are cases, though not common in our books, in "Words which a man suffers loss in his business as the intended causino- or "natural and probable result" of words spoken in f^"!^^^^ relation to that business, but not against the man's own in his character or conduct : as where a wife or servant dwelling at his place of business is charged with misbehaviour, and the credit of the business is thereby impaired : or where a statement is made about the business not in itself defamatory, but tending to a like result, such as that the firm has ceased to exist (;;)• In such a case an action lies, but is not properly an action of slander, but rather a special action (on the case in 'the old system of pleading) "for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title." General loss of business is sufficient "special damage" to be a cause of action in such a case (o). (l) Blake Odgers, 29, S" ; Shcp- [1892] 2 Q. B. 524, 527, 61 L. J. !,ecird v. IVhitaker (1875) L. R. 10 Q. B. 535. C. P. 502. (o) PuUdiffc V. Ei-ans, last note ; (/;i) South Helton Coal Co. v. cp. Hartley v. Hurrinrj (1799) 8 ;\'^. E. Kews Assvdatwii [1894 1 T. K. 130, 4 R. R. 614 ; Ridiwi v. Q. B. 133, C3 L. J. Q. B. 293 (this Smith (1876) 1 Ex. D. 91, 45 L. J. was a printed libel, but the prin- Ex. 281, must be justified, if at all, eiple seems equally applicable to as a case of this class: [1892] 2 spoken \\ords). Q. B. at p. 534. (n) Per C. A., Ilatdiffi: v. Evans e2 244 DEFAMATION. 2. — Defamation in general. Eules as -^Yg j-,q-\y p^ss to the eeneral law of defamation, which to defa- . mation applies to both slander and libel, subject, as to slander, to the conditions and distinctions we have just gone through. Considerations of the same kind iriay affect the measure of damages for written defamation, though not the right of action itself. " Implied It is commonly said that defamation to be actionable must be malicious, and the old form of pleading added "maliciously" to "falsely," though this was held to be needless before the end of the sixteenth century {p). Whatever may have been the origin or the original meaning of this language (q), malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse (r) ; and to say that the law implies malice from the publication of matter calculated to convey an actionable imputation is only to say in an artificial form that the person who so publishes is resj)onsible for the natural consequences of this act(s). "Express malice" means something different, of which hereafter. Also, notwithstanding {p) See per Cave J. [1898] A. C. M. C. 138, deciding that the aver- at p. 37. inent of malice is unnecessary at (g) See Bigelow L. C. 117. common law. (r) Bayley J. in Bromage v. (s) Lord Blackbur.i in Capital Prosscr (1825) 4 B. & C. at p. 255, and Counties Lank\. Heiity (1882) 23 E. R. at p. 247 : " Malice in 7 App. Ca. 787, 52 L. J. Q. B. 232 ; common acceptation means ill-will and see per Lord Herscliellin^/?(;M against a person, but in its legal v. Flood [1898] A. C. at p. 125. sense it means a wrongful act done This was apparently overlooked in intentionally without just cause or the judgment of Vaughan Williams o.-vcuse:" so too Littledale J. in L. J., in Vizetelhj y. Miulie's Sch-cl McPliersonv.lldiiids (1829) 10 B. & Library, Ltd. [1900] 2 Q. B. at p. C. 272, 34 E. R. 397, 405. This is so 17S, which treats the old fiction as even in criminal jurisdiction : II. v. siibsisting. J/iHisfoio[1895] 1 Q. B. 758, 64 L. J. PUBLICATION. 245 the accustomed form of cleclanition, the plaintiff is not bomid to prove the falsehood of the words complained of (t). This is best shown h\' the existence of the special plea of justification. Evil-speaking, of whatever kind, is not actionable if What is publica- communicated only to the person spoken of. The cause tion. of action is not insult, but proved or presumed injury to reputation. Therefore there must be a communication by the speaker or writer to at least one third person ; and this necessary element of the wrongful act is technically called publication. It need not amount to anj'thing like publication in the common usage of the word. That an open message passes through the hands of a telegraph clerk (».), or a manuscript through those of a compositor in a printing-ofSce (v), or a letter dictated by a principal is taken down in shorthand and type- written by a clerk (j), is enough to constitute a publica- tion to those persons if they are capable of understanding the matters so delivered to them. The opening of a letter addressed to a firm by a clerk of that firm authorized to open letters is a publication to him (.r). Every repetition (0 But since parties can be wit- 1 Q. B. 524, 63 L. J. Q. B. 299, C. A. netses a plaintiff who does not deny Note, howevei-, with Mr. Blake the imputation on oath exposes Odgers (Digest, p. 174) that tlie himself in practice to great risk and dictation of words that exist in inconvenience. writing only when aud as the clerk («) See Williamson v. Freer takes thera down cannot be the pub- (1874) L. E. 9 C. P. 393, 43 L. J. lication of a liliel to the clerk, C. P. 161. though it may be a slander. But if (f) Printing is for this reason the occasion of the letter is privi- ^>r(//iffl/acie a publication ; Baldwin leged as regards the principal, the ^•. Eiphinston, 2 W. Bl. 1037. publication to the clerk in the usual There are obvious exceptions, as if course of office business is jirivi- tlie text to be printed is Arabic or leged too. Boxsius v. Ooblet Frercs Cliiiiese, or the message in cipher. [1894] 1 Q. B. 842, 63 L. J Q. B. (.)■) Pullman v. Hill & Co. [1891] 401, C. A. 246- DEFAMATION. of defamatory words is a new publication, and a distinct cause of action. The sale of a copy of a newspaper, published (in the popular sense) many years ago, to a person sent to the newspaper office by the plaintiff on purpose to buy it, is a fresh publication (//). It appears on the whole that if the defendant has placed defamatory matter within a person's reach, whether it is likely or not that he will attend to the meaning of it, this throws on the defendant the burden of proving that the paper was not read, or the words heard by that person ; but if it is proved that the matter did not come to his knowledge, there is no publication (z). A person who is an unconscious instrument in circulating libellous matter, and did not know, and could not with reasonable diligence have known, that the document he circulates contains any such matter, is free from liability if he proves his ignorance (a). Such is the case of a news- vendor, as distinguished from the publishers, printers, and owners of newspapers. " A newspaper is not like a fire ; a man may carry it about without being bound to suppose that it is likely to do an injury" (b). If A. is justified in making a disparaging communication about B.'s character to C. (as, under certain conditions, we shall see that he may be), it follows, upon the tendency and analogy of the authorities now before us, that this will be no excuse if, exchanging the envelopes of two letters by inadvertence, or the like, he does in fact com- municate the matter to D. It has been held otherwise, but the decision was never generally accepted, and is {i/)Duke of Brunsicid; v.IIannc.r Vi~etdlij y. Mudu's Select Lihrary, (1849) 14 Q. B. 185, 19 L. J. M. B. JJA. [1900] 2 Q. B. 170, 69 L. J. 2 0. Q. B. ti46, C. A. (2) Blake Odgers, 176 S2(?. (h) Emmcas y. PoMZc (1885)-16 (a) The burJonof proof is on liini, Q. B. Div. 354, per Boweu L. J. at and it is a question for the jury : p. 35?, 55 L. J. Q. B. 51. PUBLICATION : INNUENDO. 247 now overruled (<■). In fact, as had been suggested in former editions of this book, it could not stand with the earlier authorities on "publication." Sending a defamatory letter to a wife about her husband is a publication : " man and wife are in the eye of the law, for many purposes, one person, and for many purposes " — of which this is one — " different persons " (d). On the general principles of liability, a man is deemed Vicarious to publish that which is published by his authority, tion. And the authority need not be to publish a particular form of words. A general request, or words intended and acted on as such, to take public notice of a matter, may make the speaker answerable for what is published in conformity to the general "sense and substance" of his request (e) . A person who is generally responsible for publication (such as an editor), and who has admitted publication, is not as a rule bound to disclose the name of the actual author (/) . Supposing the authorship of the words complained of Construe- to be proved or admitted, many questions may remain. „',Qj,^g . The construction of words alleged to be libellous (we """«'«<^"- shall now use this term as equivalent to "defamatory," unless the context requires us to advert to any distinction (c) Tompson v. Dasluoood (1883) Q. B. 241. 11 Q. B. D. 43, 52 L. J. Q. B. 425, (c) Parkes v. Prcscott (1869) L. R. was oven-uled by Ilebditdi v. Mac- 4 Ex. 169, 38 L. J. Ex. 105, Ex. Ch. Ilwwine [1894] 2 Q. B. 54, 63 L. J. Whether the particular publication Q. B'. 587, C. A. See p. 268, below. is within tlie autliority is a questicju ((i) TVenman v. Ash (1853) 13 of fact. All the Court decide is C. B. 836, 22 L. J. C. P. 190, per that verbal dictation or approval by Maule J. But comniunication by the principal need not be shown, the defendant to his wife is not a (/) Gihsan v. Evans (1889) 23 publication : Weimhak v. Morgan Q. B. D. 394, 58 L. J. Q. B. 612. (1888) 20 Q. B. D. 635, 67 L. J. 248 DEFAMATION. between libel and slander) is often a matter of doubt. In the first place the Court has to be satisfied that they are capable of the defamatory meaning ascribed to them. AVhether they are so is a question of law (f/). If they are, and if there is some other meaning which they are also capable of, it is a question of fact which meaning they did convey under all the circumstances of the publication in question. An averment by the plaintiff that words not libellous in their ordinary meaning or without a ' special application were used with a specified libellous meaning or application is called an innuendo, from the old form of pleading. The old cases contain much minute, not to say frivolous, technicality ; but the sub- stance of the doctrine is now reduced to something like what is expressed above. The requirement of an innuendo, where the words are not on the face of them libellous, is not affected by the abolition of ■ forms of pleading. It is a matter of substance, for a plaintiff who sues on words not in themselves libellous, and does not allege in his claim that they conveyed a libellous meaning, and show what that meaning was, has failed to show any cause of action (/<). Again, explanation is required if the words have not, for judicial purposes, any received ordinary meaning at all, as being foreign, provincial, or the like (i). This however is not quite the same thing as an innuendo. A libel in a foreign language might need both a translation to show the ordinary meaning of (g) Capital and Counties Bank Cole (1875) L. R. 10 Q. B. 549, 44 V. HcHlij (1882) 7 App. Ca. 741, 52 L. J. Q. B. 153 ; for one ou the ]j. J. Q. B. 232, where the law is other side of the line, i?«?'< r. Wall elaborately disonssed ; NcvUl x. (1877) 2 C. P. D. 146, 46 L. J. C. P. I-'ine Art, d-c, Insurance. Co. [1897] 227. A. C. 68, 66 L. J. Q. B. 195. For a (h) See 7 App. Ca. 748 (Lord shorter example of words held, upon Sclborne). consideration, not to he capable of (i) Blake Odgers 115 — 119. such a meaning, see Mullicjan v. INNUENDO. 249 the words, and a distinct further innuendo to show that they hore a special injurious meaning. The actionable or innocent character of words depends Libellous not on the intention with which they were published, but must be' on their actual meaning and tendency when published (/■). in*'ia«!'and A man is bound to know the natural effect of the language proved in ° . ° fact, he uses. But where the plaintiff seeks to put an action- able meaning on words by which it is not obviously conveyed, he must make out that the words are capable of that meaning (which is matter of law) and that they did convey it (which is matter of fact) ; so that he has to convince both the Court and the jury, and will lose his cause if he fail with either (l). "Words are not deemed capable of a particular meaning merely because it might by possibility be attached to them : there must be some- thing in either the contest or the circumstances that would suggest the alleged meaning to a reasonable mind(»i). In scholastic language, it is not enough that the terms should be " patient " of the injurious construction ; they must not only suffer it, but be fairly capable of it. And it is left to the jury, within large limits, to find whether they do convey a serious imputation, or are mere rhetorical or jocular exaggeration (n) . The publication is no less the speaker's or writer's own Kepcti- act, and none the less makes him answerable, because he reports may be libellous, (/fc) 7 App. Ca. 768, 782, 790, cf. Lord Bramwell, ib. 792, " 1 think p. 787. The old oases about words that the defamer is he who, of alleged to be spoken in jest are many inferences, chooses a defama- covered by this wider principle. tory one." (I) Lord Blackburn, 7 App. Ca. («) Australian Ncicspnjirr Co. 776. V, L-eimctt [1894] A. ('. 284, 63 (m) Lord Selborne, 7 App. Ca. L. J. P. C. 105. 744 ; Lord Blackburn, ib. ■ 778 ; 250 DEFAMATION. only repeats what he has heard. Libel may consist in a fair report of statements which were actually made, and on an occasion which then and there justified the original' speaker in making them (o) ; slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth (jj). " A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion," and " as great an injury may accrue from the wrongful repetition as from the first publication of slander ; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander " (g). Circumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all. From this principle it follows, as regards spoken words, that if A. speak to Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action against B., but not against A. (r). As to the defendant's' belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Good faith occurs as a material legal element only when we come to the exceptions from the general law that a man utters defamatory matter at his own peril. (o) Purcdl V. Souirr (1877) 2 The latter part of the 4th Resolii- C. P. Div. 215, 46 L. J. C. P. 308. tion reported in the Eurl of Xorlh- (p) iratkiiiv. Hall {1S6S)L. R. ampton's case, 12 G.i. Rep. 1,34, is 3 1.1. B. 396, 37 L. .J. (,l. B. 125. not law. Ste per Parke .J., 10 B. (q) Littledale .!., McPherson. v. & C. at p. 275, 34 R. R. at p. 407 Vaaiels (1829)10 B. & C. 263, 273, [;■) See /'«/■/.■/„., v. Scotl (1862) 34 R. R. 397, 405, adopted by 1 H. & C. 153, 31 L. J. Ex. 331, Bliickljurn J., L. R. 3 Q. B. 400. ]>. 237, above. FAIR (.'OiMMENT. 251 3. — E.recpfioitft. We now have to mention the conditions which exclude, Exoep- if present, liabiUty for words apparently injurious to comment, reputation. Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situa- tion i,s), and it is not correct to speak of utterances px-otected bj- it as being privileged. A man is aio more privilcc/ed to make fair comments in public on the public conduct of others than to compete fairlj' with them in trade, or to build on his own land so as to darken their newlj'-made windows. There is not a cause of action with an excuse, but no cause of action at all. " The question is not whether the article is privileged, but whether it is a libel " (t). This is settled by the leading case of Campbell v. Spottisiroode (ii), confirmed by the Court of Appeal in Merirale v. Carson {x). On the other hand, the honesty of the critic's belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand. What- ever goes beyond this, even if well meant, is libellous. The courts have, perhaps purposely, not fixed any standard of "fair criticism " Q/). One test very commonly applicable is the distinction between action and motive. Public acts and performances may be freely censured as to their merits or probable consequences, but wicked (s) SeeperBowenL. J., J/cri'ra/cv. L. T. 331. This must be taken to CaraOTi(lS87) 20 Q.B. Div. atp. 282. overrule whatever was said to tlie (t) Lord Esher il. R., 2U <). B. continry in Hcmi'ood r. Harrison Dir. at p. 280. (1872) L, 1!. 7 C. P. 606, 626, 41 (h) 3 B. & S. 769, 32 L. J. Q. B. L. .1. C' P. 206. 185 (1863). (y) Bowen L. J., 20 Q. B. Div. (a-) (1887) 20 Q. B. Div. 275, 58 at p. 2S3. 252 DEFAMATIOX. or dishonest motives must not be imputed upon mere surmise. Such imputations, even if honestly made, are wrongful, unless there is in fact good cause for them. " Where a person has done or published anything which may fairly be said to have invited comment .... every one has a right to make a fair and proper comment; and as long as he keeps within that limit, what he writes is not a libel ; but that is not a privilege at all. . . . Honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair com- ment ; but it cannot in itself prevent the matter being libellous '' (^). The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise. On prin- ciple it seems to fall within the general rule that the law will not examine the motive of an act done in exercise of a common right (a). Evidence tending to show the presence of improper motives might, however, be material as tending to show that the comment was not fair in itself ; as on the other hand to say of some kinds of criticism that there is no evidence of malice is practically equivalent to saying there is no evidence of the comment being otherwise than fair (h). (z) Blackburn J., Camphdl \. Div. at p. 2S1 ; but it is submitted SpoUisicoode (1863) 32 L. J. Q. B. that anything of this kind is now at p. 202 ; cp. Bowen L. J., 20 (^t. B. inconsistent witli the decision of Div. at p. 2S4, the H. L. in AlUn \. Flood [1898] [a) Dicta seeming to favour a A. C. 1, 67 L. J. Q. B. 119. contrary opinion may be found in (6) On this ground the actual IFason v. Walter (1868) L. E. 4 decision in Henwood v. Harrison, Q. B. at p. 96, 38 L. J. Q. B. 34, note(x-), P- 2al, may have been and Slevcii^ v. iSdmpson (1879) ■'5 riglit ; see, lioAvever, tire dissenting Ex. Div. 53, 49 L. J. Q. B. 120; judgment of Urnve J. and per Lord Esher 51. R., 20 (). B. FAIR COMMENT. 253 What acts and conduct are open to public comment What is is a question for the Court, but one of judicial common comment, sense rather than of technical definition. Subject-matter J!^^,!'''^'' °* of this kind may be broadly classed under two types. The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs (c), of those in authority, ^Yhether imperial or local (d), in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like. Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discover}^ publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism ; which criticism, being itself a public act, is in like manner open to reply within commensurate limits. What is actually fair criticism is a question of fact, whether provided the words are capable of being understood in a f°fe,h™ sense beyond the fair (that is, honest) expression of an ™''^"^.i' °^ unfavourable opinion, however strong, on that which the libellous construe plaintiff has submitted to the public : this is only an tion pos- sible). (c) Including the concliict at a matter of public intriest: Kelly x. public meeting of persons who Tinlinr/ (1865) L. R. 1 (,). B. 699, attend it as private citizens : Davis 35 L. J. <).. B. 940, cp. Kelly v. V. iiiHiraJt (1874) L. R. 9 C. P. 396, Sherlnck {ISHQ) L. R. 1 Q. B. at 43 L. J. C. P. 185. A clergyman p. 689, 35 L. J. Q. B. 209. is a public officer, or at any rate (d) Parccll v. Soroler, 2 C. P. the conduct of public worship and Div. 215, 46 L. J. C. P. 308. whatever is incidental tliereto is truth. 254 DEFAMATION. application of the wider principle above stated as to the construction of a supposed libel (e). In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of the subject-matter. Courts of justice have not the means of applying so fine a test: and a right of criticism limited to experts would be no longer a common right but a privilege. The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of mis- conduct (/), or purporting to describe the actual contents of the work being criticised (g). Justifica- Defamation is not actionable if the defendant shows tion on n -i • ground of that the defamatory matter was true ; and if it was so, the purpose or motive with which it was published is irrelevant. For although in the current phrase the statement of matter " true in substance and in fact " is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth in season and out of season (indeed it may be a criminal offence), but because of the demerit attaching to the plaintiff if the imputation is true, whereby he is deemed to have no ground of complaint for the fact being com- municated to his neighbours. It is not that uttering truth always carries its own justification, but that the law bars the other party of redress which he does not deserve. Thus the old rule is explained, that where truth is relied on for justification, it must be specially (c) ilcrimle v. C'drsoji (1887) 20 (/) Davis v. Shepxlone (1886) Q. B. Div. 275, 58 L. T. 331 ; 11 Apii. Ca. 187, 55 L. J. P. C. Jainn- v. A'Seckett (1871) L. R. 7 51, J. C. Q. B. 11, 41 L. J. Q. B. 14. Qii. (y) Mcrixalcx. Carson (1878)20 whether the dissenting judgment Q. B. Div. 275, 58 L. T. 331. of Lusli J. was not right. JUSTIFICATION BY TRUTH. 255 pleaded ; the cause of action was confessed, but the special matter avoided the plaintiff's right (It). "The law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess " (i). This defence, as authority and experience show, is not a favoured one. To adopt it is to forego the usual advantages of the defending party, and commit oneself to a counter-attack in which onlv complete success will be profitable, and failure will be disastrous. What the defendant has to prove is truth in substance. Must be that is, he must show that the imputation made or tiailv' repeated by him was true as a whole and in every '^o^r^^te. material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not (A). "What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact ®. There may be a further question whether the matter alleged as justification is sufficient, if proved, to cover the whole cause of action arising on the words complained of ; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed. It is a rule of law that one may not justify calling the editor of a journal a " felon editor " by showing that he was once convicted of felony. For a felon is one who (k) Compare the similar doctrine (k) Flemini/ v. Dollar (18S9) 23 in trespass, which has peculiar con- Q. K. D. 3bS, 58 L. J. i). B, 54S. .sequences. But of this in its place. (1) Alcfdiidcr v. North Enstcni (i) Littledale J., 10 B. & C, at R. Co. (1865) 6 B. & S. 310, 34 p. 272, M IJ. E. at p. lO.'i. L. J. Q. B. 152. 256 DEFAMATION. has actually committed felony, and who has not ceased to be a felon by full endurance of the sentence of the law, or by a pardon ; not a man erroneously convicted, or one who has been convicted and duly discharged. But it may be for a jury to say whether calling a man a "convicted felon" imputed the quality of felony generally, or only conveyed the fact that at some time he was convicted (»i). Where the libel charges a criminal offence with circumstances of moral aggravation, it is not a sufficient justification to aver the committing of the ofl'ence without those circumstances, though in law they may be irrelevant or relevant only as evidence of some element or condition of the offence («)• The limits of the authority which the Court will exercise over juries in handling questions of " mixed fact and law " must be admitted to be hard to define in this and other branches of the law of defamation. Defen- dant's belief im- material. Apparently it would make no difference in law that the defendant had made a defamatory statement without any belief in its truth, if it turned out afterwards to have been true when made : as, conversely, it is certain that the most honest and even reasonable belief is of itself no justification. Costs, however, are now in the discretion of the Court. Immunity of mem- bers of Parlia- ment and judges. In order that public duties may be discharged without fear, unqualified protection is given to language used in the exercise of parliamentary and judicial functions. A member of Parliament cannot be lawfully molested out- side Parliament by civil action, or otherwise, on account (m) Lcyman v. Latimer (1878) 3 Ex. Div. 352, 47 L. J. Ex. 470. (?i) SelsliaiiXY. Blackwood (1851) 11 C. B. 128, 20 L. J. C. P. 187, a very curious case. JUDICIAL PRIVILEGE. 257 of anything said by him in his place in either House (o). An action will not lie against a judge for any words used by him in his judicial capacity in a court of justice (p). It is not open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith. Parties, advocates, and witnesses in a court of justice Other are under the like protection. They are subject to the j^udicfaV authority of the Court itself, but whatever they say in P^°=ee'i- the course of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner's counsel to make insinuations against the prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be (q) ; nor for a witness after his cross-examination to volunteer a statement of opinion by way of vindicating his credit, which involves a criminal accusation against a person wholly unconnected with the case (r). The only limitation is that the words must in some way have reference to the inquiry the Court is engaged in. A duly constituted military court (o) St. 4 Hen. VIII. o. 8 (Pro OJgers 210—212. Ricardo Strode) ; Bill of Eights, 1 (?) Munster v. Lamb (1883) 11 Wm. & M. sess. 2, o. 2, "That Q. B. Div. .588, where authorities the freedome of speech and debates are collecti'd. or proceedings in Parlyament ought (?■) Seaman v. NetJicrclift (1876) not to be impeached or questioned 2 C. P. Div. 53, 4'6 L. J. C. P. 128. in any court or place out of Parlya- But there is no privilege for those ment." who procure other 7)ersons to give (p) Scott V. Stansfield (1868) L. false and defamatory evidence ; R. 3 Ex, 220, 37 L. ,L Ex. 155 ; Rice v. Corlidge (1876) 121 Mass. the protection extends to judicial 393, Ames, Sel. Ca. 616. For acts, see the chapter of General Ex- American views on the main ques- ceptions above, pp. 113 — 116, and tion see Ames, o^j. cit. 438. further illustrations ap. Blake P.T. S 258 DEFAMATION. of inquiry is for this purpose on the same footing as an ordinary court of justice (-?)• So is a select committee of the House of Commons (t). Statements coming within this rule are said to be "absolutely privileged." The reason for precluding all discussion of their reasonable- ness or good faith before another tribunal is one of public policy, laid down to the same effect in all the authorities. The law does not seek to protect a dishonest witness or a reckless advocate, but deems this a less evil than exposing honest witnesses and advocates to vexatious actions. Reports o£ As to reports made in the course of naval or military &c. ' diity, but not with reference to any pending judicial proceeding, it is doubtful whether they come under this head or that of "qualified privilege." A majority of the Court of Queen's Bench has held (against a strong dissent), not exactly that they are " absolutely privileged," but that an ordinary court of law will not determine questions of naval or military discipline and duty. But the decision is not received as conclusive {u). Communications relating to affairs of State and made by ys) Dawlcins v. Lord Eokehy L. K. 5 Q. B. 94, 39 L. J. Q. B. (1873-5) Ex. Ch, and H. L., L. E. 53, see the dissenting judgment of 8 Q. B. 255, 7 H. L. 744, 45 L. J. Cockburn C. J., and the notes of Q. B. 8, see opinion of judges 7 Sir Jrimes Stephen, Dig. Cr. L. H.lj.sX]}. 1Z1; Dawkinsv. Prince art. 276, and Mr. Blake Odgers, Edward of Saxe Weimar (1876) 1 op. cit. 219. The reference of the Q. B. D. 499, 45 L. J. Q. B. 567. Judicial Committee to the case in {f) Goffin V. Donnelly (1S81) 6 Hart v. Gumpach (1872) L. R. 4 Q. B. D. 307, 50 L. J. Q. B. 303. P. C. 439, 464, 42 L. J. P. C. 25, A licensing meeting of a County is quite neutral. They declined to Council is not a Court for this pur- presume that .such an "absolute pose : Royal Aquarium Society v. privilege " existed by the law and Parkinson [1892] 1 i). B. 431, 61 customs of China as to official L. J. Q. B. 409, C. A. reports to the Chinese Government. (tt) Dawlcins V. Lord Paidct (1869) PRIVILEGED COJFJIXTXlC.VnONS. 259 one officer of State to another in the course of duty are absolutely privileged on the ground of public policy. Moreover, there is the wider rule that documents containing such communications cannot be produced in evidence for any purpose (x) ; unless, of course, they have been published by authority. There is an important class of cases in which a middle Qualified course is taken between the common rule of unqualified o£ u pi.jyj. responsibility for one's statements, and the exceptional ^'^s<^^^ . I. J 'J- commnm- rules which give, as we have just seen, absolute protection cations." to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest expression of opinion concerning the character and merits of persons, to the extent appropriate to the nature of the occasion, but does not deem it necessary to prevent the person affected from showing, if he can, that an unfavourable opinion expressed con- cerning him is not honest. Occasions of this kind are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term " qualified privilege " is often used to mark the require- ment of good faith in such cases, in contrast to the cases of "absolute privilege" above mentioned. Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will ; and this although the matter reported was " absolutely privileged " as to the original utterance of it. {x) Cliatterton v. Secretanj of State for India in Council [1895] 2 (^ B. 189, 64 L, J. Q. B. 676, C. A. S 2 260 DEFAMATION. Condi- tions of the privi- lege. The conditions of immunity may be thus summed up : — The occasion must be privileged ; and if the defendant establishes this, he will not be liable unless the plaintiff can prove {y) that the communication was not honestly made for the purpose of discharging a legal, moral, or social duty, or with a view to the just protection of some private interest or of the public good by giving infor- mation appearing proper to be given, but from some improper motive and without due regard to truth ; in short, that it was malicious. Such proof may consist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, "in excess of the occasion," as we say. It must be remembered that what is called " excess of the occasion " or " excess of privilege " is not a distinct ground for rebutting the defence of privilege, but is only evidence of malice ; if it is not sufficient evidence of that, it is nothing, and a finding that there has been " excess " without a finding that there has been malice is of no effect {z) . " Express malice." The rule formerly was, and still sometimes is, expressed in an artificial manner derived from the style of pleading at common law. The law, it is said, presumes or implies malice in all (y) Tlie burden of proof is not on the defendant to show his good faith : Clark v. Mobjiicux (1877) 3 Q. B. Div. 237, 47 L. J. Q. B. 230 ; Jenourc v. UcJmcgc [1891] A. C. 73, 60 L. J. P. C. 11, J. C. This, however, is or ought to be elementary. (s) IVevill V. Fine Art, A-c, In- surance Co. [1895] 2 Q. B. 15«, 6i L. J. Q. B. 681, C. A. Tlio H. L. dismissed an appeal on the shorter ground that there was no libel at all, [1897] A. C. 68, 66 L. J. Q. B. 195. PRIVILEGED COMMUNICATIONS. 261 cases of defamatory words ; this presumption may be rebutted by showing that the words were uttered on a privileged occasion ; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. He need not prove malice in the iirst instance, because the law presumes it ; when the presumption is removed, the field is still open to proof. But the " malice in law " which was said to be presumed is not the same as the " express malice " which is matter of proof. To have a lawful occasion and abuse it may be as bad as doing harm without any lawful occasion, or worse ; but it is a different thing in substance. It is better to say that where there is a duty, though of imperfect obligation, or a right, though not answering to any legal duty, to communicate matter of a certain kind, a person acting on that occasion in discharge of the duty or exercise of the right incurs no liability, and the burden of proof is on those who allege that he was not so acting (a) . The occasions giving rise to privileged communications What are may be in matters of legal or social duty, as where a occasions, confidential report is made to an official superior, or in the common case of giving a character to a servant ; or the communications may be in the way of self-defence, or the defence of an interest common to those between whom the words or writing pass ; or they may be addressed to persons in public authority with a view to the exercise of their authority for the public good ; they may also be matter published in the ordinary sense of the word for purposes of general information. As to occasions of private duty : the result of the Moral or social authorities appears to be that any state of facts making duty. {a) See per Lord Blackburn, 7 App. Ca. 787. 262 DEFAMATION. it right in the interests of society for one person to communicate to another what he beheves or has heard regarding any person's conduct or character will constitute a privileged occasion (b). Answers to confidential inquiries, or to any inquiries made in the course of affairs for a reasonable purpose, are clearly privileged. So are communications made by a person to one to whom it is his especial duty to give information by virtue of a standing relation between them, as by a solicitor to his client about the soundness of a security, by a father to his daughter of full age about the character and standing of a suitor, and the like. Statements made without request and apart from any special relation of confidence may or may not be privileged according to the circumstances ; but it cannot be prudently assumed that they will be (c) . The nature of the interest for the sake of which the communication is made (as whether it be public or private, whether it is one touching the preservation of life, honour, or morals, or only matters of ordinary business), the apparent importance and urgency of the occasion, and other such points of discretion for which no general rule can be laid down, will all have their weight ; how far anj^ of them will outweigh the general presumption against officious interference must always be more or less doubtful (d). Self-pro- Examples of privileged communications in self-protec- tion, or the protection of a common interest, are a warning (6) See per Blackburn J. in (d) BeeCoxheadv.£,ichards{18ie) Daviesv.Snead{lS70)L.U.5(i.'B. 2 G. B. 569, 15 L. J. C. P. 278, at p. 611. where the Court was equally divided, (c) Cases of this kind haye been rather as to the reasonably apparent very troublesome. See Blake Odgers urgency of the particular occasion 238 — 244. than on any definable principle. PRIVILEGED COltllUXIOATIONS. 263 given bj- a master to his servants not to associate with a former fellow-servant whom he has discharged on the ground of dishonesty (e) ; a letter from a creditor of a firm in liquidation to another of the creditors, conve^-iny- information and warning as to the conduct of a member of the debtor firm in its affairs (/). The privilege of an occasion of legitimate self-interest extends to a solicitor writing as an interested jsarty's solicitor in the ordinary course of his duty (r/). The holder of a public office, when an attack is publicly made on his official conduct, may defend himself with the like publicity (h). Communications addressed in good faith to persons in a informa- public position for the purpose of giving them information putifc"^^ to be used for the redress of grievances, the punishment s°°^- of crime, or the security of public morals, are in like manner privileged, provided the subject-matter is within the competence of the person addressed (i). The commu- nication to an incumbent of reports affecting the character of his curate is privileged, at all events if made by a (c) SomervUle v. HaivTcins (1850) memorial complaining of tlie con- 10 C. B. 583, 20 L. J. C. P. 133. duct of a justice of tlie peace to a (/) Spill V. Maule (1869) Ex. Ch. Secretary of State (see the judgment L. K. 4 Ex. 232, 38 L. J. Ex. 138. of the Court as to the incideuts of (g) Baker v. Carrick [1894] 1 that office), thougli it would be more Q. B. 838, 63 L. J. Q. B. 399, C. A. usual to addres.s such a memorial (h) Laucjhton v. Bishop of Sodor to the Lord Chancellor. Com- aiHl Man (1872) L. E. 4 P. C. 495, plaints made to the Privy Conncil 42 L. J. P. C. 11. against au officer whom the Council (i) Harrison v. Bush (1855) 5 is by statute empowered to remove E. & B. 344, 25 L. J. Q. B. 25. are in this category ; the absolute Mure belief that the person ad- privilege of judicial proceedings dressed is officially competent will cannot be claimed for them, though not do : Hebditch v. Macllwaine the power in question may be exer- [1894] 2 Q. B. 54, 63 L. J. Q. B. ciseable only on inquiry : Proctor 587, 0. A. In Harrison v. Bush, v. Webster (1885) 16 Q. B. D. 112, however, it was held that it was 55 L. J. Q. B. 150. not, in fact, irregular to address a 264 DEFAMATION. Fair reports. Parlia- mentary papers. neighbour or parishioner ; so are consultations between the clergy of the immediate neighbourhood arising out of the same matter (k). Fair reports (as distinguished from comments) are a distinct class of publications enjoying the protection of "qualified privilege " to the extent to be mentioned. The fact that imputations have been made on a privileged occasion will, of course, not exempt from liability a person who repeats them on an occasion not privileged. Even if the original statement be made with circumstances of publicity, and be of the kind known as " absolutely privileged," it cannot be stated as a general rule that republication is justifiable. Certain specific immunities have been ordained by modern decisions and statutes. They rest on particular grounds, and are not to be extended (0- Matter not coming under any of them must stand on its own merits, if it can, as a fair comment on a subject of public interest. By statute (3 & 4 Yict. c. 9, a.d. 1840) the publication of any reports, pap,ers, votes, or proceedings of either House of Parliament by the order or under the authority of that House is absolutely protected, and so is the repub- lication in full. Extracts and abstracts are protected if in the opinion of the jury they were published ho7id fide and without malice {m). Pariia- Fair reports of parliamentary and public judicial pro- debate^ ceedings are treated as privileged communications. It (h) Claris V. Molyncux (1877) 3 (1, U. Div. 237, 47 L. J. Q. B. 23(1. (I) Sec Davis v. Shepstone (1886) J. C. 11 App. Ca. 187, 55 L. J. P. C. 51. (m) See Blake Odgers, op. cit. 209. The words of the Act, in their literal construction, appear to throw the burden of proving good faith on the publisher, which pro- bably was not intended. FAIR REPORTS. 265 has long been settled («) that fak and substantially andjudi- accurate reports of proceedmgs in courts of justice are ceedFngs. on this footing. As late as 1868 it was decided (o) that the same measure of immunity extends to reports of parliamentary debates, notwithstanding that proceedings in Parliament are technically not public, and, still later, that it extends to fair reports of the quasi-judicial proceedings of a body established for public purposes, and invested with quasi- judicial authority for effecting those purposes (p). In the case of judicial proceedings it is immaterial whether they are preliminary or final {provided that they are such as will lead to some final decision) (q), and whether contested or ex parte (q), and also whether the Court actually has jurisdiction or not, provided that it is acting in an apparently regular manner (;•). The report need not be a report of the whole proceedmgs, provided it gives a fair and sub- stantially complete account of the case ; but whether it does give such an account has been thought to be a pure question of fact, even if the part which is separately reported be a judgment purporting to state the facts (s) . The report must not in any case be (m) Per Cur. in JVasonv. Walter, [1893] 1 Q. B. 65, 62 L. J. Q. B. L. R. 4 Q. B. at p, 87. 152, C. A. (o) Wason v. Walter, L. K. 4 (r) ^s/« v. fl'«Zcs(1878) 3C. P. D. Q. B. 73, 38 L. J. Q. B. 34. And 319, 45 L. J. C. P. 323, where the editorial comments on a debate pub- proceeding reported was an applica- lished by the same newspaper which tion to a police magistrate, who, publishes the report are entitled to after hearing the facts stated, de- jhe benefit of the general rule as to dined to act on the ground of fair comment on public affairs : ib. want of jurisdiction : Lennsv. Levi; Cp. the German Federal Constitu- (1858) E. B. &E. 537, 27 L. J. Q. B. tion, arts. 22, 30. 282. (p) Allbutt V. General Council of {s) Macdouyall v. Knight (1889) Medical Mucatioa (1889) 23 Q. B. 14 Api>, Ca. 194, 58 L. J. Q. B. Div. 400, 58 L. J. Q. B. 606. 537. But in Macdougall v. Knight (q) Kimber v. Press Association (1890) 25 Q. B. Div. 1, 59 L. J. 266 DEFAMATION. partial to the extent of misrepresenting the judg- ment (t). It may be libellous to publish even a correct extract from a register of judgments in such a way as to suggest that a judgment is outstanding when it is in fact satisfied (i(). But a correct cojjy of a document open to the public is not libellous without some such further defamatory addition (a?) . By statute "a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority" is, "if published contemporaneously with such proceedings," privileged. Unless this means abso- lutely privileged, which is known not to have been the intention of the Legislature in fact, the enactment would seem to be only a not quite accurate affirmance of the common law ((/). The rule does not extend to justify the reproduction of matter in itself obscene, or other- wise unfit for general publication (z), or of proceedings of which the publication is forbidden by the Court in which they took place. The burden of proof is on the defendant to show that the report is fair and accurate. But if it really is so, the plaintiff's own evidence will often prove that the facts happened as reported (a). Q. B. 517, the 0. A. adhered to (?/) 51 & 52 Vict. c. 6i, s. 3, see their previous view {17 Q. B. Div. Blake Odgers, 293-4. The earlier 636, action between same parties) cases are still material to show what that a correct report of a judgment is a fair and accurate report. The is privileged. woids " contemporaneously with (i) Hayicard d: Co. v. Saywarcl such proceedings" are, strictly & Son (1886) 34 Ch. D. 198 ; 56 speaking, iionsen.se ; they must L. J. Ch. 287. mean within a reasonable and (u) JVilliams v. Smith (1888) 22 usual time after the date of the Q. B. D. 134, 58 L. J. Q. B. 21. proceedings. (x) Scarles v. Scarleti [1892] 2 (s) Steele \. Brannan(l&n)'L.'K. Q. B. 56, 61 L. J. Q. B. 573, C. A., 7 C. P. 261 (a criminal case) ; 51 &52 where the publication was expressly Vict. c. 64, s. 3. guarded : qu. as to JVilliams v. («) Kimher v. Press Association Smith, see [1892] 2 Q. B. at pp. [1893] 1 Q. B. 65, 62 L. J. Q. B. 62, 63, 64. 152, C. A. PRIVILEGED REPORTS. 2(j7 An ordinary newspaper report furnished by a regular VoIul- reporter is all but conclusively presumed, if in fact fair reports. and substantially correct, to have been published in good faith ; but an outsider who sends to a public print even a fair report of judicial jproceedings containing personal imputations invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility; if the latter is found to be the fact, he is liable to an action {b). Newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary com- missions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888 (c). A public meeting is for this purpose " any meeting bond fide and lawfully held for a lawful purpose, and for the further- ance or discussion of any matter of public concern, whether the admission thereto be general or restricted." The defendant must not have refused on request to insert in the same newspaper a reasonable contradiction or explanation. Moreover "the publication of any matter not of public concern, and the publication of which is not for the public benefit," is not protected ((/). In the case of privileged communications of a con- Excess of fidential kind, the failure to use ordinary means of ensuring privacy — as if the matter is sent on a post- card instead of in a sealed letter, or telegraphed without (h) Steveiis v. Sampson (1879) 5 seePiUm-dv. Oliver [1S91] 1 Q. B. Ex. Div. 53, 49 L. J. Q. B. 120. 474, 60 L. J. Q. B. 219, C. A. (c) 51 & 52 Vict. c. 64, s. 4. (d) 51 & 52 Vict. c. 64, s. 4. In The ill-drawn enactment of 1881 a civil action on whom is the burden for the same purpose, 44 & 45 Vict. of proof as to this Qu. wouhl 0. 61, s. 2, is repealed by sect. 2 of "and" be read, if necessary, as this Act. As to boards of guardians, " or " ? See Blake Odgers, 303. 268 DEFAMATION. evident necessity — will destroy the privilege ; either as evidence of malice, or because it constitutes a publica- tion to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one((?). But the privilege of a person making a statement as matter of public duty at a meeting of a public body is not affected by unprivileged persons being present who are not there at his individual request or desire, or in any way under his individual control, though they may not have any strict right to be there, newspaper reporters for example (/). It is now decided that if a communication intended to be made on a privileged occasion is by the sender's ignorance (as by making it to persons whom he thinks to have some duty or interest in the matter, but who have none), or mere negligence (as by putting letters in wrong envelopes) delivered to a person who is a stranger to that occasion, the sender has not any benefit of privilege (g). Honest Where the existence of a privileged occasion is estab- belief is not noces- behef is lig^ed, we have seen that the plaintiff must give affirmative sariiy proof of malice, that is, dishonest or reckless ill-will ik), reasonable belief. in Order to succeed. It is not for the defendant to prove that his belief was founded on reasonable grounds, and there is no difference in this respect between different kinds of privileged communication (i). To constitute (c) Williamson v. Freer (1874) occupation in general, though with- L. R. 9 C. P. 393, 43 L. J. C. P. out any persoual hostility towards Itil. him, may be malicious: Royal (/) Fittard v. Oliver 1891] Aquarium. Society v. Parkiiison Q. B. 474, 60 L. J. Q. B. 219, C. A. [1892] 1 Q. B. 431, 61 L. J. Q. B. (i/) HehcUtcliY. Maclboainc [1894] 409, C. A. 2 g. B. 54, 63 L. J. Q. B. 587, C. A. (i) Jenoure v. Delmege [1891] (/t) A statement made recklessly A. (.'. 73, 60 L. J. P. C. 11 (J. C), under the influence of e.g. gross Ular/: v. Molyneux (1877) 3 Q. B. lirejudice against the plaintifl''s Div. 237, 47 L. J. Q. B. 230. ASSESSMENT OF DAMAGES. 269 malice there must be something more than the al)sence of reasonable ground for belief in the matter communi- cated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous ; or it may be proper for him to communicate reports or sus- picions which he himself does not believe. In either case he is within the protection of the rule (fc) . It has been found difficult to impress this distinction upon juries, and the involved language of the authorities about "implied" and "express" malice has, no doubt, added to the difficulty. The result is that the power of the Court to withhold a case from the jury on the ground of a total want of evidence has on this point been carried very far (Z). In theory, however, the relation of the Court to the jury is the same as in other questions of " mixed fact and law." Similar difficulties have been felt in the law of Negligence, as we shall see under that head. "The spirit and intention of the party are iit to be Power of . . . . i^i'y ill considered by a jury in estimatmg the mjury done to the assessing plaintiff; " and evidence of this is admissible, notwith- '^™^g«Sv standing that it may disclose another and different cause of action (m). In assessing damages the jury " are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their (k) Clark V. Molynmx (1877) 3 42 L. J. P. C. 11, and authorities Q. B. Div. 237, 47 L. J. Q. B. 230, there cited ; Spill v. jVniiIe (1869) per Bramwell L. J. at p. 244 ; per Ex. Ch. L. E. 4 Ex. 232, 38 L. J. Brett L. J. at pp. 247-8 ; per Ex. 138. Cotton L. J. at p. 249. (m) Pearson v. Lemaiire (1843) .'i {I) Laughton v. Bishop of Sodor Man. & Gr. 700, 720. and Man (1872) L. R. 4 P. C. 49.5, 270 DEFAMATION. Special procedure in actions for news- paper libels. Limits of interroga- tories in action for libel. verdict. They may consider what liis conduct has been before action, after action, and in Court during the trial." And the verdict will not be set aside on the ground of the damages being excessive, unless the Court thinks the amount such as no twelve men could reasonably have given (n) . A misdirection on any material part of the libel which might have influenced the jury in assessing damages is ground for a new trial. The Court cannot take on itself to say that the misdirection would not have had any influence merely because the Court thinks that the jury might still have reasonably given the same damages under proper direction (o). Lord Campbell's Act (6 & 7 Vict. c. 96, ss. 1, 2), as amended by 8 & 9 Vict. c. 76, contains special provisions as to proving the offer of an apology in mitigation of damages in actions for defamation, and payment into Court together with apology in actions for libel in a public print (j)). Where money has been paid into Court in an action for libel, the plaintiff is not entitled to interrogate the defendant as to the sources of his information or the means used to verify it (q) . (n) Fraed v. Graham (1889) 24 Q. B. Div. 53, 55, 59 L. J. Q. B. 230. (o) Bray v. Ford [1896] A. C. 44, 05 L. J. Q. B. 213. {p) The Rules of Court of 1875 had the effect of enlarging and so far superseding the latter provision ; but see now Order XXII. r, 1, and "The Annual Practice" thereon. See also 51 & 52 Vict. c. 64, s. 6. The plaintiff is entitled to the sum paid into Court even if the finding of the jury is less favourable to him: Dunn v. Devon, 81 destitute of all reasonable grounds, or which the least inquiry would immediately correct, I do not see that it is not fairly and correctly characterized as misrepre- sentation and deceit " (b) ; Lord Cranworth preferred to say that such circumstances might be strong evidence, but only evidence, that the statement was not really believed to be true, and any liability of the parties "would be the consequence not of their having stated as true what they had not reasonable ground to believe to be true, but of their having stated as true what they ■did not believe to be true" (c). Lord Cranworth's opinion has been declared, by the House of Lords ((/), reversing the judgment of the Court of Appeal (e), to be the correct one. " The ground upon which an alleged belief was founded " is allowed to be "a most important test of its reality " (/) ; but if it can be found as a fact that a belief was really and honestly held, whether on reasonable grounds or not, a statement embodying that belief cannot render its maker liable in an action for deceit (g), however grossly negligent it may be, and however mischievous in its results {h). I have given reasons elsewhere (i) for thinking this decision of the House of Lords an unfortunate one. It would be out of place to repeat those reasons here. But it may be pointed out that the reversed opinion of the {b) JFestem Sank of Scollaiid v. Low v. Iluurcric [1891] 3 Cli. S2, Addie (1867) L. R. 1 Sc. at p. 162. 60 L. J. Cli. 594, C. A. (c) lb. at p. 168. [li) Le Licvrc v. Gould [1893] 1 {d} Zlerry v. Peek (1889) 14 App. Q. B. 491, 62 L. J. (j. B. 353, C. A. C'a. 337, 58 L. J. Ch. 864. (iiutrae certilicute jiegligently given (c) Peek V. Berry (1887) 37 Ch. by it builder wlio owed no special Div. 541, 57 L. J. Ch. 347. duty to the plaintiff). (/) Lord Herschell, 14 App. Ca. (i) L. Q, R. v. 410 ; for a dif- at p. 375. ferent view see Sir 'Williaiu Anson, ((/) Ace. GlasierY. Rolls (1889) 42 ib. vi. 72. Cli. Div. 436, 58 L. J. Ch. 820 ; 282 WEONGS OF FRAUD AND BAD FAITH. Court of Appeal coincides with that which has for many years prevailed in the leading American Courts {k) ; and has been thus expressed in Massachusetts : — "It is well settled in this Commonwealth that the charge of fraudulent intent, in an action for deceit, may be maintained by proof of a statement made, as of the party's own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud consists in stating that the party knows the thing to exist, when he dpes not know it to exist ; and if he does not know it to exist, he must ordinarily be deemed to know that he does not " (?). And so, more lately, the Supreme Court of the United States not only said that "a person who makes repre- sentations of material facts, assuming or intending to convey the impression that he has adequate knowledge of the existence of such facts, when he is conscious that he has no such knowledge," is answerable as if he actually knew them to be false — which is admitted everywhere — but went on to say that a vendor or lessor may be held guilty of deceit by reason of material untrue representations " in respect of his own business or property, the truth of which representations the vendor or lessor is bound and must be presumed to know " (m). This appears to be precisely the step which in this country the Court of Appeal was prepared, but the House of Lords refused, to take. (/.■) Tlie tendency appears as early Moffatt (1888) 147 Mass. 403. ns 1842, Stone v. Benny, 4 Met. (??!) Lehigh Zinc and Iron Co. ■,'. (Mass.) 151, 15S. JBamford (1S93) 150 U. S. 665, 673. (I) Chatham Furnace Co. v. ■WHAT IS DECEIT. 28B In England, on the contrary, "negligence, however great, does not of itself constitute fraud "(;;), nor, it seems, even cast upon the defendant the burden of proving actual belief in the truth of the matter stated (;0. Even the grossest carelessness, in the absence of con- tract, \Yill not make a man liable for a false statement without a speciiic finding of fact that he knew the statement to be false or was recklessly ignorant whether it was true or false (o). Perhaps it would have been better on principle to hold the duty in these cases to be quasi e.v contractu, and evade the barren controversy about "legal fraud." One who makes a statement as of fact to another, intending him to act thereon, might well be held to request him to act upon it ; and it might also have been held to be an implied term or warranty in every such request that the party making it has some reasonable ground for believing what he affirms ; not necessarily sufficient ground, but such as might then and there have seemed sufficient to a man of ordinary understanding. This would not have been more arti- ficial than holding, as the Exchequer Chamber was once prepared to hold, that the highest ho)ul fide bidder at an auction, advertised to be without reserve, can sue the auctioneer as on a contract that the sale is really without reserve, or that he has authority to sell without reserve {p). Such a development would have been quite parallel to others which have taken place in the modern history of the law. No one now regards an express warranty on (a) [1893] 1 Q. B. at p. 498, per [1891] 2 Cli. 449. Lord Esher. (p) IVarloio v. llarrlsun (l^v>{^)l (o) See judgments of Liiidley and E. & E. 309, 29 L. J. Q. 15. 14. Bowen L. JJ., in Av.gii.). But it seems to be still arguable that the proposed limitation holds in the case of the defendant being a corporation (q), though it has been disregarded in at least one comparatively early decision of an English superior court, the bearing of which on this point has apparently been overlooked (/•). Ulpian, on the other hand, may be cited in its favour (s) ; but our modern commercial corporations were unknown to the Eoman lawyers. Reason of The hardest case that can be put for the principal, and rently hy no means an impossible one, is that the principal hard law. authorizes a specific statement which he believes to be (o) Barwkk v. English Joint the mere negligent continuance of Stnrk Bank (1867) Ex. Cli. L. R. an aunonncenient no longer true ; 2 E.^. 259, 36 L. J. Ex. 147; (3) the corporation derived no profit. Maclcaij \ . Oomnwrcicd Bank of Xc to The point, however, was not dis- Brunsicick (1S74) L. E. 5 P. C. 394, cussed. 43 L. .J. P. C. 31 ; Swire V. Francis (s) D. 4. 3, de dolo nialo, 15 § 1. (1S77) 3 App. Ca. 106, 47 L. J. P. C. Sed an in niunicipes de dolo detur 18 (J. C. ); Houldsworth, v . City of actio, dubitatur. Et puto ex suo Clla.^ijuii) Bank (18S0) 5 App. Ca. quidem dolo nou posse dari, quid 317. Seep. 93, above. eniui municipes dolo facure possunt .' (p) Swire v. Francis, last note. Scd si quid ad eos per^-enit ex dolo ( q ) Lord Cranworth in Western eoruin qui res eorum administrant, Bank of Scotland v. Acidic (1867) piuto dandani. The Roman lawyers L. E. 1 Sc. & D. at pp. 166, 167. adhered more closely to the original Lord Chelmsford's language is much conception of moral fraud as the more guarded. ground of action than our courts (r) Dentirn\. G. N. 1!. Co. (1856) have done. The actio de dolo wag p. 290, above. No case could be /«/;(i'.s«, and was never an alternative stronger, for (1) the defendant was remedy, hut lay only when there a corporation ; (2) there was no was no other (si de his rebus alia active or intentional falsehood, but actio non erit), D. h. t. 1. FRAUD BY OR THROUGH AGENT. 301 true, and which at the time of giving the authority is true ; before the agent has executed his authority the facts are materially changed to the knowledge of the agent, but unkno^Yn to the principal ; the agent conceals this from the principal, and makes the statement as originally authorized. But the case is no harder than that of a manufacturer or carrier who finds himself exposed to heavy damages at the suit of an utter stranger by reason of the negligence of a servant, although he has used all diligence in choosing his servants and providing for the careful direction of their work. The necessary and sufficient condition of the master's responsibility is that the act or default of the servant or agent belonged to the class of acts which he was put in the master's place to do, and was committed for the master's purposes. And " no sensible distinction can be drawn between the case of fraud and the case of any other wrong." The authority of Barwick v. English Joint Stuck Banl{t) is believed, notwithstanding the doubts still sometimes expressed, to be conclusive. II.— Slandrr of Title. The wrong called Slander of Title is in truth a special Slander of variety of deceit, which differs from the ordinary type in that third persons, not the plaintiff himself, are induced by the defendant's falsehood to act in a manner causing damage to the plaintiff. Notwithstanding the current name, an action for this cause is not like an action for ordinary defamation ; it is " an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff's title "((0- Also the wrong is a " malicious " one in the only proper (t) L. E. 2 Ex. 2fi9, 265. Soper (1836) 3 Eiii.t,'. N. C. 371, i:i (ij) Tinaal 0. J., Malachy >-. E. E. ti91 ; Bigckw L. C. 42, 5:.'. 302 WRONGS OF FRAUD AND BAD FAITH. sense of the word, that is, absence of good faith is an essential condition of liability (x) ; or bad faith as well as special damage is of the gist of the action. The special damage required to support this land of action is actual damage, not necessarily damage proved with certainty in every particular. Such damage as is the natural consequence of the false statement may be special enough though the connexion may be not specifically proved (?/). Recent This kind of action is not frequent. Formerly it o'fthe^^ appears to have been applied in the King's Courts (.~) principle. Qj-^jy ^q statements in disparagement of the plaintiff's title to real property. It is now understood that the same reason applies to the protection of title to chattels, and of exclusive interests analogous to property, though not property in the strict sense, like patent rights and coiDyright. But an assertion of title made by way of self-defence or warning in any of these matters is not actionable, though the claim be mistaken, if it is made in good faith (a) . In America the law has been extended (;._') Ealscy v. Broflwrhood (1881) tores rcliquerunt omere de blado 19 Ch. Div. 386, 51 L. J. Ch. 233, domini ad dampnum doiiiini : " coiifivming previous authorities. As The Court Baron, Seld. Soc. 1891, to the particular .subject-matter in p. 130 ; there is another case at that case, see the Patents, Designs, p. 136. and Trade Marks Act, 1883, s. 32, (a) Wren v. Tl'eild (1869) L. R. which gives a statutory cause of 4 Q. B. 730, 38 L. ,T. Q. B. 327 ; action ; Skimur d: Co. v. Sheir cC- Co. Balsetj v. Brotlicrliood, note (x) [1S93] 1 Ch. 413, 62 L. J. Ch. 196, (patent ; in Wren v. Wcild the C. A. action is said to be of a new Icind, (i/) Puddiffe V. Evans [1892] 2 but sustainable with proof of (,J. B. 524, 61 L. J. Q. B. 535, C. A. malice) ; Stemird v. Yoimg (1870) (z) Proceedings in the nature of L. R. 5 C. P. 122, 39 L. J. C. P. slander of title were known to local 85 (title to goods) ; Dicks v. Brooks courts in the Middle Ages : in 1320 (1880) 15 Ch. D. 22, 49 L. J. Ch. .1 tenant of the Bishop of Ely at 812 (copyright in design), see 1 Littleport was fined "quia defamavit Ch. D, 391. bladum domini per quod alii emp- SLANDER OF TITLE. 303 to the protection of mclioate interests under an agree- ment. If A. has agreed to sell certain chattels to B., and C. by sending to A. a false telegram in the name of B., or by other wilfully false representation, induces A. to believe that B. does not want the goods, and to sell to C. instead, B. has an action against C. for the resulting loss to him, and it is held to make no difference that the original agreement was not enforceable for want of satisfying the Statute of Frauds (h). A disparaging statement concerning a man's title to use an invention, design, or trade name, or his conduct in the matter of a contract, may amount to a libel or slander on him in the way of his business : in other words the special wrong of slander of title may be included in defamation, but it is evidently better for the plaintiff to rely on the general law of defamation if he can, as thus he escapes the troublesome burden of proving bad faith (c). Again, an action in the nature of slander of title lies for damage caused by wilfully false statements tending to damage the plaintiff's business, such as that he has ceased to carry it on ; and it is immaterial whether the statements are or are not injurious to the plaintiff's personal character {d). In short, " that an action will lie for written or oral falsehoods, not actionable j^er se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law" (e). But the statements must be both false and malicious. Mere disparagement [b] Benton v. Pratt (1829) 2 Dicks v. Brooka, note (a) last page. Wend. .355 ; Uli:e v. Manhy (1876) {d) P^'dcliffe v. Ecans [1892] 2 66 N. Y. (21 Sickels) 82. Q. B. 524, 61 L. J. Q. B. 5-35, C. A. (c) See Thorlcifs Cattlr, Pood Co. (c) Ibid. [1892] 2 Q. B. at p. 527, V. Massam (1879) 14 Cli. T)\v. 763 ; per Cur. 304 WRONGS OF FRAUD AND BAD FAITH. of a rival trader's goods, without these elements, will not amount to a cause of action (/), and mere puffing of one's own goods as superior to a rival's, without specific false statements, appears not to be actionable in any case (g). It has been held in Massachusetts that if A. has exclu- sive privileges under a contract with B., and X. by pur- posely misleading statements or signs induces the public to believe that X. has the same rights, and thereby diverts custom from A., X. is liable to an action at the suit of A. (h). In that ease the defendants, who were coach owners, used the name of a hotel on their coaches and the drivers' caps, so as to suggest that they were authorized and employed by the hotel-keeper to ply between the hotel and the railwaj' station ; and there was some evidence of express statements by the defendants' servants that their coach was " the regular coach." The jDlaintiffs were the coach owners in fact authorized and employed by the hotel. The Court said that the defen- dants were free to compete with the plaintiffs for the carriage of passengers and goods to that hotel, and to advertise their intention of so doing in any honest way : but they must not falsely hold themselves out as having the patronage of the hotel, and there was evidence on which a jury might well find such holding out as a fact. The case forms, by the nature of its facts, a somewhat curious link between the general law of false representa- tion and the special rules as to the infringements of rights to a trade mark or trade name(!'). No English case (/) White V. Mellin [1895] A. C. Cusli. 322, and Bigelow L. C. 51). 154, 64 L. J. Ch. 308. (i) The instructions given at tlie {()) Jltibb tick Ji- Sous V. IVilkimon, trial (Bigelow L. C. at p. 63) were Ueywood A- Clark [18H9] 1 Q. B. held to have drawn too sharp a dis- 86, 68 L. J. Q. B. 34, C. A. tinctioii, and to have laid down too {h) Marsh v. Billings (1851)7 narrow a measure of damages, and a SLANDER OF TITLE ; TRADE MARKS. 305 much like it has been met Avith : its pecuUarity is that no title to any property or to a defined legal right was in question. The hotel-keeper could not give a monopoly, but only a sort of preferential comity. But this is practically a valuable privilege in the nature of good- will, and equally capable of being legally recognized and protected against fraudulent infringement. Goodwill in the accustomed sense does not need the same kind of pro- tection, since it exists by virtue of some express contract which affords a more convenient remedy. Some time ago an attempt was made, by way of analogy to slander of title, to set up an exclusive right to the name of a house on behalf of the owner as against an adjacent owner. Such a right is not known to the law (A). The protection of trade marks and trade names was Trade • • n 1 T 1 1 marks and origmally undertaken by the courts on the ground of trade preventing fraud (Z). The right to a trade mark, after "^™'^^- being more and more assimilated to proprietary rights (m), has become a statutory franchise analogous to patent rights and copyright (n) ; and the wrong to be redressed is now, in cases within the statute, conceived no longer as a species of fraud, but as being to an incorporeal franchise what trespass is to the possession, or right to possession, of the corporeal subjects of property. In cases of trade name, and the like, outside the law of trade marks proper, there has been a kind of new trial was ordered. It was also L. J., 2 Ch. D. at p. 453. said that actual damage need not be (m) Singer Man u/achiriny Co. v. proved, seclqu. Wilson (1876) 2 Ch. D. 434, per (70 Hay V. Brovmrigg (1878) (re- Jessel M. E. at pp. 441-2 ; James versing Malins V.-C.) 10 Ch. Div. L. J. at p. 451; Mellish L. J. at 294, 48 L. J. Ch. 173. p. 454. (l) See per Lord Blackburn, 8 (n) Patents, De-sign?, and Trade App. Ca. at p. 29 ; Lord "Westbury, Marks Act, 1 883, 46 & 47 Vict. L. R. 5 H. L. at p. 522 ; Mellish c. 57. P.T. X 306 WRONGS OF FRAUD AND BAD FAITH. oscillation between the notions of quasi-proprietary right and of the personal right not to be injured by fraudulent competition. But the latest decisions have come back to the ground of the earlier ones (o). The principle is that no man may canvass for custom by falsely holding out his goods or business, whether by misleading description or by colourable imitation of known marks, packages, and so forth, as being the goods or business of another. Its application is not excluded by showing that the style or words appropriated by the defendant are in themselves not false as he uses them, or that the plaintiff, if he succeeds, will have a virtual monopoly in an exclusive designation which is not capable of registration as a trade mark. Thus a man may, generally speaking, assume any surname he likes ; but the assumption of a particular surname for the purpose of fraudulent competition is as severely treated as any other kind of fraud {p). The question is whether the defendant's action naturally tends to cause an ordinary dealer or purchaser (not necessarily the first purchaser, for the effect on the public at large is to be considered) to think he is dealing with the plaintiff or buying the plaintiff's goods {q). If a specific name or the like has been used in the honest but erroneous belief that it was mere common property in the trade, this will so far absolve the defendant from the charge of fraud, but will not entitle him to go on using a designation that is in fact, and now to his (o) Compare PmDell v. Birming- assumed name in the line of liam Vinegar Brewery Co. [1896] business in question was absolutely 2Ch. 54, 65 L.J. Cli. 563, C. A., restrained. with KnoU v. Morgan (1836) 2 Keen [q) Sykes v. Sylces (1824) 3 B. & C. 213. 641, 27 R. R. 420 ; Montgomery v. (p) F. Pinet tfc Cie. v. Maison T/iom^jso» [1891] A. C. 217 ; Bedda- Louis Pinet [1898] 1 Ch. 179, 67 u-ay v. Bankam [1896] A. C. 199, L. J. Ch. 41, where the use of the 65 L. J. Q. B. 381. UNFAIR COMPETITION. 307 knowledge, misleading. Still less will absence of fraudu- lent intention be a defence in the face of known prior claims. A trader is presumed to know the habits of those he caters for, and he is not allowed to ignore the natural consequences of describing or getting up his goods in a particular manner. Sometimes this has been put almost as if the plaintiff's right were an absolute right in the nature of property (r) ; but such a view, it is sub- mitted, would be against both principle and the weight of authority (s). In the United States the rules on this subject have been largely developed, and of late years have been commonly referred to under the rubric of " Unfair competition " (i). The term is hardly known as yet in English courts ; it seems convenient as clearly marking the distinction of cases where the jurisdiction is founded on fraud, or something equivalent to fraud, from those where a statu- tory property or monopoly is in question. Underselling, even at a manifest loss, is not in itself unfair com- petition (tt). III. — Malicious Prosecution and Abuse of Process. We have here one of the few cases in which proof of Malicious evil motive is required to complete an actionable wrong. prosecu- tion. (r) See MilUivjton v. i^o,i;.(1838) some points. As to recent German 3 My. & Cr. 338, 45 R. E. 271. legislation, see Mr. Iselin in L. (J. R. (s) For tlie more modern view xiii. 156. see, besides the recent oases already (u) Ajcllo v. Worsley [1898] 1 Cli. referred to, Hendriks v. MoRtagu 274, 67 L. J. Ch. 172. In such a case (1881) 17 Ch. Div. 638, 651, 50 a collateral misrepresentation by the L. J. Ch. 456, Singer Manufacturing vendor in advertising his goods may Co. V. Loog (1882) 8 App. Ca. 15. be actionable in respect of any {t) See an article with this title damage specifically jjroduced by the by Mr. Oliver R. Mitchell in Harv. misrepresentation, but such damage Law Rev. X. 275. American courts only • 2&. appear to have gone beyond ours on X 2 308 WRONGS OF FRAUD AND BAD FAITH. "In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his inno- cence was pronounced by the tribunal before which the accusation was made ; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause {x) ; and, lastly, that the i^roceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in further- ance of justice " (;/). And the plaintiff's case fails if his proof fails at any one of these points. So the law has been defined by the Court of Appeal and approved by the House of Lords. It seems needless for the purposes of this work to add illustrations from earlier authorities. It is no excuse for the defendant that he instituted the prosecution under the order of a Court, if the Court was moved by the defendant's false evidence (though not at his request) to give that order, and if the proceedings in the prosecution involved the repetition of the same false- hood. For otherwise the defendant would be allowed to take advantage of his own fraud upon the Court which ordered the prosecution {z) . (x) The facts have to be found by L. J. Q. B. 457. A plaintiff who, the jury, but the inference that on being indicted on tlie prosecution those facts there was or was not complained of, has been found not reasonable and probable cause is not guilty on a defect in the indictment for the jury but for the Court : cp. (not now a probable event) is suffi- the authorities on false imprison- ciently innocent for this purpose : ment, pp. 216—221, above. Wicks v. Fentluim (1791) 4 T. E. (y) Bowen L. J., Ahrathv. N. E. 247, 2 R. R. 374. R. Co. (1883) 11 Q. B. Div. 440, (s) FUzjohn v. Mackinder (Ex. 455,52 L.J. Q.B. 623: the decision Cli. 1861)9 C. B. N. S. 505,30 of the Court of Appeal was affirmed L. J. C. P. 257 (diss. Blackburn in H. L. (1886) 11 App. Ca. 247, 55 and Wightman JJ.). 5IALICI0US PROSECUTION. 309 As in the case of deceit, and for similar reasons, it has been doubted Avhether an action for malicious prosecution will lie against a corporation. It seems, on principle, that such an action \Yill lie if the wrongful act was done by a servant of the corporation in the course of his employment and in the company's supposed interest, and it has been so held (a). Notwithstanding dicta to the contrary {b), it seems now generally admitted that the action lies (c) . The reasons for the exceptional requirement of proof This seems of actual bad faith in suits for malicious prosecution an abuse of have been much discussed. It has been suggested P"™6ge. by very high authority that the wrong is analogous to the abuse of privileged occasions in the law of defamation. " The person against whom proceedings have been initiated without reasonable and probable cause is prima facie wronged. It might well have been held that an action always lay for thus putting the law in motion. But I apprehend that the person taking proceedings was saved from liability if he acted in good faith, because it was thought that men might otherwise be too much deterred from enforcing the law, and that this would be disadvantageous to the public " ((?)• "In my opinion the somewhat anomalous action for (a) Edwards v. Midland iJ. Co. Lord Selboriie fit p. 256. (1880) 6 (,). B. D. 287, 50 L. J. (c) Cornford v. Carlton Bank Q. B. 281, Fry, J. ; Comfurd v. [1900] 1 Q. B. 22, 68 L. J. Q. B. Carlton Bank [1899] 1 Q. B. 392, 1020, where an objection on this 68 L. J. <^ B. 196, Darling J. ground was abandoned by counsel (i) See tlie judgment in Edwards in C. A. V. Midland It. Co., last note ; per (d) Per Lord Herschell, Allen v. Lord Bramwell, 11 App. Ca. at p. J'/oof? [1898] A. C. 1, 125, 67 L. J. 250, but this was extra-judicial, see Q. B. 119, 185. per Lord fitzgerald, ih. at p. 244, 310 WRONGS OF FRAUD AND BAD FAITH. malicious prosecution is based on the same principle " [as liability for defamation on a privileged occasion] . "From motives of public policy the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for the prosecution. But if the person abuses his privilege for the indulgence of his personal spite he loses the protection, and is liable to an action, not for the malice but for the wrong done in subjecting another to the annoyance, expense, and possible loss of reputation of a causeless prosecution " (e). These suggestions, though they must carry great weight, and, it is submitted, are correct in principle, are not positively binding, and it has been objected by a learned writer that "there is no judicial authority which will justify the proposition that the institution of legal proceedings has ever been presumed to be an actionable wrong, however vexatious they may be" (/). It is certainly open to doubt whether the rational justi- fication of the law propounded by Lord Herschell and Lord Davey had in fact occurred in a distinct form to any of their predecessors. Malicious Generally sj)ealdng, it is not an actionable wrong ceedings' **^ institute civil proceedings without reasonable and probable cause, even if malice be proved. For in con- templation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour which gives him his costs against the plaintiff (g) . (e) Per Lord Davey [1898] A. C. Herschell. at p. 172, 67 L. J. Q. B. at (g) It is common knowledge that p. 209. the costs allowed in an action are (/) Mr. W. F. Graies in 8 hardly ever a real indemnity. The Encj'ol. Laws of Eng. 88. I con- true reason is that litigation must fess to some difficulty in under- end somewhere. If A. may sue B. .standing exactly how much Jlr. for bringing a vexatious action, Craies intends to differ with Lord then, if A. fails to persuade the MALICIOUS ABUSE OF PllOCESS. 311 And special damage beyond the expense to which he has been put cannot well be so connected with the suit as a natural and probable consequence that the unrighteous plaintiff, on the ordinary principles of liability for indirect consequences, will be answerable for them(/j). "In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution " (i). But there are proceedings which, though civil, are not ordinary actions, and fall within the reason of the law which allows an action to lie for the malicious prosecution of a criminal charge. That reason is that prosecution on a charge "involving either scandal to reputation, or the possible loss of liberty to the person" (/c), necessarily and manifestly imports damage. Now the commencement of proceedings in bankruptcy against a trader, or the analo- gous process of a petition to wind up a company, is in itself a blow struck at the credit of the person or company whose affairs are thus brought in question. Therefore such a proceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong (0- Court that B.'s original suit ■was Rep. 316. We do not tliiuk it is vexatious, B. may again sue A. for generally accepted in other juris- bi'inging this latter action, and so dictions ; it is certainly in accord- ad infinitum. ance with the opinion expressed by (/i) See the full exposition in the Butler in his notes to Go. Lit. Court of Appeal in Quartz Hill 161 n, but Butler does not attend to Gold Mining Co. v. Eyre (1883) 11 the distinction by which the autho- Q. B. Div. 674, 52 L. J. Q. B. rities he relies on are explained. 448, especially the judgment of {k) 11 Q. B. Div. 691. Bowen L. J. [1) Quartz Hill Gold Mining Co. (i) BowenL. J., IIQ. B. Div. at v. Hyre (1883) note (A). Tlie p. 690. There has been a contrary contrary opinions expressed in decision in A'ermont : Closson v. Johnson v. Emerson (1871) L. K. Staples (1869) 42 Vt. 209 ; 1 Am. 6 Ex. 329, 40 L. J. Ex. 201, with 312 -WRONGS OF FRAUD AND BAD FAITH. Other similar exceptional cases were possible so long as there were forms of civil process commencing with per- sonal attachment ; but such procedure has not now any place in our system ; and the rule that in an ordinary way a fresh action does not lie for suing a civil action without cause has been settled and accepted for a much longer time {m). In common law jurisdictions where a suit can be commenced by arrest of the defendant or attachment of his property, the old authorities and distinctions may still be material (»)• The principles are the same as in actions for malicious prosecution, mutatis mutandis: thus an action for maliciously pro- curing the plaintiff to be adjudicated a bankrupt will not lie unless and until the adjudication has been set aside (o). Probably an action will lie for bringing and prosecuting an action in the name of a third person maliciously (which must mean from ill-will to the defendant in the action, and without an honest belief that the proceedings are or will be authorized by the nominal plaintiff), and without reasonable or probable cause, whereby the party against whom that action is brought sustains damage ; but certainly such an action does not lie without actual damage (p). The explanation of malice as "improper and indirect motive " appears to have been introduced by the judges of the King's Bench between sixty and seventy years reference to proceedings under the Salkeld, and Carthew. Bankruptcy Act of 1869, are dis- (n) As to British India, see Saj approved : under the old bank- Chundcr Eoy v. Shama Soondari I'uptcy law it was well settled that Deii, I. L. R. 4 Cal. 583. an action might be brought for (o) Metropolitan Bank v. Pooley malicious proceedings. (1885) 10 App. Ca. 210, 54 L. J. im) Savile or Savill v. Rolerts (^>. B. 449. (1698)1 Ld. Raym. 374, 379 ; 12 (p) Cotterell v. Jmws (1851) 11 Mod. 208, 210, and also in 5 Mod., C. B. 713, 21 L. J. C. P. 2. CONSPIRACY, ETC. 813 ago. But "motive" is perhaps not a much clearer term. " A wish to injure the party rather than to vindicate the law" would be more intelligible (). Soon after this case was dealt with by the Court of Common Pleas in England, the Supreme Court of New York laid it down (not without examination of the earlie)' authorities) that conspiracy is not in itself a cause of action (c) . In 1889 the question was raised in a curious and important case in this country. The material facts may, perhaps, be fairly summarized, for the present purpose, as follows : — A., B. and C. were the only persons engaged in a certain foreign trade, and desired to keep the trade in their own hands. Q. threatened, and in fact commenced, to compete with them. A., B. and C. thereupon agreed to offer specially favourable terms to all customers who would agree to deal with themselves to the exclusion of Q. and all other competitors outside (A) Per Coltman J., 6 Man. & Gr. Sue Jlr. Bigelow's note thereon. To at p. 959. the same effect is Kcarncij \. Lloyd (c) Hutchins v. Hutchins (1845) (1890) 26 L. E. Ir. 268. 7 Hill 104, and Bigelow L. C. 207. 316 WRONGS OF FRAUD AND BAD FAITH. the combination. This action had the effect of driving Q. out of the market in question, as it was intended to do. It was held by tlie majority of the Court of Appeal, and unanimously by the House of Lords, that A., B. and C. had done nothing which would have been unlawful if done by a single trader in his own sole interest, and that their action did not become unlawful by reason of being undertaken in concert by several persons for a common interest. The agreement was in restraint of trade, and could not have been enforced by any of the parties if the others had refused to execute it, but that did not make it punishable or wrongful (d) . It is suggested, however, that an agreement of this kind might in some cases be held to amount to an indictable conspiracy on the ground of obvious and excessive public inconvenience (e). It seems doubtful whether effect could be given to this suggestion con- sistentlv with the modern authorities. Relation of con- spiracy to lawful acts or for- bearances of third persons. It follows that it cannot be an actionable conspiracy for two or more persons, by lawful means, to induce another or others to do what they are by law free to do or to abstain from doing what they are not bound by law to do. A recent decision of the Court of Appeal that procuring persons — not to break a contract, but — not to renew expiring contracts or make a fresh contract, may be actionable if done "maliciously," without any (d) Mogul Steamship Company v. McGregor (1889) 23 Q. B. Div. 598, 68 L. J. Q. B. 465 (diss. Lord Esher, M. R. ) ; in H. L. [1892] A. 0. 25, 61 L. J. Q. B. 295. Lord Esher was apparently prepared to hold that "whenever A. and B. make an agree- ment which, as between themselvesj is void as in restraint of trade, and C. suffers damage as a proximate consequence, A. and B. are wrong- doers as against C. This is clearly negatived by the decision of the House of Lords, see the opinions of Lord Halsbury L. C. , Lord Watson, Lord Bramwell, and Lord Hannen. (c) Boweu L. J., 23 Q. B. Div. at p. 618. MALICIOUS HINDRANCES. 317 allegation that intimidation or other unlawful means ^Yere used (/), is now overruled. Persuading or inducing a man, without unlawful means, to do something he has a right to do, though to the prejudice of a third person, gives that person no right of action, whatever the per- suader's motives may have been {g). Until the decision of the House of Lords in AUoi v. Flood (fi), it was a current opinion, supported by a fair show of authority (h), that a special cause of action exists, in Holt C. J.'s words, " where a violent or malicious act is done to a man's occupation, profession, or way of gaining a livelihood." But it must now be taken that decisions of this kind, so far as they can be supported (/), are grounded on damage to the plaintiff by reason of trespass, nuisance, or some act of the defendant which is otherwise unlawful in itself ; and that in no such case is the cause of action determined by the presence of " malice " {k). Supposed cause of action for malicious inter- ference witli one's occupa- tion. It has been held by the Court of Appeal, following the Actionsfor old Court of Queen's Bench, that an action lies, under breaoi"of some conditions, for procuring a person under contract contract. (/) Tcmperton v. Eussell [1893] 1 Q. B. 715, 62 L. J. Q. B. 412. (g) Allen v. Flood [1898] A. C. 1, 67 L. J. Q. B. 119 ; cp. Face v. Albee (1895) 164 Mass. 88 (holding tliat words spoken by A. to B. , in order to induce B. to do something to Z.'s prejudice which B. has a right to do, can give a right of action to Z. against A. only so far as they may amount to defamation, or, it is presumed, slander of title) ; Vegelahn v. Guntner (1896) 167 Mass. 92, where the dissenting judgment of Holmes J. seems to be in accordance with our own latest authorities. (7i) Kccllc V. Hichcringill (Holt C. J., 1705) 11 East 573 in nolis, 11 R. E. 273; Tarhton v. jMcGiuchy (1793) 1 Peake 270, 3 R. R. 689 : the action would be a special action on the case. (i) Carrington v. Taylor (1809) 11 East .'i71, 11 R. R. 270, is probably not law. See per Lord Herschell [1898] A. C. at p. 135, Lord Watson ib. at p. 103. (A) Seoi)er Lord Herschell [1898] A. C. at p. 132. 318 wro:ngs of fraud and bad faith. with the plaintiff to break his contract (l) ; it has been commonly understood that those conditions were summed up in the requirement that the defendant's conduct must be malicious in the sense of being intended to injure the plaintiff rather than benefit the other con- tracting party ; and the doctrine in this form has been generally accepted in the United States (in) . But neither of the two leading - decisions was unanimous ; difficulty has always been felt in explaining their precise ground and extent ; and now they have been treated in the House of Lords as of doubtful authority and open to reconsideration. The only thing that seems fairly certain is that whatever may be the extent of liability and of exceptions to it under this head, the decisive element of liability is not malice. Apparently the cause of action (if it is to be allowed) must be simply the wilful procurement of the breach of a legal duty, and the exceptions (for exceptions there must be) stand on some other ground than absence of ill-will towards the plaintiff [n). It seems difficult to hold that A.'s procurement of a breach of legal duty tow^ards Z., whereby Z. suffers damage, is on the same footing as the exercise of a common right. But it is no less difficult to hold that one always exposes oneself to the risk of an action by advising any person (say a person entitled by family or social relations to one's best counsel) to do something (l)ZumhijY. Gye {1853} 2 E. & v. Thorn (1893) 98 Cal. 578, ap. B. 216, 22 L. J. Q, B. 463 ; Mowcn Burdick, Cases on Torts. V. Hcdl (1881) 6 Q. B. Div. 333, 50 {n) Allen v. Flood [1898] A. C. 1, L. J. Q. B. 305. see per Lord Watson at p. 107, (m) Ames and Smith, Cases on Lord Herscliellatpp. 121, 123, 134, Torts, i. 612 ; Angle v. Chicago, Lord Maciiaghten at p. 154, Lord St. Paul, d-c. Ry. (1893) 151 U. S. Davey at p. 171. 1, 13 ; contra in California, Boyson PROCURING BREACH OF CONTRACT. 319 Avhich would be, or might turn out to be, a breach of contract. It would be strange if a worthless suitor who had obtained a promise of marriage from an inexperienced girl should have an action against her father or brother for persuading her to break off the engagement. Many similar cases may be put {o). There is nothing to prevent the Courts from holding that disinterested advice, at any rate in circumstances which make it a moral or social duty to give advice, is privileged. In America the need of admitting reason- able exceptions, whatever be the proper technical account of them, is clearly recognized. The rule, it is laid down, " does not apply to interference by way of friendly advice, honestly given ; nor is it in denial of the right of free expression of opinion" (p). But in England, at any rate, only the authority of the House of Lords can finally dispose of the doubts which still surround this topic. For the present they are rather increased than diminished. Perhaps the least satis- factory of all the suggestions that have been made is that the rule is confined to contracts for personal services. This does not appear to have found favour in any jurisdiction. Another point of difficulty in these cases, once thought Question formidable, is that the damage may be deemed too ness of remote to found the action upon. For if A. persuades B. to break his contract with Z., the proximate cause of Z.'s damage, in one sense, is not the conduct of A. (o) See the dissenting judgment Court of llaiue, see Heywood v. of Coleridge J. in LuvUe^jy. Gye. fillson, 75 Maine 225, 1 Ames and {p) Walker v. Crmiin (1871) 107 Smitli Ca. on Torts 707) go farther Mass. 555,566. This is the more than ours in admitting " malicious noticeable because most of the interference " as a cause of action. American courts (not tlie Supreme damasre. 320 WRONGS OF FKAUD AND BAD FAITH. but the voluntary act or default of B. There was a time when Lord Ellenborough laid it down as a general rule of law that a man is answerable only for " legal and natural consequence," not for "an illegal consequence," that is, a wrongful act of a third person (q). But this opinion is now disapproved (;■). The tendency of our later authorities is to measure responsibility for the consequences of an act by that which appeared or should have appeared to the actor as natural and i^robable, and not to lay down iixed rules which may run counter to the obvious facts. Here the consequence is not only natural and probable — if A.'s action has any consequence at all — but is designed by A. : it would, therefore, be contrary to the facts to hold that the interposition of B.'s voluntary agency necessarily breaks the chain of proximate cause and probable conse- quence. A proximate cause need not be an immediate cause. It does not lie in a man's mouth to say that the consequence which he deliberately planned and procured is too remote for the law to treat as a con- sequence. The iniquity of such a defence is obvious in the grosser examples of the criminal law. Commanding, procuring, or inciting to a murder cannot have any "legal consequence," the act of compliance or obedience being a crime ; but no one has suggested on this ground any doubt that the procurement is also a crime. Interfer- Generally speaking, every wilful interference with the franchise^ exercise of a franchise is actionable without regard to the defendant's act being done in good faith, by reason of a ((?) Ficars v, WiUocks (18C7) 8 H. L. C. 577 ; Clarh v. Chambers East 1, 9 E. K. 3B1, and in 2 (1878) 3 Q. B. D. 327, p. 47 above, Sm. L. C. and notes to Vicars v. Wilcocks in (r) See Lrjnc'h v. Knight (1861) 9 2 Sm. L. C. MAINTENANCE. 321 mistaken notion of duty or claim of right, or being con- sciouslj^ wrongful. " If a man hath a franchise and is hindered in the enjoyment thereof, an action doth lie, which is an action upon the case " (s). But persons maj' as public officers be in a quasi-judicial position in which they will not be liable for an honest though mistaken exercise of discretion in rejecting a vote or the like, but will be liable for a wilful and conscious, and in that sense malicious, denial of right (t). In such cases the wrong, if any, belongs to the class analogous to malicious prosecution. The wrong of maintenance, or aiding a party in litiga- Main- tion without either interest in the suit, or lawful cause of *-'°'''"'^°- kindred, affection, or charity for aiding him, is likewise akin to malicious prosecution and other abuses of legal l^rocess ; but the ground of it is not so much an inde- pendent wrong as particular damage resulting from "a wrong founded upon a prohibition by statute" — a series of early statutes said to be in affirmation of the common law — "which makes it a criminal act and a misdemeanor" (ii). Hence it seems that a corporation cannot be guilty of maintenance (ii). Actions for main- tenance are in modern times rare though possible (x) ; (s) Holt C. J. in ylshby v. White (t) To:cr v. Child (1857) Ex. at II. 13 of the special report first Ch. 7 E. & B. 377, 26 L. J. Q. li. printed in 1837. The action was Icil. on the case merely because trespass (k) Lord Selborne in Metrop.Bank would not lie for the iufringement v. Pooley (1885) 10 App. Ca. 210, of an incorporeal right of that kind. 218, 54 L. J. (). B. 449. The right to petition Parliament is (x)Bradlaughv.Neiodegate{lSSo) not a franchise in the sense that any 11 Q. B. D. 1, 52 L. J. Q. B. 454. elector can compel hisrepresentative As to what will amount to a com- in the House of Cominons to present mon interest in a suit so as to justify a particular petition: Chaffers v. maintenance, Alabaster v. Harness Goldsynid [1894] 1 Q. B. 186, 63 (C. A.) [1895] 1 Q. B. 339, 64 L. J. L. J. Q. B. 69. Q. B. 76. P.T. T 322 WRONGS OF FRAUD AND BAD FAITH. and the decision of the Court of Appeal that mere charity, with or without reasonable ground, is an excuse for maintaining the suit of a stranger (//), does not tend to encourage them. (i/) Harris v. Brisco (1886) 17 Q. B. Div. 504, 55 L. J. Q. B. 423. 323 CHAPTEE IX. WRONGS TO POSSESSIOIf AND PROPERTY. I. — Duties regarding Property generalli/. Every kind of intermeddling with anything which is the Absolute subject of property is a wrong unless it is either autho- i.,^spect rized by some person entitled to deal with the thing in otl^ers' , . property, that particular way, or justified by authority of law, or (in some cases but by no means generally) excusable on the ground that it is done under a reasonable though mistaken supposition of lawful title or authority. Broadly speaking, we touch the property of others at our peril, and honest mistake in acting for our own interest (a), or even an honest intention to act for the benefit of the true owner (b), will avail us nothing if we transgress. A man may be entitled in divers ways to deal with Title, jus- property moveable or immoveable, and within a wider excuse. or narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay, to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undetermined though determinable, and of an extent which may vary from bemg hardly distinguishable from full dominion to being strictly limited to a specific purpose. It (a) JEfoUins V. Fowler {\87u}L. 'R. (1876) 1 Ex. D. 55, 43 L. J. Ex. 7 H. L. 757, 44 L. J. Q. B. 169. 186 : in trover, Hiort v. Bott (1874) (J) In trespass, Kir/c v. Gregory L. R. 9 Ex. 86, 43 L. J. Ex. 81. Y 2 324 WRONGS TO POSSESSION AND PROPERTY. belongs to the law of property to tell us what are the rights of owners and possessors, and by what acts in the law they may be created, transferred, or destroyed. Again, a man may have the right of using property to a limited extent, and either to the exclusion of all other persons besides the owner or possessor, or concurrently with other jsersons, without himself being either owner or possessor. The definition of such rights belongs to that part of the law of property which deals with ease- ments and profits. Again, he may be authorized by law, for the execution of justice or for purposes of public safety and convenience, or under exceptional conditions for the true owner's benefit, to interfere with projDerty to which he has no title and does not make any claim. We have seen somewhat of this in the chapter of "General Exceptions." Again, he may be justified by a consent of the owner or possessor which does not give him any interest in the property, but merely excuses an act, or a series of acts, that otherwise would be wrongful. Such consent is known as a licence. Title Title to property, and authority to deal with property dependent . .„ , i r n i , , on con- 111 specified ways, are commonly conferred by contract tract. Qj, ;j-^ pursuance of some contract. Thus it oftentimes depends on the existence or on the true construction of a contract whether a right of property exists, or what is the extent of rights admitted to exist. A man obtains goods by fraud and sells them to another pur- chaser who buys in good faith, reasonably supposing that he is dealing with the true owner. The fraudulent re-seller may have made a contract which the original seller could have set aside, as against him, on the ground of fraud. If so, he acquires property in the goods, though a defeasible property, and the ultimate AUTHORITY AND TITLE. 326 puvcbaser in good faith has a good title. But the cir- cumstances of the fraud may have been such that there was no true consent on the part of the first owner, no contract at all, and no right of property whatever, not so much as lawful possession, acquired by the apparent purchaser. If so, the defrauder has not any lawful interest which he can transfer even to a person acting in good faith and reasonably : and the ultimate pur- chaser acquires no manner of title, and notwithstanding his mnocence is liable as a wrong-doer (c). Principles essentially similar, but affected in their application, and not unfrequently disguised, by the complexity of our law of real proper^, hold good of dealings with land (d). Acts of persons dealing in good faith with an apparent Escep- owner may be, and have been, protected in various ways protection and to a varying extent by different systems of law. ^6^*4'^ The purchaser from an apparent owner may acquire, as ™.good under the common-law rule of sales in market overt, a better title than his vendor had ; or, by an extension in the same line, the dealings of apparently authorized agents in the way of sale or pledge may, for the security of commerce, have a special validity conferred on them, as under our Factors Acts (e) ; or one who has innocently dealt with goods which iie is now unable to produce or restore specifically may be held personally excused, saving the true owner's liberty to retake the goods if he can find them, and subject to the remedies over, if any, which may be available under a contract of sale, or a warranty for the person dispossessed by the true owner. Excuse of this kind is however rarely admitted, (c) Hollins V. FoioUr (1875) L. E. {d) See Filchcr v. Rawlitis (1871) 7 H. L. 757, 44 L. J. Q. B. 169 ; L. R. 7 Ch. 259, 41 L. J. Ch. 485. 6V(M('.!/v. Xm&a)/(1878)bApp. Ca. (e) Consolidated by the Factors 459, 47 L. J. Q. B. 481. Act, 1889, 52 & 53 Vict. c. 45. 326 WRONGS TO POSSESSION AND PROPERTY. though much the same result may sometimes be arrived at on special technical grounds. The rights It would seem that, apart from doubtful questions of dies title (which no system of law can wholly avoid), there ought not to be great difficulty in determining what known to the common amounts to a wrong to property, and who is the person law are o j. j. ./ possessory, wronged. But in fact the common law does present great difficulties ; and this because its remedies were bound, until a recent date, to medieval forms, and limited by medieval conceptions. The forms of action brought not Ownership but Possession to the front in accordance with a habit of thought which, strange as it may now seem to us, found the utmost difficulty in conceiving rights of property as having full existence or being capable of transfer and succession unless in close connexion with the physical control of something which could be passed from hand to hand, or at least a part of it delivered in the name of the whole (/). An owner in possession was protected against disturbance, but the rights of an owner out of possession were obscure and weak. To this day it continues so with regard to chattels. For many purposes the "true owner" of goods is the person, and only the person, entitled to immediate possession. The term is a short and con- venient one, and may be used without scruple, but on condition of being rightly understood. Eegularly the common law protects ownership only through possessory rights and remedies. The reversion or reversionary interest of the freeholder or general owner out of posses- sion is indeed well known to our authorities, and by (/) See Mr. F. "W. Maitland's profitable comparisons of the rules articles on " The Seisin of Chattels " concerning real and personal pro- and "The Mystery of Seisin," L. perty will be found. Q. E. i. 324, ii. 481, where divers POSSESSION AND OWNERSHIP. 327 conveyancers it is regarded as a present estate or interest. But -when it has to be defended in a court of common law, the forms of action treat it rather as the shadow cast before by a right to possess at a time still to come. It has been said that there is no doctrine of possession in our law. The reason of this appearance, an appear- ance capable of deceiving even learned persons, is that possession has all but swallowed up ownership ; and the rights of a possessor, or one entitled to possess, have all but monopolized the very name of property. There is a common phrase in our books that possession is prima facii; evidence of title. It would be less intelligible at first sight, but not less correct, to say that in the de- veloped system of common law pleadirfg and procedure, as it existed down to the middle of this century, proof of title was material only as evidence of a right to possess. And it must be remembered that although forms of action are no longer with us, causes of action are what they were, and cases may still occur where it is needful to go back to the vanished form as the witness and measure of subsisting rights. The sweeping protection given to rights of property at this day is made up by a number of theoretically distinct causes of action. The disturbed possessor had his action of trespass (in some special cases replevin) ; if at the time of the wrong done the person entitled to possess was not in actual legal possession, his remedy was detinue, or, in the developed system, trover. An owner who had neither possession nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any technical name. Notwithstanding first appearances, then, the common Possession law has a theory of possession, and a highly elaborated tention. 328 WRONGS TO POSSESSION AND PROPERTY. one. To discuss it fully would not be appropriate here (//) : but we have to bear in mind that it must be known who is in legal possession of any given subject of property, and who is entitled to possess it, before we can tell what wrongs are capable of being committed, and against whom, by the person having physical control over it, or by others. Legal possession does not neces- sarily coincide either with actual physical control or the present power thereof (the " detention " of Continental terminology), or with the right to possess (constantly called " property " in our books) ; and it need not have a rightful origin. The separation of detention, possession in the strict sense, and the right to possess, is both possible and frequent. A. lends a book to B., gratuitously and not for any fixed time, and B. gives the book to his servant to carry home. Here B.'s servant has physical possession, better named custody or detention, but neither legal possession (A) nor the right to possess ; B. has legal and rightful possession, and the right to possess as against every one but A. ; while A. has not possession, but has a right to possess which he can make absolute at any moment by determining the bailment to B., and which the law regards for many purposes as if it were already absolute. As to an actual legal possession (besides and beyond mere detention) being acquired by wrong, the wrongful change of possession was the very substance of disseisin as to land, and is still the very substance of trespass by taking and carrying away (g) See " An Essay on Possession a stranger; see Moore v. Mobinson in the Common Law " by Mr. (now (1831) 2 B. & Ad. 817, 36 E. R. 756. Justice) R. S. Wriglit and the The law about the custody of ser- jiresent writer (Oxford : Clarendon vants and persons in a like position Press, 1888). has vacillated from time to time, (h) Yet it is not certain that he and has never been defined as a could not maintain trespass against whole. POSSESSION AND TRESPASS. 329 goods {dc bonis asportatis), and as such it was and is a necessary condition of the offence of larceny at common law. The common law, when it must choose between denying legal possession to the person apparently in possession, and attributing it to a wrong-doer, generally prefers the latter course. In Eoman law there is no such general tendency, though the results are often similar (/). Trespass is the wrongful disturbance of another Trespass person's possession of land (A) or goods. Therefore it version, cannot be committed by a person who is himself in possession (l) ; though in certain exceptional cases a dispunishable or even a rightful possessor of goods may by his own act, during a continuous physical control, make himself a mere trespasser. But a possessor may do wrong in other ways. He may commit waste as to the land he holds, or he may become liable to an action of ejectment by holding over after his title or interest is determined. As to goods he may detain them without right after it has become his duty to return them, or he maj' convert them to his own use, a phrase of which the scope has been greatly extended in the modern law. Thus we have two kinds of duty, namely to refrain from meddling with what is lawfully possessed by another, and to refrain from abusing possession which we have {i) Cp. Holland, "Elements of period, or was ever attempted as to Jurispmdence, " 9th ed. 190. goods. (k) Formerly it was said that (I) Kg., a mortgagee of chattels trespass to land was a disturbance who has taken possession cannot not amounting to disseisin, though commit a trespass by removing the it might be " vioina disseisiuae," goods, although the mortgagor may which is explained by "si ad com- meanwhilehavetenderedtheamount modum uti non possit." Braoton, due: Johnson v. Diprose [1893] 1 fo. 217 a. I do not think tliis dis- Q. B. 512, 62 L. J. Q. B. 29], C. A. tinction was regarded in any later 330 WRONGS TO POSSESSION AND PROPEKTV. lawfully gotten under a limited title ; and the breach of these produces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intolerable results, and a working margin was given by beneficent fictions which (like most indirect and gradual reforms) extended the usefulness of the law at the cost of making it intricate and difficult to understand. On the one hand the remedies of an actual possessor were freely accorded to persons who had only the right to possess {in) ; on the other hand the person wronged was constantly allowed at his option to proceed against a mere trespasser as if the trespasser had only abused a lawful or at any rate excusable possession. Aiterna- In the later history of common law pleading trespass dies. and conversion became largely though not wholly inter- changeable. Detinue, the older form of action for the recover}' of chattels, was not abolished, but it M'as generally preferable to treat the detention as a con- version and sue in trover (n) , so that trover practically superseded detinue, as the writ of right and the various assizes, the older and once the only proper remedies whereby a freeholder could recover possession of the land, were superseded by ejectment, a remedy at first introduced merely for the protection of leasehold in- terests. With all their artificial extensions these forms of action did not completely suffice. There might still (m) See Smith Y. Milles {17 S6) 1 independently of any physical appve- T. E. 475, 480, and note that "con- hension or transfer ; (iii.) an im- structive possession,'' asusedinour mediate right to possess, which is books, includes (i. ) possession oxer- distinct from actual possession. The cised through a servant or licensee ; last-named usage appears to be the (ii.) possession conferred by law, in only really correct one. certain cases, e.g. on an execiitor, (n) Blackst. iii. 152. WHAT IS TRESPASS. 331 be circumstances in which a special action on the case was required. And these comphcations cannot be said to be even now wholly obsolete. For exceptional cir- cumstances may still occur in which it is doubtful whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for the value of the goods wrongfuU}' dealt with or only for his actual damage, which may be a nominal sum. Under such conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law (o), but while it exists we must take account of it. II. — Trespass. Trespass may be committed by various kinds of acts, what of which the most obvious are entry on another's land said a ^ (trespass quare claitsuiii frci/it), and taking another's trespass goods (trespass dc bonis asjmrtatis) (p). Notwithstanding that trespasses punishable in the king's court were said to be ri et annis, and were supposed to be punishable as a breach of the king's peace, neither the use of force, nor the breaking of an enclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise im- material, in strictness of law, whether there be any actual damage or not. "Every invasion of private pro- perty, be it ever so minute, is a trespass " (g) . There (o) See per Tliesiger L. J. , 4 Ex. years or other interest not freeliold. Div. 199. (q) Entick v. Carrington, 19 St. (^?) The exact parallel to trespass Tr. 1066. " Propertj- " here, as de bonis asportaiis is of course not constantly in our books, really trespass qu. cl. fr. simply, but tres- means possession or a right to pass amounting to a disseisin of the possession, freeholder or ouster of the tenant for 332 WRONGS TO POSSESSION AND PROPEllTY. is no doubt that if one walks across a stubble field without lawful authority or the occupier's leave, one is technically a trespasser, and it may be doubted whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor (r), a licence (as to which more presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified part of open land or private ways, or from doing injurious acts. In such cases there seems to be a general licence to use the land or ways in conformity with the owner's will thus expressed. But even so, persons using the land are no more than " bare licensees," and their right is of the slenderest. Loitering on a highway, not for the purpose of using it as a highway, but for the purpose of annoying the owner of the soil in his lawful use of the adjacent land (s), or prying into his occupations there (t), may be a trespass against that owner. (piiacre It has been doubted whether it is a trespass to pass ing over land without touching the soil, as one may in a oons. balloon or to cause a material object, as shot fired from a gun, to pass over it. Lord EUenborough thought it was not in itself a trespass ' ' to interfere with the column of air superincumbent on the close," and that the remedy would be by action on the case for any actual damage : though he had no difficulty in holding that a man is a trespasser who fires a gun on his own land so that the (r) As a matter of fact, the Dart- [1893] 1 Q. B. 142, 62 h. J. Q. B. moor hunt had an express licence 117, C. A. from the Duchy of CornwaU. {t) Hickman v. Maisey [1900] 1 (.s) Harrison v. Luke of Rutland Q. B. 752, 69 L. J. Q. B. 511, C. A. WHAT IS TRESPASS. 333 shot fall on his neighbour's land (»)■ Fifty years later Lord Blackburn inclined to think differently (.r), and his opinion seems the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why any entry above the surface should not also be a trespass, unless indeed it can be said that the scope of possible trespass is limited by that of effective possession. Clearly it would be a trespass to sail over another man's land in a balloon at a level within the height of ordinary buildings, and it might be a nuisance to keep a balloon hovering over the land even at a greater height. As regards shooting, it would be strange if we could object to shots being fired point-blank across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. But the projectiles of modern artillery, when fired for extreme range, have attained in the course of their trajectory, as is computed, an altitude exceeding that of Mont Blanc or even Elbruz. It may remain in doubt whether the passage of a projectile at such a height could in itself be a trespass. Trespass by a man's cattle is dealt with exactly like trespass by himself ; but in the modern view of the law this is only part of a more general rule or body of rules imposing an exceptionally strict and unqualified duty of [u] Pickering v. nuclei (1815) 4 2)houc Co. (1884) 13 Q. B. Div. 904, Camp. 219, 221, 16 I!. E. 777. 927, 53 L. J. Q. V,. 449. It may (x) Kciiyon \ . Hart (1866) 6 B. & be otherwise, as in that case, where S. 249, 252, 34 L. J. M. C, 87 ; and statutory interests in land arc con- see per Fry L. J. in Wandswarlh ferred for special pm'poses. Board of Jl'orks v. United Tele- 334 WltOXGS TO POSSESSION AND PROPERTY. safe custody on grounds of public expediency. In that connexion we shall accordingly return to the subject (y). Encroachment under or above ground by the natural growth of roots or branches of a tree standing in adjacent land is not a trespass, though it may be a nuisance (s). Trespass Trespass to goods may be committed by taking possession of them, or by any other act "in itself immediately injurious" to the goods in respect of the possessor's interest (a), as by killing (/>), beating (c), or chasing. ((Q animals, or defacing a work of art. Where the possession is changed the trespass is an asportation (from the old form of pleading, cepit ct asportavit for inanimate chattels, ahchi.iit for animals), and may amount to the offence of theft. Other trespasses to goods may be criminal offences under the head of malicious injury to property. The current but doubtful doctrine of the civil trespass being " merged in the felony " when the trespass is felonious has been considered in an earlier chaj)ter (e). Authority, so far as known to the present writer, does not clearly show whether it is in strictness a trespass merely to lay hands on another's chattel without either dispossession (/) or actual damage. By the analogy of trespass to land it seems that it must be so. There is no doubt that the least actual damage would be enough (g). (y) Chapter XII. below. [d) A form of writ is {;iven for (z) Lemmony. ]VeU>\\S%a'\ k.C. chasing the plaintiff's sheep with ], 64 L. J. Ch. 205; on this point dogs, F. N. B. 90 L. ; so for seeperLindley L. J. inC. A. [1894] shearing the plaintiff 's 'sheep, ib. 3 Ch. at pp. 11—12. 87 G. (a) Blackst. iii. 153. (c) P. 197, above. (I) JFrightv. Samscot,! Saund. (/) See Gaylardv. Morris {\Si9) S3, 1 Wms. Saund. 108 (trespass 3 Ex. 695, 18 L. J. Ex. 297. for killing a mastiff'). (g) "Scratching the panel of a (c) Dand v. Sexton (1789) 3 T. R. carriage would be a trespass," Alder- 37 (trespass vi cl minis I'or beating son B. in Fotddes v. Willoughly the plaintiff"s dog). (1841), 8 M. & W. 549. In Kirh INJURIES TO REVERSION. 335 And cases are conceivable in which the power of treating a mere unauthorized touching as a trespass might be sakitary and necessary, as where valuable objects are exhibited in places either public or open to a large class of persons. In the old precedents trespass to goods hardly occurs except in conjunction with trespass to land (h). III. — Initincs to licversion. A person in possession of property may do wrong by Wrongs to refusing to deliver possession to a person entitled, or notinpos- by otherwise assuming to deal with the property as owner ^^^^'°°- or adversely to the true owner, or by dealing with it under colour of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion. The law started from entirely distinct conceptions of the mere detaining of property from the person entitled, and the spoiling or altering it to the prejudice of one in reversion or remainder, or a general owner («'). For the former case the common law provided its most ancient remedies — the writ of right (and later the various assizes and the writ of entry) for land, and the parallel writ of detinue (parallel as being merely a variation of the writ of debt, which was pre- cisely similar in form to the writ of right) for goods ; V. Gregory (1876) 1 Ex. D. 55, the on Parties, 345. In one way " rever- trespass complained of was almost sioner" would be more connect than nominal, but there was a complete "owner "or "general owner," for asjiortation while the intermeddling the person entitled to sue in trover lasted. or prosecute for theft is not neces- (A) See F. N. B. 86 — 88, passim. sarily domimts, and the dominus of (i) As to the term "reversionary the chattel may be disqualified from interest" applied to goods, cp. Dicey so suing or prosecuting. 336 -WRONGS TO POSSESSION AND PROPERTY. to this must be added, in special, but once frequent and important cases, replevin (/■). For the latter the writ of waste (as extended by the Statutes of Marlbridge and Gloucester) was available as to land ; later this was supplanted by an action on the case {I) " in the nature of waste," and in modern times the power and remedies of courts of equity have been found still more effectual (m). The process of devising a practical remedy for owners of chattels was more circuitous ; they were helped by an action on the case which became a distinct species under the name of trover, derived from the usual though not necessary form of pleading, which alleged that the defendant found the plaintiff's goods and converted them to his own use (n). The original notion of conversion in personal chattels answers closely to that of waste in tenements ; but it was soon extended so as to cover the whole ground of detinue (o), and largely overlap trespass; (i) It seems useless to say more of the immediate estate of inheritance." replevin here. The curious reader Co. Litt. 53 a. may consult Mennic v, Blalcc (1S56) (n) Blackst. iii. 152, cf. the juds- 6 £. & B. 842, 25 L. J. Q. B. 399. ment of Martin B. in BurroiujlLCSv. Fortlieearliestformof writ of entry Bayne (1860) 5 H. & N. 296, 29 see Close Rolls, vol. i. p. 32. Black- L. J. Ex. 185, 188 ; and as to the stone is wrong in stating it to have forms of pleading, Bro. Ah. Accion been older than the assizes. See sur le Case, 103, 109, 113, and see Pollock and Maitland, Hist. Kng. Littleton's remark in 33 H., VI., 27, Law, Bk. ii., c. 4, § 2 ad fin. pi. 12, an action of detinue where (/) Under certain conditions waste a finding by the defendant was might amountto trespass, Litt. s. 71, alleged, that "this declaration jwr see more in sect. vii. of the present inventionem, is a new found Hali- chapter. day"; the case is translated by (m) For the history and old law, Mr. Justice "Wright in Pollock and see Co. Litt. 53, 54 ; Blackst. ii. Wiight on Possession, 174. 281, iii. 225; notes to Greene v. (o) Martin B., L c. , whose phrase Cull', 2 Wms. Saund. 644; and " in very ancient times " is a little JVooclhoiise V. Walker (1880) 5 misleading, for trover, as a settled Q. B. D. 404, 49 L. J. Q. B. 609. common form, seems to date only The action of waste proper could be from the 16th century; Reeves brought only "by him that hath Hist. Eiig. Law, iv. 536. WASTE. 337 a mere trespasser whose acts would have amounted to conversion if done by a lawful possessor not being allowed to take exception to the true owner ' ' waiving the trespass," and professing to assume in the defendant's favour that his possession had a lawful origin. lY.— Waste. Waste is any unauthorized act of a tenant for a freehold Waste, estate not of inheritance, or for any lesser interest, which tends to the destruction of the tenement, or otherwise to the injury of the inheritance. Such injury need not con- sist in loss of market value ; an alteration not otherwise mischievous may be waste in that it throws doubt on the identification of the property, and thereby impairs the evidence of title. It is said that everj' conversion of land from one species to another — as ploughing up woodland, or turning arable into pasture land — is waste, and it has even been said that building a new house is waste (^i). But modern authority does not bear this out ; " in order to prove waste you must prove an injury to the inherit- ance " either "in the sense of value" or "in the sense of destroying identity" (q). The real test seems to be whether the acts complained of alter the nature of the thing demised (r). And in the United States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improving the land — clearing wild woods for example — which in England, or even in the Eastern States, would (;;) " If the tenant build a new 20 Eq. 539, 540-2 (Jessel M. R.) ; house, it is waste : and if he suffer Jteux v. Cubley [1892] 2 Ch. 253, 61 it to be wasted, it is a new waste." L. J. Ch. 449. Co. Litt. 53 a. Contra as to the (r) Wed Ham Central Charity building, Davey v. AsktoitU (1617) Board v. JS. London Waterworhs Hob. 234. Co. [1900J 1 Ch. 624, 69 L. J. Ch. {q) Jones V. Chappell (1875) L. R. 257. P.T. Z 338 WRONGS TO POSSESSION AND PROPERTY. Modern law of waste : tenants for life. be manifest waste. As to permissive waste, i.<'., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the instrument creating his estate ; otherwise he is not(s). It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, " having regard to its character and to the purposes for which it was intended to be used " (i), whatever the actual consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent know- ledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin {ii). Destructive waste by a tenant at will may amount to trespass, in the strict sense, against the lessor. The reason will be more conveniently explained hereafter (,r). In modern practice, questions of waste arise either between a tenant for life (//), and those in remainder, or between landlord and tenant. In the former case, the unauthorized cutting of timber is the most usual ground of complaint ; in the latter, the forms of misuse or neglect (s) He CartiL-rhflit, Avis v. Xcw- man (1889) 41 Cli. D. 532, 58 L. J, Ch. 590. An ec^uitable tenant for life is not liable for permissive waste : Powys v. Ilhir/rarc (lS.i4) 1 D. iL G. 448 ; Re HnfcU-ys, Frcl-e V. Calmadij (1SS6) 32 Ch. D. 408, 55 L. J. C'li. 546. (t) Manchester Bonded Warehouse Co. V. Can- (1880) 5 C. P. D. 507, 512, 49 L. J. 0. P. 809 ; followins Saner v. Bilton (1878) 7 Cli. D. 815, 821, 47 L. J. Ch. 2ti7 ; cp. Joh v. Potton (1875) L. K. 20 Eq. 84, 44 L. .T. Ch. 262. [u) EUasv. Snnu-don Slate Quar- ries Co. (1879) 4 App. Ca. 464, 465, 48 L. J. Ch. 811. {x) See below in sect. vii. of this ch.npter. (v) In the United States, where tenaney in dower is still common, there are many modern decisions on questions of waste arising out of such tenancies. See Scribner on Dower (2nd ed. 1S83) i. 212—214 ; ii. 795 sqq. WASTE. 339 are as various as the uses, agricultural, commercial, or manufacturing, for which the tenement may be let and occupied. With regard to timber, it is to be observed that there are " timber estates " on which wood is grown for the purpose of periodical cutting and sale, so that '■ cutting the timber is the mode of cultivation" (z). On such land cutting the timber is equivalent to taking a crop of arable land, and if done in the usual course is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timber and minerals for use, but, unless with further specific authority, he must not remove timber planted for orna- ment (save so far as the cutting of part is required for the preservation of the rest) («), open a mine in a garden or pleasure ground, or do like acts destructive to the individual character and amenity of the dwelling-place (b). The commission of such waste may be restrained by injunction, without regard to pecuniary damage to the inheritance : but, when it is once committed, the normal measure of damages can only be the actual loss of value (c) . Further details on the subject would not be appropriate here. They belong rather to the law of Eeal Property. (z) As to the general law con- as "ci|uitable waste,'' the comniis- cerning timber and its possible sioii of it by a tenant uiiinipeach- VMriation by local cnstom, see tlie able for waste not being tieated as judgment of .fessel M. 1!., ffom/- wrongful at common law; see now zvood V. Honyimml (1874) L. II. 18 36 & 37 Vict. c. 66 (the Supreme Eq. 306, 309, 43 L. J. Ch. Bi'i, and Court of Judicature Act, 1873), Jjiisliwood V. Maqnkic [1891] 3 C'li. s. 2o, sub-s. 3. 306, 60 L. J. Ch. 809, C. A. (c) BiM v. Ych-irlua (1870) L. R. («) See Brilcr v. Srhright aUTA) 10 Eq. 465. Here the tenant for 13 Ch. D. 179, 4!) L. J. Ch. 65 ; life had acted in good faith under but it seems that a remainderman the belief that he was improving coming in time would be entitled the property. Wanton acts of de- to the supervision of the Court in .struction would be very difl'erently such case : 13 Ch. D. at p. 1S8. treated. (h) "Waste of this kind was known z 2 340 WRONGS TO POSSESSION AND PEOPERTY. Landlord and tenant. As between landlord and tenant the real matter in dispute, in a case of alleged waste, is commonly the extent of the tenant's obligation, under his express or implied covenants, to keep the property demised in safe condition or repair. Yet the wrong of waste is none the less committed (and mider the old procedure was no less remediable by the apjDropriate action on the case) because it is also a breach of the tenant's contract (d). Since the Judicatm'e Acts it is impossible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort (r) -. doubtless it would be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class. Conver- sion : rela- tion of trover to trespass. \. — Conversion. Conversion, according to recent authority, may be described as the wrong done by " an unauthorized act which deprives another of his property permanently or for an indefinite time" (/). Such an act maj^ or may not include a trespass ; whether it does or not is imma- terial as regards the right of the plaintiff in a civil action, for even under the old forms he might " waive the trespass " ; though as regards the possibility of the wrong-doer being criminally liable it may still be a vital question, trespass by taking and carrying away the goods being a necessary element in the offence of larceny at common law. But the definition of theft (in the first instance narrow but strictly consistent, afterwards com- plicated by some judicial refinements, and by numerous [d) 1 Wms. Sannd. 646. (e) E.g. Tucker v. Linger (1382) 21 Ch. Div. 18, 51 L. J. Ch. 713. (/) Brarawell B., adopting the expression of Bosaiiquet, arg., Hiort V. Bott (1874) L. E. 9 Ex. 86, 89, 43 L. J. Ex. 81. All, or nearlyall the learning on the subject down to 1871 is collected (in a somewhat formless manner it must he allowed) iu the notes to Wilbraham v. Show, 2 Wms. Sauud. 87. CONVERSION, 341 unsystematic statutory additions) does not concern us here. The " property " of which the plaintiff is deprived — the subject-matter of the right which is violated — must be something which he has the immediate right to possess ; only on this condition could one maintain the action of trover under the old forms. Thus, where goods had been sold and remained in the vendor's possession subject to the vendor's lien for unpaid purchase-money, the purchaser could not bring an action of trover against a stranger who removed the goods, at all events without payment or tender of the unpaid balance ((/). But an owner not entitled to immediate possession might have a special action on the case, not being trover, for any permanent injury to his interest, though the wrongful act might also be a trespass, conversion, or breach of contract, as against the immediate possessor (A) . As under the Judicature Acts the difference of form between trover and a special action which is not trover does not exist, there seems to be no good reason why the idea and the name of conversion should not be extended to cover these last-mentioned cases. On the other hand, the name has been thought What altogether objectionable by considerable authorities (i) : to conver. and certainly the natural meaning of converting property to one's own use has long been left behind. It came to be seen that the actual diversion of the benefit arising from use and possession was only one aspect of the (l)7Ex. recovered for conversion of a docu- 152, 21 L. J. Ex. 41 ; wliere see the ment vvhicli is not negotiable but distinctions as to trespass and lar- only evidence of a debt, see Banins, ceny carefully noted in the judg- jr. S Sims v. L. d- S. JF. Bank ment delivered by Parke B. [1900]1 Q. B. 270, 69L. J. Q. B. 164, (a) L. R. 1 (,». B. at p. 614. C. A., where the plaintiffs were (b) On the question whether fnll held entitled to recover in full on or onlv nominal damages can be other grounds. 352 WRONGS TO POSSESSION AND PROPERTY. Conver- sion by estoppel. A man may be liable by estoppel as for the conversion of goods which he has represented to be in his possession or control, although in fact they were not so at any time when the plaintiff was entitled to possession (c) . And he may be liable for conversion by refusal to deliver, when he has had possession and has wrongfully delivered the goods to a person having no title. He cannot deliver to the person entitled when the demand is made, but, having disabled himself by his own wrong, he is in the same position as if he still had the goods and refused to deliver (d). Conversely, a plaintiff ma,j be estopped by conduct which amounts at any rate to an apparent authoritj' to deal with the goods in the manner com- plained of (e). Trespasses between tenants in common. VI. — Injuries hetwecii Tenants in Common. As between tenants in common of either land or chattels there cannot be trespass unless the act amounts to an actual ouster, i.e. dispossession. Short of that "trespass will not lie by the one against the other so far as the land is concerned" (/). In the same way acts of legitimate use of the common property cannot become a conversion through subsequent misappropriation, though the form in which the propertj' exists may be whollj- converted, in a wider sense, into other forms. There is no wrong to the co-tenant's right of proj)erty until there is an act inconsistent with the enjoyment of the property by both. For every tenant or owner in common is equally entitled (c) Seton V. La/one (1887) 19 Q. B. Div. 68, 56 L. J. (J. B. 415. {d) Bristol and IF. of England Bank V. Midland 11. Co. [1891] 2 Q. B. 653, 61 L. J. Q. B. 115, 65 L. T. 234, C. A. ^ (e) Union Credit Bank v. ilcrsrii Docks and Harhour Board [1899] 2 q. B. 205, 68 L. J. Q. B. 842. (/) Lord Hatlierley, Jacobs v. Seward (1872) L. II. 5 H. L. 464, 472, 41 L. J. C. P. 221. TENANTS IN COMMON. 353 to the occupation and use of the tenement or property (g); he can therefore become a trespasser only by the mani- fest assumption of an exchisive and hostile possession. It was for some time doubted whether even an actual expulsion of one tenant in common by another were a trespass ; but the law was settled, in the latest period of the old forms of pleading, that it is (/<). At first sight this seems an exception to the rule that a person who is lawfully in possession cannot commit trespass : but it is not so, for a tenant in common has legal possession only of his own share. Acts which involve the destruction of the property held in common, such as digging up and carrying away the soil, are deemed to include ouster (i) ; unless, of course, the very nature of the property (a coal- mine for example) be such that the working out of it is the natural and necessary course of use and enjoyment, in which case the working is treated as rightfully under- taken for the benefit of all entitled, and there is no question of trespass to property, but only, if dispute arises, of accounting for the proceeds (k). The normal rights of co-owners as to possession and use may be modified by contract. One of them may thus have the exclusive right to possess the chattel, and the other may have temporary possession or custody, as his bailee or servant, without the power of conferring any possessory right on a third person even as to his own share. In Nyherg v. Handelaar {I) A. had sold a half share of a valuable chattel to B., on the terms that A. should retain possession until the chattel (a gold enamel ((/) Litt. s. 323. • Co. Liu. 200. (h) Murray y.mai{lU'd)1C.'B. (li) Job v. Potion (1875) L. R. 441, 18 L. .T. C. P. 161, and 20 Eq. 84, 44 L. J. Ch. 262. Bigelow L. C. 343. {I) [1892] 2 Q. B. 202, 61 L. J. (i) Wilkii>iSonv.Haygari/i{lSi6) Q. B. 709, C. A. 12 Q. B. 8-37, 16 L. J. Q. B. 103, P.T. A A 354 WRONGS TO POSSESSION AND PROPERTY. box) could be sold for their common benefit. Afterwards A. let B. have the box to take it to an auction room. Then B., thus having manual possession of the box, delivered it to Z. by way of pledge for a debt of his own. The Court of Appeal held that Z. had no defence in an action by A. The judgments proceed on the assumption that B., while remaining owner in common as to half the property, had acquired possession only as bailee for a special purpose, and his wrongful dealing with it deter- mined the bailment, and re-vested A.'s right to immediate possession (m) . VII. — Extended Protection of Possession. Rights of An important extension of legal protection and remedies possessor h^s yet to be noticed. Trespass and other violations of stonier possessory rights can be committed not only against the person who is lawfully in possession, but against any person who has legal possession, whether rightful in its origin or not, so long as the intruder .cannot justify his act under a better title. A mere stranger cannot be heard to say that one whose possession he has violated was not entitled to possess. Unless and until a superior title or justification is shown, existing legal possession is not only presumptive but conclusive evidence of the right to possess. Sometimes mere detention may be sufi&cient : but on principle it seems more correct to say that physical control or occupation is prima facie evidence that the holder is in exercise (on his own behalf or on that of another) of an actual legal possession, and then^ if the contrary does not appear, the incidents of legal (m) Cp. Fennv. BittlestOH (1851) a servant liaviiig bare custody. The 7 Ex. 152, p. 351, above, and similar action would have been detinue or cases cited in text. Qii. whether, trover under the old practice, and. on the facts, B. was even a bailee, was so treated }ry the Court, or was not rather in the position of EULE IN FAVOUR OF POSSESSION. 355 possession follow. The practical result is that an out- standing claim of a third party {^jiis tciiii, as it is called) cannot be set up to excuse either trespass or conversion : "against a M-rong-doer, possession is a title:" "any possession is a legal possession against a wrong-doer : " or, as the Koman maxim runs, " adversus extraneos vitiosa possessio prodesse solet " (n). As regards real property, a possession commencing by trespass can be defended against a stranger not onl}- b_v the first wrongful occupier, but by those claiming through him ; in fact it is a good root of title as against every one except the person really entitled (o) ; and ultimately, by the opera- tion of the Statutes of Limitation, it may become so as against him also. The authorities do not clearly decide, but seem to implj-, that it would make no difference if the de facto possession violated by the defendant were not only without title, but obviously wrongful. But the rule is in aid of de facto possession only. It will not help a claimant who has been in possession but has been dispossessed in a lawful manner and has not any right to possess (^j). (n) GfraJiamv. Feat {1SQ1)1 East 574, 28 E. R. 405, and other 244, 246, 6 R. E. 268 ; Jeffries v. autliorities collected in Pollock and G. TV. E. Co. (1856) 5 E. & B. 802, Wright on Tossession, 31—35. 25 L. J. Q. B. 107 ; Bourne v. Fos- (o) Ashcrv. JFhiaock{1S6o)L. R. brooke (1865) 18 C. B. N. S. 515, 1 Q. B. 1, 35 L. J. Q. B. 17 ; cp. 34 L. J. C. P. 164 ; extending the Cutis r. Sprinr/ (1818) 15 Mass. 135, principle of Armory v. Delaviirie and Bigelow L. C. 341 ; Eoscnhenj (1722) 1 Str. 504 [505], and in 1 v. Cook (1881) S Q. B. Div. 62, 51 Sm. L. C. ; D. 41, 3, de poss. 53, L. J. Q. B. 170 ; Dalton v. Fit-.- cf. Panlus Sent. Rec. v. 11 § 2 : gerald [1897] 2 Ch. 86, 90, 66 L. J. '■sufficit ad probationem si rem Ch. 604, per Lindley L. J. ; and see corporaliter teneam." And such use further Pollock and Wright, op. rit. and enjoyment as the nature of the 95 — 99. subject-matter admits of is good {p) Buckley v. Gross (1863) 3 evidence of possession. See Harper B. & S. 566, 32 L. J. Q. B. 129. Y. Clmrlesworth (1825) 4 B. & C. A A 2 356 WRONGS TO POSSESSION AND PROPERTY. This rule in favour of possessors is fundamental in both civil and criminal jurisdiction. It is indifferent for most practical purposes ^Yhether we deem the reason of the law to be that the existing possession is pv'nna facie evidence of ownership or of the right to possess — " the presump- tion of law is that the person who has possession has the property " (g) : — or that, for the sake of public peace and security, and as ' ' an extension of that protection which the law throws around the person " (r), the existing possession is protected, without regard to its origin, against all men who cannot make out a better right : — or say (s) that the law protects possession for the sake of true owners, and to relieve them from the vexatious burden of continual proof of title, but cannot do this effectually without protecting wrongful possessors also. Such considerations may be guides and aids in the future development of the law, but none of them will adequately explain how or M'hy it came to be what it is. Rights of Again, as dc facto possession is thus protected, so de entitled to i"''<'' possession — if by that term we may designate an resimie immediate right to possess when separated from actual possession. o ± i legal possession — was even under the old system of pleading invested with the benefit of strictly possessory (a) Lord Campbell C. J. in v. Sjiawc (1844) 13 M. &. W. at Jeffries v. G. JV. R. Co. (1856) 5 p. 581. This is precisely Savigny's E. & B. at p. 806, 25 L. J. Q. B. theory, which however is not now, 107 ; hut this does not seem con- generally accepted by students of sistout with the protection of even Roman law. In some respects it a manifestly wrongful possessor fits the common law better. Chief against a new extraneous wrong- Justice Holmes in "The Common doer. In Roman law a thief has Law " takes a view c/wsf^on (/oicm, the interdicts though not the actio but distinct. fiirti, which requires a lawful (s) With Ihering (Grund des interest in the plaintiff ; in the Besitzesschutzes, 2nd ed. 1869). common law it seems that he can Op. the same author's "Der Besitz- maintain trespass. wille," 1889. (r) Lord Denman C. J. in Rogers EIGHT TO RESUJIE POSSESSION. 357 remedies ; that is, an owner who had parted with pos- session, but was entitled to resume it at will, could sue in trespass for a disturbance by a stranger. Such is the case of a landlord where the tenancy is at will (t), or of a bailor where the bailment is revocable at will, or on a condition that can be satisfied at will ; which last case includes that of a trustee of chattels remaining in the control and enjoyment of the cestui que trust, for the relation is that of bailment at will as regards the legal interest («). In this way the same act may be a trespass both against the actual possessor and against the person entitled to resume possession. " He who has the pro- perty' may have a writ of trespass, and he who has the custody another writ of trespass " {x). " If I let my land at will, and a stranger enters and digs in the land, the tenant may bring trespass for his loss, and I may bring trespass for the loss and destruction of my land"(/). And a lessor or bailor at will might have an action of trespass vi et armis against the lessee or bailee himself where the latter had abused the subject-matter in a manner so inconsistent with his contract as to amount to a determination of the letting or bailment. "If tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee. As if I lend to one my sheep to tathe his land, or my oxen to plow the land, and he killeth my cattle, I may well have an action of trespass against him notwithstanding the lending " (y). (t) Bro. Ab. Trespas, pi. 131; lias an action for loss of service. 19 Hen. VI. 45, pi. 94, where it is (») See Barker v. Furlong [1891] pointed ont that the trespasser's act 2 Cli. 172, 60 L. J. Ch. 368. is one, hut the causes of action are (x) 48 Edw. III. 20, pi. 8. "diversis respectibus," as where a (;/) Litt. s. 71. If any doubt be servant is beaten and the master implied in Littleton's " it is said," 358 WRONGS TO POSSESSION AND PROPERTY. Rights of derivative possessors. Posschsion derived through trespasser. An exclusive right of appropriating things in which property is acquired only by capture is on the same footing in respect of remedies as actual possession (z). Derivative possession is equally protected, through whatever number of removes it may have to be traced from the owner in possession, who (by modern lawyers at any rate) is assumed as the normal root of title. It may happen that a bailee delivers lawful possession to a third person, to hold as under-bailee from himself, or else as immediate bailee from the true owner : nay more, he may re-deliver possession to the owner for a limited purpose, so that the bailor has possession and is entitled to possess, not in his original right, but in a subordinate right derived from his own bailee ((()■ Such a right, while it exists, is as fully protected as the primary right of the owner would have been, or the secondary right of the bailee would be. Troublesome questions were raised under the old law by the position of a person who had got possession of goods through delivery made by a mere trespasser or by an originally lawful possessor acting in excess of his right. One who receives from a trespasser, even with full knowledge, does not himself become a trespasser against the true owner, as he has not violated an existing lawful possession (b). The best proof that such is the law is the existence of the offence of receiving stolen goods as distinct from theft ; if receiving from a tres- passer made one a trespasser, the receipt of stolen goods Coke's commentary removes it. Such an act ' ' concerneth so much the freehold and inheritance, as it doth amount in law to a deter- mination of his will." [z) Holford V. BaiUy (18i9) 13 Q. B. 426, 18 L. J. Q. B. 109, Ex. Ch. («) Roberts V. Wijatt (1810) 2 Taunt. 268, 11 R. R. 566. (h) Wilson V. Barker (1833) i B. & Ad. 614. DERIVATIVE POSSESSION. 359 with the intention of depriving the true owner of them woulcl have been larceny at common law. Similarly where a bailee wrongfully delivers the goods over to a stranger ; though the bailee's mere assent will not prevent a wrongful taking by the stranger from being a trespass (c) . The old law of real property was even more favourable to persons claiming through a disseisor ; but it would be useless to give details here. At the present day the old forms of action are almost everywhere abolished ; and it is quite certain that the possessor under a wrongful title, even if he is himself acting in good faith, is by the common law liable in some form to the true owner [d), and in the ease of goods must submit to recapture if the owner can and will retake them (c) . In the theoretically possible case of a series of changes of possession by inde- pendent trespasses, it would seem that every successive wrong-doer is a trespasser only as against his immediate predecessor, whose de facto possession he disturbed : though as regards land exceptions to this principle, the extent of which is not free from doubt, were introduced by the doctrine of " entry by relation " and the practice as to recovery of mesne profits. But this too is now, as regards civil liabilitj-, a matter of mere curiosity (/). (c) 27 Hen. VII. 39, pi. 49 ; cp. out discussion, only the question of 16 Hen. VII. 2, pi. 7 ; Mcnnie v. property being argued. But prob- BlaJcc (1856) 6 E. & B. 842, 25 ably that case goes too far iu L. J. Q. B. 399. allowing recapture by force, except (d) 12 Edw. IV. 13, pi. 9; but perhaps on fresh pursuit: see p. this was probably an innovation at 372 below. the time, for Brian dissented. The (/) The common law might con- action appears to have been on the ceivably have held that there was case for spoiling the goods. a kind of privity of wrongful estate (c) See Blades v. Hiycjs (1865) between an original trespasser and 11 H. L. C. 621, 34 L. J. C. P. persons claiming through him, and 286, where this was assumed with- thus applied the doctrine of con- 360 WRONGS TO POSSESSION AND PEOPEKTV. VIII. — Wron(js to Easements, etc. Violation Easements and other incorporeal rights in propertj', poreal " rather a fringe to property than property itself " as rights. j^jjgy have been ingeniously called (r/), are not capable in an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession, and gives no possessory right before the due time is fulfilled : " a man who has used a way ten years without title cannot sue even a stranger for stopping it "(/(). The only possession that can come in question is the possession of the dominant tenement itself, the texture of legal rights and powers to which the "fringe" is incident. Nevertheless disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation or proof of specific damage (i) ; the action was on the case under the old forms of pleading, since trespass was technicallj' impos- sible, though the act of disturbance might happen to include a distinct trespass of some kind, for which trespass would lie at the plaintiff's option. To consider what amounts to the disturbance of rights in re alleua is in effect to consider the nature and extent tiuuing trespass to such persons ; L. J. Ex.' 280 ; Anderson v. Itud- and this would perhaps have been cliffe (1860) Ex. Ch., E. B. & E. the more logical course. But the 819, 29 L. J. Q. B. 128, and natural dislike of the judges to Bigelow L. C. 361 — 370. multiplying capital felonies, operat- (r/) Mr. Gibbons, Preface to the ing on the intimate connexion fifth edition of Gale on Easements, between trespass and larceny, has 1876. in several directions prevented the (/() Holmes, The Common Law, law of trespass from being logical. 240, 382. For the law of trespass to land as (J) 1 Wins. Saund. 626 ; Harrop affected by relation, see Barnett v. v. Hirst (1868) L. E. 4 Ex. 43, 46, Guihlford (1855) 11 Ex. 19, 24 38 L. J. Ex. 1. LI(;E^■C'E AND INTEREST. 361 of the rights themselves (/,), and this does not enter into our plan, save so far as such matters come under the head of Nuisance, to -which a separate chapter is given. Franchises and incorporeal rights of the like nature, as patent and copj'rights, present something more akin to possession, for their essence is exclusiveness ; and indeed trespass was the proper remedy for the disturbance of a strictly exclusive right. " Trespass lies for breaking and entering a several fishery, though no fish are taken." And so it has alwaj's been held of a free warren (/) . But the same remark applies ; in almost every disputed case the question is of defining the right itself, or the conditions of the right (A) ; and dc facto enjoyment does not even provisionally create any substantive right, but is material only as an incident in the proof of title. IX. — Groitnds inson(X?>?>5)15Q,.'B. damage feasant generally are ex- D. 312, 51 L. J. Q. B. 544. pounded, and see p. 381, below. (a) 12 & 13 Vict. c. 92, s. 6 ; 17 & (x) Tyrringham's Ca., 4 Co. Kep. IS Vict. c. 60 s. 1 ; superseding an 38 b. earlier Act of "William IV. to the iy) Ilea v. Sheirard (1839) 2 M. same effect.' See the Digest of & W. 424, 46 R. E. 633. Eng. Case Law, AyniXLS, s. t. (s) Xash V. Lucas (1867) L. K. 2 "Pound and Poundage." sity. JUSTIFICATION BY NECESSITY. 377 •ov the defence of the reahn (b), or an act of charity preserving the occupier from irremediable loss, or sometimes by the public safety or convenience, as in putting out fires, or as where a high\Yay is impassable, and passing over the land on either side is justified ; but in this last-mentioned case it is perhaps rather a matter of positive common right than of excuse (c). Justifications of this kind are discussed in a case of the early sixteenth century, where a parson sued for trespass in carrying away his corn, and the defendant justified on the ground that the corn had been set out for tithes and was in danger of being spoilt, wherefore he took it and carried it to the plaintiff's barn to save it : to which the plaintift' demurred. Kingsmill J. said that a taking without consent must be justified either by public necessity, or " by reason of a condition in law"; neither of M'hich grounds is present here ; taking for the true owner's benefit is justifiable only if the danger be such that he will lose his goods without remedy if they are not taken. As examples of public necessity, he gives pulling down some houses to save others (in case of fire, presumably) (rf), and entering in war time to make fortifications. " The defendant's intention," said Eede C. J., " is material in felony but not in trespass ; and here it is not enough that he acted for the plaintifl"'s good." A stranger's beasts might have spoilt the corn, (I) See pji. 168-169, above. L. J. Q. B. 80. (c) The justification or right, [d) Op. Littleton J. in Y. B. 9 ■whichever it he, does not apply Edvf. lY. 35: "If ammilnj negligence ■where there is only a limited dedi- suffer his house to burn, I who am cation of a way, subject to the right his neighbour may break down the of the owner of the soil to do acts, house to avoid the danger to me, such as ploughing, which make for if I let the house stand, it may it impassable or inconvenient at burn so that I cannot quench the certain times: A7-nold y . Holhrook fire afterwards." .(1873) L. R. 8 Q. B. 96, 42 378 WEONGS TO POSSESSION AND PEOPERTY. but the plaintiff would have had his remedy against their owner. " So where my beasts are doing damaga in another man's land, I may not enter to drive them out ; and yet it would be a good deed to drive them out so that they do no more damage ; but it is otherwise if another man drive my horses into a stranger's land where they do damage, there I may justify entry to drive them out, because their wrong-doing took its beginning in a stranger's wrong. But here, because the party might have his remedy if the corn were anywise destroyed, the taking was not lawful. And it is not like the case where things are in danger of being lost by water, fire, or such like, for there the destruction is without remedy against any man. And so this plea is not good" (e). Fisher J. concurred. There is little or nothing to be added to the statement of the law, though it may be doubted whether it is now likely ever to be strictly applied. Excuse of this kind is always more readily allowed if the possessor of the land has created or contributed to the necessity by his own fault, as where the grantor of a private right of way has obstructed it so that the way cannot be used except by deviation on his adjacent land (/). Foxhunt- At one time it w'as supposed that the law justified prfv?-° entering on land in fresh pursuit of a fox, because the- leged. destruction of noxious animals is to be encouraged ; but (c) 21 Hen. YII. 27, pi. 5 (bnt obviously lead 21) ; cp. 37 Hen. A^. the case seems really to belong to 37, pl.26 ; 6 Edw. lY. 8, pl.18, which Hilary term of the next year, see seems to extend the justification to 5. C-. , Keihv. 88 a ; Frowike was entry to retake goods which have still Chief Justice of Common Pleas come on another's land by inevitable, in Trinity term 21 Hen. YIL, ib. accident; see Story, Bailments,. 86 b, pl. 19 ; he died in the follow- § 83 a, note. ing vacation, and Rede was ap- (/) Sdbyx. Nettle/old {187S)li.}i, . pointed in his stead, ib. 85 ft, where 9 Ch. Ill, 43 L. J. Ch. 359. for Mich. 22 Hen. VII. we should TRESPASS AB IXUIO. 379 this is not the hiw now. If it ever was, the reason for it has long ceased to exist (f/). Practically foxhunters do well enough (in this part of the United Kingdom) with licence express or tacit. There is a curious and rather subtle distinction between Trespass justification by consent and justification or excuse under authority of law. A possessor by consent, or a licensee, may commit a wrong by abusing his power, but (subject to the peculiar exception in the case of letting or bailment at will mentioned above) (/() he is not a trespasser. If I lend you a horse to ride to York, and you ride to Carlisle, I shall not have (under the old forms of pleading) a general action of trespass, but an action on the case. So if a lessee for years holds over, he is not a trespasser, because his entry was authorized by the lessor (('). But "when entry, authority, or licence is given to any one by the law, and he doth abuse it, lie shall be a trespasser ah initio," that is, the authority or justification is not only determined, but treated as if it had never existed. " The law gives authority to enter into a common inn or tavern (k) ; so to the lord to distrain ; to the owner of the ground to distrain damage feasant ; to him in reversion to see if waste be done ; to the commoner to enter upon the land to see his cattle ; and such like. . . . But if he" who enters into the inn or tavern doth a trespass, as if he carries away anything ; or if the lord who distrains for rent (0, or the owner for damage feasant, works or kills (g) Paul V. Summerhayes {}87S)i [l) The liability of a distrainor Q. B. D. 9, 48 L. J. JI. C. 33. for rent justly due, in respect of (h) P. 357, above. any subsequent irregularity, was re- (?') 21 Edw. IV. 76 I, pi. 9. duced to the real amount of damage (k) This is in respect of the public by 11 Geo. II. e. 19, s. 19: but character of the innkeeper's employ- this does not apply to a case where nicnt. the distress was wholly unlawful : 5^80 WEOXGS TO POSSESSION AiS'D PEOPERTY. the distress ; or if he who enters to see waste breaks the house or stays there all night ; or if the commoner cuts down a tree ; in these and the like cases the law adjudges that he entered for that pm-pose, and because the act which demonstrates it is a trespass, he shall be a trespasser ah initio " {m). Or to state it less artificially, the effect of an authority given by law without the owner's consent is to protect the person exercising that authority from being dealt with as a trespasser so long — but so long only — as the authority is not abused. He is never doing a fully lawful act : he is rather an excusable trespasser, and becomes a trespasser without excuse if he exceeds his authority (;;) : "It shall be adjudged against the peace " (o). This doctrine has been applied in modern times to the lord of a manor taking an estray (p), and to a sheriff remaining in a house in possession of goods taken in execution for an unreasonably long time (q). It is applicable only when there has been some kind of active wrong-doing ; not when there has been a mere refusal to do something one ought to do — as to pay for one's drink at an inn {in) or deliver up a distress upon a proper tender of the rent due (s). " If I distrain for rent, and afterwards the termor ofi'ers me the rent and the arrears, and I withhold the distress from him, yet he shall not have an action of trespass against me, but detinue, because it was lawful at the beginning, when I took the distress ; but if I kill them or work Attae/c V. BramiixU (1863) 3 B. & {p) Oxlcy v. TFaits (1785) 1 T. R. S. 520, 32 L. J. Q. B. 146. Dis- 12, 1 E. R. 133. trainovs for damage feasant are still (j) Asli v. Bainiay (1852) S Ex. under the common law. 237, 22 L. J. Ex. 59, scd qu. if (in) The Six Carpcnterb Case, 8 according to the old authorities, see Co. Eeio. 146 a, h. Pollosk and ^Vright on Possession, [n] Cp. Pollock and "Wright on 82. Possession, 144, 201. (s) West v. Nihbs (1847) 4 C. B. (o) 11 Hen. IV. 75, pi. 16. 172, 17 L. J. C. P. 150. REMEDIES FOR TRESPASS. 381 them in my own plow, he shall have an action of trespass" (0. But it is to be observed that retaining legal possession after the expiration of authority has been held equivalent to a new taking, and therefore a positive act : hence (it seems) the distinction between the liability of a sheriff, who takes possession of the execution debtor's goods, and of a distrainor ; the latter only takes the goods into " the custody of the law," and "the goods being in the custody of the law, the distrainor is mider no legal obligation actively to re- deliver them"(»). Formerly these refinements were important as determining the proper form of action. Under the Judicature Acts they seem to be obsolete for most purposes of civil liability, though it is still possible that a question of the measure of damages may involve the point of trespass ab initio. Thus in the case of the distrainor refusing to give up the goods, there was no doubt that trover or detinue would lie (x) : so that under the present practice there would be nothing to discuss. X. — Remedies. The only peculiar remedy available for this class of Taking or , 1 . 1 J 1 retaking wrongs IS distress damage feasant, which, though an goods, imperfect remedy, is so far a remedy that it suspends the right of action for the trespass. The distrainor " has an adequate satisfaction for his damage till he lose it without default in himself; " in which case he may still have his action (y). It does not seem that the retaking of goods taken by trespass extinguishes the true owner's (t) Littleton in 33 Hen. VI. 27, (x) Wilde C. J. I. u, Littleton pi. 12. wSi sitp. (js) West V. Mbbs, i C. B. at p. (y) Vaspor v. Edwards, 12 Mod, 184, per Wilde C. J. 660, per Holt C. J. 382 WKOXGS TO POSSESSION AXD PROPERTY. right of action, though it would of course affect the amount of damages. Costs where damages nominal. Actions for merely trifling trespasses were formerly discouraged by statutes providing that when less than 40s. was recovered no more costs than damages should be allowed except on the judge's certificate that the action was brought to try a right, or that the trespass was " wilful and malicious : " yet a trespass after notice not to trespass on the plaintiff's lands was held to be " wilful and malicious," and special communication of such notice to the defendant was not required (^). Bat these and many other statutes as to costs were superseded by the general provisions of the Judicature Acts, and the rule that a plaintiff recovering less than 10/. damages in an action "founded on tort" gets costs only on the County Court scale, unless by special certificate or order (a) ; and they are now expresslj' repealed (/)) . The Court is therefore not bound by any fixed rule ; but it might possibly refer to the old practice for the purpose of informing its discretion. It seems likely that the common practice of putting up notice boards with these or the like words : " Trespassers will be prosecuted according to law" — words which are, "if strictly con- strued, a wooden falsehood " (c), simple trespass not being punishable in courts of criminal jurisdiction — (z) See £oioycr v. Cook (1847) 4 C. B. 236, 16 L. J. 0. P. 177 ; Reynolds v. Edwards (1794) 6 T. R. 11, even where the defendant had intended and endeavoured to avoid trespassing ; but this was doubted by Pollock C. B. in Swinfen v. Bacon (1860) 6 H. & N. 184, 188, 30 L. J. Ex. 33, 36. Cp. Gayford v. Chouler [1898] 1 Q. B. 316, 67 L. J. Q. B. 404, on the Malicious Injuries to Property Act. («) County Courts Act, 1888, s. 116 (substituted for like provisions of the repealed Acts of 1867 and 1882) ; see "The Annual Practice," 1901, ii. 566. (i) 42 & 43 Vict. u. 59. (c) F. W. Maitlaud, • ' Justice and Police," p. 13. REMEDIES FOR TRESPASS. 383 "was originally intpnded to secure the benefit of these same statutes iu the matter of costs. At this day it may be a question ^Yhether the Court would not be disposed to regard the threat of an impossible criminal prose- cution as a fraud upon the public, and rather a cause for depriving the occupier of costs than for awarding them (d). Several better and safer forms of notice are available; a common American one, "no trespassing," is as good as any. " Nothing on earth," said Sir Walter Scott, " would induce me to put up boards threatening prosecution, or cautioning one's fellow-creatures to beware of man-traps and spring-guns. I hold that all such things are not only in the highest degree offensive and hurtful to the feelings of people whom it is every way important to conciliate, but that they are also quite inefficient " (r). It must be remembered that Scott never ceased to be a lawyer as well as a man of letters. It was partly the legal knowledge and tastes displayed in the Waverley Novels that identified him in the eyes of the best critics as the author. An injunction can be granted to restrain a continuing injunc- trespass, such as the laying and keeping of waterpipes '^°°^' under a man's ground without either his consent or justi- fication by authority of law ; and the plaintiff need not prove substantial damage to entitle himself to this form of relief (/). On the other hand the right to an injunction does not extend beyond the old common-law right to sue for damages : a reversioner cannot have an injunction without showing permanent injury to the reversion (//). {d) At all events the threat of 317, ed.lSSS, ex relatione Ba^ilB-eiU. spring-guns, .stillnotquiteunknown, (/) Goodson v. Richardson (1S74) can do the occupier no good, for to L. R. 9 Ch. 221, 43 L. J. Ch. 790. set spring-guns is itself an offence. {cj) Cooper v. Orahlree (1882) 20 (e) Lockhart's Life of Scott, vii. Ch. Div. 589, 51 L. J. Ch. 585. In .orse p. 100, whore Jl'i/l-csv. Hungerford are thrown in the ditch so that I Market Co. (1835) 2 Bing. N. C. 281 have thereby great damage and is treated as overruled by tlie re- annoyance, I shall have my action marks of Lord Chelmsford and Lord against him who maile this ditch, Cranworth. Probably tliis would because I am more damaged than not be accepted in otlier jurisdic- any otlier man." Hekl tliat sutti- tious wliere the common law is cient particular damage was laid. received. In JIassachusetts, at (cj) Fmsc v. mie.s (1815) 4 M. & least, JVilkcs v. Hungerford ilarlcct S. 101, 16 E. R. 405, andinP)igrlow Co. was .adojited by the Supreme L. C. 460. Court in a, very full and careful (h) IFiiitcrbol/om v. Lord Derly judgment : Stetson v. Faj-on (1837) (1867) L. R. 2 E.\-. 316, 322, 36 L. .1. 19 Pick. 147. Ex. 194. (k) Frit:: v. ffobson (1S80) 14 Oh. (i) rUchi V. Metroj). R. Go. (lsi;7) D. 542, 49 L. J. Cli. 321 ; Barber v. L. R. 2 H. L. at pp. 188, 199. See Pcnkjj [1893] 2 Ch. 447, 62 L. .1. the comments of Willes J. in i?cc/;cM Ch. 623. v. Midland R. Co. L. R. 3 C. P. at PARTICULAR DAMAGE. SiSS) under the rule or the exception must depend on the facts of that case : and what is the true principle, and what the extent of the exception, is open to some question (/). If horses and waggons are kept standing for an unreason- able time in the highway opposite a man's house, so that the access of customers is obstructed, the house is darkened, and the people in it are annoj'ed by bad smells, this damage is sufficiently "particular, direct, and substantial" to entitle the occupier to maintain an action (»()■ The conception of private nuisance was formerlj' limited Private to injuries done to a man's freehold bj^ a neighbour's ^,hat. '"^' acts, of which stopping or narrowing rights of way and flooding land by the diversion of watercourses appear to have been the chief species (»)• In the modern authori- ties it includes all injuries to an owner or occupier in the enjoyment of the property of which he is in pos- session, without regard to the quality of the tenure (o). {I) In Frit: v. Bohson (last note) natural and jiroljable consequence Fry J. did not lay down any general of the wrong. And cp. the c:i.se in proposition. How far the principle 27 Hen. YIII. cited above, p. 387. of Lyon v. Fishmongers' Cumpmiij In liickcts ca.se Lord Westburj' (1876) 1 App. Ca. 662, 46 L. J. Ch. strongly dissented from the ma- 68, is really consistent with Ricket jorityof the Loids present ; L. R. 2 V. Mi:trop. Pi.. Co. is a problem that H. L. at p. 200. can be finally solved only by the [m) Benjamiii v. Starr (1^74) House of Lords itself. According to L. R. 9 C. P. 400, 43 L. J. C. 1'. 162. Lyon V. Fishmoiujers' Conrpany it Compare further, as to damage from should seem that blocking the access unreasonable user of a highway, to a street is (if not justified) a vio- Harris v. Molihs (1878) 3 E.\. D. lation of the distinct private right 268 ; jniJcinsv. Bay (1883) 12 i}. of every occupier in the street : and B. T). 110. such rights are not the less private (n) F. iST. 1!. " \\'rit of Assize of and distinct because they may be Nuisance," 183 I. sc/cj. many; see Harroy v. Hirst (1868) (o) See per Jesscl M. K. in Joiics L. R. 4 Ex. 43, 38 L. J. Ex. 1. In v. Cha'piidl (1875) L. 1!. 20 Imj. at this view it is difficult to see that p. 543. loss of custom is otherwise than a 390 NUISANCE. Kinds of nuisance affect- ing— 1. (Owner- ship. Blackstone's phrase is " anj^hing done to the hurt or annoyance of the land, tenements or hereditaments of anotlier " (jj) — that is, so done without any lawful ground of justification or excuse. The Avays in which this may happen are indefinite in number, but fall for practical purposes into certain well recognized classes. Some acts are nuisances, according to the old authorities and the course of procedure on which they were founded, which involve such direct interference with the rights of a possessor as to be also trespasses, or hardly distinguish- able from trespasses. " A man shall have an assize of nuisance for building a house higher than his house, and so near his, that the rain which falleth upon that house falleth upon the plaintiff's house " (q). And it is stated to be a nuisance if a tree growing on my land overhangs the public road or my neighbour's land (r). In this class of cases nuisance means nothing more than encroachment on the legal powers and control of the public or of one's neighbour. It is generally, though not necessarily (s), a continuing trespass, for which, however, in the days when forms of action were strict and a mistake in seeking the proper remedy was fatal, there was a greater variety and choice of remedies than for ordinary trespasses. Therefore it is in such a case needless to inquire, except for the assessment of damages, whether there is anything like nuisance in the popular sense. Still there is a real distinction between trespass and nuisance even when they are combined : the cause of (p) Conim. iii. 216. iq) F. N . B. 184 D. ; Pcnruddock's at. ,'i Co. Eep. 100 b ; Fay v. Prcii- lia: (1845) 1 C. B. Si>l, 14 L. J. C. P. ■298. (?■) Best J. in Earl of Lonsdale v. Xdsou (1823) 2 B. & C. 302, 311, •26 E. R. 363, 370. {s) Fay V. Pirn/ ice, note {q), where the Court was astute to support the declaration after verdict. The over- hanging of branches, or growing of roots into a neighbour's soil, is not a trespass, see p. 334, above. OTHER KINDS OF NUISANCES. 391 action in trespass is interference with the right of a possessor in itself, while in nuisance it is the incommoditj' which is proved in fact to be the consequence, or is presumed by the law to be the natural and necessary consequence, of such interference : thus an overhanging roof or cornice is a nuisance to the land it overhangs because of the necessary tendency to discharge rain-water upon it (t) . xlnother kind of nuisance consists in obstructions of 2. Iii.m in rights of way and other rights over the property of others. " " "'""' ' ' The parishioners may pull down a wall which is set up to their nuisance in their way to the church "(w). In modern times the most frequent and important examples of this class are cases of interference with rights to light. Here the right itself is a right not of dominion, but of use ; and therefore no wrong is done (.r) unless and until there is a sensible interference with its enjoyment, as we shall see hereafter. But it need not be proved that the interference causes any immediate harm or loss. It is enough that a legal right of use and enjoyment is inter- fered with by conduct which, if persisted in without protest, would furnish evidence in derogation of the right itself (y) . A third kind, and that which is most commonly spoken :i. con- of by the technical name, is the continuous doing of some- ^j^^ enjoy- thing which interferes with another's health or comfort in "i^'^*- the occupation of his property, such as carrying on a noisy or offensive trade. Continuity is a material factor : merely temporary inconvenience caused to a neighbour by ' ' the (0 Bateti's ac. 9 Co. Eep. 53 b. Bounl (1870) L. K. 9 Eq. 418. (it) F. N. B. 18.5 B. (7/) Harro}! v. Hirst (1868) L. l!. (A-) Othenvise as to x'l'blic ways : I Ex. 43, 38 L. J. Ex. 1. see Turner v. llincjioood Hujliway 392 NUISANCE. Measure of nuisance. execution of lawful works in the ordinaiy user of land " is not a nuisance {z) . AVliat amount of annoyance or inconvenience will amount to a nuisance in point of law cannot, by the nature of the question, be defined in precise terms («). Attempts have been made to set more or less arbitrary limits to the jurisdiction of the Court, especially in cases of miscellaneous nuisance, as we may call them, but they have failed in every direction. Where nuisance is once proved, the defendant's intention is not material ; but a proved intention to annoy the plaintiff may be relevant to show that the defendant is not using his property in an ordinary and legitimate way such as good neigh- bours mutually tolerate, and it will naturally set the Court against him in all matters of discretion (b). As to the several classes of facts usually considered in cases of nuisance : — Injury to (a) It is not necessary to constitute a private nuisance need not ^^^^ ^^® ^'^^^ °^' ^tate of things complained of should lie be shown, noxious in the sense of being injurious to health. It is enough that there is a material interference with the ordinary comfort and convenience of life — " the physical comfort of human existence" — by an ordinary and reasonable standard (c) ; there must be something more than mere loss of amenity (d), but there need not be positive hurt or disease. (r) Harrisij)i v. SoutJitviirJi <(.■ yauxhall Jf'atcr Cn. [1891] 2 Cli. 409, 60 L. J. Ch. 630. (a) As to the construction of "nuisance'' in a covenant, which it seems need not be confined to tortious nuisance, see Tod-Hcathj V. Benham (1888) 40 Ch. Div. SO, 68 L. J. Ch. 8.3. {b) See Christie \. Darci/ [1893] 1 Ch. 316, 326, 62 L. J. Ch. 439. (c) ff^alter v. Sel/e, 4 De G. & Siu. 315, 321, 322, 20 L. J. Ch. 433 (Eniglit-Bruce V.-C. 1851); C'nin,j> V. Lamhert (1867) L. K. 3 Eq. 409. (rf) Sah-in V. North. Unmccpdh Coal Co. (1874) L. R. 9 Ch. 705, 44 L. J. Ch. 149 ; see judgment of James L. J., L. E. 9 Ch. at pp. 709, 710. WHAT AIIOUNTS TO NUISA\(!E. 393 (b) In ascertaining whether the property of the plain- Plaimifif ■ V • • • • 1 T - !■ • • J} J. '^0'' diseii- tiii IS ni fact nrjured, or his comfort or convenience m tact titled by materially interfered with, by an alleged nuisance, regard ^^l^^f^, is had to the character of the iieighbom-hood and the ^^^<^ 'I'^i- sanco. pre-existing circumstances (c). But the fact that the plaintiff was alread_y exposed to some inconvenience of the same kind will not of itself deprive him of his remedy. Even if there was already a nuisance, that is not a reason why the defendant should set up an addi- tional nuisance (/). The fact that other persons are wrong-doers in the like sort is no excuse for a wrong- doer. If it is said " This is but one nuisance among many," the answer is that, if the others were away, this one remainmg would clearlj- be a wrong ; but a man cannot be made a wrong-doer by the lawful acts of third persons, and if it is not a wrong now, a prescriptive right to continue it in all events might be acquired under cover of the other nuisances : therefore it must be wrongful from the first (g). Neither does it make any difference that the very nuisance complained of existed before the plaintiff became owner or occupier. It was at one time held that if a man came to the nuisance, as was said, he had no remedy {It) ; but this has long ceased to be law as regards both the remedy by damages (/) and the remedy by injunction (h). The defendant may in some cases justify by prescription, or the plaintiff be barred of the {e) St. Helms Smclliny Cu. v. L. J. Ex. 305. Tippiivj (1S65) 11 H. L. C. 642, 3.'j [h) Blackstoue ii. 40a. L. J. (J. B. 66 ; StunjcsY. £ridgmau (i) Kg. St. llcli-n's SmeUimj Cu. (1879) 11 Ch. Div. at p. 865. v. Tippbiii (1865) 11 H. L. C. G4l', (/) JVrdtcr V. Sclfe, note (c) last 35 L. J. <.,i. B. 66. pacre. (/"■) Tippiiuj\. St. Helen's Hiiicltliuj (g) Crossley v. Lighlowlcr (1867) Co. (1865) L. R. 1 Ch. 66, a suit L. R. 2 Cli. 478, 36 L. J. Ch. 584. for injunction ou the .same facts ; The same point was (araoug others) Flemiiigx. Hislo'p (1886) 11 App. C:i. decided many years earlier (1849) (Sc.)686, 688,697. in ]Voocl V. Wainl, 3 E.x. 748, 18 394 NUISAKCE. most effectual remedies by acquiescence. But these are distinct and special grounds of defence, and if relied on must be fully made out by appropriate proof. Furtlie:-, the wrong and the right of action begin only when the nuisance begins. Therefore if Peter has for many years carried on a noisy business on his own land, and his neighbour John makes a new building on his own adjoining land, in the occupation whereof he finds the noise, vibration, or the like, caused by Peter's business to be a nuisance, Peter cannot justify continuing his operations as against John by showing that before John's building was occupied, John or his predecessors in title made no complaint (?) . Innocent or neces- sary cha- racter per sc of ofEen- sive occu- pation is no answer. (c) Again a nuisance is not justified by showing that the trade or occupation causing the annoyance is, apart from that annoyance, an innocent or laudable one. " The building of a lime-kiln is good and profitable ; but if it be built so near a house that when it burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it " ()»). " A tan-house is necessary, for all men wear shoes ; and nevertheless it may be pulled down if it be erected to the nuisance of another. In like manner of a glass-house ; and they ought to be erected in places convenient for them ' ' (n) . So it is an actionable nuisance to keep a pigstye so near my neighbour's house as to make it unwholesome and unfit for habitation, though the keeping of swine may be needful for the sustenance of man (o). Merchants and tradesmen cannot load and [I) Sturgcs v. Bridgmaii (1879) 11 Ch. Div. 852, 48 L. J. Cli. 875. [m] AldrccVsca. (1610) 9 Co. l!cp. 59 a. ()t) Jijnrs V. Ponxll, Palm. 539, approved and explained by Ex. Ch. in Bamford v. Tundcij (186-2) 3 B. & S. 66, 31 L. J. o. B. 286. As to " convenient,'' see next paragraph. (o) Aldivd's ca. note (m). Cp. Ilrudc- V. SaiUard (1876) 2 Ch. D. answer. WHAT AJIOUNTS TO NUISANCE. 395 unload their goods in a to^Yn without some temporary obstruction of the highway, but it is a nuisance if such use of the highway is so extensive and constant as to amount to an appropriation of the highway to the trader's own purposes (p) . (,d) "Where the nuisance complained of consists wholly conve- or chiefly in damage to property, such damage must be Xce'/yer proved as is of appreciable magnitude and apparent to «■ '^J^o persons of common intelligence ; not something discover- able only by scientific tests (q). And acts in themselves lawful and innoxious do not become a nuisance merely because they make a neighbouring house or room less fit for carrying on some particular industry, without inter- fering with the ordinary enjoyment of life (r). But where material damage in this sense is proved, or material discomfort according to a sober and reasonable standard of comfort, it is no answer to say that the offending work or manufacture is carried on at a place in itself proper and convenient for the purpose. A right to do something that otherwise would be a nuisance may be established by prescription, but nothing less will serve. Or in other words a place is not in the sense of the law convenient for me to burn bricks in, or smelt copper, tiy2, 701 (Jessel M. E.), 45 L. J. Ooal Co. (1874) L. li. 9 Cli. 705, 44 t'li. 414, followed iu Ueiiihardt > . L. J. Cli. 149. M'jnUisli (1889) 42 C'h. D. 685, 58 (r) liubitisuii v. Kihcrt (18S9) 41 L. J. Cli. 787, which was ulsu ill- Cli. Div. 88, 58 L. J. Ch. ^92 ; tended to follow i:fa?H/orrfv. 2'i(r;tfcy IKarrcii v. Bivirti [1900] 2 Q. B. (last note) and not to lay down any- 722, 89 L. J. Q. Jj. 8 42. The thing new, see A.-G. v. Colo it- Son ordinary enjoyment of lilo, how- [1901] 1 Ch. 205, 70 L. J. Ch. 14S. ever, seems to include the main- (p) A.-G. V. Bricjliton and Hove tenance of a due temperature in Co-op. Supply Associatimi [1900] one's wine cellar : llcinhardt v. 1 Ch. 27t), 69 L. J. Ch. 204, C. A. Mcidasli (1889) 42 Ch. D. 685, (q) Salvin v. JVorih ISranccpclh 58 L. J. Ch. 787. 396 XUISANCE. or carry on chemical works, if that use of the place is convenient to myself but creates a nuisance to my neighbour (s). Modes of (e) No ijarticular combination of sources of annoyance ance. is necessary to constitute a nuisance, nor are the possible sources of annoyance exhaustively defined by any rule of law. " Smoke, unaccompanied with noise or noxious vapour, noise alone, offensive vapours alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighbouring property " (t). The persistent ringing and tolling of large bells (u), the loud music, shouting, and other noises attending the performances of a circus (.r), the collection of a crowd of disorderly people by a noisy entertainment of music and fireworks (jj), to the grave annoyance of dwellers in the neighbourhood, have all been held to be nuisances and restrained by the authority of the Court. The use of a dwelling-house in a street of dwelling- houses, in an ordinary and accustomed manner, is not (4) St. Helen's iSiiicUiiig Co. i . the eye of the Liiv, and cannot Tipping (1865) 11 H. L. C. 642, 35 claim the same privileges as a parish L. J. (i. B. 66, Bigelow L. C. 454 ; church in respect of bell-ringing. Bmiifunlv. Tunilcy (1862) Ex. Ch. {x) Ir.chbald v. Barrington {ISti^) 3 B. & S. 66, 31 L. J. Q. B. 2S6 ; L. E. 4 Ch. 388 : the circus was Curcii v. Zedbitter (1862-3) 13 eighty-five yards from the plaintiff's C. B. X. S. 470, 32 L. J. C. P. honse, and " tlironghout the pcr- 104. These authorities overrule formance there was music, including JIuli: V. iJwrloui (1858) 4 C. 13. K. S. a trombone and other wind instru- 334, 27 L. J. C. P. 207 - see Slwtts ments and a violoncello, and great IruH (Jo. V. Inglis (1882) 7 App. C'a. noise, with shouting and cracking (.Se.) at p. 528. of whips." (<) Komilly if. K., CV2«)yjv. £'(//(- ((/I ll'ulkcr v. Brewster (1867,1 herl {1S67) L. E. 3 Eq. at p. 412. L. E. 5 Eip 24, y7 L. J. Cli. 33. It (tt) SoUau V. Dc Held (1851) 2 was not decided whether the noise Sim. K. S. 133. The bells belonged would alone have been n nuisance, to a Roman Catholic church; the but AViekens V.-C. strongly inclined judgment points out (at p. 160) that to think it would, see L. E. 5 Eip such a building is not a cliurch iu at p. 34. WHAT AWOl'NTS TO NUISANCE. 3.97 a nuisance though it may produce more or less noise and inconvenience to a neighbour. But the conversion of part of a house to an unusual purpose, or the simple maintenance of an arrangement -which offends neigh- bours by noise or otherwise to an unusual and excessive extent, may be an actionable nuisance. Many houses have stables attached to them, but the man who turns the whole ground floor of a London house into a stable, or otherwise keeps a stable so near a neighbour's living rooms that the inhabitants are disturbed all night (even though he has done nothing beyond using the arrange- ments of the house as he found them), does so at his own risk (z). " In making out a case of nuisance of this character, there are always two things to be considered, the right of the plaintiff, and the right of the defendant. If the houses adjoining each other are so built that from the commencement of their existence it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for which it and all the different parts of it were constructed, then so long as the liouse is so used there is nothing that can be regarded in law as a nuisance which the other party has a right to prevent. But, on the other hand, if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property ; and his neighbour, showing substantial injury, is entitled to protection " (a). (f) "Where a distinct private right is infringed, though Injury common (s) Ball V. Urnj (1873) L. K. 8 (a) Lord Selbovne L. C, L. R. Ch. 467 ; Brodcr v. Saillard (1876) 8 Ch. at p. 169. ■2 Ch. D. 692, 45 L. J. Ch. 414. 398 NUISANCE. *° t'"^ it be only a right enjoyed in common \Yith other persons, with it is immaterial that the i^laintiff suffered no specific injury beyond those other persons, or no specific injurj^ at all. Thus any one commoner can sue a stranger ^Yho lets his cattle depasture the common (b) ; and any one of a number of inhabitants entited by local custom to a particular water supply can sue a neighbour who obstructs that supply (c). It should seem from the ratio dccidcittJi of the House of Lords in L>/on v. Fishmongers' Contpaiii/ (d), that the rights of access to a highway or a navigable river incident to the occupation of tenements thereto adjacent are private rights within the meaning of this rule (e). Injury (g) A causo of action for nuisance may be created by caused by . indcpeu- independent acts of different persons, though the acts of or defaults ^^^y '^^^^ °^ tliose persoiis wouM not amount to a nuisance, of differ- " Suppose One person leaves a wheelbarrow standing on sons. a way, that may cause no appreciable inconvenience, but if a hundred do so, that may cause a serious incon- venience, which a person entitled to the use of the way has a right to prevent ; and it is no defence to any one person among the hundred to say that what he does causes of itself no damage to the complainant " (/). But this does not mean that a plaintiff may make two or more independent wrong-doers co-defendants in a single action for damages, whatever the rule may be where only an injunction is claimed (g). (A) Notes to IMlor v. Spatcmaii, (/) Thoiye v. Brumfitt (1873) 1 Wms. Saund. 626. L. R. 8 Cli. 650, 656, per James L. J. , (c) Harrop v. Himt (1868) L. P>. followed by Cliitty J. in LamUon v. 4 Ex. 43, 38 L. J. Ex. 1. MeJlish [1 894] 3 Cli. 163, 63 L. J. Cli. (d) 1 App. Ca. 662. 929 (a case of nuisance by noise). {«) Fritz V. Eohson (1880) 14 {g) SinlhrY. G. IF. 72. Co. [1895] Cli.D. 542, 49 L. J. Oil. 321,s!v)ro, 2 Q. B. 688, 65 L. J. Q. B. 26, p. 388. affirmed in H. L. [1896] A. C. 450, OBSTRUCTION OF LIGHTS. 399 Those wlio create a nuisance by their own acts are none the less Hable because the nuisance Avould have been obviated or removed if other parties, sueli as local authorities, had thought fit to exercise their powers in that behalf (70. A species of nuisance which has become prominent in Obstmc- , . T tion of modern law, by reason of the mcreased closeness and lights. height of buildings in towns, is the obstruction of light : often the phrase " light and air " is used, but the addition is useless if not misleading, inasmuch as a right to the access of air over a neighbour's land (otherwise than in some definite direction to some particular place) (i) is not known to the law as a subject of property (A). It seems proper (though at the risk of digressing from the law of Torts into the law of Easements) to state here the rules on this head as settled by the decisions of the last thirty years or thereabouts. The right to light, to begin with, is not a natural right Nature of the right. incident to the ownership of windows, but an easement to which title must be shown by grant (l), express or 65 L. J. Q. B. 462. Qii. as to the v. Temmxt (1873) L. R. 9 Cli. at rule in Scottish procedure, per Lord p. 221 ; IVehh v. Bird (1862) Ex. Cli. Sliand [1896] A. C. at p. 4.!.5. 13 C. B. N. S. 841, 31 L. J. C. P. (li) Ogston V. Aberdeen District 335 ; Bryant v. Lcfcvcr (1879) 4 J')-amw«?ys Co. [1897] A. C. 110. C. P. Div. 172, especially per (i) Chastey v . Achkmd [1895] 2 Cotton L. J. at p. 180, 48 L. J. Ch. Ch. 389, 64 L. J. Q. B. 523, 0. A., 380 ; Harris v. Dc Pinna (1886) 33 may probably be taken as correctly Cli. Div. 238, per Chitty J. at stating the general law to this p. 250, and Cotton L. J. at p. 259. extent, though the House of Lords A personal right to access of air was prepared to reverse the decision can of course be created as between on the somewhat peculiar facts of parties, if they choose, by way of the case. After argument in H. L. covenant. the parties came to terms and the (I) Notwithstanding the doubts appeal was withdrawn by consent expressed by Littledale J. in Moore [1897] A. C. 155. V. Sawson (1824) 3 B. & C. at (/fc) City of London Brewery Co. p. 340, 27 R. R. 382 ; see per Loul tion is a wrong. -iOO XUISANCE. implied, or by prescription at common law, or under the Prescription Act. The Prescription Act has not altered the natm-e or extent of the right, but has only provided a new mode of acquiring and claiming it (nt), without taking away any mode which existed at common law (»)■ Tlie right can be claimed only in respect of a building ; the use of an open piece of ground for a purpose requiring light will not create an easement against an adjacent owner (o). Any sub- Assumiug the right to be established, there is a diminu- wrongful disturbance if the building in respect of which it exists is so far deprived of access of light as to render it materially less fit for comfortable or beneficial use or enjoyment in its existing condition ; if a dwelling-house, for ordinary habitation ; if a warehouse or shop, for the conduct of business (jj). This does not mean that an obstruction is not wrongful if it leaves sufficient light for the conduct of the business or occupation carried in the dominant tenement for the time being. The question is not what is the least amount of light the plaintiff can live or work with, but whether the light, as his tenement was entitled to it and enjoyed it, has been substantially diminished. Even if a subdued or reflected light is better for the plaintiff's Selborne, Dalton v. Angus (1881) the formerly accustomed method of App. Ca. at p. 794, and Lord claiming under the fiction of a lost Blackburn, ih. S23, and the judg- grant appears to be obsolete. nients and opinions in that case (o) See Poife v. .S'//i///t (1868)L. E. ^Mssim as to the peculiar character ti Kq. 311, 318, 38 L. J. Cli. 58. of negative easements. As to what is a building within the (•»4) Kelk V. Pcarsmi (1871) L. U. Act, Clifford v. Hott [1899] 1 Ch. t! CI;, at pp. 811, 813, cf. L. R. 9 698, 68 L. J. Ch. 332. Ch. -210. (2A A''-'/^- V. Pearson (1871) L. R. 6 (/t) Aynslcy v. Glnrn- (1875) L. Ch.S09,SU ; Citijof London JJi;'in-ry 1;. 10 Ch. 283, 44 L. J. Ch. 523. Co. \. Trn>iant{lS7S)L.Vi. 9 Ch. nt .Since the Prescription Act, however, p. 216, 43 L. J. Ch. 457. OBSTRUCTION OF LIGHTS. 401 business than a direct one, he is not the less entitled to regulate his light for himself (q). For some years it was supposed, by analogy to a Supposed regulation in one of the Metropolitan Local Manage- presump- ment Acts as to the proportion between the height of ti™^sto new buildings and tlie width of streets (r), that a build- -15°. ing did not constitute a material obstruction in the eye of the law, or at least was presumed not to be such, if its elevation subtended an angle not exceeding 45° at the base of the light alleged to be obstructed, or as it was sometimes put, left 45° of light to the plaintiff. But it has been conclusively declared by the Court of Appeal that there is no such rule (s). Every case must be dealt with on its own facts. The statutory regulation is framed on considerations of general public convenience, irrespective of private titles. ^Vhere an individual is entitled to more light than the statute would secure for him, there is no warrant in the statute, or in anything that can be thence inferred, for depriving him of it. An existing right to light is not lost by enlarging, Enlarge- rebuilding, or altering (t) the windows for which access alteration of lights. (g) Yates v. JacJc (1866) L. R. 1 and in Lazarus v. Artistic Photo- Ch. 295. Lanfranchi v. Mackciuic, graphic Co. [1897] 2 Ch. 214, 66 L. J. L. R. 4 Eq. 421, 36 L. J. Cli. 518 Ch. £22, it was not followed. See, (1867, before Malins. V.-C.) seems however, IVarren v. Broivn [1900] t:, have been decided, on the whole, 2 Q. B. 722, 69 L. J. Q. B. 842. on the ground that there was not Cp. Moore v. Mall (1878) 3 (). B. D. any material diminution. So far as 178, 47 L. J. ().. B. 334; Dicker y. it suggests that there is a distinction Fv/iliam (1890) 63 L. T. 379. in law between ordinary and extra- (?•) 25 & 26 Vict. c. 102, s. 85. ordinary amounts of light, or tliat (s) Parker v. First Avenue UulA u. plaintiff claiming what is called Co. (1883) 24 Ch. Div. 282 ; Ecch- an extraordinary amount ought to siastical Coinmisaioners v. Kino show that the defendant had notice (1880) 14 Ch. Div. 213, 49 L. J. of the nature of his business, it Ch. 529. cannot be accepted as authority, [t) Tcqiliiifj v. Jones (1865) 11 P.T. D D 402 NUISANCE. of light is claimed. So long as the ancient lights, or a Hubstantial part thereof (ii), remain substantially capable of continuous enjoyment (x), so long the existing right continues and is protected by the same remedies (ij). And an existing right to light is not lost by interruption which is not continuous in time and quantity but tem- porary and of fluctuating amount (£■). It makes no difference that the owner of a servient tenement may, by the situation and arrangement of the buildings, be unable to prevent a right being acquired in respect of the new light otherwise than by obstructing the old light also (a). For there is no such thing as a specific right to obstruct new lights. A man may build on his own land, and he may build so as to darken any light which is not ancient (as on the other hand it is undoubted law that his neighbour may open lights H. L. C. 290, 34 L. J. C. P. 342 ; .lyiisleyv. Olorcr{lS7i-5) L. R. 18 Eq. 544, 43 L. J. Ch. 777, L. E. 10 Ch. 283, 44 L. J. Ch. 523 ; Ecde- siuslical Commissioners v. Kbio (1880) 14 Ch. Div. 213 ; Greenwood V. Hornseij (1886) 33 Ch. D. 471, 55 L. J. Ch. 917. It is not neces- sary to prove an intention of pre- serving the ancient lights : Smith v. Jiaxter [1900] 2 Ch. 138, 69 L. J. Cli. 437. [u] Newson v. Pender (1884) 27 Ch. Div. 43, 61. It is not neces- sary that the "structural identity " of the old windows should be pre- served ; the right is to light as measured by the ancient apertures, but not merely as incident to certain defined apertures in a certain place : Scoitv. P«p(!(1886)31 Ch. Div. 554, 55 L. J. Ch.426 ; National Provincial Plate Glass Insurance Co. v. Pruden- tial Assurance Co. (1877) 6 Ch. D. 757, 46 L. J. Ch. 871. But there must at all events be adeHnitemode of access: Harris \'. De i'(?i«a(1886) 33 Ch. Div. 238, 56 L. J. Ch. 344. (x) The alteration or rebuilding must be continuous enough to show that the right is not abandoned ; see Moore v. liamson (1824) 3 B. & C. 332, 27 R. R. 375. All the local circumstances will he con- sidered : Pullers V. Dickinson {18S6) 29 Ch. D. 15,5, 54 L. J. Ch. 776. There must be some specific identi- fication of the old light as coincident with the new ■ Pendarves v. ilonro [1892] 1 Ch, 611, 61 L. J. Ch. 494. (!/) Stai.jht V. Burn (1869) L. R. 5 Ch. per Gilfard L. J. at p. 167. (i) Presland v. Pingham (1889) 41 Ch. Div. 268. {a) Tabling v. Jones (1865) 11 H. D. C. 290, 34 L. J. C. P. 342. JEARKET OR FERRY. -103 overlooking his land), but he must do it so as not inter- fere with lights in respect of which a right has been acquired. Disturbing the private franchise of a market or a "Nui- j. . Ill . » . . sauce " to terry is commonly reckoned a species oi nuisance in market or our books (h). But this classification seems rather to ^^''^■''' depend on accidents of procedure than on any sub- stantial resemblance between interference with peculiar rights of this kind and such injuries to the enjoyment of common rights of property as we have been considering. The quasi-proprietary right to a market or ferry is of such a nature that the kind of disturbance called "nuisance " in the old books is the only way in which it can be violated at all. If disturbing a market is a nuisance, an infringement of copyright must be a nuisance too, unless the term is to be conventionally restricted to the violation of rights not depending on any statute. The remedies for nuisance are threefold : abatement, Remedies damages, and injunction : of which the first is by the nuisance, act of the party aggrieved, the others by process of law. Damages are recoverable in all cases where nuisance is proved, but in many cases are not an adequate remedy. The more stringent remedy by injunction is available in such cases, and often takes the place of abatement where that would be too hazardous a proceeding. The abatement of obstructions to highways, and the Abate- like, is still of importance as a means of asserting public rights. Private rights which tend to the benefit of the public, or a considerable class of persons, such as rights of common, have within recent times been successfully maintained in the same manner, though not without the (J) l^.lackst. Comm. iii. 218. DD 2 404 NUISANCE. addition of judicial proceedings (c). It is decided that not only walls, fences, and such like encroachments which obstruct rights of common' may be removed, but a house wrongfully built on a common may be pulled down by a commoner if it is not removed after notice (rf) within a reasonable time (c). If another man's tree overhangs my land, I may law- fully cut the overhanging branches (/) ; and in these cases where the nuisance is in the nature of a trespass, and can be abated without entering on another's land, the wrong-doer is not entitled to notice (g). But if the nuisance is on the wrong-doer's own tenement, he ought first to be warned and required to abate it himself (/;)- After notice and refusal, entry on the land to abate the nuisance may be justified ; but it is a hazardous course at best for a man thus to take the law into his own hands, and in modern times it can seldom, if ever, be advisable. Notice to In the case of abating nuisances to a right of common, wrong- doer. (c) Sinithv. Earl Smcniow (1869) cp. Lancv. C"«/)Sf2/[1891]3 Ch. 411. L. R. 9 Eq. 241 (the case of Berk- (/) Norris v. Balder, 1 KoUe's hampstead Common) : "Williams on Rep. 393, per Croke ; Lonsdale v. Rights of Common, 13,5. Kelson, 'J. B. & C. 311, 26 R. R. 370, (d) Pulling down the house with- per Best J. out notice while there are people in ('. Sobson (1880) 14 Ch. D. 542, 5.57) when damages were given iu addition to or in substitution for an injunction under Lord Cairns' Act, 21 & 22 Vict. c. 27. This Act is now repealed by the Statute Law Eevision -.nid Civil Procedure Act, 1883, 46 & 47 Vict. c. 49, but the power conferred by it still exists, and is applicable in such actions as formerly would have been Chancery suits for an injunc- tion ; and the result may be to dispense with statutory require- ments as to notice of action, &c. which would not have applied to such suits : Chapman v. Auckland Union (1889) 23 Q. B. Div. 294, 299, 300, 58 L. J. Q. B. 504. The Act did not confer any power to give damages where no actionable wrong had been done, e.g., in a case of merely threatened injury : Dreyfus v. Peruvian Guano Co. (1889) 43 Ch. Div. 316, 333, 342. Nor does the jurisdiction to award damages imply discretion to refuse an injunc- tion incases, especially of continuing nuisance, where the plaintiff is en- titled to that remedy under the settled principles of equity : Shelfer V. City of London Electric Lighting Co. [1^0. 1) [1895] 1 Ch. 287, 64 L. J. Ch. 216, C. A. (0 Kg. Kcllc V. Pearson (1871) L. K. 6 Ch. 809. The order of the Court is now expressed in direct affirmative terms : Jackson v. Nor- mandy Brick Co. [1899] 1 Ch. 438, 68 L. J. Ch. 407, C. A., see reporter's note [1899] 1 Ch. at p. 439. (it) The form of order does not go to prohibit the carrying on of such and such operations absolutel}', but " so as to cause a nuisance to the plaintiff," or like words : see Livgivood v. Stowmarkct Co. (1865) L. E. 1 Eq. 77, 336, and other precedents in Seton, Pt. II. ch. 5, b. 5 ; cp. Fleming v. Hisloii (1886) 11 App. Ca. (Sc.) 686. (.r) Even a mandatory injunction INJUiNCTIONS. 409 its orders may be either absolute or conditional upon the fulfilment by either or both of the parties of such undertakings as appear just in the particular case (//). It is a matter of common learning and practice that an injunction is not, like damages, a remedy (as it is said) i'x di'hito iustitiae. "Whether it shall be granted or not in a given case is in the judicial discretion of the Court, now guided by principles which have become pretty well settled. In order to obtain an injunction it must be shown that the injury complained of as present or impending is such as by reason of its gravity, or its permanent character, or both, cannot be adequately com- pensated in damages (z). The injury must be either irre- parable or continuous (a). This remedy is therefore not appropriate for damage which is in its nature temporary and intermittent (b), or is accidental and occasional (c), or for an interference with legal rights which is trifling in amount and effect (), in ^Yhich Mr. Justice Mellor gave a very elaborate charge to the jury, which was afterwards the subject of very elaborate discussion and consideration in the House of Lords. The Master of the Eolls derived from that case this principle : that in any case of this kind, where the plaintiff was seeking to interfere with a great work carried on, so far as the work itself is concerned, in the normal and usual manner, the plaintiff must show substantial, or, as the Master of the Eolls expressed it, ' visible ' damage. The term ' visible ' was very much quarrelled with before us, as not being accurate in point of law. It was stated that the word used in the judgment of the Lord Chancellor was ' sensible.' I do not think that there is much difference between the two expressions. When the Master of the Eolls said that the damage must be visible, it appears to me that he was quite right ; and as I understand the proposition, it amounts to this, that, although when you once establish the fact of actual substantial damage, it is quite right and legitimate to have recourse to scientific evidence as to the causes of that damage, still, if you are obliged to start with scientific evidence, such as the microscope of the naturalist, or the tests of the chemist, for the purposes of establishing the damage itself, that evidence will not suffice. The damage must be such as can be shown by a plain witness to a plain common juryman. " The damage must also be substantial, and it must be, in my view, actual ; that is to saj', the Court has, in dealing with questions of this kind, no right to take into account contingent, prospective, or remote damage. I would illustrate this by analogy. The law does not take (i) 11 H. L. C. 642 (1865). 412 NUISANCE. notice of the imperceptible accretions to a river bank, or to the sea-shore, although after the lapse of years they become perfectly measurable and ascertainable ; and if in the course of nature the thing itself is so imperceptible, so slow, and so gradual as to require a great lapse of time before the results are made palpable to the ordinary senses of mankind, the law disregards that kind of imperceptible operation. So, if it were made out that every minute a millionth of a grain of poison were absorbed by a tree, or a millionth of a grain of dust deposited upon a tree, that would not afford a ground for interfering, although after the lapse of a million minutes the grains of poison or the grains of dust could be easily detected. " It would have been wrong, as it seems to me, for this Court in the reign of Henry YI. to have interfered with the further use of sea coal in London, because it had been ascertained to their satisfaction, or predicted to their satisfaction, that by the reign of Queen Victoria both white and red roses would have ceased to bloom in the Temple Gardens. If some picturesque haven opens its arms to invite the commerce of the world, it is not for this Court to forbid the embrace, although the fruit of it should be the sights, and sounds, and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitudes. " With respect to this particular property before us, I observe that the defendants have established themselves on a peninsula which extends far into the heart of the ornamental and picturesque grounds of the plaintiff. If, instead of erecting coke ovens at that spot, they had been minded, as apparently some persons in the neighbourhood on the other side have done, to import ironstone, and to DAMAGE : ABATEMENT. 413 erect smelting furnaces, forges, and mills, and had filled the whole of the peninsula with a mining- and manu- facturing village, with beershops, and pig-styes, and dog-kennels, which would have utterly destroyed the beauty and the amenity of the plaintiff's ground, this Court could not, in my judgment, have interfered. A man to whom Providence has given an estate, under which there are veins of coal worth perhaps hundreds or thousands of pounds per acre, must take the gift with the consequences and concomitants of the mineral wealth in which he is a participant " (A). It is not a necessary condition of obtaining an injunc- tion to show material specific damage. Continuous interference with a legal right in a manner capable of producing material damage is enough (/). The difficulty or expense which the party liable for Difficult^' ' , , . . . . , , or expense a nuisance may have to incur in removing it makes no of abate- difference to his liability, any more than a debtor's bein" ™^'^* ^° •' ' •' o answer. unable to pay makes default in payment the less a breach of contract. And this principle applies not only to the right in itself, but to the remedy by injunction. The Court will use a discretion in granting reasonable time for the execution of its orders, or extending that time afterwards on cause shown. But where an injunction is the only adequate remedy for the plaintiff, the trouble and expense to which the defendant may be put in obeying the order of the Court are in themselves no reason for withholding it()»)- (k) James L. J., Snlria \. North Co. (1877) 5Ch. D. 769, 46 L.J. Ch. Bidiiccpeth Coal Co. (1874) L. R. 9 7711, Sliclfcr v. Cily of London Cli. 705, at p. 708. EUdrlc LlijUiny Co. [1895] 1 Ch. {I) Chm-es v. Staffordshire Potlcrir.': 287, 64 L. J. Cli. 216, C. A. Waterworks Co. (1872) L. R. 8 Ch. (m) A.-G. v. Colncij Hnlch 125, 142, 42 L. J. Ch. 107; cp. i«»(f//c' ./«//»/» (1868) L. R. 4 Ch. rcnnhifjloii v. Brinsop Hall Coal 146. 414 NUISANCE. Parties As to the person entitled to sue for a nuisance : as entitled to . • i i i ■ sue for regards interference with the actual enjoyment oi pro- nmsance. perty, only the tenant in possession can sue ; but the landlord or reversioner can sue if the injury is of such a nature as to affect his estate, say by permanent depre- ciation of the property, or by setting up an adverse claim of right (n). A lessee who has underlet cannot sue alone in respect of a temporary nuisance, though he may properly sue as co-plaintiff with the actual occupier (o). A nuisance caused by the improper use of a highway, such as keeping carts and vans standing an unreasonable time, is not one for which a reversioner can sue ; for he suffers no present damage, and, inasmuch as no length of time will justify a public nuisance, he is in no danger of an adverse right being established {j}). The reversioner cannot sue in respect of a nuisance in its nature temporary, such as noise and smoke, even if the nuisance drives away his tenants ((/), or by reason thereof he can get only a reduced rent on the renewal of the tenancy (r). " Since, in order to give a reversioner an action of this kind, there must be some injury done to the inheritance, the necessity is involved of the injury being of a permanent character" (»). But as a matter of pleading it is sufficient for the reversioner to allege a state of things which is capable of being permanently injurious (t). (n) See Hicey on Parties, 340. C. P). X. S. 347, 26 L. J. C. P. 50. (o) Joves V. Chappell (is?.*;) L. R. (r) .Viivifordv. (hfnrd, d.r. R. Co. ■20 Eq. 639, 44 L. J. Ch. 658, (1856) 1 H. & N. 34, 25 L. J. Ex. wliicli also discredits the siipposi- 265. tion tliat a weekly tenant cannot (s) Per Cur. 1 C. B. X. S. at p. sue. 361. {p) iJottv Shoolbrcd {1S7 5) h.li. {t) Mclivi.oUtiui Assuciution v. 20 Eq. 22, 44 L. J. Cli. 384. I'etch US58) 5 C. B. X. S. .504, 27 il) Simjjson v. Savage (1856) 1 L. J. C. P. 330. PARTIES. 415 As to liability : The person primarily liable for a Parties nuisance is he who actually creates it, whether on his own land or not («)• The owner or occupier of land on which a nuisance is created, though not by himself or by his servants, may also be liable in certain conditions. If a man lets a house or land with a nuisance on it, he as well as the lessee is answerable for the continuance thereof (x), if it is caused by the omission of repairs which as between himself and the tenant he is bound to do (.r) , but not otherwise (i/) . If the landlord has not agreed to repair, he is not liable for defects of repair happening during the tenancy, even if he habitually looks to the repairs in fact (,-~). It seems the better opinion that where the tenant is bound to repair, the lessor's knowledge, at the time of letting, of tlie state of the property demised makes no difference, and that only something amounting to an authority to continue the nuisance will make him liable (y) . Again, an occupier who by licence (not parting with (m) See Tlwmpsonv. Gihsoni^iH) the Court : see 5 B. & S. 485, and 7 il. & W. 456. the text of the undelivered judf;- (x) Todd V. Flight (1860) 9 ment in 9 B. & S. 15. How far C. B. N. S. 377, 30 L. J. C. P. 21. this applies to a weekly tenancy, The extension of this in Gandy Y. quaere: see Bowen v. Aadrrsoii Jxihhcr (1864) 5 B. & S. 78, 33 [1894] 1 Q. B. 164. L. J. Q. B. 151, by treating the (i/) Prelty v. Bkkmnre (1873) landlord's passive continuance of a L. E. 8 C. P. 401 ; Gwinnell v. yearly tenancy as equivalent to a Earner (1875) L. E. 10 C. P. 658. re-lettino', so as to make him liable (s) Nelson v. Liverpool Brewery for a nuisance created since the Co. (1877) 2 C. P. D. 311, 46 original demise, is inconsistent L. J. C. P. 675 : cp. Rieh v. Baster- with the later authorities cited field (1847) i C. B. 783, 16 below : and in that case a judg- L. J. C. P. 273. And see Lane v. ment reversing the decision was Cox [1897] 1 Q. B. 415, 66 actually prepared for delivery in L. J. Q. B. 193, C. A., which, the Ex. Ch., bnt the plaintiff however, rather belongs to the meanwhile agreed to a stet ^iro- head of special duties considered cessus on the recommendation of in Ch. XII. below. 416 NUISANCE. the possession) authorizes the doing on his 'land of something whereby a nuisance is created is hable (a). But a lessor is not liable merely because he has demised to a tenant something capable of being so used as to create a nuisance, and the tenant has so used it(h). Nor is an owner not in possession bound to take any active steps to remove a nuisance which has been created on his land without his authority and against his will (c) . If one who has erected a nuisance on his land conveys the land to a purchaser who continues the nuisance, the vendor remains liable (d) , and the purchaser is also liable if on request he does not remove it {e). {a) White v. Jameson (1874) defendants had given the plaintiff L. E. 18 Eq. 303. licence to ahate the nuisance him- [b] Rich V. Basterfield (1847) 4 self so far as they were concerned. C. B. 783, 16 L. J. C. P. 273. (d) Hosewell v. Prior (1701) 12 (c) Saxby v. Manchester tfc Shef- Mod. 635. field E. Co. (1869) L. K. 4 C. P. (e) Pcnriiddock' s ea. 5 Co. Eep. 198, 38 L. J. C. P. 153, where the 101 a. 417 CHAPTEE XI. XEGLIGEXCE («). I. — The (leiirral Conception. For acts and their results (within the Hmits expressed Omission by the term "natural and probable consequences," and with discussed in a foregoing chapter, and subject to the ^rou^/of to degrees of different degrees or kinds of negligence, notwithstanding gence. ^^^ ^^^ ^^ ^^'^'^'^ epithets as "gross," "ordinary," or " slight," and the misplaced ingenuity that has been expended on endeavours to bring our system into line with either real or imaginary distinctions in ancient or modern Eoman law. " Gross negligence is a relative term. It is doubtless to be understood as meaning Ip) Cummoniocalth \. Pierce (1884) 138 Mass. 105, 52 Am. Eep. -Itii, per Holmes J. See too per Bayley J. in Junes v. Mini (1822) a B. & Aid. at pp. 845-8 ; 24 K. E. £85-6. {g) Bayley J., 5 B. & Aid. at p. 846 ; 24 E. E. 586. ('/•) See p. 27, above. BUKDEX OF PROOF. 425 a greater want of care than is implied by the term ' ordinary neghgence " ; but, after all, it means the absence of the care that was necessary under the circumstances " (s). II. — Kvidou-c of Xcfilif/cnct'. Due care and caution, as we have seen, is the diligence Ncgii- of a reasonable man, and includes reasonable competence question of mixed fact and in cases where special competence is needful to ensure safety. Whether due care and caution have been used i^"'- in a given case is, by the nature of things, a question of fact. But it is not a pure question of fact in the sense of being open as a matter of course and without limit. Xot everj^ one who suffers harm which he thinks can be set down to his neighbour's default is thereby entitled to the chance of a jurj^ giving him damages. The field of inquiry has limits defined, or capable of definition, by legal principle and judicial discussion. Before the Court or the jury can proceed to pass upon the facts alleged by the plaintiff, the Court must be satisfied that those facts, if proved, are in law capable of supporting the inference that the defendant has failed in what the law requires at his hands. In the current forensic phrase, there must be evidence of negligence. The peculiar relation of the judge to the jury in our common law system has given occasion for frequent and minute discussion on the propriety of leaving or not leaving for the decision of the jury the facts alleged by the plaintiff as proof of negli- gence. Such discussions are not carried on in the manner best fitted to promote the clear statement of principles ; it is difficult to sum up their results, and not always easy to reconcile them. (s) Milwaukee, d.-c. li. li. Co. v. Arms (1875) 91 U. S. 489, 495. •i26 KEGLIGENCE. The tendency of modern rulings of Coiu-ts of Appeal has been, if not to enlarge the province of the jury, to arrest the process of curtailing it. Some distinct boundaries, however, are established. Burden of Where there is no contract between the parties, the ^^°° ■ burden of proof is on him who complains of negligence. He must not only show that he suffered harm in such a manner that it might be caused by the defendant's negligence ; he must show that it was so caused, and to do this he must prove facts inconsistent with due diligence on the part of the defendant. "Where the evidence given is equally consistent with the existence or non-existence of negligence, it is not competent to the judge to leave the matter to the jury"(i). Nothing can be inferred, for example, from the bare fact that a foot-passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing (»)• Those who pass and repass in frequented roads are bound to use due care, be it on foot or on horseback, or with carriages : and before one can complain of another, he must show wherein care was wanting. " When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale " (x). It cannot be assumed, in the absence of all explanation, that a train ran over a man more than the man ran against the train (i/). If the carriage was being driven furiously, or on the wrong side of the road, that is (0 Williams J. in Sanimack v. {u) Wakclm v. L. <£■ S. W. 11. 7Fhite{l&e2} 11 C. B. N. S. 588, Co., last note. 31 L. J. C. P. 129; Cotton y. IFood [x) Erie C. J., Cotton v. Wood, (1860) 8 C. B. K. S. 568, 29 L. J. note {t) above. C. P. 333 ; Wakelin v. L. i S. IF. (y) Lord Halsbmy, li App. Ca. R. Co. (1886) 12 App. Ca. 41. at p. 15. BURDEN OF PROOF. 427 another matter. It is different, again, where the defen- dant's acts have created a public nuisance : there it only has to be considered whether there is evidence from ■which a jury can reasonably tind that the damage com- plamed of was caused by the nuisance (,.-) ; such a case, however, is not really a case of negligence at all. But the addition of an ambiguous circumstance to eke out defective evidence of negligence will not do. Thus in Cotton v. Wood (a) the plaintiff's wife, having safely crossed in front of an omnibus, was startled by some other carriage, and ran back ; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace. Here there was no evidence of negligence on the part of the de- fendant, the owner of the omnibus (h). His servants, on the plaintiff's own showing, had not done anything inconsistent with due care. There was no proof that the driver turned round to speak to the conductor other- wise than for a lawful or necessary purpose, or had any reason to apprehend that somebody would run under the horses' feet at that particular moment. Again, if a horse being ridden (c) or driven {d) in an ordinary (;) Fenaa x. Clare 6j Co. [1895] (ft) It would be conveniunt if one 1 (^ B. 199, tj4 L. J. Q. B. 238 could in these runuiug-down cases (pliiiutiff, a girl liot quite six years on land personify the vehicle, like old, found hurt as if by spikes on a ship. top of low wall, had been seen (c) Hammaclc v. IVhite (IH&I) \1 climbing on the wall shortly before, C. B. K. S. 588, 31 L. J. C. V\ 129. no dii-ect evidence of accident, {d) Mauzoni v. Douglas (1880) 6 county court jury- found spikes a Q. B. D. 145, 50 L. J. Q. B. 289, nuisance, injury caused by them, where it was unsuccessfully at- no contributory negligence : judg- tempted to shake the authority of ment for plaintiff affirmed). Hammack v. White. The cases {a) (1860) 8 C. B. N. S. 568, 29 relied on for that purpose belong to L. J. C. P. 333. a special class. 428 NEGLIGENCE. manner runs away without apparent cause, and in spite of the rider's or driver's efforts trespasses on the foot- way and there does damage, this is not evidence of negligence. The plaintiff ought to show positively want of care, or want of skill, or that the owner or person in charge of the horse knew it to be unmanageable. " To hold that the mere fact of a horse bolting is j^er se evidence of negligence would be mere reckless guess- work " (e). Sometimes it is said that the burden of proof is on the plaintiff to show that he was himself using due care, and it has been attempted to make this supposed principle a guide to the result to be arrived at in cases where the defence of contributory negligence is set up. This view seems to be rather prevalent in America if), but in the present writer's opinion it is unsound. The current of English authority is against it, and it has been distinctly rejected in the House of Lords (g). What we consider to be the true view of contributory negligence will be presently explained. Where This general principle has to be modified where there 4-1-1 p-iip m . contract ^^ a relation of contract between the parties, and (it takin^'^'^" ^^^'^'^^'^ Seem) when there is a personal undertaking with- out a contract. A coach runs against a cart ; the cart is damaged, the coach is upset, and a passenger in the coach is hurt. The owner of the cart must prove that the driver of the coach was in fault. But the passenger in the coach can say to the owner : ' ' You promised for gain and reward to bring me safely to my journey's end^ (e) LindleyJ.,6Q. B. D.atp. 153. pp. 53—56. (/) S.g. Mtir23liv v. Dcane, 101 (cj) Wakelin v. L. iC i'. IF. li. Cu. Mass. 455. See G. Hay, jmir., (1886) 12 App. Ca, 41, 47, 51, 56 "The Law of Kaihvay Accidents L. J. Q. B. 229, per Lord Watsou in Massachusetts" (Boston, 1897), and Lord Fitzgerald. ■WHERE CONTRACT OR UNDERTAKING. 429 SO far as reasonable care and skill could attain it. Here am I thrown out on the road with a broken head. Your contract is not performed ; it is for you to show that the misadventure is due to a cause for which you are not answerable "' (/(). When a railway train runs off the line, or runs into another train, both permanent way and carriages, or both trains (as the case may be) being under the same company's control, these facts, if unexplained, are as between the company and a passenger evidence of negligence ((')■ In like manner, if a man has undertaken, whether for reward or not, to do something requiring special skill, he may fairly be called on, if things go wrong, to prove his competence : though if he is a competent man, the mere fact of a mishap (being of a kind that even a competent person is exposed to) would of itself be no evidence of negligence. We shall see later that, where special duties of safe keeping or repair are imposed by the policy of the law, the fact of an accident happemng is held, in the same manner, to cast the burden of proving diligence on the person who is answerable for it, or in other words raises a presumption of negligence. This is said without prejudice to the yet stricter rule of liability that holds in certain cases. Again there is a presumption of negligence when the Things cause of the mischief was apparently under the con- fendant^ trol of the defendant or his servants. The rule was control. (/i) In other words (to anticipate (i) Carpiir v. Loinhm tfc Brighton part of a special discussion) the ohli- R. Co. (1S4J) 5 <>). B. 747, 7')1, tfation does not become greater if we 13 L. J. <}. B. 13S ; Skiiuirr v. regard the liability as ex delicto L. B. ,t' ,S'. C. 11. Cn. (1850) 5 Ex. instead of ex contractu ; but neither 787. does it become less. 430 NEGLIGENCE. declared by the Exchequer Chamber in 1865 (/>), in these tferms : — " There must be reasonable evidence of negligence. "But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Therefore if I am lawfully and as of right (?) passing in a place where people are handling heavy goods, and goods being lowered by a crane fall upon me and knock me down, this is evidence of negligence against the employer of the men who are working the crane (h;)- Common course of affairs judicially noticed. The Court will take judicial notice of what happens in the ordinary course of things, at all events to the extent of using their knowledge of the common affairs of life to complete or correct what is stated hj witnesses. Judges do not affect, for example, to be ignorant that the slipping of one passenger out of several thousand in hurrying up the stairs of a railway station is not an event so much out of the run of pure accidents as to throw suspicion on the safety of the staircase (;0- On evi- dence sufficient in law, question is tor jury. When we have once got something more than an ambiguously balanced state of facts ; when the evidence, if believed, is less consistent with diligence than with (k) Scott V. London Dock Co., 3 H. & C. 596, 34 L. J. Ex. 220. (Z) Tliat is, not merely by the defendant's licence, as will be ex- plained later. {m) 3 H. & C. 696, Crompton, Byles, Blackburn, Keating J J., diss. Erie C. J. and Mellor J. ; but no dissenting judgment was delivered, nor does the precise ground of dis- sent appear. (n) Crnfter v, Mclrop. E. Co. (1866) L. R. 1 C. P. 300, 35 L. J. C. P. 132. EVIOEXCE AND PRESUMPTION. 4.31 negligence on the defendant's part, or sho\ys the non- performance of a specific positive duty laid on him by statute, contract, or otherwise ; then the judgment ^yhether the plaintiff has suffered by the defendant's negligence is a judgment of fact, and on a trial by jury must be left as such in the hands of the jury (o). The question of negligence is one of law for the Court only where the facts are such that all reasonable men must draw the same conclusion from them (j)) . It is true that the rules as to remoteness of damage set some bounds to the connexion of the defendant's negligence with the plaintiff's loss (5). But even in this respect consider- able latitude has been allowed (r). Eailway accidents have for the last fifty years or more been the most frequent occasions of defining, or attempting to define, the frontier between the province of the jury and that of the Court. Two considerable and well marked groups of cases Modern 1 1 11 railway stand out from the rest. One set may be broadly cases on described as level crossing cases, and culminated in g^-oggingg Xorth Eastern EaiUcay Compant/ v. Wanless, decided ^'"'i'.'ii'- ■J -i ■' vitation to by the House of Lords in 1874 (.s) ; the other may still alight.'' more roughly (but in a manner which readers familiar with the reports will at once understand) be called " in- vitation to alight " cases. These are now governed by Bridi V. Xorth London RmUi-aij Cmnpani/ (t), another (0) This is well put in the judg- (1874) L. R. 9 Ex. 157, 43 L. J. ment in IPCidly v. C'larJt (Penn- Ex. 105, sujim, p. 42. Cp. per sylvania, 1861) Bigelow L. C. 559. Lord Halsbury, 12 App. Ca. ut (p) Gardner v. Michigan Central p. 43. 11. R. (189-3) 150 U. S. 349, 361. (s) L. E. 7 H. L. 12, 43 L. J. (q) Metro-p. It. Co. v. Jackson Q,- B. 185. (1877) 3 App. Ca. 193, 47 L. J. ('<) L, R. 7 H. L. 213, 43 L. J. 'C. P. 303. Q. B. 151 (1873-4). (r) See TVilUams v. C. W. R. Co. 432 ^'EGLIGENCE. decision of the House of Lords which followed closely on WanJcss's case. In neither of these cases did the House of Lords intend to lay down any new rule, nor any exceptional rule as regards railway companies : yet it was found needful a few years later to restate the general principle which had been supposed to be im- pugned. This was done in Metropolitan llnihray Com- pany V. Jackson (?(). Exyiana- " The judge has a certain duty to discharge, and the *w"/"r jurors have another and a different duty. The judge '^'"- "'■ has to say whether any facts have been established Jacltxon. ■' '' by evidence from which negligence may he reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence oitglit to hi' in- ferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be main- tained distinct. It would be a serious inroad on the province of a jury, if in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jurj^ on the ground that, in his opinion, negligence ought not to be inferred ; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever " (.c). "On a trial by jury it is, I conceive, undoubted that the facts are for the jury, and the law for the judge. It (m) 3 App. Ca. 193, 47 L. J. say not wlietlier negligence ought to C. 1'. 303 (1877). be inferred, but wlietlier, as reason- (x) Lord Cairns, 3 App. Ca. at able men. they do inter it. p. I!l7. Strictly the jurors have to RAILWAY CASES : JUDGE AXD JUKY. 433 is not, however, in many cases practicable completelj' to sever the law from the facts. ' ' But I think it has always been considered a question of law to be determined by the judge, subject, of course, to review, whether there is evidence which, if it is believed, and the counter evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether, and how far, the evidence is to be believed. And if the facts as to which evidence is given are such that from them a farther inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to determine, subject to review, as a matter of law, whether from those facts that farther inference may legitimately be drawn " (y). The case itself was decided on the ground that the hurt suffered by the plaintiff was not the proximate con- sequence of any proved negligence of the defendants ; not that there was no proof of the defendants having been negligent at all, for there was evidence which, if believed, showed mismanagement, and would have been quite enough to fix on the defendant company liability to make good any damage distinctly attributable to such mismanagement as its "natural and probable" conse- quence {z). As between the plaintiff and defendant, however, evidence of negligence which cannot be reason- ably deemed the cause of his injury is plainly the same thing as a total want of evidence. Any one can see that a man whose complaint is that his thumb was crushed in the door of a railway carriage would waste his trouble in proving (for example) that the train had not a (y) Lord Blackburn, 3 App. Ca. 38 L. J. Ex. 8, which Lord Bkck- at p. 207. Cp. Ryder v. Wombwell burn goes on to cite with approval. (1868), in Ex. Ch., L. K. 4 Ex. 32, (z) Sec pp. 33, 39, above. P.T. F F 434 NEGLIGENCE. liead-light. The House of Lords determined, after no small difference of learned opinions below, that it availed him nothing to prove overcrowding and scrambling for seats. The irrelevance is more obvious in the one case than in the other, but it is only a matter of degree (a). The "level crossing " type of cases. In the "level crossing" group of cases we have some one crossing a railway at a place made and provided by the company for that purpose, and where the company is under the statutory duty of observing certain precautions. The party assumes that the line is clear ; his assumption is erroneous, and he is run down by a passing train. Here the company has not entered into any contract with him ; and he must prove either that the company did something which would lead a reasonable man to assume that the line was clear for crossing (b), or that there was something in their arrangements which made it imprac- ticable or unreasonably difficult to ascertain whether the line was clear or not. Proof of negligence in the air, so to speak, will not do. " Mere allegation or proof that the company were guilty of negligence is altogether irre- levant ; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connexion whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were (a) Gp. Pounder v. iV. H. R. Co. [1892] 1 Q. B. 385, 61 L. J. Q, B. 136 (]i]aintitf assnulted by persons who had crowded in), and Cobh v. G. jr. B. Co. [1893] 1 Q. B. 459, €2 L. J. Q. B. 335, C. A. {h) As in JFanless's care, L. R. 7 H. L. 12, 43 L. J. Q. B. 185, where the gates (intended primarily for the protection of carriage traiEc) were left open when the}' ought not to have been, so that the plaintiff was thrown off his gnard ; and in Smith V. S. E. Ry. Co. [1896] 1 Q. B. 178, 64 L. J. Q, B. 219, C. A., where it was held that there was evidence of the plaintiff having been misled by tlie gatekeeper's inaction into snp- posing that no train was approach- ing. RAILWAY CASES. 435 negligent, bvit that their negHgence caused or materially contributed to the injury " (c). What may reasonably be held to amount to such proof cannot be laid down in general terms. " You must look at each case, and all the facts of the case, before you make up your mind what the railway company ought to do " (d). But unless the plaintiff's own evidence shows that the accident was due to his own want of ordinary care (as where in broad daylight he did not look out at all) (e), the tendency of modern authority is to leave the matter very much at large for the jury. In Duhliii, Wichltur and Wcvfitrd Raibcaii C'l. V. Slattery (/), the only i^oint of negligence made against the railway company was that the train which ran over and killed the plaintiff's husband did not whistle before running through the station where he was crossing the line. It was night at the time, but not a thick night. Ten witnesses distinctly and positively testi- fied that the engine did whistle. Three swore that they did not hear it. A jury having found for the plaintiff, it was held by the majority of the House of Lords that the Court could not enter a verdict for the defendants, although they did not conceal their opinion that the actual verdict was a perverse one (c/). (c) Lord Watson, Wakelin v. L. (/) 3 App. Ca. 1155. Nearly all ii: S. W. R. Co. (1886) 12 App. Ca. the modem cases on ' ' evidence of 41, 47, 56 L. J. Q. B. 229. negligence " were cited in the argu- (d) Bowen L. J., Davey v. L. ct ment (p. 1161). Observe that the S. IV. R. Co. (1883) 12 Q. B. Di7. fiuestion of the verdict being against at p. 76. the weight of evidence was not open (c) Davey v. X. <£■ S. W. R. Co. (p. 1162). (1883) 12 Q. B. Div. 70, 53 L. J. (, 4tli ed. 27 L. J. C. P. 322. As long ago 460 NEGLIGENCE. negli- gence. caused by difficult to apply, by reason of one party's choice of alternatives, or opportunities of judgment, being affected by the conduct of the other. Such difficulties occur mostly in questions of contributory negligence. In the first place, a man who by another's want of care finds himself in a position of imminent danger cannot be held guilty of negligence merely because in that emer- gency he does not act in the best way to avoid the danger. That which appears the best way to a court examining the matter afterwards at leisure and with full knowledge is not necessarily obvious even to a prudent and skilful man on a sudden alarm. Still less can the party whose fault brought on the risk be heard to complain of the other's error of judgment. This rule has been chiefly applied in maritime cases, where a ship placed in peril by another's improper navigation has at the last moment taken a wrong course (/) : but there is authority for it elsewhere. A person who finds the gates of a level railway crossing open, and is thereby misled into thinking the line safe for crossing, is not bound to minute circumspection, and if he is run over by a train the company may be liable to him although " he did not use his faculties so clearly as he might have done under other circumstances " (i'tllicll. We have a somewhat different case when a person, having an apparent dilemma of evils or risks put before him by another's default, makes an active choice between them. The principle applied is not dissimilar ; it is not necessarily and of itself contributory negligence to do something which, apart from the state of things due to the defendant's negligence, would be imprudent. The earliest case where this point is distinctly raised and treated by a full Court is Clayards v. Dctltick (m). The plaintiff was a cab-owner. The defendants, for the purpose of making a drain, had opened a trench along the passage which afforded the only outlet from the stables occupied by the plaintiff to the street. The opening was not fenced, and the earth and gravel excavated from the trench were thrown up in a bank on that side of it where the free space was wider, thus increasing the obstruction. In this state of things the plaintiff attempted to get two of his horses out of the mews. One he succeeded in leading out over the gravel, by the advice of one of the defendants then present. With the other he failed, the rubbish giving way and letting the horse down into the trench. Neither defen- dant was present at that time (a). The jury were directed "that it could not be the plaintiff's duty to refrain altogether from coming out of the mews merely because the defendants had made the passage in some (m) 12 Q. B. 439 (1848). The It was left to tlie jury whether by rule was laid down by Lord Ellen- the defendant's fault he " was placed borough at nisi prius as early as in such a situation as to render what 1816 : Jones V. Boyce, 1 Stark. 493, he did a prudent precaution for the 18 R. R. 812, cited by Montague Smith J., L. E. 4 C. P. at p. 743. Theplaintift'wasanoutsidepassenger on a coach, and jumped off' to avoid what seemed an imminent upset ; the coach was, however, not upset. purpose of self-pre.servation." ()i) Evidence was given by the defendants, but apparently not be- lieved by the jury, that their men expressly warned the plaintiffagainst the course he took. CHOICE OF RISKS. 463 dei::ree dangerous : that the defendants ^Yere not entitled to keep the occupiers of the mews in a state of siege till the passage ^Yas declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger : though if the plaintiff had persisted in running upon a great and obvious danger, his action could not be maintained." This direction was approved. Whether the plaintiff had suffered by the defendants' negligence, or by his own rash action, was a matter of fact and of degree properly left to the jury : " the whole question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt." The decision has been adversely criticised by Lord Bramwell, but principle and authority seem on the whole to support it (o). One or two of the railway cases grouped for practical purposes under the catch- word "invitation to alight" have been decided, in part at least, on the principle that, where a passenger is under reasonable apprehension that if he does not alight at the place where he is (though an unsafe or unfit one) he will not have time to alight at all, he may be justified in taking the risk of alighting as best he can at that place (2:1) ; notwithstanding that he might, by declining that risk and letting himself be carried on to the next station, have entitled himself to recover damages for the loss of time and resulting expense (q). There has been a line of cases of this class in the State Doctrine of New York, where a view is taken less favourable to the yo^k "^ (0) See Appendix B. to Smith on no. (1876) 2 Ex. Div. 248, 46 L. J. Negligence, 2d ed. I agree with Mr. Ex.374. Smith's observations arf/7i., p. 279. (g) Contra Bramwell L. J. in {p)Ii/jbsonv. N.S.It. Co. {1S75-6) Lax v. Corporation of BarUnijtoTi L. R. 10 Q. B. 271, 274, 44 L, J. (1879) 5 Ex. D. at p. 35 ; but the Q. B. 112 (in C. A. 2 Q. B. Div. 85, last-mentioned cases had not been 46 L. J. Q. B. 50) ; Hose v. N. E. R. cited. Courts. 464 NEGLIGENCE. plaintiff than the rule of Clayards v. Detldck. If a train fails to stop, and only slackens speed, at a station where it is timed to stop, and a passenger alights from it while in motion at the invitation of the company's servants (r), the matter is for the jury ; so if a train does not stop a reasonable time for passengers to alight, and starts while one is alighting (s) . Otherwise it is held that the passenger alights at his own risk. If he wants to hold the company liable he must go on to the next station and sue for the resulting damage (t). On the other hand, where the defendant's negligence has put the plaintiff in a situation of imminent peril, the plaintiff may hold the defendant liable for the natural consequences of action taken on the first alarm, though such action may turn out to have been unnecessary (u). It is also held that the running of even an obvious and great risk in order to save human life may be justified, as against those by whose default that life is put in peril (x). And this seems just, for a contrary doctrine would have the effect of making it safer for the wrong-doer to create a great risk than a small one. Or we may put it thus ; that the law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some able- bodied person should expose himself to the same danger to ejffect a rescue. [r) Filer v.X. V. Central R. R. v. Boyce (1816) 1 Stark. 493, 18 Co. (1872) 49 N. Y. (4 Sickels) 47. R. R. 812. (s) 63 I\ . y. at p. 559. (a;) Eckert v. Long Island R. R. (t) Burrou'S v. Erie R. Co. (1876) Co. (1871) 43 N. Y. 502, 3 Am. 63 N. Y. (18 Sickels) 556. Rep. 721 (action by representative (?() Coulter V. Express Co. (1874) of a man killed in getting a child 56 N. Y. (11 Sickels) 585 ; Twomley off the railway track in front of a y. Central Park R. R. Co. (1878) 69 train which was being negligently IS, Y. (24 Sickels) 158. Cp. Jones driven). PECULIAR AMERICAN RULES. 465 American jurisprudence is exceedingly rich in illustra- separa- tions of the questions discussed in this chapter, and and fact American cases are constantly, and sometimes very J,".^';'"^'*^'^ freely, cited and even judicially reviewed (y) in our courts. It may therefore be useful to call attention to the peculiar turn given by legislation in many of the States to the treatment of points of " mixed law and fact." I refer to those States where the judge is forbidden by statute (in some cases by the constitution of the State) (z) to charge the jury as to matter of fact. Under such a rule the summing-up becomes a categorical enumeration of all the specific inferences of fact which it is open to the jury to find, and which in the opinion of the Court would have different legal consequences, together with a statement of those legal consequences as leading to a verdict for the plaintiff or the defendant. And it is the habit of counsel to frame elaborate statements of the propositions of law for which they contend as limiting the admissible findings of fact, or as applicable to the facts which may be found, and to tender them to the Court as the proper instruc- tions to be given to the jury. Hence there is an amount of minute discussion beyond what we are accustomed to in this country, and it is a matter of great importance, where an appeal is contemplated, to get as little as possible left at large as matter of fact. Thus attempts are frequently made to persuade a Court to lay down as matter of law that particular acts are or are not con- tributory negligence {a). Probably the common American doctrine that the plaintiff has to prove, as a sort of (y) E.g. Lord Esher's judgment have not been consistently acted on. in The Bernina, 12 P. Div. at pp. (2) Stimson, American Statute 77-82. Cp. per Lord Her.sohell in Law, p. 132, § 605. Mills V. Armstrong, 13 App. Ca. at (a) For a strong example see p. 10. There are dicta against Kane v . N. Central R. Co. l^i V . i^ . citing American cases, hut they 91. In Washington &c. R. R. Co. P.T. H H 466 NEGLIGENCE. preliminary issue, that he was in the exercise of due care, has its origin in this practice. It is not necessary or proper for an Enghsh lawyer to criticize the convenience of a rigid statutory definition of the provinces of judge and jury. But English practitioners consulting the American reports must bear its prevalence in mind, or they may find many things hardly intelligible, and perhaps even suppose the substantive differences between English and American opinion upon points of pure law to be greater than they really are. V. ilcDade (1889) 135 U. S. 564, separate prayera for instructions to 564, "counsel for the defendant the jury." asked the Court to grant twenty 467 CHAPTEE XII. DUTIES OF INSURING SAFETY. In general, those who in person go about an undertaking Excep- attended with risk to their neighbours, or set it in raotion general by the hand of a servant, are answerable for the conduct dJJil^g "f of that undertaking with diligence proportioned to the caution. apparent risk. To this rule the policy of the law makes exceptions on both sides. As we have seen in the chapter of General Exceptions, men are free to seek their own advantage in the ordinary pursuit of business or uses of property, though a probable or even intended result may be to diminish the profit or convenience of others. We now have to consider the cases where a stricter duty has been imposed. As a matter of history, such cases cannot easily be referred to any definite principle. But the ground on which a rule of strict obligation has been maintained and consolidated by modern authorities is the magnitude of the danger, coupled with the difficulty of proving negligence as the specific cause in the event of the danger having ripened into actual harm. The law might have been content with applying the general standard of reasonable care, in the sense that a reason- able man dealing with a dangerous thing — fire, flood- water, poison, deadly weapons, weights projecting or suspended over a thoroughfare, or whatsoever else it be — will exercise a keener foresight and use more anxious precaution than if it were an object unlikely to cause harm, such as a faggot, or a loaf of bread. A prudent H H 2 468 DUTIES OF INSURING SAFETY. Ryla ndx ■ Fletcher. Judgment of Ex. Ch. man does not handle a loaded gun or a sharp sword in the same fashion as a stick or a shovel. But the course adopted in England has been to preclude questions of detail by making the duty absolute ; or, if we prefer to put it in that form, to consolidate the judgment of fact into an unbending rule of law. The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbour to such risk is held, although his act is not of itself wrongful, to insure his neighbour against any consequent harm not due to some cause beyond human foresight and control. Various particular rules of this kind (now to be regarded as applications of a more general one) are recognized in our law from early times. The generalization was effected as late as 1868, by the leading case of Rylands v. Fletcher, where the judgment of the Exchequer Chamber delivered by Blackburn J. was adopted in terms by the House of Lords. The nature of the facts in Fletcher v. Rylands, and the question of law raised by them, are for our purpose best shown by the judgment itself {a) : — " It appears from the statement in the case, that the plaintiff was damaged by his iiroi)erty being flooded by water, which, without any fault on his part, broke out of a reservoir, constructed on the defendants' land bj' the defendants' orders, and maintained by the defendants. " It appears from the statement in the case, that the coal under the defendants' land had at some remote period been worked out ; but this was unknown at the time when the defendants gave directions to erect the (a) L. R. 1 Ex. at p. 278, per Willes, Blackburn, Keating, Mellor, Montague Smith, and Lash JJ. For the statements of fact referred to, see at pp. 267-269. RYLANDS r. FLETCHER. 469 reservoir, and the water in the reservoir would not have escaped from the defendants' land, and no mischief would have been done to the plaintiff, but for this latent defect in the defendants' subsoil. And it further appears that the defendants selected competent engineers and contractors to make their reservoir, and themselves per- sonally continued in total ignorance of what we have called the latent defect in the subsoil ; but that these persons employed by them in the course of the work became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings. " It is found that the defendants personally were free from all blame, but that in fact proper care and skill was not used by the persons employed by them, to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir when filled with water burst into the shafts, the water flowed down through them into the old workings, and thence into the plaintiff's mine, and there did the mischief. " The plaintiff, though free from all blame on his part, must bear the loss unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land ? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours ; but the question arises whether the duty which' the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of 470 DUTIES OF INSURING SAFETY. the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is respon- sible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and conse- quently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect. . . . " We think that the true rule of law is, that the person who for his own purposes brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is inima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default ; or perhaps that the escape was the consequence of vis major, or the act of God ; but as nothing of this sort exists here, it is unnecessarj' to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The per- son whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own ; and it seems but reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own propei'ty, but which he knows to be mischievous if it gets EYLANDS V. FLETCHER 471 on his neighbour's, should be obHged 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." Not only was this decision affirmed in the House of Affirma- Lords (b), but the reasons given for it were fully con- of°by*H l' firmed. " If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage " (c). It was not overlooked that a line had to be drawn between this rule and the general immunity given to landowners for acts done in the "natural user" of their land, or "exercise of ordinary rights " — an immunity which extends, as had already been settled by the House of Lords itself (d) , even to obviously probable consequences. Here Lord Cairns pointed out that the defendants had for their own purposes made "a non-natural use" of their land, by collecting water " in quantities and in a manner not the result of any work or operation on or under the land." The detailed illustration of the 'rule in Rylands v. Fletcher, as governing the mutual claims and duties of (b) Rylands v. Fletcher (1868) [d] Chasemore v. Eichards (\S59) h. E. 3 H. L. 330, 37 L. J. Ex. 161. 7 H. L. C. 349, 29 L. J. Ex. 81. (c) Lord Cranworth, at p. 340. 472 DUTIES OF INSURING SAFETY. adjacent landowners, belongs to the law of property rather than to the subject of this work (e). We shall return presently to the special classes of eases (more or less discussed in the judgment of the Exchequer Cham- ber) for which a similar rule of strict responsibility had been established earlier. As laying down a positive rule of law, the decision in Eylands v. Fletcher is not open to criticism in this country (/). But in the judgment of the Exchequer Chamber itself the possibility of exceptions is suggested, and we shall see that the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting the responsi- bility of an insurer on innocent persons is a hard rule, though it may be a just one ; and it needs to be main- tained by very strong evidence (g) or on very clear grounds of policy. Now the judgment in Fletclier v. Rylands Qi),' carefully prepared as it evidently was, hardly seems to make such grounds clear enough for universal accept- ance. The liability seems to be rested only in part on the evidently hazardous character of the state of things artificially maintained by the defendants on their land. In part the case is assimilated to that of a nuisance (i), (e) See Fletcher v. Smith (1877) 2 L. C. 497-500. The case has been App. Ca. 781, 47 L. J. Ex. 4; cited with approvalin Massachusetts Humphries w Cousins (1877) 2 {Shipley v. Fifty Associates, 106 C. P. D. 239, 46 L. J. C. P. 438 ; Mass. 194 ; Gorham v. Gross, 125 Hurdman v. North Eastern R. Co. Mass. 232 ; Mears v. Dole, 135 (1878)3C. P. Div.168, 47L.J. C.P. Mass. 508); hut distinctly dis- 368 ; and for the distinction as to allowed in New York : Losee v. "natural course of user," JVilsonv. Buchanan, 51 N. Y. (6 Sickels) 476. Waddell, H. L. (Sc.) 2 App. Ca. 95. {g) See Reg. v. Commissioiurs of T\\eiK\-navp\Qoi Rylands \. Fletcher Sewers for Essex (1885) 14 Q. B. was held applicable to an electric Div. 561. current discharged into the earth in (/() L. R. 1 Ex. 277 sqq. National Telephone Co. v. Baker (i) See especially at pp. 285-6. [1893] 2 Ch. 186, 62 L. J. Ch. 699. But can an isolated accident, how- (/) Judicial opinions still differ ever mischievous in its results, be a in the United States. See Bigelow nuisance ? though its conseq^uenoes RYLANDS r. FLETCHER. 473 and in part, also, traces are apparent of the formerly prevalent theory that a man's voluntary acts, even when lawful and free from negligence, are prima facie done at his peril (k), a theory which modern authorities have explicitly rejected in America, and do not encourage in England, except so far as Rylands v. Fletcher may itself be capable of being used for that purpose (Z). Putting that question aside, one does not see why the policy of the law might not have been satisfied by requiring the defendant to insure diligence in proportion to the mani- fest risk (not merely the diligence of himself and his servants, but the actual use of due care in the matter, whether by servants, contractors, or others), and throw- ing the burden of proof on him in cases where the matter is peculiarly within his knowledge. This indeed is what the law has done as regards duties of safe repair, as we shall presently see. Doubtless it is possible to consider Rylands v. Fletcher as having only fixed a special rule about adjacent landowners {m), but it was certainly intended to enunciate something much wider. Yet no case has been found, not being closely similar Character in its facts, or within some previously recognized category, gases. in which the unqualified rule of liability without proof of negligence has been enforced. We have cases where damages have been recovered for the loss of animals by the escape, if so it may be called, of poisonous vegetation Of other matters from a neighbour's land (/t). Thus the may, as where a branch lopped or Ex. 261, 44 L. J. Ex. 176 ; Slanley blown down from a tree is left lying v. Powell [1891] 1 Q. B. 86, 60 across a highway. L. J. ^l. V>. 52. (/c) L. R. 1 Ex. 286-7, 3 H. L. 341. (m) Martin B., L. R. 6 Ex. at {I) See The NUro-Glyceriiu: Case p. 223. (1872) 15 Wall. 524 ; JJroivn v. [n) There must be something of Kendall (1850) 6 Gush. 292 ; this kind. A man is not liable for Holmes v. Mather (1875) L. R. 10 the loss ot'aneighboui''s cattle whicli 474 DUTIES OF INSURING SAFETY. owner of yew trees, whose branches project over his boundary, so that his neighbour's horse eats of them and is thereby poisoned, is held hable (o) ; and the same rule has been applied where a fence of wire rope was in bad repair, so that pieces of rusted iron wire fell from it into a close adjoining that of the occujjier, who was bound to maintain the fence, and were swallowed by cattle which died thereof (jj). In these cases, however, it was not contended, nor was it possible to contend, that the defendants had used any care at all. The arguments for the defence went either on the acts complained of being within the " natural user " of the land, or on the damage not being such as could have been reasonably anticipated (q). We may add that having a tree, noxious or not, permanently projecting over a neighbour's land is of itself a nuisance, and letting decayed pieces of a fence, or anything else, fall upon a neighbour's land for want of due repair is of itself a trespass. Then in Ballard V. Toinlinson (r) the sewage collected by the defendant in his disused well was an absolutely noxious thing, and his case was, not that he had done his best to prevent it from poisoning the water which supplied the plaintiff's well, but that he was not bound to do anything. trespass and eat yew leaves ou his L. R. 7 Q. B. 31, 41 L. J. Q. B. 31, land; Ponlbig v. Noakes [1894] is not inconsistent, for there it was 2 Q. B. 281, t)3 L. J. Q. B. 549. only averred that clippings from the There is no duty to keep in things defendant's yew trees were ou the which, though noxious in some plaintiif s land ; and the clipping sense, are not dangerous, and have might, for all that appeared, have not heen brought on the defendant's been the act of a stranger, land by his own act. A man is not {p) Firth v. Bowling Iron Co. bound to cut the thistles on his (1878) 3 C. P. D. 254, 47 L. J. C. P. land or keep in the thistle-down : 358. Gilesy. Waller (1890) 24 Q. B. D. (?) The former ground was chiefly 656, 59 L. J. Q. B. 416. relied on in Croiohurst's case, the (o) Crowlmi'Slv.Amcrsham Burial latter in Firth's. Board (1878) 4 Ex. D. 5, 48 L. J. (r) 29 Ch. Div. 115, 54 L. J. Ch. Ex.109. JFilson v.A'ca-berry {-[871) 454(1885). KYLANDS r. FLETCHER: EXCEPTIONS. 475 On the other hand, the rule in Rijlaiids v. Fldclicr has Exception been decided by the Court of Appeal not to apply to go'i. damage of which the immediate cause is the act of God (s). And the act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have pre- vented its effects. It is enough that the accident should be such as human foresight could not be reasonably expected to anticipate ; and whether it comes within this description is a question of fact (t). The only material element of fact which distinguished the case referred to from El/lands v. Fletcher was that the overflow which burst the defendants' embankment, and set the stored- up water in destructive motion, was due to an extraordinary storm. Now it is not because due diligence has been used that an accident which nevertheless hajspens is attributable to the act of God. And experience of danger previously unknown may doubtless raise the standard of due diligence for after-time (ii). But the accidents that happen in spite of actual prudence, and yet might have been prevented by some reasonably conceivable prudence, are not numerous, nor are juries, even if able to appre- ciate so fine a distinction, likely to be much disposed to (s) Act of God = vis maior— owner of artificial pools, formed by 9eov fiia: see D. 19. 2. locati con- damming a natural stream, into ducti, 25, § 6. The classical sigiiiti- which the water was finally let oil' cation of "vis maior" is however by a system of weirs. The rainfall wider for some purposes ; Nugent v. accompanying an extremely violent Smith, 1 C. P. Div. 423, 429, per thunderstorm broke the embank- Cockbuin C. J. ments, and the lush of water down {t) Kicliuls V. Marsland (1875-6) the stream carried away four county L. E. 10 Ex. 255, 2 Ex. D. 1, 46 bridges, in respect of which damage L. J. Ex. 174. Note that Lord the action was brought. Bramwell, who in Eylands v. Fletdisr (m) See it'c;/. v. Commissioners of took the view that ultimately pre- /Sctoers /or &.sr.j: (1885) in judgment vailed, was also a party to this of Q. B. U., 14 (^ B. D. at p. 574. decision. The defendant was an 476 DUTIES OF INSURING SAFETY. apply it {x) . The authority of Rylands v. Fletcher is unquestioned, but Nichols v. Marsland has practically empowered juries to mitigate the rule whenever its operation seems too harsh. Act of Again the principal rule does not apply where the &c!^"^'^'' immediate cause of damage is the act of a stranger (2/), nor where the artificial work which is the source of danger is maintained for the common benefit of the plaintiff and the defendant (z) ; and there is some ground for also making an exception where the immediate cause of the harm, though in itself trivial, is of a kind outside reasonable expectation (a). Works le- There is yet another exception in favour of persons authorized acting in the performance of a legal duty, or in the by law. exercise of powers specially conferred by law. Where a zamindar maintained, and was by custom bound to maintain, an ancient tank for the general benefit of agriculture in the district, the Judicial Committee agreed with the High Court of Madras in holding that he was not liable for the consequences of an overflow caused by {x) " Whenever the world grows but the other ground seems the wiser it convicts those that came principal one. The plaintiff was the before of negligence. " BraniwellB., defendant's tenant; the defendant L. R. 6 Ex, at p. 222. But juries occupied the upper part of the house, do not, unless the defendant is a A rat gnawed a hole in a rain-water railway company. box maintained by the defendant, (?/) Box V. Jubb (1879) 4 Ex. D. and water escaped through it and 76, 48 L. J. Ex. 417. Wilson v. damaged the plaintiff's goods on the XewUrry (1871) L. R. 7 Q. B. 31, ground floor. Questions as to the 41 L. J. Q. B. 31, is really a deci- relation of particular kinds of damage sion on the same point. to conventional exceptions in con- (z) Carstoti-sv. To(//or(1871)L. R. tracts for safe carriage or custody 6 Ex. 217, -10 L. .T. Ex. 29; cp. are of course on a different footing • Madras R. Co. v. Zcmimlar of Car- See as to rats in a ship Hamilton v. vatenagaram, L. R. 1 Ind. App. 364. Fandorf {1&S7) 12 App. Ca. 518, 57 (a) Carstairs Y. 2'aij7or, last note, L. J. Q. B. 24. MAINTENANCE OF WORKS. 477 extraordinarv rainfall, no negligence being shown (b). In the climate of India the storing of water in artificial tanks is not only a natural but a necessary mode of using land (c). In like manner the owners of a canal constructed under the authority of an Act of Parliament are not bound at their peril to keep the water from escaping into a mine worked under the canal (d). On the same principle a railway company authorized by Parliament to use locomotive engines on its line is bound to take all reasonable measures of precaution to prevent the escape of fire from its engines, but is not bound to more. If, notwithstanding the best practicable care and caution, sparks do escape, and set fire to the property of adjacent owners, the company is not liable (e). The burden of proof appears to be on the company to show that due care was used (/) , but there is some doubt as to this (g). Some years before the decision of Iii)la)ids v. Fletcher a.w.E.. the duty of a railway company as to the safe maintenance ( J) „j^„ ,. of its works was considered by the Judicial Committee -^™"'- on appeal from Upper Canada Qi). The persons whose {b) Madras R. Co. v. Zemindar of 201, 202 ; Fremantle v. L. & N. W. Carvatcnagaram, L. E. 1 Ind. App. R. Co. (1861) 10 C. B. N. S. 89, 31 36i ; S. C, 14 Ben. L. R. 209. L. J. C. P. 12. (c) See per HoUoway J. in the (/) The escape of sparks has been Court below, 6 Mad. H. C. at p. 184. held to be iirima, facie, evidence of {d) Dunn v. Birmingham Canal negligence ; Piggott v. E. 0. It. Co. Co. (1S72) Ex. Ch. L. B. 8 Q, B. 42, (1846) 3 C. B. 229, 15 L. J. C. P. 42 L. J. Q. B. 34. The principle 235 ; cp. per Blackburn J. in was hardly disputed, the point which VaugJian v. Tajf Vale R. Co. caused some diflBculty being whether (g) Smith v. L. & S. IV. R. Co. the delendantsweru bound to exercise (1870) iix. Cli. L. 1!. 6 C. P. 14, for the plaintiff's benefit certain seems to imply the contrary view ; optional powers given by the same but Piggott \. E. G. R. Co. was not statute. cited. (e) Vaughan v. Taff Vale R. Co. {h) O. IV. R. Co. of Canada v. (1860) Ex. '_'h. 5 H. & X. 679, 29 Braid (1863) 1 Moo. P. C. N. S. 101. L. J. Ex. 247; cp. L. E. i H. L. There were some minor points on the 478 DUTIES OF INSURING SAFETY. rights against the company were in question were pas- sengers in a train which fell into a gap in an embank- ment, the earth having given way by reason of a heavy rain-storm. It was held that " the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, though perhaps rarely, to occur." And the manner in which the evidence was dealt with amounts to holding that the failure of works of this kind under any violence of weather, not beyond reasonable prevision, is of itself evidence of negligence. Thus the duty affirmed is a strict duty of diligence, but not a duty of insurance. Let us suppose now (what is likely enough as matter of fact) that in an accident of this kind the collapse of the embankment throws water, or earth, or both, upon a neighbour's land so as to do damage thei-e. The result of applying the rule in litjJancls v. Fletcher will be that the duty of the railway company as landowner to the adjacent landowner is higher than its duty as carrier to persons whom it has contracted to carry safely ; or property is more highly regarded than life and limb, and a general duty than a special one. If the embankment was constructed under statutory authority (as in most cases it would be) that would bring the case within one of the recognized exceptions to Kylands v. Fletcher. But a difficulty which may vanish in practice is not therefore inconsiderable in principle. Other cases of insurance liability. We shall now shortly notice the authorities, antecedent to or independent of Rylands v. Fletcher, which establish evidence (whether one of the sufferers was not travelling at his own risk, &c.), which were overruled or re- garded as not open, and are therefore not noticed in the text. CATTLE TRESPASS. 479 the rule of absolute or all but absolute responsibility for certain special risks. Cattle trespass is an old and well settled head, perhaps Duty of the oldest. It is the nature of cattle and other live stock cattle. to stray if not kept in, and to do damage if they stray ; and the owner is bound to keep them from straying on the land of others at his peril, though liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being (i). So strict is the rule that if any part of an animal which the owner is bound to keep in is over the boundary, this constitutes a trespass. The owner of a stallion has been held liable on this ground for damage done by the horse kicking and biting the plaintiff's mare through a wire fence which separated their closes {k). The result of the authorities is stated to be " that in the case of animals trespassing on land, the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass " (I). Blackstone (m) says that " a man is answerable for not only his own trespass, but that of his cattle also : " but in the same breath he speaks of " negligent keeping" as the ground of liability, so that it seems doubtful whether the law was then clearly understood to be as it was laid down a century later in Cox v. Burbidge (n). (i) Cox V. Burbidge (1863) 13 {I) Brett J., L. E. 10 C. P. at p. C. B. N. S. 430, 32 L. J. C. P. 89. 13 ; cp. the remarks on the general (/t) Mlisv.Zoftus Iron Co. {1874) lawin SviUh v. Cook {187 5)1 Q.B.D. L. R. 10 C. P. 10, 44 L. J. C. P. 24, 79, 45 L. J. Q. B. 122 (itself a case a stronger case than Lee v. Itiley of contract). ■♦ (1865) 18 C. B, N. S. 722, 34 (wi) Comm. iii. 211. L. J. C. P. 212, there cited and (») 13 C. B. N. S. 430, 32 followed. L. J. C. P. 89. 480 DUTIES OF INSURING SAFETY. Observe tliat the only reason given in the earher books (as indeed it still prevails in quite recent cases) is the archaic one that trespass by a man's cattle is equivalent to trespass by himself. The rule does not apply to damage done by cattle straying off a highway on which they are being lawfully driven : in such case the owner is liable only on proof of negligence (o) ; and the law is the same for a town street as for a country road (jj). Also a man may be bound by prescription to maintain a fence against his neighbour's cattle (q). " "Whether the owner of a dog is answerable in trespass for every unauthorized entry of the animal into the land of another, as is the case with an ox," is a point still not clearly decided. The better opinion seems to favour a negative answer (r). Dangerous Closely connected with this doctrine is the respon- sibility of owners of dangerous animals. "A person keeping a mischievous animal with knowledge of its pro- pensities is bound to keep it secure at his peril." If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the (o) Goodioin v. Cheveley (1859) 4 and see Millen v. Fawdry, Latch, H. & N. 631, 28 L. J. Ex. 298. A 119. In Sanders v. Teape (1884) 51 contrary opinion was expressed by L. T. 263, tlie defendant was held Littleton, 20 Edw. IV. 11, pi. 10, not liable for injury received by the citeA. ui Head V. Edwards, 17 C. B. plaintiff from the defendant's dog N. S. 246, 34 L. J. C. I', at p. 82. jumping over a wall and falling [p] Tillett V. Ward (1882) 10 on him. Here it would seem the Q. B. D. 17, 52 L. J. Q- B- 61, damage was not of a kind that could where an ox being driven through be reasonably foreseen, whether there a town strayed into a shop. were a nominal trespass or not. The (j) So held as early as 1441-2 : plaintiff could not have recovered Y. B. 19 H. VI. 33, pi. 68. unless the law treated a dog as an (r) Head v. Edwards (1864) 17 absolutely dangerous animal. C. B. N. S. 245, 34 L. J. C. F. 31 ; or vicious animals FIRE AND DANGEROUS THINGS. 481 animal to be mischievous, if it is of a notoriously fierce or mischievous species (s). If the animal is of a tame and domestic kind, the owner is liable only on proof that he knew the particular animal to be " accustomed to bite mankind," as the common form of i)leading ran in the case of dogs, or otherwise vicious ; but when such proof is supplied, the duty is absolute as in the former case. It is enough to show that the animal has on foregoing occasions manifested a savage disposition towards human beings (t), whether with the actual result of doing mischief on any of those occasions or not (/()• But the necessity of proving the sciciitey, as it used to be called from the language of pleadings, is often a greater burden on the plaintiff than that of proving negligence would be ; and as regards injury to cattle or sheep it has been done away with b}' statute. And the occupier of the place where a dog is kept is presumed for this purpose to be the owner of the dog (x). The word " cattle " includes horses (?/) and perhaps pigs {z). (s) As a monkey : J/aijv. Burdett (1846) 9 Q. B. 101, and 1 Hale, P. C. 430, there cited. An elephant is a dangerous animal in Enj^land : Filhurn v. Aquarium, Co. (1890) 25 Q. B. Div. 258, 59 L. J. Q. B. 471. {t) Biting a goat is not enough : Oshorne v. Clwcqiied [1896] 2 Q. B. 109, 65 L. J. Q. B. 534. (m) Worth V. Oilling (1866) L. R. 2 C. P. 1. As to what is sufficient notice to the defendant through his servants, Baldwin v. Casella (1872) L. B. 7 Ex. 325, 41 L. J. Ex. 167 ; Applebce v. Percy (1874) L. E. 9 C. P. 647, 43 L. J. C. P. 365. (a) 28 & 29 Vict. c. 60 (a.d. 1865). P.T. Tliere is a similar Act for Scotland, 26 & 27 Vict. c. 100. Sw; Ciimpbell on Negligence, 2nd ed. pp. 53-55. Further protection against mis- chievous or niasterless dogs is given by 34 & 35 Vict. o. 56, a statute of public police regulations outside the scope of this work. The Scottish comment on our old common law rule — " every dog is entitled to one worry" — is almost too familiar for quotation. {y) Wright v. Pearson (1869) L.K. 4 Q. B. 582. (=) adld V. Hcarn (1874) L. R. 9 Ex. 176, 43 L. J. Ex. 100 (on a different Act). I I 482 DUTIES OF INSURING SAFETY. Fire, fire- arms, &c. The risk incident to dealing with fire, fire-arms, explo- sive or highly inflamniahle matters, corrosive or otherwise dangerous or noxious fluids, and (it is apprehended) poisons, is accounted by the common law among those which subject the actor to strict responsibility. Some- times the term "consummate care" is used to describe the amount of caution required : but it is doubtful whether even this be strong enough. At least, we do not know of any English case of this kind (not falling under some recognized head of exception) where unsuccessful dili- gence on the defendant's part was held to exonerate him. Duty of keeping in fire. As to fire, we find it in the fifteenth century stated to be the custom of the realm (which is the same thing as the common law) that every man must safely keep his own fire so that no damage in any wise happen to his neighbour (a). In declaring on this custom, however, the averment was "ignem suum tain iiff/lir/cnter custo- divit : " and it does not appear whether the allegation of negligence was traversable or not (h). "We shall see that later authorities have adopted the stricter view. The common law rule applied to a fire made out of doors (for burning weeds or the like) as well as to fire in a dwelling-house (c). Here too it looks as if negligence was the gist of the action, which is described (in Lord Eaymond's report) as " case grounded upon the common custom of the realm for negligently keeping his fire." Semble, if the fire were carried by sudden tempest it would be excusable as the act of God. Liability for domestic (a) Y. B. 2 Hen. IT. 18, pi. .5. This may be founded on ancient Germanic custom : cp. LI. Langob. cc. 147, 148 (A.D. 643), where a man who carries fire more tlian nine feet from tile hearth is said to do so at his peril. (i) Blackstone (i. 431) seems to assume negligence as a condition of liability. (c) Tahervilor Tuiervillev. Stamp, 1 Salk. 13, s. c. 1 Ld. Eaym. 264. CARRYING FIRE IN LOCOMOTIVES. 488 lires (if we may use that adjective in a rather enlarged sense") has been dealt with by statute, and a man is not now answerable for damage done by a fire which began in his house or on his land by accident and without negligence (d). He is answerable for damage done by lire lighted by an authorized person, whether servant or contractor, notwithstanding that the conditions of the authority have not^all been complied with (r). The use of fire for purposes unconnected with the ordinary occupation of houses and land seems to remain a ground of the strictest responsibility. Decisions of our own time have settled that one who Carrying brings fire into dangerous proximity to his neighbour's loco- property, in such ways as by running locomotive engines ™°*'^^^- on a railway without express statutory authority for their use (/), or bringing a traction engine on a highway (r/), ('/) U Geo. III. c. 78, s. 86, as interpreted in Filliter v. Phip2Mrd <1S47) 11 Q. B. 347, 17 L. J. Q. B. 89. There was an earlier statute of Anne to a like effect ; 1 Blackst. Comm. 431 ; and see per Cur. in Filliter y. PMppard. It would seem that even at common law the de- fendant would not be liable unless he knowingly lighted or kept some fire to begin with ; for otherwise how could it be described as ignis suus 1- (e) Black v. Christcliurdi Finance Co. (J. C. from X. Z.) [1894] A. 0. 48, 63 L. J. P. 0. 32. (/) Jones V, Festiniog E. Co. (1868) L. E. 3 Q. B. 733, 37 L. J. (}. B.214. Here diligence was proved, but the company held nevertheless liable. Qu. would the statute have protected them if the sparks had started a fire on their own land which spread to the plaintiff's, instead of flying direct, as the fact was, to the plaintiff's haystack ? The rule was expressly stated to be an application of the wider principle of Hylandsv. Fletcher ; see per Blackburn J. , L. R. 3 Q. B. at p. 736. (cj) Powell X. Fall (1880) 5 Q. B. Div. 597, 49 L. J. Q. B. 428. The use of traction engines on high- ways is regulated by statute, but not authorized in the sense of diminishing the owner's liability for nuisance or otherwise ; see the sections of the Locomotive Acts, , 1861 and 1865, in the judgment of 'MellorJ.,5Q.B.Div.atp. 598. S. 13 of the Act of 1861 remains applic- able to light locomotives, see 59 & 60 Vict. c. 36, schedule. The dictum of Bramwell L. J. at p. 601, that Vauglian v. Tcofi Fale H. Co. (1860) Ex. Oh. 5 H. & N. 679, 29 L. J. Ex. 247, p. 477, above, was wrongly II 2 484 DUTIES OF INSURING SAFETY. does so at his peril. And a company authorized by statute to run a steam-engine on a highway still does so at its peril as regards the safe condition of the way (/()■ It seems permissible to entertain some doubt as to the historical foundation of this doctrine, and in the modern practice of the United States it has not found accept- ance (i). In New York it has, after careful discussion, been expressly disallowed (/.■)• , Fire-arms: Loaded fire-arms are regarded as highly dangerous -?'-™" ''■• things, and persons dealing with them are answerable for damage done by their explosion, even if they have used apparently sufficient precaution. A man sent his maidservant to fetch a flint-lock gun which was kept loaded, with a message to the master of the house to take out the priming first. This was done, and the gun delivered to the girl ; she loitered on her errand, and (thinking, presumably, that the gun would not go off) pointed it in sport at a child, and drew the trigger. The gun went off and the child was seriously wounded. The owner was held liable, although he had used care, Jecided, is extra-jmlicial. Tliat case action is negligence, was not only itself decided br a (J,) Losce v. Buchanan {1S7S) 51 N. Court of co-ordinate authority, but Y. 476 ; the owner of a steam-boiler has been approved iu the House of was held not liable, independently Lords; Jliimmr.rsmilh R. Co. v. nf negligence, for an explosion "which Brand{1869)L. R. 4 H. L. atp.202; threwitintotheplaintiff'sbuildings. and see the opinion of Blackburn J. For the previous authorities as to at p. 197. fire, uuiformlj' holding that in order (/t) Sadler v. Smilh Stafforclsldrc, to succeed the plaintiff must prove (Cv;. Tramvxtijs Co. (1889) 2.3 Q. B. negligence, see at pp. 487-8. 7i',)//ffiifk jOiv. 17, 58 L. J. (). B. 421 (car ran v. i^/c/c/jo' is disapproved as being in off line through a defect in the conflict with thecurrent of American points : the line did not belong to authority. See other American cases tJie defendant company, who had collected by Mr. C. B. Labatt in running powers over it). L. Q. R. xvi. 177 (in the course of (i) It appears to be held every- an argument which I am uuable to wliere that unless the original act is follow), in itself unlawful, the gist of the EXPLOSIVES. 485 perhaps as much care as would commonly be thought enough. "It was incumbent on hmi who, by chargmg the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing of the contents. The gun ought to have been so left as to be out of all reach of doing harm " (/). This amounts to saying that in dealing with a dangerous instrument of this kind the only caution that will be held adequate in point of law is to abolish its dangerous character altogether. Observe that the intervening negligence of the servant (which could hardly by any ingenuity have been imputed to her master as being in the course of her employment) was no defence. Experience unhappily shows that if loaded fire-arms are left within the reach of children or fools, no consequence is more natural or probable than that some such person will discharge them to the injury of himself or others. On a like principle it is held that people sending goods Expio- of an explosive or dangerous nature to be carried are oth?r'^° bound to give reasonable notice of their nature, and, if ^'^"f"'°"^ they do not, are liable for resulting damage. So it was held where nitric acid was sent to a carrier without warn- ing, and the carrier's servant, handling it as he would handle a vessel of any harmless fluid, was injured by its escape ("0- The same rule has been applied in British {I ) DUuii v. Bell (1816) 5 JI. & K. 42, a somewhat similar case in .S. lys, 17 R. I!. 308, and in Bij^ulow Scotland where the defendant was L. C. 568. It might have been held not liable. But in Scotland said that sending an incompetent culpable negligence has to be dis- person to letch a loaded gun was tinctly found, evidence of negligence (see the first (m) Fan-aal v. Barnes (1862) 11 count of the declaration); but that C. B. N". S. 553, 31 L. J. C. P. 137. is not the ground taken by the Court The duty seems to be antecedent, (Lord Ellenborough C. J. and Bayley not incident, to the contract of J.). <-'p. King v. Pollock (187i) 2 carriage. goods. 486 DUTIES OF iXSURING SAFETY. (ias escapes. India to the case of an explosive mixture being sent for carriage by railway- without warning of its character, and exploding in the railwaj^ company's office, where it was being handled along with other goods (n) ; and it has been held in a similar case in Massachusetts that the con- signor's liability is none the less because the danger of the transport, aird the damage actually resulting, have been increased )jy another consignor independently send- ing other dangerous goods by the same conveyance (o). Gas (the ordinary' illuminating coal-gas) is not of itself, perhaps, a dangerous thing, but with atmospheric air forms a highly dangerous explosive mixture, and also makes the mixed atmosphere incapable of supporting life i])). Persons undertaking to deal with it are there- fore bound, at all events, to use all reasonable diligence to prevent an escape which may have such results. A gas-fitter left an imperfectly connected tube in the place where he was working under a contract with the occupier ; a third person, a servant of that occupier, entering the room with a light in fulfilment of his ordinary duties, was hurt by an explosion due to the escape of gas from the tube so left ; the gas-fitter was held liable as for a " misfeasance independent of contract " (2). Poisonous drugs : llwrnas ¥. Winclies- ter. Poisons can do as much or explosives, though the precautions are different. (»!■) Li/cU V. Ganfja Dai, I. L. R. 1 All. 60. (0) Boston it; Alhunii R. JR. Co. V, Shanli/ (1871) 107 Mass. 568 ("dualiu," .1 nitro-glycerine com- pound, and exploders, had been ordered by one customer of two separate makers, and bj' them separately consigned to the railway mischief as loaded fire-arms danger and the appropriate company witlicut notice of their character : held on demuri'er_.tliat both manufacturers were rightly sued in one action by the company). ip) See Smith v. Boston Gus'_Light Co., 129 Mass. 318. (2) Pai-nj V. Smith (1879) 4 C. P. D. 325, 48 L. J. C. P. 731 (Lopes J.). JSTegligence was found POISONS. 4S7 A wholesale druggist in Xew York purported to sell extract of dandelion to a retail druggist. The thing delivered was in truth extract of belladonna, which by the negligence of the wholesale dealer's assistant had been wrongly labelled. By the retail druggist this extract was sold to a country practitioner, and by him to a customer, who took it as and for extract of dande- lion, and thereby was made seriously ill. The Court of Appeals held the wholesale dealer liable to the consumer. " The defendant was a dealer in poisonous drugs. . . . The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label." And the existence of a contract between the defendant and the immediate purchaser from him could make no difference, as its non-existence would have made none. " The plaintiffs' injury and their remedy would have stood on the same principle, if the defendant had given the bella- donna to Dr. Foord " (the country practitioner) " without price, or if he had put it in his shop without his know- ledge, under circumstances which would probably have led to its sale " — or administration without sale — " on the faith of the label " (;■)• This case has been thought in England to go too far ; but it is hard to see in what respect it goes farther than Dixon v. Bell. So far as the cases are dissimilar, the damage would seem to be not more but less remote. If one sends belladonna into the as a fact. Burrows v. March ckc. 67 L. J. P. C. 150, was a case on Gas Co. (1872) L. R. 7 Ex. 96, Ex. similar fucts under the law of Cli. was a case of contract. Lower Canada, but tlie peculiar (;■) lliomas et iix. v. Wincliesler findings of the jury prevented this (18.">2) 6 N. Y. 397, Bigelow L. C. point of law from being considered 602. The decision seems to be hy tlie Judicial Committee. Judicial generally followed in America. opinions in the courts below seem Kerry v. England [1898] A. C. 742, to have differed. 488 DUTIES OF INSURING SAFETY. -world labelled as dandelion (the two extracts being other- wise distinguishable only by minute examination) it is a more than probable consequence that some one will take it as and for dandelion and be the worse for it : and this without any action on the part of others necessarily involving want of due care (s). It can hardly be said that a wrongly labelled poison, whose true character is not discoverable by any ordinary examination such as a careful purchaser could or would make, is in itself less dangerous than a loaded gun. The event, indeed, shows the contrary. Difficui- Nevertheless difficulties are felt in England about England : . admitting this application of a principle which in other Givrtie V. directions is both more widely and more strictly applied ton. in this country than in the United States {t). In 1869 the Court of Exchequer made a rather hesitating step towards it, putting their judgment partly on the ground that the dispenser of the mischievous drug (in this case a hair wash) knew that it was intended to be used by the very person whom it in fact injured {u). The cause of action seems to have been treated as in the nature of deceit, and Thomas v. Winchester does not seem to have been known either to counsel or to the Court. In the line actually taken one sees the tendency to assume that the ground of liability, if any, must be either warranty or fraud. But this is erroneous, as the judgment in Thomas v. Winehester carefully and clearly shows. Whether that case was well decided appears to («) The jury found that there was v. Pender (1883) 11 g. B. Div. at not anj' negligence on the part of the p. 514, in a judgment which itself intermediate dealers; the Court,how- endeavours to lay down a much ever, were of opinion that this was wider rule, immaterial. (u) George v. Skivingion (1869) (<) See per Brett M. E., Jleavcn L. K. 5 Ex. 1, 38 L. J. Ex. 8. CONDITION OF BUILDIXGS. 489 be a perfectly open question for our courts (x). In tlie present ^yriter's opinion it is good law, and ought to be followed. Certainly it comes within the language of Parke B. in Loiufmcid v. HolUdaij (y), which does not . Bacon (1870) L. 1!. 5 Ex. Ch. L. E. 5 Q. B. 501, 513, 39 C. P. 437, 39 L. J. C. P. 365. L. J. Q. B. 291. The statement in (a) Sullivan v. Waters, 14 Ir. C. the text (from the beginning of the L. R. 460. See, however, Quarman paragraph) is approved by Bigham v. Burnett (1840) 6 M. & W. at p. J., Marncy v. Scolt [1899] 1 Q. B. 510, 986, 992, 68 L. J. Q. B. 736, 739. the modern rule. Otlier cases well showing tliis point iiianr v. Duines. (.■(.•XniTlOX OF BUILDINGS. 491 both sides of the Atlantic as a leading authority {!>). The plaintiff was a journej'man gas-fitter, employed to examine and test some new burners which had been supplied by his employer for use in the defendant's sugar-refinery. While on an upper floor of the building, he fell through an unfenced shaft which was used in working hours for raising and lowering sugar. It was found as a fact that there was no want of reasonable care on the plaintiff's part, which amounts to saying that even to a careful person not already acquainted with the building the danger was an unexpected and concealed one. The Court held that on the admitted facts the plaintiff was in the building as " a person on. lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an mterest, and not upon bare permission." They there- fore had to deal with the general question of law "as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation express or implied. The common case is that of a customer in a shop : but it is obvious that this is only one of a class. . . . "The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. " And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier (J) Indermaur v. Dames (1866) 181, constantly cited in later cases, L. K. 1 C. P. 274, 35 L. J, C. P. and reprinted iu Bigelow L. C. 184, 2 C. P. 311, 36 L. J. C. P. 492 DUTIES OF INSURING SAFETY. shall on his part use reasonable care to prevent damage from unusual clanger, 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"(('). The Court goes on to admit that " there was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place would reasonably be, having regard to the contrivances neces- sarily used in carrying on the business." On the facts they held that "there was evidence for the jury that the plaintiff was in the place by the tacit invitation of the defendant, upon business in which he was concerned ; that there was by reason of the shaft unusual danger, known to the defendant ; and that the plaintiff sustained damage by reason of that danger, and of the neglect of the defendant and his servants to use reasonably sufficient means to avert or warn him of it." The judgment in the Exchequer Chamber ((/) is little more than a simple affirmation of this. Persons It is hardly needful to add that a customer, or other safety. ° person entitled to the like measure of care, is protected not only while he is actually doing his business, but while he is entering and leaving (c) . And the amount of care required is so carefully indicated by Willes J. that little remains to be said on that score. The recent cases are important chiefly as showing in respect of what kinds of property the duty exists, and what persons have (c) L. E. 1 C. P. at p. 288. Sl'i, treated as a very plain case, {d) L. li. 2 G. P. 311. where a trap-door was left open in (e) Ohapina/ii v. Rothivell (1S5S) the floor of a passage leading to the 1 E. B. & E. 168, 27 L. J. O. B. ddendant's office. DUTY IX RESPECT OF .STRUCTURES. 493 the same rights as a customer. In both directions the la\Y seems to have become, on the whole, more stringent in the present generation. With regard to the person, one acquires this right to safety by being upon the spot, or engaged in work on or about the property whose con- dition is in question, in the course of any business in which the occupier has an interest. It is not necessary that there should be any direct or apparent benefit to the occupier from the particular transaction (/). Where gangways for access to ships in a dock were provided by the dock company, the company has been held answer- able for their safe condition to a person having lawful l)usiness on board one of the ships ; for the providing of access for all such persons is part of a dock-owner's business ; they are j)aid for it by the owners of the ships on behalf of all who use it{g). A workman was employed under contract with a ship-owner to paint his ship lying in a dry dock, and the dock-owner provided a staging for the workman's use ; a rope by which the staging was supported, not being of proper strength, broke and let down the staging, and the man fell into the dock and was hurt ; the dock-owner was held liable to him (//). It was contended that the staging had been delivered into the control of the ship-owner, and became as it were part of the ship ; but this was held no reason for discharging the dock-owner from responsibility for the condition of the staging as it was delivered. Persons doing work on ships in the dock "must be considered as invited by the dock-owner to use the dock and all (/) See Sohnes v. iV. K li. C',j. riiic Docks Co. (1868) L. E. 3 C. P. (1869-71) L. K. 4 Ex. 2.54, in Ex. .'52«, 37 L. J. C. P. 217 (Bovill L'. J. Ch. L. R. 6 Ex. 123, 40 L. J. Ex. and Byles J., cluh. Keating J.) 121 ; IVhilf. V. Frnncr (1877) 2 C. (h) Heaven v. Fcwler (1883) 11 P. D. 308, 46 L. .T. C. P. 82-3. Q. B. Diy. 503, 52 L. J. Q. B. 702. (g) Smith v. London Jj St. Katha- 494 DUTIES Oh' INSURING SAFETY. appliances provided by the dock-owner as incident to the use of the dock "(;)• Similarly, the owner of a building let in flats is answerable for the safe condition of the common staircase to persons coming to do business with any of the tenants, by reason of his necessarily implied undertaking to keep the staircase in repair (k). A person lawfully entering on land, or into a building, in the discharge of a public duty or otherwise with justi- fication, would seem to be in the same position as a customer and not to be a mere licensee, though such terms as " licence by authority of law" may sometimes be applied to these cases. We do not know of any English authority precisely in point, but the question has been raised in America. Duty in The possession of any structure to which human beings carriages^ are intended to commit themselves or their property, ships, &c. animate or inanimate, entails this duty on the occupier, or rather controller. It extends to gangways or staging in a dock, as we have just seen; to a temporary stand put up for seeing a race or the like (Q ; to carriages travelling on a railway or road(7)0, or in which goods (t) Per Cotton and Bowen L. J J. [l) Francis m. Cockrdl (1870) Kx. 11 Q. B. Div. at p. 515. The Ch. L. R. 5 Q. B. 184, 601, 39 jiulgment of Brett Jl. R. attempts L. J. Q. B. 113, 291. The plain- to lay down a wider principle witli tiff had paid money for admission, which the Lords .Tustices did not therefore there was a duty c.i- con- agree. See p. 419, ahove. It must irachi, but the judgments in the Ije taken as a fact, though it is not Ex. Ch., see especially per Martin clearly stated, that the defective B. , also aiBrm a duty independent condition of the rope might have of contract. This is one of the most been discovered by reasonably care- exidicit authorities showing that the ful examination when the staging duty extends to the acts of con- was put up. tractors as well as serva.nts. (k) Miller V. Hancock [li'di'] 2 Q. (m) Fou.lkcs v. Mctrop. District B. 177,C. A. Otherwise where there U. Co. (1880)5 C. P. Div. 157, 49 is ]]0 duty to the tenant to repair : L. J. C. P. 361 ; Moffatt y. Baf^man Lane V. Cox [1897] 1 Q. B. 415, 66 (1869) L. R. 3 P. C. 115. L. J. Q. B. 193, C. A. DUTY IX RESPECT OF CARRIAGES, SHIPS, ETC. 495 are despatched (») ; to ships (o) ; to wharves, in respect of the safety of the frontage for ships moored at or approaching the wharf ( p) ; and to market-places (q) . In the case of a wharfinger he is bomid to use reason- able care to ascertain whether the bed of the harbour or river adjacent is in a safe condition to be used by a vessel coming to discharge at his wharf at reasonable times having regard to the conditions of tide, the ship's draught of water, and the like. But this duty exists only so far as the river bed is in the wharfinger's possession or control (r). The owner of a sunken wreck is bound at his peril to give reasonable warning to other vessels (.•.•)■ A railway passenger using one company's train with a ticket issued by another company under an arrange- ment made between the companies for their common benefit is entitled, whether or not he can be said to have contracted with the first-mentioned company, to reason- ably safe provision for his conveyance, not only as regards the construction of the carriage itself, but as regards its fitness and safety in relation to other appliances (as the (ii) MUoU V. Hall (1885) 15 Q. at p. 992 ; 68 L. J, Q. B. 739. B. D. 315, 54 L. J. Q. B. 518. {p) The J/uon-ock (1889) 14 P. The seller of coals sent them to the -Div. 64, 58 L. J. 1'. 73. buyer in a truck with a dangerously {q) Lax v. Curjinration of Dar- loose trap-door in it, and the buyer's Uiujton (1879) 5 Ex. Div. 28, 49 servant in the course of unloading L. J. Ex. 105. thetruckfell througliand was hurt. (r) The Calliope [1891] A. C. 11, (o) Hayii V. CiilUfurd (1879) 4 60 L. J. P. 28, reversing the decision C. P. Div. 182, 48 L. J. C. P. 372. of the C. A., 14 P. Div. 138, 58 Control of a ship may be enough, L. J. P. 76, on a, difi'erent view of after a very short time, to fix the the facts. The reasons given in T/ic charterer with liability for defects — Moorcock, note (p) above, seem to at any rate in appliances immediately be to some extent qualified by this, refjuired for use — which could easily though the decision itself is ap- have been discovered: Mnrney y. proved by Lord Watson [1891] A. G. Scott [1899] 1 Q. B. 986, 68 L. J. at p. 22. Q. B. 736, where the statement in (s) The Siiarh [1899] P. 74, 68 tlie text is approved per Bigham J. L. J. P. 22. 496 DUTIES OF INSDRING SAFETY. platform of a station) in connexion with which it is intended to be used (t). Where goods are lawfuhy shipped with the ship-owner's consent, it is the ship- owner's duty (even if he is not bound to the owner by any contract) not to let other cargo which will damage them be stowed in contact with them (?()• Owners of a cattle-market are bound to leave the market-place in a reasonably safe condition for the cattle of persons who come to the market and pay toll for its use (x) . Limits of the duty. In the various applications we have mentioned, the duty does not extend to defects incapable of being dis- covered by the exercise of reasonable care, such as latent flaws in metal (y) ; though it does extend to all such as care and skill (not merely care and skill on the part of the defendant) can guard against (z) . Again, when the builder of a ship or carriage, or the {t) Fonlkcs V. Mclrop. District R. Co. (1880) 5 C. P. Div. 157, 49 L. J. G. P. 361. ((0 Hayn v. Oulliford (1879) 4 C. P. Div. 182, 48 L. J. C. P. 372. {■x) Laxv. Oorjwratimi of]]arlin(j- ton (1879) 5 Ex. Div. 28, 49 L. J.. Ex. 105 (the plaintiff's cow was killed by a spiked feme round a statue in the market-place). A good summary of the law, as far as it goes, is given in the aigiiment of Cave J. (tl-en Q. C.) for the plaintiff, 5 Ex. Div. at p. 31. The ques- tion of the danger being obvious was considered not open on the appeal ; if it had been, qu. as to the result, per Bramwell L. J. It has been held in Minnesota (1889) that the owner of a building fre- quented by the public is bound not to allow a man of known dangerous temper to be employed about the building: Dean y. St. Pan! Union Dep6t Co., 29 Am. Law P>eg. 22. (y) Readhead v. Midtand R. Co. (1869) Ex. Ch. L. R. 4 Q. B. 379 ; a case of contract between carrier and passenger, but the principle is the same, and indeed the duty may be put on either ground, see llilinan v. Xyr (1881) 6 Q. B. D. 685, 689, perLindley J. This does not however qualify the law as to the seller's implied warranty on the sale of a chattel for a specific pur- pose ; there the warranty is absolute that the chattel is reasonably fit for that purpose, and there is no excep- tion of latent defects : Randall v. Newson (1877) 2 Q. B. Div. 102, 46 L. J. y. B. 257. (s) Hymaii v. Nye (1881) 6 Q. B. D. at p. 687. DUTY TOWARDS PASSERS-BY. 497 maker of a machine, has deUvered it out of his own possession and control to a purchaser, he is under no duty to persons using it as to its safe condition, unless the thing was in itself of a noxious or dangerous kind, or (it seems) unless he had actual knowledge of its being. in such a state as would amount to a concealed danger to persons using it in an ordinary manner and with ordinary care (a). Liability under the rule in Indermaur v. Danu's (h) Volenti mm Jit iniuria. may be avoided not only by showing contributor}' negli- gence in the plaintiff, but by showing that the risk was as well known to him as to the defendant, and that with such knowledge he voluntarily exposed himself to it (<■) ; but this will not excuse the breach of a positive statutory duty {d). Occupiers of fixed property' are under a like duty Duty towards persons passing or being on adjacent land by passers- their invitation in the sense above mentioned, or in the ^'^■ exercise of an independent right. In Barnes v. Ward (c), the defendant, a builder, had left the area of an unfinished house open and unfenced. A person lawfully walking after dark along the public path on which the house abutted fell into the area and was killed. An action was brought under Lord Campbell's (a) IFinteriottom y. Wright, 10 See furtlier Yarmouth v. France, M. k W. 109; Collis v. Seldcn 19 Q. B. D. 647, and p. 164, (1868) L. E. 3 C. P. 495, 37 L. J. above. ,Smithv. Baker [1891] A. C. 0. P. 233 ; Zosee v. Clute, .51 JS". Y. 325, 60 L. J. Q. B. 683, was a case 494. not of this class, but (as the facts (b) P. 490, above. were found) of negligence iu con- (c) Thomas v. Quartermaine, 18 ducting a specific operation. Q. B. Div. 685, 56 L. J. Q. B. 340. (c) 9 C. B. 392, 19 L. J. C. P. {cl) Dicta of L. JJ. aid., and 195 (1850); cp. D. 9. 2, ad leg. Baddeley v. Earl Granville (1887) Aquil. 28. 19 Q. B. D. 423, 56 L.J. Q. B. 501. P.T. K K 498 DUTIES OF INSURING SAFETY. Act, and the case was twice argued ; the mam point for the defence being that the defendant had only dug a hole in his own land, as he lawfully might, and was not under any duty to fence or guard it, as it did not interfere with the use of the right of way. The Court held there was a good cause of action, the excavation being so close to the public way as to make it unsafe to persons using it with ordinary care. The making of such an excavation amounts to a public nuisance " even though the danger consists in the risk of acci- dentally deviating from the road." Later it has been held that one who by lawful authority diverts a public path is bound to provide reasonable means to warn and protect travellers against going astray at the point of diversion (/). In Corhy v. Hill (g) the plaintiff was a person using a private way with the consent of the owners and occupiers. The defendant had the like consent, as he alleged, to put slates and other materials on the road. No light or other safeguard or warning was provided. The plaintiff's horse, being driven on the road after dark, ran into the heap of materials and was injured. It was held immaterial whether the defendant was acting under licence from the owners or not. If not, he was a mere trespasser ; but the owners themselves could not have justified putting a concealed and dangerous obstruction in the way of persons to whom they had held out the road as a means of access (/t). {/) Hurst Y. Tutjlor (1885) 14 direction, got on the railway, and Q. B. D. 918, 54 L. J. Q. B. 310 ; fell over a bridge, defendants, railway contractors, had (g) 4 C. E. N. S. 566, 27 L. J. (within the statutory powers) C. P. 318 (1858). diverted a footpath to make the (A) Cp. Sweeny v. Old Colony <£• line, but did not fence off the old Xewport E. R. Co. (1865) 10 Allen direction of the path; plaintiff, (Mass.) 368, and Bigelow L. C. walking after dark, followed the old 660 JiES IPSA LOQUITVU. 499 Here the plaintiff was (it seems) (0 only a licensee, but while the licence was in force he was entitled not to have the condition of the way so altered as to set a trap for him. The case, therefore, marks exactly the point in which a licensee's condition is better than a trespasser's. Where damage is done by the falling of objects into i'l'esump- a highway from a building, the modern rule is that the negligence accident, in the absence of explanation, is of itself evidence /,'mk//k;0. of negligence. In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some cause consistent with the due repair and careful management of the structure, he is liable. The authorities, though not numerous, are sufficient to establish the rule, one of them being the decision of a court of appeal. In Bijnie v. Boadlc (k) a barrel of flour fell from a window in the defendant's warehouse in Liverpool, and knocked down the plaintiff, who was lawfully passing in the public street. There was no evidence to show how or by whom the barrel was being handled. The Court said this was enough to raise agamst the defendant a presumption of negligence which it was for him to rebut. "It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out. ... A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing (i) The language of the judg- Asylum) did not amount to an ments leaves it not quite clear "invitation " in the special sense whether the continued permission of this class of cases, to use the road for access to a {k) 2 H. & 0. 7 '22, 33 L. J. Ex, public building{the Hanwell Lunatic 13, and in Bigelow L. C. 57S (1863). K K 2 500 DUTIES OF INSURING SAFETY. alonp; the road is injured by something falling upon him, I think the accident alone would be iwima facie evidence of negligence " (Z). This was followed, perhaps extended, in Kearney v. London, BrifilUon and South Coast Railicai/ Co. (m). There as the plaintiff was passing along a highway spanned by a railway bridge, a brick fell out of one of the piers of the bridge and struck and injured him. A train had passed immediately before. There was not any evidence as to the condition of the bridge and brickwork, except that after the accident other bricks were found to have fallen out. The Court held the maxim " res ipsa loquitur " to be applicable. " The defendants were under the common law liability to keej) the bridge in safe condition for the public using the highway to pass under it; " and when "a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train," it was for the defendants to show, if they could, that the event was consistent with due diligence having been used to keep the bridge in safe repair (/i). This decision has been followed, in the stronger case of a whole building falling into the street, in the State of New York. " Buildings properly constructed do not fall without adequate cause " (o). In a later case (p) the occupier of a house from which a lamp projected over the street was held liable for damage done by its fall, though he had employed a competent person (not his servant) to put the lamp in repair : the fall was in fact due to the decayed condition (I) Per Pollock C. B. Cp. Scott (n) Per Cur. L. E. 6 Q. B. at T. London Dock Co. (1865) 3 H. & pji. 761, 762. C. 596, 34 L. J. Ex. 220, p. 430, (o) Mullen v. St. John, 57 K Y. above. 567, 569. (m) Ex. CI). L. E. 6 Q. B. 759, (?;) Tarry v. AsUon (1876) 1 40 L. J. Q, B. 285 (1871). Q. B. D. 314, 45 L. J. Q. B. 260. PUBLIC WORKS AND HIGHWAYS. 501 of the attachment of the lamp to its bracket, which had escaped notice. "It was the defendant's duty to make the lamp reasonably safe, the contractor failed to do that . . . therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences " (q). In this case negligence on the contractor's part was found as a fact. On the same principle a public body executing authorized works remains bound to have regard to public safety (r), and to take all reasonable and usual precautions against the risks involved in the nature of the work. Under the modern authorities "it is very difficult for a person who is engaged in the execution of dangerous works near a highway to avoid liability by saying that he has employed an independent contractor, because it is the duty of a person who is causing such works to be executed to see that they are properly carried out so as not to occasion any damage to persons passing by on the highway" (s). The principle is equally applicable to persons interfering with the highway for their own purposes and local authorities repairing the highway itself (0- Combining the principles affirmed in these authorities, we see that the occupier of property abutting on a railway is under a positive duty to keep his property from being a cause of danger to the public by reason of any defect (2) Ter Blackburn J., 1 Q. B. D. Council [1899] ■! Q. B. 72, G6 L. J. at p. 319. <,). B. 704, (_'. A. As to the di.s- (r) HardaJvcr v. Idle District tinction between damage caused by C'otj?ici7 [1896] 1 Q. B. 335, C5L. J. failure to take reasonable pre- Q. B. 363. Cp. The Snark [1899] cautions incident to the natiire of P. 7i, 81, 68 L. J. P. 22. the work itself, and by "(jasual" (.9) Per A. L. Smith L. J., or "collateral" neglect for which Solliday v. National Telephone Ou. only the actual wrong-doer and his [1899] 2 Q. B. 392, 400, 68 L. J. immediate employer are liable, see Q. B. 1016. ib. at pp. 76, 78. it) Penny v. IVimhledon Urban 502 DUTIES OF INSURING SAFETY. either in structure, repair, or use and management, which reasonable care and skill can guard against. This does not exclude the liability of any other person for a negligent omission of himself or his servant in the course of employment, by which damage of this kind is immediately caused {ic). It likewise appears that the rule extends to all persons undertaking works involving danger to the public ; and the recent ten- dency of the Courts is to enforce this as a broad and wholesome rule of public policy and discourage minute objections. Distinc- But where an accident happens in the course of doing on fixed property work which is proper of itself, and not usually done by servants, and there is no proof either that the work was under the occupier's control or that the accident was due to any defective condition of the structure itself with reference to its ordinary purposes, the occupier is not liable (x). In other words, he does not answer for the care or skill of an independent and apparently competent contractor in the doing of that which, though connected with the repair of a structure for whose condition the occupier does answer, is in itself merely incident to the contractor's business and under his order and control. There are cases involving principles and considerations very similar to these, but concerning the special duties of adjacent landowners or occupiers to one another rather than any general duty to the public or to a class of persons. We must be content here to indicate their (u) Wliitdey V. Pepx>er (1877) 2 peculiar facts, where perhaps a very 1,1. B. D. 276. little more evidence might have (a;) Welfare Y.London ct Brighton turned the scale in favour of the /.'. Co. (1869) L. E. 4 Q. B. 693, plaintiff. 38 L. J. Q. B. 241 ; a decision on POSITION OF LICENSEES. 503 existence, though in practice the distinction is not always easy to maintain {y). Thus farwe have spoken of the duties owed to persons Position of llCGIlSGGS who are brouglit witliin tliese risks of unsafe condition or repair by the occupier's invitation on a matter of common interest, or are there in the exercise of a right. We have still to note the plight of him who comes on or near another's property as a "bare licensee." Such an one appears to be (with the possible exception of a mortgagee in possession) about the least favoured in the law of men who are not actual wrong-doers. He must take the property as he finds it, and is entitled only not to be led into danger by " something like fraud " (z). Persons who by the mere gratuitous permission of owners or occupiers take a short cut across a waste piece of land (a), or pass over private bridges (b) or have the run of a building (c), cannot expect to find the land free from holes or ditches, or the bridges to be in safe repair, or the passages and stairs to be commodious and free from dangerous places. If the occupier, while the permission continues, does something that creates a concealed danger to people availing themselves of it, he may well be liable (d) . And he would of course be liable, not for failure in a special duty, but for wilful wrong, if he purposely made his property dangerous to persons using ordinary care, and then held out his permission (7/) See Bower v. Peate (1876) 1 C. B. K". S. 731, 29 L. J. C. P. 203. Q. B. D. 321, 45 L. J. Q. B. 446 ; (b) Gautrct v. i'./fr/o/s (1867) L. Hucjlus V. Percival (1883) 8 App. R. 2 C. P. 371, 36 L. J. C. P. 191. Ca. 443, 52 L. J. Q. B. 719 ; and (c) Sullivan v. IFaters (1864) 14 cp. Gorhavi v. Gross, 125 Mass. Ir. C. L. R. 460. 232. {d) Corby v. Hill (1858) 4 C. B. (z) Willes J., Gautret v. Efjeriou N. S. 556, 27 L. J. C. P. 318, (1867) L. K. 2 C. P. at p. 375. p. 498, above. (a) Sounsell v. Smyth (1860) 7 504 DUTIES OF INSURING SAFETY. as an inclueement to come on it. Apart from this improbable case, the hcensee's rights are measured, at best, by the actual state of the property at the time of the licence. " If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences : but, if I do nothing, I am not " (e). The occupier of a yard in which machinery was in motion allowed certain workmen (not employed in his own business) to use, for their own convenience, a path crossing it. This did not make it his duty to fence the machinery at all, or if he did so to fence it sufficiently ; though he might have been liable if he had put up an insecure guard which by the false appearance of security acted as a trap (/). The plaintiff, by having permission to use the path, had not the right to find it in any particular state of safety or convenience. " Permission involves leave and licence, but it gives no right. If I avail myself of permission to cross a man's land I do so by virtue of a licence, not of a right. It is an abuse of language to call it a right : it is an excuse or licence, so that the party cannot be treated as a trespasser " (g). In the language of Continental (c) AVilles J., L. R. 2 C. P. at he was, Cp. D. 9. ?, ad leg. Aquil. p. 373. 31, ad fin. " culpa ab eo exigenda (/) Bokh V. Smith (1862) 7 H. & non est, cum divinare non potuerit N. 736, 31 L. J. Ex. 201. an per eum locum aliquis transiturus (g) Martin B., 7 H. & X. at p. sit." In Tcaij v. Hedges (1882) 9 745. Batclichir v. Fortesciie (1883) Q. B. D. 80, the question was more 11 Q. B. Div. 474, 478, seems rather of the terms of the contract between to stand upon the ground that the landlord and tenant than of a duty plaintiff had gone out of his way imposed by law. Qiianr, whether to create the risk for himself As in that case the danger to which the between himself and the defendant, tenant was exposed might not have he had no title at all to be where well been held to bo in the nature LICENSEES. 505 jurisprudence, there is no question of culpa between a gratuitous licensee and the licensor, as regards the safe condition of the property to which the licence applies. Nothing short of dolus will make the licensor liable (h) . Invitation is a word applied in common speech to the Host and relation of host and guest. But a guest (that is, a visitor ° who does not pay for his entertainment) has not the benefit of the legal doctrine of invitation in the sense now before us. He is in point of law nothing but a licensee. The reason given is that he cannot have higher rights than a member of the household of which he has for the time being become, as it were, a part (t). All he is entitled to is not to be led into a danger known to his host, and not known or reasonably apparent to himself. On the same principle, a man who offers another a seat in his carriage is not answerable for an accident due to any defect in the carriage of which he was not aware (k). It may probably be assumed that a licensor is answer- Liability able to the licensee for ordinary negligence (Q, in the for"ordi- sense that his own act or omission will make him liable iJCTenoT'^' if it is such that it would create liability as between two persons having an equal right to be there : for example, of a trap. The defect was a non- H. & N. 247, 25 L. J. Ex. 339. apparent one, and the landlord knew But quaere if this explanation be of it. not obscitrum ixr ohscurius. Cp. (7i) Cp. Blalcemore v. Bristol and Abraham v. Reynolds, S H. & N. Mxeter R. Oo. (1858) 8 E. & B. at p. 148, where the same line of 1035, 27 L. J. Q. B. 167, where it thought appears, seems that the plaintiff's intestate (k) Moffatt v. Bateman (1869) L. was not even a licensee ; but see 11 R. 3 P. G. 115. Q. B. D. 516. {I) Horace Smith 38, Campbell (i) Soidhcote v. Stanley (1856) 1 119. 506 DUTIES OF INSURING SAFETY. if J. S. allows me to use his private road, it will hardly be said that, without express warning, I am to take the risk of J. S. driving furiously thereon. But the whole subject of a licensee's rights and risks is still by no means free from difficulty. Liability of owner not in occupa- tion. It does not appear to have been finallj' decided how far, if at all, an owner of property not in possession can be subject to the kind of duties we have been considering. We have seen that in certain conditions he may be liable for nuisance (»i). But, since the ground of these special duties regarding safe condition and repair is the relation created by the occupier's express or tacit "invitation," it may be doubted whether the person injured can sue the owner in the first instance, even if the defect or default by which he suflered is, as between owner and occupier, a breach of the owner's obligation. In the case of a building let in flats, already cited (n), the owner was held not to have parted with the possession of the stair- case ; and it has since been held that a lessor of an entire building, who has not undertaken to repair, is not answerable for consequences of defective repair, either to the tenant or to other persons using the premises (o). (m) Seep. 415, above. Campbell, pp. 26, 27. (») Miller v.H'ancoci:[lS9S] 2 Q. B. 177, C. A. (o) Lane v. Cox [1897] 1 Q. B. ilS, 66 L. J. Q. B. 193, C. A. 507 action. CHAPTEE XIII. SPECIAL RELATIONS OF CONTRACT AND TORT. The original theory of the common law seems to have Original been that there were a certain number of definite and £orms*^o£ mutually exclusive causes of action, expressed in appro- priate forms. The test for ascertaining the existence or non-existence of a legal remedy in a given ease was to see whether the facts could be brought under one of these forms. Not only this, but the party seeking legal redress had to discover and use the right form at his peril. So had the defendant if he relied on any special ground of defence as opposed to the " general issue." If this theorj^ had been strictly carried out, confusion between forms or causes of action would not have been possible. But strict adherents to the requirements of such a theory could be kept up only at the price of intolerable incon- venience. Hence not only new remedies were introduced, but relaxations of the old definitions were allowed. The number of cases in which there was a substantial griev- ance without remedy was greatly diminished, but the old sharply drawn lines of definition were overstepped at various points and became obscured. Thus different forms and causes of action overlapped. In many cases the new form, having been introduced for greater practical convenience, simply took the place of the older, as an alternative which in practice was always or almost always preferred : but in other cases one or another remedy might be better according to the circumstances. Hence different remedies for similar or identical causes of action 608 SPECIAL RELATIONS OF CONTRACT AND TOET. remained in use after the freedom of choice had been estabhshed with more or less difficulty. On the debatable ground thus created between those states of fact which clearly gave rise to only one kind of action and those which clearly offered an alternative, there arose a new kind of question, more refined and indeterminate than those of the earlier system, because less reducible to the text of fixed forms. Actions on The great instrument of transformation was the sane- tllG C3.SG. tioning and definition of actions on the case by the Statute of Westminster (a). Certain types of action on the case became in efl'ect new and well recognized forms of action. But it was never admitted that the virtue of the statute had been exhausted, and it was probably rather the timidity of pleaders than the unwillingness of the judges that prevented the development from being even greater than it was. It may be asked in this con- nexion why some form of action on the case was not devised to compete with the jurisdiction of the Court of Chancery in enforcing trusts. An action on the case analogous to the action of account, if not the action of account itself, might well have been held to lie against a feoffee to uses at the suit of cestui que use. Probably the reason is to be sought in the inadequacy of the common law remedies, which no expansion of pleading could have got over. The theory of a system of equitable rights wholly outside the common law and its process, and inhabiting a region of mysteries unlawful for a (rt) 13 EJw. I., ^. 24. The Itm- of framing new writs which had guage currently used about this already been claimed by the officers statute is not historically correct, of the Crown, and objected to. See though it makes no difference to the oath imposed on the Chancellor the legal result. The statute did by the Provisions of Oxford, Stubbs, not confer new power, but regulated Sel. Ch. 389, 393, 8th ed. and restrained an indeiimte power CLASSIFICATION. 509 common lawyer to meddle with, was not the cause but the consequence of the Court of Chancery's final triumph. The history of the Eoman lc(iis actioncs may in a general way be compared with that of common law pleading in its earlier stages : and it may be found that the praetorian actions have not less in cominon with our actions on the case than with the remedies peculiar to courts of equity, which our text-writers have habitually likened to them. Forms of action are now abolished in England. But Causes of the forms of action were only the marks and appointed modem trappings of causes of action ; and to maintain an action cias-at forms of pleading are generally abolished or obligation g^'^atlv simplified, it seems better to say that wherever IS wholly there is a contract to do something, the obligation of the m con- f o tract. contract is the only obligation between the parties with regard to the performance, whether there was a duty antecedent to the contract or not. But injury which would have been a tort, as breach of a duty existing at (i) Jennings v. Rmulall (1799) 8 & N. 288, 29 L.J. Ex. 180 ; p. 350, T. P.. 335, 4 E. R. 680 ; p. 55, above. above. The addition of a count (v) 3[ttr:ctti\. IJ'ilUams {1S30) 1 charging wilful fraud made no differ- B. k Ad. 415, 35 R. R. 329 ; action ence : Green v. Greenbank (1816) 2 by customer against banker for dis- Marsh. 485, 17 E. R. 529. honouring cheque. (u) C'lihie,;jv. rinn{lSeO)5 H. TORT FOUNDED ON COXTUACT. 517 common law, if there had not been any contract, is still a tort (x). The authorities are in conflict as to the application of this principle to the statutory distinction of actions by the County Courts Act, for certain purposes of costs, as being "founded on contract" or "founded on tort" (jj). All rules and restrictions of this kind must be taken Limits of with regard to their appropriate subject-matter. They do not exclude the possibility of cases occurring in which there is more than an alternative of form. If John has contracted with Peter, Peter cannot make John liable beyond his contract ; that is, where the facts are such that a cause of action would remain if some necessary element of contract, consideration for example, were subtracted, Peter can, so to speak, waive John's promise if he think fit, and treat him in point of form (including all incidents of procedure, it would seem) as having committed a wrong ; but in point of substance he cannot thereby make John's position worse. In saying this, however, we are still far from saying that there can in no case be a relation between Peter and John M'liich includes the facts of a contract (and to that extent is determined by the obligation of the contract), but in some way extends beyond those facts, and may produce duties really independent of contract. Much less have (x) Taylor v. J/. ,S'. <€■ L. R. Co. repealed Act of 1867. See the [1895] 1 Q. B. 134, 64 L. J. 1,1. B. cases in last note, whioli seem to 6, G. A. (porter shut carriage door oontirm Poxzi v. Shipton, note (0), on plaintiff's tliumh) ; Turner v, p. 514, above. "BvA FhiniHgY. Man- iS'toZKJrass [1898] 1 Q.B.56, 67L.J. Chester, Sheffield . 290, 291, above, and Principles of Contract, 6th ed. 15, 16. The case is perhaps open to the remark that a doubtful tort and the breach of a doubtful contract were allowed to save one another from adequate c]'iticism. INDEPENDENT CAUSES OF ACTION. 519 In Austin v. Great IJ'estcni Railway Compaiii/ (a), an action for harm suffered in some accident of which the nature and particulars are not reported, the plaintiff was a young child just above the age up to which children were entitled to pass free. The plaintiff's mother, who had charge of him, took a ticket for herself only. It was held that the company was liable either on an entire contract to carry the mother and the child (enuring, it seems, for the benefit of both, so that the action w-as properly brought by the child) {h), or inde- pendently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely ((■)■ Such a passenger is, in the absence of fraud, in the position of using the railway company's property by invitation, and is entitled to the protection given to persons in that position by a class of authorities now well established (d). Whether the company is under quite the same duty towards him, in respect of the amount of diligence required, as towards a passenger with whom there is an actual contract, is not so clear on principle ((')■ The point is not discussed in any of the cases now under review. Again, if a servant travelling with his master on a railway loses his luggage by the negligence of the com- pany's servants, it is immaterial that his ticket was paid for by his master, and he can sue in his own name for the loss. Even if the payment is not regarded as made by the master as the servant's agent, as between them- selves and the company (/), the company has accepted '«) L. R. 2 Q. B. 442 (1867). (reiit's agent obtaining a contract in the name of a principal f^^iJ^i^^. whose authority he misrepresents. A person so acting Wi-igM). is liable for deceit only if the misrepresentation is fraudulent, and that liability (when it exists), being purely in tort, does not extend to his executors. Neither can the professed agent, whether acting in good faith ■or not, be held personally liable on a contract which he purported to make m the name of an existing principal, though for some time it was a current opinion that he was so liable. To meet these difiiculties it was held in CoUcn v. Wright (m) that when a man purports to contract as agent there is an implied warranty that he is really authorized by the person named as principal, •on which warranty he or his estate will be answerable e.c rontractu. Just as in the case of the old "common (i) L. q. E. i. 233. Rev. vi. 223. (i) Moses V. 3Ia«fcrlan, 2 Burr. {I) Lightltj v. Cloustoii (1808) 1 1005 ; cp. Leake on Contracts, 3rd Taunt. 112, 9 R. E. 713. ed. 54, 70, 71. As to the limits of (m) Ex. Ch. (1857) 8 E. & B. -the option to sue in assumpsit in 647, 27 L. J. Q. B. 215, repeatedly such cases, see Waiver of Tort, by followed, e.r/. Oliver v. Bank of Prof. W. A. Keener, Harv. Law England [1901] 1 CIi. 522 SPECIAL BELATIONS OF CONTRACT AND TORT. counts," the fact that the action lies against executors shows that even where fraud is present, there is not merely one cause of action capable of being expressed, under the old system of pleading, in different ways, but two distinct though concurrent causes of action, with a remedy upon either at the plaintiff's election. We pass from these to the more troublesome cases where the causes of action in contract and in tort are not between the same parties. Concur- rent causes of action against different parties in contract and in tort. Daly ell v. Tyrer. (b) There may be two causes of action with a common plaintiff, or the same facts may give Z. a remedy in contract against A. and also a remedy in tort against B. The lessee of a steam ferry at Liverpool, having to meet an unusual press of traffic, hired a vessel with its crew from other shipowners to help in the work of the ferry for a day. The plaintiff held a season-ticket for the ferry, and therefore had a contract with the lessee to be carried across with due skill and care. He crossed on this day in the hired vessel ; by the negligence of some of the crew there was an accident in mooring the vessel on her arrival at the farther shore, and the plaintiff' was hurt. He sued not the lessee of the ferry but the owners of the hired vessel ; and it was held that he was entitled to do so. The persons managing the vessel were still the servants of the defendants, her owners, though working her under a contract of hiring for the purposes of the ferry ; and the defendants would be answerable for their negligence to a mere stranger lawfully on board the vessel or standing on the pier at which she was brought up. The plaintiff' was lawfully on their vessel with their consent, and they were not the less responsible to him because he was there in exercise DOUBLE RIGHT OF ACTION. 523 of a right acquired by contract upon a consideration paid to some one else (n). A leading decision on facts of this kind was given by FrndUesv. the Court of Appeal in 1880 (o). yf cf"^' The plaintiff, a railway passenger with a return ticket alighting at his destination at the end of the return Journey, was hurt by reason of the carriages being unsuit- able to the height of the platform at that station. This station and platform belonged to one company (the South "Western), by whose clerk the plaintiff's ticket had been issued : the train belonged to another company (the District) who used the station and adjoining line under running powers. There was an agreement between the two companies whereby the profits of the traffic were divided. The plaintiff sued the District Company, and it was held that they were liable to him even if his contract was with the South "Western Com- pany alone. The District Company received him as a passenger in their train, and were bound to provide car- riages not only safe and sound in themselves, but safe with reference to the permanent waj- and appliances of the line. In breach of this duty they provided, accord- ing to the facts as determined by the jury, a train so ordered that "in truth the combined arrangements were a trap or snare," and would have given the plaintiff a cause of action though he had been carried gratuitously (jj). He had been actually received by the defendants as a passenger, and thex-eby they undertook the duty of not (n) Dalydlv. Tyrer (1858) E. B. C. P. 400. & E. 899, 28 L. J. Q. B. 62. (j;) Bramwell L. J., 5 C. P. Div. (o) Foulkcs V. Metrop. Did. li. at p. 159. Seo the judgment of Co., 5 C. P. Div. 157, 49 L. J. C. P. Thesiger L. J., for a fuller state- 361. Cp. Berrinyer v. G. E. R. Co. ment of the nature of the duty. (1879) 4 C. P. D. 163, 48 L. J. 524 SPECIAL RELATIONS OF CONTRACT AND TORT. Ki'lly Y. Metro/). Ry. Co. Causes of action in contract and tort at suit o£ difEerent plaintiffs. exposing him to unreasonable peril in any matter incident to the journey. This rule is not confined to active misfeasance. It has now been applied by the Court of Appeal to a case where the negligence complained of was the omission to shut off steam in due time in running into a station. Wherever the parties have come into such a relation that a duty to take proper care can be established without reference to any contract, there the violation of that duty by negligence is a tort, whether it consist in com- mission or in omission, and whether there be in fact a contract or not {q). (c) There may be two causes of action with a common defendant, or the same act or event which makes A. liable for a breach of contract to B. may make him liable for a tort to Z. The case already mentioned of the servant travelling by railway with his master would be an example of this if it were determined on any particular state of facts that the railway company contracted only with the master. They would not be less under a duty to the servant and liable for a breach thereof because they might also be liable to the master for other consequences on the ground of a breach of their contract with him (;■). Again, an officer in Her Majesty's service and his baggage were carried under a contract made with the carriers on behalf of the Government of India ; this did not prevent the carriers from being liable to the officer if his goods were destroyed in the course of the journey by the negligence of their servants. "The contract is (q) Kelly v. Mrlrop. Ey. Co. [1895] 1 q. B. 944, 64 L. J. Q. B. 668, explaining Taylor v. M. S. tt L. R. Co. [1895] 1 Q. B. 134, 64 L. J. Q."B. 6, C. A. (r) Marshall's ca. (1851) 11 C. B. 655, 21 L. J. C. P. 34, siqyra, p. 520. ALTON'S CASE. 525 no concern of the plaintiff's: the act was none the less a wrong to him"(s). He could not charge the defen- dants with a breach of contract, but they remained answerable for " an affirmative act injurious to the plaintiff's property " (f) . Again, a servant was travelling with his livery, being the master's property, in his portmanteau, and the portmanteau with its contents was accepted by the railwaj' company as the servant's luggage, and spoilt by the negligence of one of the company's porters who overturned it in front of a moving train. It was held that the master might sue the company for the damage to the livery as a wrong independent of contract (?()• The decision of the Court of Common Pleas in Alton V. Midland Raihrai/ Co. (x) has given rise to some difficulty. A servant travelling by railway on his master's business (having paid his own fare) received hurt, as was alleged, by the negligence of the railway company's servants, and the master sued the company for loss of service consequent on this injury. It was held that the action would not lie, the supposed cause of action arising, in the opinion of the Court, wholly out of the company's contract of carriage ; which contract (s) Jlartin v. G. I. P. I!. Co. (1867) L. R. 3 Ex. 9, per Bramwell B. atp. ^i, 37 I'. J- Ex. 27. (t) ChannellB. ibid. ; Kelly C.B. and Pigott B. doubted. (u) MeuxN. G. E. n. Co. [1895] 2 Q. B. 387, 64 L. J. I,). B. 657, C. A. It is mooted in Kay L. J. 's judgment [1895] 2 Q. B. at p. 393, whether the case of a stranger's goods in which the passenger had no interest might be distinguish- able. Subject to that doubt, Beclier V. G. E. n. Co. (1870) L. R. 5 Q. B. Alton V. Midland It. Co., no longer authority. 211, 39 L. J. (,>. B. 122, would seem to be overruled. The doubt is jicr- haps hardly substantial, for the passenger has possession at least, and surely that is interest enough for the purpose. Whether the passenger could recover more than nominal damages for the breach of the contract with him does not con- cern us here. {x) 19 C. B. N. S. 213, 34 L. J. C. P. 292(1865). This case was not cited either in lUarlin v. G. I. P. It- Co. or Foulkes v. Met. Did. li. Co. 526 SPECIAL RELATIONS OF CONTRACT AND TORT. being made with the servant, no third person could found any right upon it. But it is not explained in any of the judgments how this view is consistent with the authori- ties relied on for the plaintiff, and in particular with MaisJialVs case, a former decision of the same Court; and the test question, whether the reception of the plaintiff's servant as a passenger would not have created a duty to carry him safely if there had not been any contract with him, is not directly dealt with. The case, though expressly treated by the Court as of general importance, was never much cited or relied on ; and the correctness of the decision was disputed (extra-judicially, it is true) by Sir E. V. Williams (y) . A directly contrary decision has also been given in the State of Massachusetts (z). But it is now certain that Alton's case is virtually over- ruled by FoulLcs's case and the other later decisions of the Court of Appeal which proceed on the existence of a duty not only in form but in substance independent of contract. Its authority can be saved only by confining it to the precise form of the pleadings on which it was decided, if it can be saved even so far (a). The most ingenious reason for the judgment of the Court is that of Willes J., who said that to allow such an {y) " The Court decided this case sit^jj-a, p. 520. oil the principle that one who is no («) Ames v. Union i.'. Co. (1875) party to a contract cannot sue in 117 Mass. 541, expressly following respect of the breach of u, duty Marshall's ca. (1851) 11 C. B. 655, arising out of the contract. But 21 L. J. C. P. 34, supra, p. 520. it may be doubted whether this was {a) Taylor v. M. S. & L. U. Co., correct ; for the duty, as appears [1895] 1 Q. B. 134, 64 L. J. Q. B. by the series of cases cited in the 6, see per A. L. Smith L. J. [1895] earlier part of this note, does not 1 Q. B. at pp. 140—141, but it is exclusively arise out of the contract, submitted that neither the declara- but out of the common law obliga- tion nor the argument for theplain- tion of the defendants as carriers " ■ tiff treated the action as founded on 1 Wms. Saund. 474. Sir E. V. contract, but only the defendant's Williams was a member of the plea. Court which decided Marshall's case, ALTON'S CASE. 527 action -would be to allow a stranger to exercise and deter- mine the election (of suing in contract or tort) which the law gives only to the person actually injured. But it is submitted that the latter is (or was) required to elect between the two causes of action as a matter of remedy, not of right, and because he is to be compensated once and once only for the same damage ; and that such election neither affects nor is affected by the position of a third person. Moreover the master does not sue as a person claiming through the servant, but in a distinct right. The cause of action and the measure of damages are different (b) . On the whole the weight of principle and authority was strong against Alton's case even before the remarks made on it in 1895 in the Court of Appeal ; and now, notwithstanding the respect due to the Court before which it came, and which included one of the greatest masters of the common law at any time, the only legitimate conclusion seems to be that it was wrongly decided. From all this it appears that there has been (though Winto'- perhaps there is no longer) a certain tendency to hold WrigUt,' that facts which constitute a contract cannot have any other legal effect. The authorities formerly relied on for this proposition really prove something different and much more rational, namely, that if A. breaks his con- tract with B. (which may happen without any personal default in A. or A.'s servants), that is not of itself sufficient to make A. liable to C, a stranger to the con- tract, for consequential damage. This, and only this, is the substance of the perfectly correct decisions of the Court of Exchequer in Winterbottom v. Wright (c) and (J) See pp. 223, 224, above. (c) 10 ^[. & W. 109, 11 L. J. Ex. 415 (1842). &c. 528 SPECIAL RELATIONS OF CONTRACT AND TORT. Longmeid v. Hollidaij (d). In each case the defendant delivered, under a contract of sale or hiring, a chattel which was in fact unsafe to use, but in the one case was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract, using the chattel — a coach in the one case, a lamp in the other — in the ordinary way, came to harm through its dangerous condition, and was held not to have any cause of action against the purveyor. Not in contract, for there was no contract between these parties ; not in tort, for no bad faith or negligence on the defendant's part was proved. If bad faith (e) or misfeasance by want of ordinary care (/) had been shown, or, it may be, if the chattels in question had been of the class of eminently dangerous things which a man deals with at his peril (//), the result would have been different. With regard to the last-mentioned class of things the policy of the law has created a stringent and peculiar duty, to which the ordinary rule that the plaintiff must make out either wilful wrong-doing or negligence does not apply. There remain over some few miscellaneous cases currently cited on these topics, of which we have purposely said nothing because they are little or nothing more than warnings to pleaders (h). (d) 6 Ex. 761, 20 L. J. Ex. 430 creating a dangerous state of things, (1851)- witliout any allegation tliat lie (e) Zangridgc v. Lcrtj (1837) 2 M. knew of the danger, or had any & W. 519, 46 R. R. 689. control over the thing he worked (/) George v. Skivington (1869) upon or the place where it was, L. R. 5 Ex. 1, 38 L. J. Ex. 8. or that the plaintiff was anything (g) See Thomas y. Winclicslcr more than a "bare licensee.'' Tollit (1852) 6 K". Y. 397, Bigelow L. C. v. Sherstonc (1839) 5 M, & ^Y. 283, 602, pp. 486—488, above. is another study in bad pleading (/j) Such is Co/itsv. ,S'«?c?c)i (1868) which adds nothing to the sub- L. R. 3 C. P. 495, 37 L. J. C. P. stance of the law. So Howard 233, where the declaration at- -i. Shepherd (1850) 9 C. B. 296, tempted to make a man liable for exhibits an attempt to disguise a LIABILITY DEPENDENT ON CONTRACT. 529 If, after this examination of the authorities, we cannot Concur- get rid of the notion that the occurrence of distinct breach of causes of action c.r delicto and ex contractu is a mere '^°^l^f'^v ^ with delict accident of common law procedure, we have only to turn ™ Roman to the Eoman system and find the same thing occurring there. A heehorn films faniilias, being an apprentice, is immoderately beaten by his master for clumsiness about his work. The apprentice's father may have an action against the master either on the contract of hiring {ex locato) (i), or at his option an action under the lex Aquilia, since the excess in an act of correction which within reasonable bounds would have been lawful amounts to cul2>a (k). It is like the English cases we have cited where there was held to be a clear cause of action inde- pendent of contract, so that it was not necessary for the plamtiff to make out a breach of contract as between the defendant and himself. III. — Causes of Action in Tort dependent on a Contract not heticecn the same Parties. (a) "When a binding promise is made, an obligation is Causes of created which remains in force until extinguished by the pendent*^' performance or discharge of the contract. Does the duty j™ °°V thus owed to the promisee constitute the object of a kind contract, of real right which a stranger to the contract can infringe, breach'of* and thereby render himself answerable ex delicto ? In contract. other words, does a man's title to the performance of a promise contain an element analogous to ownership or possession ? The general principles of the law (notwith- manifestly defective cause of action the Lex Aquilia, p. 14 : the trans- in assumpsit by declaring in the latinn there given is not altogether General form of case. correct, but the inaccuracies do not (i) D. 19, 2. locaii condiicti, 13, afiect the law of the passage. And § 4. see D. 7j. t. 27, §§ 11, 33, Grueber, (k) D. 9, 2. 5, § 3 ; Grueber on p. 230. p_X. M M 530 SPECIAL RELATIONS OF CONTRACT AND TORT. standing forms of speech once in use, and warranted by considerable authority) (Z) seem to call for a negative answer. It would confuse every accustomed boundary between real and personal rights, dominion and obliga- tion, to hold that one who prevents Andrew from performing his contract with Peter becomes ipso facto a kind of trespasser against Peter {m). For Peter has his remedy against Andrew, and never looked to having any other ; and Andrew's motives for breaking his contract are not material. According to authorities which at present are generally accepted, but of which the reconsideration is all but invited by recent expres- sions of opinion in the House of Lords (n), Peter may, in some circumstances, sue John if John procures Andrew to break his contract with Peter ; but this, assuming the doctrine to be ultimately affirmed, is because John has wilfully caused the breach of a legal right to Peter's damage. It is certain that in this class of cases actual damage must be alleged and proved (o). This at once shows that the right violated is not an absolute and independent one like a right of property, (Q Blackstone, ii. 442, speaks of to be held, conversely, that who- a contract to pay a sum of money ever breaks a contract is liable to a as transferring a property in that mere stranger for any consequential sum ; but he forthwith adds that damage to him, without further this property is " not in possession proof of negligence or other wrong, but in action merely," i.e. it is not This is certainly not our law. property in the full sense : there is (n) See p. 318, above, a res but not a dominus, Vermbrjen [o) See the declaration in Lumlnj but not Eigcntlmm. v. Gije, 2 E. & B. 216, 22 L. J. (m) We have no right to say that Q. B. 463. In Boioen v. Sail, Q ii system of law is not conceivable Q. B. Div. 333, 50 L. J. Q. B. 305, where such a doctrine would be it does not appear how the claim natural or even necessary. But for damages was framed, but in the that system, if it did exist, would opinion of the majority of the Court be not at all like the Eoman law there was evidence of special and not much like the common law. damage ; see 6 Q. B. Div. 337. To make it complete it would have MISTAKE IN DELIVERING TELEGRAMS. 531 for the possibility of a judgment for nominal damages is in our law the touchstone of such rights. Where specific damage is necessary to support an action, the right which has been infringed cannot be a right of property, though in some cases it may be incident to property. (b) In the last-mentioned class of cases, then, it has Damage to been and — subject to the doubts mentioned above — is by ^breach held that a contracting party may indirectly through °^ ^■'?'^" the contract, though not upon it, have an action against a stranger. Can he become liable to a stranger? We have already seen that a misfeasance by a contracting party in the performance of his contract may be an independent wrong as against a stranger to the contract, and as such may give that stranger a right of action {p). On the other hand, a breach of contract, as such, will generally not be a cause of action for a stranger (g'). And on this principle it is held by our courts that where a message is incorrectly transmitted by the servants of a telegraph company, and the person to whom it is delivered thereby sustains damage, that person has not any remedy against the company. For the duty to transmit and deliver the message arises wholly out of the contract with the sender, and there is no duty towards the receiver. Wilful alteration of a message might be the ground of an action for deceit against the person who altered it, as he would have knowingly made a false statement as to the contents of the message which passed through his hands. But a mere mistake in reading off or transmitting a letter or figure, though it may materi- ally affect the sense of the despatch, cannot be treated as a deceit (/■)• (p) P. 524, above. (r) Dickson v. Ilcuicr's Telegram (q) The exceptions to this rule are Co. (1877) 3 C. P. Div. 1, 47 L. J. wider in America than iu England. C. P. 1, confirming Playford v. M j\I 2 532 SPECIAL RELATIONS OF CONTRACT AND TORT. Positionof "In America, on the other hand, one who receives a erroneous telegram which, owing to the neghgence of a telegraph ^uiere^S, ' company, is altered, or in other respects untrue, is views in invariably permitted to maintain an action against the and U.S. telegraph company for the loss that he sustains through acting upon that telegram " : but the learned American commentator here cited finds the reasoning of the English courts difficult to answer (s) . And the American decisions appear to rest more on a strong sense of public expediency than on any one definite legal theory. The suggestion that there is something like a bailment of the message may be at once dismissed. Having regard to the exten- sion of the action for deceit in certain English cases (t), there is perhaps more to be said for the theory of misrepresentation than our courts have admitted ; but this too is precarious ground. The real question of principle is whether a general duty of using adequate care can be made out. I am not bound to undertake telegraphic business at all ; but if I do, am I not bound to know that errors in the transmission of messages may naturally and probably damnify the receivers ? and am I not therefore bound, whether I am forwarding the messages under any contract or not, to use reasonable care to ensure correctness ? I cannot warrant the authenticity or the material truth of the despatch, but If. K. Ehiiric Telegraph Co. (1869) eontraUcnclo, but the lamented L. K. i Q. B. 706, 38 L. J. (.^ B. author's ingenuity -will not persuade 249. many common lawyers that it lias (s) Gray on Communication by And if it had, I fail to see how tliat Telegraph (Boston, 1885) §§ 71-73, could att'ect the position of parties where authorities are collected. And between whom there is not even the see Wharton on Contracts, §§ 791, offer of a contract. 1056, who defends the American (t) See especially DcHton v. G.N. rule on somewhat novel speculative R. Co. (1856) 5 E. & B. 860, 25 grounds. Perhaps the common law L. J. Q. B. 129, p. 290, above. ou gilt to have a theory of culpa in MISTAKE IN DELIVERING TELEGRAMS. 533 shall I not be diligent in that which lies within my power, namely the delivery to the receiver of those words or figm-es which the sender intended him to receive "? If the affirmative answer be right, the receiver who is misled may have a cause of action, namely for negligence in the execution of a voluntary undertaking attended with obvious risk. But a negative answer is given by our own courts, on the ground that the ordinary law of negligence has never been held to extend to negli- gence in the statement of facts (if it did, there would be no need of special rules as to deceit) ; and that the delivery of a message, whether by telegraph or other- wise, is nothing but a statement that certain words have been communicated by the sender to the messenger for the purpose of being by him communicated to the receiver. It may perhaps be said against this that the nature of telegraph business creates a special duty of diligence in correct statement, so that an action as for deceit will lie without actual fraud. But since the recent cases following Dcri-y v. Peck (u) this could hardly be argued in England. Perhaps it would be better to say that the systematic undertaking to deliver messages in a certain way (much more the existence of a corporation for that special purpose) puts the case in a category of its own apart from representations of fact made in the common intercourse of life, or the repetition of any such representation. Thus we should come back to the old ground of the action on the case for misfeasance. The telegraph company would be in the same plight as the smith who pricks a horse with a nail, or the unskilful surgeon, and liable without any question of contract or warranty. Such liability would not necessarily be towards the receiver only, though damages incurred by any other {u) See pp. 287, 288, above. 534 SPECIAL RELATIONS OF CONTIIACT AND TOET. The con- flict con- sidered on principle. person would in most cases be too remote. The Court of Appeal has for the present disposed of the matter for this country, and inland communication by telegraph is now in the hands of the Postmaster-General, who could not be sued even if the American doctrine were adopted. With regard to foreign telegrams, however, the rule is still of importance, and until the House of Lords has spoken it is still open to discussion. In the present writer's opinion the American decisions, though not all the reasons given for them, are on prin- ciple correct. The undertaking to transmit a sequence of letters or figures (which may compose significant words and sentences, but also may be, and often are, mere unintelligible symbols to the transmitter) is a wholly different thing from the statement of an alleged fact or the expression of a professed opinion in one's own language. Generally speaking, there is no such thing as liability for negligence in word as distinguished from act ; and this difference is founded in the nature of the thing (x). If a man asserts as true that which he does not believe to be true, that is deceit ; and this includes, as we have seen, making assertions as of his own know- ledge about things of which he is consciously ignorant. If he only speaks, and purports to speak, according to his information and belief, then he speaks for his own part both honestly and truly, though his information and belief may be in themselves erroneous, and though if he had taken ordinary pains his information might have been better. If he expresses an opinion, that is his (x) The law of defamation stands apart : but it is no exception to the proposition in the text, for it is not a law requiring care and caution in greater or less degree, but a law of absolute responsibility qualified by absolute exceptions ; and where malice has to be proved, the grossest negligence is only evidence of malice. MISTAKE IX DELIVERING TELEGRAMS. 535 opinion for what it is worth, and others must estimate its worth for themselves. In either case, in the absence of a special duty to give correct information or a com- petent opinion, there is no question of wrong-doing. If the speaker has not come under any such duty, he was not bound to have any information or to frame any opinion. But where a particular duty has been assumed, it makes no difference that the speaking or writing of a form of words is an incident in the performance. If a medical practitioner miscopies a formula from a pharma- copoeia or medical treatise, and his patient is poisoned by the druggist making it up as so copied, surely that is actionable negligence, and actionable apart from any contract. Yet his intention was only to repeat what he found in the book. It is true that the prescription, even if he states it to be taken out of the book, is his prescrip- tion, and he is answerable for its being a lit one ; if it be exactly copied from a current book of good repute which states it to be applicable to such cases as the one in hand, that will be evidence, but only evidence, that the advice was competent. Again the negligent misreading of an ancient record by a professed palseographist might well be a direct and natural cause of damage ; if such a person, being employed under a contract with a solicitor, made a negligent mistake to the prejudice of the ultimate client, is it clear that the client might not have an action against him ? If not, he may with impunity be negligent to the verge of fraud ; for the solicitor, not being damnified, would have no cause of action, or at most a right to nominal damages on the contract. The telegraph clerk's case is more like one of these (we do not say they are precisely analogous) than the mere reporting or repetition of supposed facts. There remains, no doubt, the argument that liability must not 536 SPECIAL RELATIONS OF CONTRACT AND TORT. be indefinitely extended. But no one has proposed to abolish the general rule as to the remoteness of damage, of -which the importance, it is submitted, is apt to be obscured by contriving hard and fast rules in order to limit the possible combinations of the elements of liability. Thus it seems that even on the American view damages cannot be recovered for loss arising out of an error in a ciphered telegram, for the telegraph company would have no notice of what the natural and probable consequences of error would be (?/). Character of morally iDnocent acts af- fected by extra- neous contract. (c) There are likewise cases where an innocent and even a prudent person will find himself within his right, or a wrong-doer, according as there has or has not been a contract between other parties under which the property or lawful possession of goods has been transferred. If a man fraudulently acquires property in goods, or gets delivery of possession with the consent of the true owner, he has a real though a defeasible title, and at any time before the contract is avoided (be it of sale or any form of bailment) he can give an indefeasible title by delivery over to a buyer or lender for valuable consideration given in good faith (z). On the other hand a man may obtain the actual control and apparent dominion {y) Primrose v. Western Union Tclegniiih Co. (1893) 154 U. S. 1, ■where it was held that the measure of damages for mistake in deliver- ing a cipher message of which the meaning was unknown to the company was onl)' the sum paid for the message. "Telegraph com- panies are not bailees in any sense," and "the message ... is of no intrinsic value . . . and the measure of damages, for a failure to transmit or deliver it, has no relation to any value of the message itself, except as sucli value may be disclosed by the message, or be agreed between the sender and the company." But the decision was chiefly on the validity of the company's special conditions. Cp. Sanders v. Stuart (1876) 1 C. P. D, 326, 45 L. J. C. P. 682. (s) See the principle explained, and worked out iu relation to com- plicated facts, in Pease v. Gloaluc, L. R. 1 P. C. 219, 35 L. J. P. C. 66. EFFECTS OF EXTRANEOUS CONTRACTS. 537 of goods not only without having acquired the property, but -without any rightful transfer of possession. He may obtain possession by a mere trick, for example by pretending to be another person with whom the other party really intends to deal (a), or the agent of that person (b). Li such a case a third person, even if he has no means of knowing the actual possessor's want of title, cannot acquire a good title from him unless the sale is in market overt, or the transaction is within some special statutory protection, as that of the Factors Acts. He deals, however innocently, at his peril. In these cases there may be hardship, but there is nothing anomalous. It is not really a contract between other parties that determines whether a legal wrong has been committed or not, but the existence or non-existence of rights of property and possession — rights available against all the world — which in their turn exist or not according as there has been a contract, though perhaps vitiated by fraud as between the original parties, or a fraudulent obtaining of posses- sion (c) without any contract. The question is purely of the distribution of real rights as affording occasion for their infringement, it may be an unconscious infringe- ment. A man cannot be liable to A. for meddling with A.'s goods while there is an unsettled question whether the goods are A.'s or B.'s. But it cannot be a proposition in the law of torts that the goods are A.'s or B.'s, and it can be said to be, in a qualified sense, a proposition in the law of contract only because in the common law [a] CundijY. Lindsay, 3 App. Ca. possession in law, thougli a wrong- 459, 47 L. J. Q. B. 481. ful possession, and the lawful (J) Hardmrri) v. Booth, IH. &C. possessor of goods cannot at com- 803, 32 L. J. Ex. 105. nion law steal them, except in the (c) It will be remembered that cases of " breaking bulk " and the the essence of trespass da bonis like, where it is held that the asportaiis is depriving the true fraudulent dealing determines the owner of possession : a thief has bailment. 538 SPECIAL RELATIONS OF CONTRACT AND TORT. property and the right to possession can on the one hand be transferred by contract without delivery or any other overt act, and on the other hand the legal effect of a manual delivery or consignment may depend on the presence or absence of a true consent to the apparent purpose and effect of the act. The contract, or the absence of a contract, is only part of the incidents determining the legal situation on which the alleged tortious act operates. There are two questions, always conceivably and often practically distinct : Were the goods in question the goods of the plaintiff? Did the act complained of amount to a trespass or conversion ? Both must be distinctly answered in the affirmative to make out the plaintiff's claim, and they depend on quite different principles {d). There is therefore no complica- tion of contract and tort in these cases, but only — if we may so call it — a dramatic juxtaposition. IV. — Measure of Damages and other Incidents of the Kemedy. Measureof With regard to the measure of damages, the same ^aroages, pj.jj-,gipigg a,re to a great extent applicable to cases of contract and of tort, and even rules which are generally peculiar to one branch of the law may be applied to the other in exceptional classes of cases. The liability of a wrong-doer for his act is determined, as we have seen, by the extent to which the harm suffered by the plaintiff was a natural and probable consequence of the act. This appears to be also the true measure of liability for breach of contract ; " the rule with regard to remoteness of damage is precisely the same whether the (d) See passim in the opinions delivered in Hollins v. Fowler, L. E. 7 H. L. 757, 44 L. J. Q. B. 169. MEASURE OF DAMAGES, ETC. 539 damages are claimed in actions of contract or of tort " (e) ; the judgment of what is natural and probable being taken as it would have been formed by a reasonable man in the defendant's place at the date of the wrongful act, or the conclusion of the contract, as the case may be. No doubt there have been in the law of contract fairly recent opinions of considerable authority casting doubt on the rule of Hadh'i/ V. Ba.vcndalc (/), and tending to show that a con- tracting pairty can be held answerable for special conse- quences of a breach of his contract only if there has been something amounting to an undertaking on his part to bear such consequences ; on this view even express notice of the probable consequences — if they be not in themselves of a common and obvious kind, such as the plaintiff's loss of a difference between the contract and the market price of marketable goods which the defendant fails to deliver — would not of itself suffice [g) . But the Court of Appeal has more lately disapproved Rule as ,.,.,. to oonse- this View, pomtmg out that a contractmg party s liability quentiai to pay damages for a breach is not created by his agree- howllr' ment to be liable, but is imposed by law. "A person "l^^^^^}^^ contemplates the performance and not the breach of his and tort. contract ; he does not enter into a kind of second contract to pay damages, but he is liable to make good those injuries which he is aware that his default may occasion to the contractee " Qi). (e) Brett JI. R., The Kolthuj Hill McHaffic (1878) 4 Q. B. Div. 670, (1884) 9 P. Div. 104, 113, 53 L. J. per Bramwell L. J. at p. 674 ; Brett P. 56. andCottonL.JJ. are no less explicit. (/) 9 Ex. 341, 23 L. J. Ex. 179 The time to be looked to is that of ^18.54). entering into the contract : ib. In ig) Home v. iVirllavr! li. Co. 3IcMalion v. Field (1881) 7 Q. B. (187-3) Ex. Ch., L. R. 8 G. P. 131, Div. 591, 50 L. J. Q. B. 552, the 43 L. J. C. P. 59. supposed necessity of a special (h) Hydraulic Engineering Co. v. undertaking is not put forward at 540 SPECIAL RELATIONS OF CONTRACT AND TORT. The general principle, therefore, is still the same in contract as in tort, whatever difSculty may be found in working it out in a wholly satisfactory manner in relation to the various combinations of fact occurring in practice (;). One point may be suggested as needful to be borne in mind to give a consistent doctrine. Strictly speaking, it is not notice of apprehended consequences that is material, but notice of the existing facts by reason whereof those consequences will naturally and probably ensue upon a breach of the contract (k). Vindictive Exemplary or vindictive damages, as a rule, cannot be of act'ion' recovered in an action on a contract, and it makes no for breach difference that the breach of contract is a misfeasance of promise of mar- capable of being treated as a wrong. Actions for breach of promise of marriage are an exception, perhaps in law, certainly in fact : it is impossible to analyse the estimate formed by a jury in such a case, or to prevent them from giving, if so minded, damages which in truth are, and are intended to be, exemplary (l). Strictly the damages are by way of compensation, but they are "almost always considered by the jury somewhat in jjociiam" (m). Like all. JLr. J. D. ilayne, though he P. 28. •still (6th ed. 1899, at p. 42) holds (k) According to Alderson B. in by Home v. Midland Ji. Co., very i?acM«j/ v. 2?ff,)'C/ir?«?c, it is the know- pertinentlj' asks wheri' is the con- ledge of "special circumstances sideration for such an undertaking. under wliich the contract was Sue for fuller discussion of the rule actually made " that has to be and the authorities an article by looked to, i.e., the probability of Mr. F. E. Smith in L. Q,. E. xvi. the consequence is only matter of 275. inference. (i) As to the treatment of con- (l) See Berry v. Da Casta (1866) sequential damage where a false L. R. 1 0. 1'. 331, 3.t L. J. C. P. statement is made which may be 191. treated either as a deceit or as a [m) Le Blanc J. in C'Jiamherlain broken warranty, see Smith v. Gi-een v. Williamson (1814) 2 M. & S. 408, (1875) I C. P. D. 92, 45 L. J. C. 414, 15 R. II. 295. CONTRACTS ON WHICH EXECUTORS CANNOT SUE. 541 results might conceivably follow in the case of other hreaches of contract accompanied with circumstances of wanton injury or contumely. In another respect breach of promise of marriage is like Contracts a tort : executors cannot sue for it without proof of special executovs damage to their testator's personal estate ; nor does the <^™^^°t' ^ ■■- sue. action lie against executors without special damage (n). "Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record ; otherwise the Court cannot intend it " (o). The same rule appears to hold as concerning injuries to the person caused by unskilful medical treat- ment, negligence of carriers of passengers or their servants, and the like, although the duty to be per- formed was under a contract {j}). Positive authority, however, has not been found on the extent of this analogy. The language used by the Court of King's Bench is at any rate not convincing, for although certainly a wrong is not property, the right to recover damages for a wrong is a chose in. action; neither can the distinction between liquidated and unliquidated damages afford a test, for that would exclude causes of action on which executors have always been able to sue. We have considered in an earlier chapter the {n) Finlay v. Cliirney (1888) 20 p. 242, 34 L. J. C. P. at p. 298 ; Q. B. Div. 494, 57 L. J. Q. B. 247. cp. Bcckhavi v. Dralcc (1841) 8 M. (o) Chamberlain v. Williamson, k W. at p. 854 ; 1 Wins. Saund. 2 M. & S. at p. 115, 15 K. E. at p. 242 ; and see more in Williams on 297. Executors, pt. 2, bk. 3, cli. 1, § 1 {p) Chamberlain \. TVilUamson, (9th ed. p. 695 Sfjry.) ; and FMijmond last note ; Willes J. in Alton v. v. Fitch (1835) 2 C. M. & R. 588, ^mland R. Co., 19 C. B. N. S. at 41 R. R. 797. 542 SPECIAL RELATIONS OF CONTRACT AND TORT. exceptional converse cases in which by statute or other- wise a cause of action for a tort which a person might have sued on in his lifetime survives to his personal representatives. Where there was one cause of action with an option to sue in tort or in contract, the incidents of the remedy generally were determined once for all, under the old common law practice, by the plaintiff's election of his form of action. But this has long ceased to be of practical importance in England ((/), and, it is believed, in most jurisdictions. iq) See KeUtj v. JIdrup. R. Co. [1895] 1 Q. B. 944, at p. 946. 543 APPENDIX A. HISTOEICAL NOTE ON THE CLASS lEICATION OF THE FORMS OF PEESONAL ACTION. (By Mr. F. W. Maitland.) The history of the attempt to classify the English personal actions under the two heads of Contract and Tort will hardly be understood unless two preliminary considerations are had in mind. (1.) Between the various forms of action there were in old time many procedural differences of serious practical impoi'tance. A few of these would have been brought out by such questions as the following : — (a) What is the mesne process proper to this action ? Does one begin with summons or with attachment? Is there a capias ad respoitdiiidam, or, again, is there land to be seized into the king's hand ? (b) What is the general issue? Is it, e.g., Nil dchd, or No)i assumpsit, or Not guilty ? (c) What mode of proof is open to the defendant ? Is this one of the actions in which he can still wage his law ? (d) What is the final process ? Can one proceed to outlawry ? (e) How will the defendant be punished if the case goes against him ? Will he be merely am.erced or will he be imprisoned until he makes fine with the king ? In course of time, partly by statutes, partly under cover of fictions, the procedure in the various personal actions was made more uniform ; but the memory of these old differences endured, and therefore classification was a difficult task. (2.) The list of original writs was not the reasoned scheme of a provident legislator calmly devising apt remedies for all conceivable wrongs ; rather it was the outcome of the long and complicated 544 APPENDIX A. struggle -whereby the English king at various times and under various pretexts drew into his own court (and so drew away from other courts communal, seignorial, ecclesiastical), almost all the litigation of the realm. Then, in the thirteenth oenturj^, the growth of Parliament prevented for the future any facile invention of new remedies. To restrain the king's writ-making power had been a main object with those who strove for Parliaments (a). The completeness of the parliamentary victory is marked by the well-known clause in the )Statute of Westminster II. (6) which allows the Chancery to vary the old forms so as to suit new cases, but only new cases which fall under old law. A use of this per- mission, which we are apt to think a tardy and over-cautious use, but which may well have been all that Parliament would have' suffered, gave us in course of time one new form of action, namely, tresjiass upon the si^ecial case, and this again threw out branches which came to be considered as distinct forms of action, namely, assumpisit and trover. Equitj-, again, met some of the new wants of new times, but others had to be met by a stretching and twisting of the old foi-ms which were made to serve manj' purposes for which they were not originally intended. Kow to Bracton writing in the middle of the thirteenth century, while the king in his chancery and his court still exercised a con- siderable piower of making and sanctioning new writs (c), it may have seemed very possible that the personal actions might be neatly fitted into the scheme that he found provided in the Roman books ; they must be (1) c.v contractu vel qiuis-i, (2) t:v maleficio vel quasi [d). Personal actions in the king's court were by no means very common ; such actions still went to the local courts. Perhaps it is for this reason that he says very little about them ; perhaps his work is unfinished ; at any rate, he just states this classification but makes hardlj- any use of it. The same ma3' be said of his epitomators Britton (e) and Pleta (/). Throughout the middle ages (a) See a complaint by the bishops (c) His doctrine as to the making in 1257, Mat. Par. Chron. Maj. (ed. of new writs will be found on fols. Luard) vol. vi. p. 363. New writs 413-414 J. See fol, 438 ft for a writ contrary to law are made in the invented by William of Raleigh. Chancery without the consent of In several other cases Bracton the council of the realm. So under notices that the wiit has been lately the provisions of Oxfoid (1258) the devised by resolution of the Court Chancellor is to swear that he will (de consilio curiae), e.g., the Quare seal no writs save writs of course, Ejecit, fol. 220. without the order of the king and of (d) Fol. 102. the council established by the pro- («) Vol. i. p. 156. Britton's visions. See Stubbs, Select Char- equivalent for maleficiiim is trcs- ters, Part 6, No. 4, pass. (b) Stat. 13 Edw. I. (1285) c. 24. (/) Fol. 120. FORMS OF ACTION. 545 the theory that personal actions may be arranj^ed under these headings seems to remain a sterile, alien theorj'. It does not deter- mine the arrangement of the practical books, of the Eegister, the Old Natura Brevium, Fitzherbert's Natura Brevium, the Novae Narrationes. Even Hale, when in his Analysis he mapped out the field of English law, did not make it an important outline. The truth seems to be that the most natural classification of writs was quite ditt'erent. It would give us as its two main headings — (a) Praecipe ; (b) Si te ficei-it securum. (a) In one class we have writs beginning with Praecipe quod reddat — faciat — permittai. The sheriff is to bid the defendant render (do, permit) something, and only if this command be ineffectual will the action proceed. To this class belong the writ of right and other proprietary real actions, also debt {g), detinue account, and covenant. (b) In the other class the writ supposes that there is already a completed wrong and a perfect cause of action in the king's court. If the plaintiff finds pledges to prosecute, then the defendant must appear and answer. To this class belong the possessory assizes, trespass and all the forms developed out of trespass, viz. case, assumpsit, trover. Much is made of this classification in a book which once was of good repute, a book to which Blackstone owed much. Sir Henry Finch's Discourse on Law (A). The historical basis seems this : the king's own court takes cognizance of a cause either because the king's lawful precept has been disobeyed, or because the king's peace has been broken. But in order to assure ourselves that the line between breaches of contractual obligation and other causes of action cannot have been regarded as an elementary outline of the law by our mediseval lawyers, we have only to recall the history of assumpsit. We are obliged to say either that at some moment assumpsit ceased to be an action ex malejh-io and became an action ex contractu, or (and this seems historically the better way of putting it) that it was an action founded not on contract, but on the tort done by breach of some contractual or other duty voluntarily assumed. It must have been difiicult to hold that the forms of personal action could be aptly distributed between tort and contract, when in the Eegister ((/) The writ of debt in Glanvill, Debt ; see lib. 10, cap. 5. lib.' 10, cap 2, is just the writ of (A) Editions in 1613, 1636, 1678, right with the variation that a and 17S9. In the last of these see certain sum of money due is substi- pp. 257, 261, 284, 296. Black- tuted for a certain quantity of land. stone notices this classification in There may be trial by battle in Comment, vol. iii. p. 274. P.T. N N 54G APPENDIX A. actions founded on non-performanoe ol an assumpsit occurred, not even under the title of Case (for there was no such title) but under the title of Trespass mixed up with assaults and asportations, far away from debt and covenant (?'). The same point may be illustrated by the difficulty which has been felt in modern times of deciding whether detinue was ex contractu or ex rIeJicto. Bracton, fixing our terminology for all time, had said (7c) that there was no actin m rem for the recovery of movables because the judgment gave the defendant the option of paying the value instead of delivering the chattel. The dilemma therefore of contract or tort was offered to claims to which, according to Roman notions, it was inapplicable. But whether detinue was founded on contract or founded on tort, was often debated and never well settled. During the last and the earlier part of the present century the fact that in detinue one might declare on a loss and finding (detinue sur trover) was taken to prove that there was not necessarily any contract between the parties (Z). Opinion was swayed to the other side by the close relation between detinue and debt (m), a relation so close as to be almost that of identity, especially when debt was brought, not in the debet and detinet, but in the ihtinet only [n). A middle opinion was offered by the learned Ser j eant Manning (o) that detinue sur bailment was ex. contractu, and detinue sur trover was ex delicto; this would have allowed the question to turn on the choice made by the plain- tiff's pleader between two untraversable fictions. A decision of the Court of Appeal under the Judicature Acts (p) shows that the difficulty cannot occur in its old form. We are no longer, even if once we were, compelled to say that all claims for delivery of a chattel must be ex contractu or all must be ex delicto, though even the theory that every such claim is either ex contractu or ex delicto has difficulties of its own, which might have been avoided were we free to say that such a claim may be actio in rem. (i) Registnim, fol. 109 h; writs L. J. Ex. 11. for not cuttinc; down trees and not {m) TValker v. Needham (1841) 4 erecting a stone cross as promised, Sc. N. E. '222 ; 3 Man. & Gr. 557 ; are followed immediately by a writ Danby v. Lamb (1861) 11 C. B. N. for entering a warren and carrying S. 423, 31 L. J. C. P. 17. off goods hy force and arms. (?i) " And indeed a writ of debt (k) Fol. 102 h. in the detinet only, is neither more (I) Kettle V. Bromsall (1738) nor less than a mere writ of de- Willes 118 ; Mills v. G-raham tinue." Blackst. Comm. iii. 156. (1804) 1 B. & P. N". E. 140, 8 E. R. (o) 3 Man. & Gr. 561, note. 767; Oledstane v. Heioiti (1831) 1 {p) Bryant v. Herbert (1878) 3 Tyr. 445 ; Broadbent v. Ledward C. P. Div. 389, reversing S. 0. ibid. (1839) 11 A & E. 209 ; Clements v. 189, 47 L. J. C. P. 670. Flight (1846) 16 M. & W. 42, 16 FORMS OF A(!TION. 547 Because of the wager of law assumpsit supplanted debt ; so also for a long while the work of detinue was done by trover. That trover was in form <.i' dflicto seems not to have been doubted, still it often had to serve the purpose of a riinli'Mtin. As Lord Mansfield said ((/), " Trover is in form a tort, but in substance an action to try property. . . . An action of trover is not now I'.n mali-Jiciu, though it is so in form ; but it is fovmded on property." For these among other reasons the attempt to force the English forms into the Roman scheme was not likely to prosper. Never- theless the theory that the personal actions can be grouped under contract and tort made way as the procedural differences between the various forms were, in one way and another, obliterated. Blackstone states the theory (r), but does not work it into detaO ; following the plan which he inherited from Hale, he treats debt, covenant, and assumpsit as remedies for injuries aSecting property, injui-ies afiecting choses in action (s). In later books of practice the various forms are enumerated under the two headings ; detinue appears sometimes on one side of the line, sometimes on the other (t). Apart from the statutes which will be mentioned presently, little of practical importance has really depended on the drawing of this line. The classification of the personal actions has been discussed bv the Courts chiefly in three contexts. 1. As to the joinder of actions. We find it said at a compara- tively early day that " causes upon contract which are in the right and causes upon a tort cannot be joined" (n). But the rules regu- lating this matter were complicated, and could not be reduced to this simple principle. In the main they turned upon those proce- dural differences which have been noticed above. Thus it was said that the actions to be joined must be such as have the same mesne process and the same general issue, also that an action in which, apart from statute (./;), the defendant was liable to fine, could not be joined in one in which he could only be amerced. Assumpsit could not be joined with debt ; on the other hand debt (?) Hambly v. Trott (1776) 1 Comm. iii. 117. Cowp. 371, 373, 374. (s) Ibid. 153. (r) "Personal actions are such (t) Thus in Tidd's Practice (chap, whereby a man claims a debt, or i.) detiinie is treated as ex delicto ; personal duty, or damages in lieu in Chitty's Pleading (chap. ii. ) it is thereof; and likewise whfreliy a cla.ssed as ex ooji^racte, but hesitat- man claims a satisfaction in dam- iugly. ages for some iujuiy done to his («) Venison v. Ralpkson (1682) 1 person or property. The former Vent. 365, 366. are said to bi; tbund'-il on contracts, [x) .5 & 6 W. & M. c 12, abolish- the latter upon torts or wrongs." i'ag X\\a capiatur pro fine. N X 2 548 APPENDIX A. could be joined with detinue («/). This matter once very fertile of dispute has become altogether obsolete. 2. As to the sui'vival of actions against and for personal repre- sentatives. Here again it may be doubted whether the line of practical importance has ever been that between contract and tort, though the latter has often been mentioned in this context. (a) If we look back far enough we find that it was only by slow degrees that the executor came to represent the testator in at all a general way (2). It was, for instance, a rule that the executor could not be sued in debt if the testator could have waged his law. At one time and before the development of assumpsit, this must have meant that the executor could hardly ever be sued for money due upon a simple contract. In Coke's day it was still arguable that assumpsit would not he against the executor (a) , and not until the contrary had been decided was it possible to regard the executor as bearing in a general way the contractual liabilities of the testator. On the other hand it seems to have been quite as early estabhshed that the executor could be made to answer for some causes of action which were not breaches of contract, i.i\, where the estate had been increased by the proceeds of the testator's wrong-doing (i). But so long as the forms of action existed they were here of importance. Thus the executor could not have been sued in trespass or trover though the facts of the case were such that he could have been sued in assumpsit for money had and received (c). Trespass, it may be remembered, had but very gradually become a purely civil action ; to start with it was at least in part a criminal proceeding : so late as 1694 the defendant was, in theory, liable to fine and imprison- ment ((/) ; criminal proceedings founded on the testator's misconduct could not be taken against the executor. (?/) The learning on this topic on tliis case and generally on this will be found in the notes to Cory- piece of liislory by Bowen L. J. in ton\. Lilhcbije, 2 Wms. Saund. 117 Phillips v. Homfimj. 24 Ch. Div. d. See also the observations of 439, 4,'i7, 52 L. J. Ch. 833. Bramwell L. .7. in Bryant v. llcr- (c) Hnmhlij v. Trott, 1 Cowper Urt, 3 C. P. Div. 389-391. 371 ; PhUKps v. Homfray, uU sup. (j) See Bracton, fol. 407 b. {d) Stat. 5 & 6 W. & M. c 12. (a) Piiichon's Case (1611) 9 Co. The penal character of the writ of Kep. 86 b. By this time the pro- trespass is well shown by the clause vince within which wager of law of tlie Statutum Walliae introduc- was permitted had been so niucli ing that writ into Wales. " Justi- narrowed by judicial decision that tiarius ... si invenerit reum it had become possible to regard as culpabileni, castiget eum per pri- merely jirocedural the rule as to sonani vel per redemptionem vel debt against executors stated above. per misericordiam, et per dampna (b) iSir Henry Sherrington's Case laeso restituenda secundum quali- (temp. Eliz. ) Sav. 40. See remarks tatem et quantitateni delicti, ita FORMS OF ACTION. 549 (b) As regards the other question, what actions survive for an executor or administrator, we iind it early said that at common law actions in contract do survive while actions in tort do not (c ) ; but ali-eady in 1330 a statute, which was very liberally construed, had given the executor some actions which undoubtedly were the outcome of tort(/). On the other hand it has been held even of late yeais that (apart from all question as to real estate) an action for breach of contract does not necessarily survive for or against the personal representative ; the cause of action given by a breach of promise to marry is not as a general rule one for which repre- sentatives can sue or be sued {;atio ilia sit aliis in ex- (k) Br. Abr. Itcs-pomh'r, hi. emjjlnm, et timorem pvaebeat delin- (I) Bosun v. Sandford, 3 Salk. qiiendi." 203 ; 1 Sliower 101 ; Uich v. J'il- (e) Le Masoii v. Dixon (1627) khiglon, Caxth. Ill \iDhildY. Sands, W. Jones 173. Carth. 294 ; Bastard v. Hancock, (/) Stat. 4 Edw. III. c. 7. De Carth. 361. bonis aspoitatis in vita testatoris. (m) Rice v. Shulc, 5 Burr. 2611. iy) Chamberlain, v. iVilUanison (n) As to tlie possibility of tbe (1814) 2 M. & S. 408, 15 E. R. same act or deliuilt answering both 295 ; Fiiilay v. C'hiriicij, 20 Q. B. descriptions, see the last cliaptui- of Div. 494, 57 L. J. Q. B'. 247. the text. (/i) P. 49. (o) 9 & 10 Viet. c. 95, s. 129. (t) See notes to C'fiieZZv. Vaughan, (p) 13 & 14 Vict. c. 61, s. 11. 1 Wms. Saund. 291. 550 APPENDIX A. one class, and trespass, trover, and case in another class. The Common Law Procedure Act, 1852 [q), assumes in its schedule of forms that actions are either "on contracts,'' or "for wrongs independent of contract" ; but sect. 74 admits that "certain causes of action may be considered to partake of the character both of breaches of contract and of wrongs"; some very needless litigation m.ight have been saved had a similar admission been made in other statutes. By the County Courts Act of 1856 (r), costs in a certain event were made to depend upon the question whether the action was " an action of contract." By the Common Law Procedure Act of 1860 (s), costs in a certain event ^er& made to depend on the question whether the action was " for an alleged wrong." A section of the Countj' Courts Act, 1867 (<), drew a distinction as to costs between actions "founded on contract," and actions " founded on tort." Lastly the County Courts Act of 1888 in several of its sections draws a distinction between "an action of contract" and "an action of tort" («), while elsewhere {a) it contrasts an action " founded on contract " with one " founded on tort." The practical upshot, if any, of these antiquarian remarks is that the courts of the present day are very free to consider the classifica- tion of causes of action without paying much regard to an attempt to classify the now obsolete forms of action, an attempt which was never verj' important or very successful; an attempt which, as we may now think, was foredoomed to failure. u. 4.3, ss. 62, c. 43, .s. 116 ; (q) 15 & 16 Vict. c. 76. (m) 51 & 52 Vict (r) 19 & 20 Vict. c. 108, fc. 30. 65, 66. (s) 23 & 24 Vict. c. 126, s, 34. (x) 51 & 62 Vict. {t) 30 & 31 Vict. c. 142, ». 5. see p. 517, above. APPENDIX B. 551 EMPLOYEES' LIABILITY ACT, 1880. (43 & 44 Vict. c. 42.) An Act to extend and regulate the Liahilitij of Employers to make Compensation for Personal Injuries suffered by IVorlnnen in their service. [7th September, 1880.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the uutbority of the same, as follows : — 1. Where after the commencement of this Act personal injury is Amend- ■1 . , ■ ment of caused to a workman, , (1.) By reason of any defect (a) in the condition of the \ydyn(b), works (c), machinery, or plant (ri) connected with or vised in the business of the emploj'er (<■) ; or (a) This must be a defect show- ing some iici,'lii,'eiioe of the em- plover : IJ'cil.sh V. U'hitelct/ (18SS) 21 i). B. Div. 371, 57 L. J. Q. B. 586. "Defect" "means tlie ab- sence of titness to secure .safety in tile operation for which the ma- chinery is used" • per Kennedy J., Skintoii V. ScruUon (1893) BJ L. J. Q. B. .It p. 408. (b) An object left sticking out over a way is not a defect in the condition of the way : MciJ{ffin v. Pahiin-'s Shiphuildinci Gn. (1882) 10 (,l. H. D. 5. 52 L." J. Q. I!. 25. " Delect in condition " includes un- fitness for safe use, wlietlier from original fault of structure or want of repair: Hcskev. SamKehon {\883) 12 Q. B. D. 30, .V3 L. J. Q. B. 45 ; or insufficiency of any part of the jilant for the ]iarticnlar purpose it is being used for : Cripps v. Judge (1884) 13 Q. B. Div. 583, 53 L. J. Q. B. 517 ; but not mere negligent user : Wilktl.a v. IVall [1892] 2 Q. B. 92, 61 L. J. Q. B. 540, C. A. j\ny space which workmen have to pass over may be a " way ' : ib. As to sufficiency of evidence on this point, Palcy v. Garm-lt (1885) 16 Q. B. D. 52. A dangerous or im- proper collocation of things not de- fective in themselves m.ay be a defect: U'cbliii v. Ballard (1SS6) 17 Q. B. I). 122, 55 L. J. (i. B. 395 ; but see Thotims v. Quarler- mainr, 18 Q. 11. Div. 685 ; and qu. whether H'rhlin v. Ballard be right, jier Bowen L. J. at p. 699. (c) Leaving a wall whicli ismuler repair insecure for want of proper slioring up may be a defect in the condition of works within this sub- section ; BraHiihiaii \. liubinson [1892] 1 Q. B. 344, 61 L. J. Q. 15. 202. (d) " Plant" m.ay include horses, and vice in a horse is a " delect " : ynrmoidh v. Francr (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7. As to an employer's right to recover over from a person who has supplied defective ]ilaiit see Mowbray v. Mcmjwcallicr [1895] 2 (,). 1! 640, 65 L. J. Q. 1!. 50, C. A. («) The words of this section do not apply to ways, works, &c. 552 APPENDIX B. (2.) hj reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him (/) whilst in the exercise of such superintendence [g) ; or (3.) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform (/»), and did conform, where such injury resulted from his having so conformed (/) ; or (4.) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or byelaws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behaU ; or (5.) By reason of the negligence of any person in the service of the employer who has the charge or control (/c) of any signal, points, locomotive engine, or train upon a railway [l), the workman, or in case the injury results in death, the legal per- sonal representatives of the workman, and any persons entitled in case of death (m), shall have the same right of compensation and which are in conrne of construction, and not yet sufficiently complete to be used in the business : Howe v. Fitich (1886) 17 Q. B. D. 187. Tliey do ajiply to "an arrangement of maihinery and tackle which, although reasonably safe for tliose engaged in working it, is neverthe- less dangerous to workmen em- ployed in another department of the business"; Sraith v. Baker [1891] A. C. 325, 354, 60 L. J. Q. B. 683, per Lord Watson. (/) See interpretation clau.se, sect. 8. (g) Osbunic v. Jackson (1883) 11 Q. B. D. 619. (A) Snoicdm v. Ilaynes (1890) 25 Q. B. Div. 193, 59 L. J. Q. B. 325. (i) Orders or directions within the meaning of this sub-section need not be express or specitic : MiUward v. Midland It. Co. (1884) 14 Q. B. D. 68, 54 L. J. Q. B. 202. The order need not have been negli- gent in itself, nor tlie sole or imme- diate cause of the injury: IFild v. JVai/qood [1892] 1 Q. B. 783, 61 L. .T.'Q. B. 391, C. A. {k) The "chiirge or control" need not he complete or exclusive : McCord v. CammeU [1896] A. C. 67, 65 L. J. Q. B. 202, The duty of oiling and cleaning points is not "charge or control" : Gibbs v. G. W. R. Co. (1883-4) 11 Q. B. Y). 22, 12 Q. B. Div. 208, 53 L. J. Q. B. 543. Any one having authority to set a line of carriages or trucks in motion, by whatever means, is in charge or control of a train : Cox v. G. JK R, Co. (1882) 9 Q. B. D. 106. (I) ''Railway" has its natural sense, and is not contiued to rail- ways made or used by railway com- panies : Uoughtii v. Firbank (1883) 10 Q. B. D. 358, 52 L. J. Q. B. 480. (m) A workman can bind him- self by contract with his employer not to claim compensation under the Act, and such contract is a bar to any claim under Lord CampbeH's Act : Griffiths v. Dudley (1882) 9 Q. B. D. 357, 51 L. J. Q. B. 543. If made for a distinct and sub- stantial consideration, it may he for an infant worker's benefit so as to be binding on him : Clements v. L. & N W. R. Co. [1894] 2 Q. B. 482, 63 L. J. Q. B. 837, C. A. employers' liability act, 1880. 558 amend- ment of law. remedies against the employer as if the workman had not been a ■workman of nor in the service of the employer, nor engaged in his work(»). 2, A workman shall not be entitled under this Act to any right Bxcep of compensation or remedy against the employer in any of the *^°°5 t° following cases ; that is to say, (1.) Under sub-section one of section one, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition (o). (2.) Under sub-section four of section one, unless the injury resulted from some impropriety or defect in the rules, byelaws, or instructions therein mentioned ; provided that where a rule or byelaw has been approved or has been accepted as a proper rule or byelaw by one of Her Majesty's Principal Secretaries of State, or b}' the Board of Trade or any other department of the Government, under or by virtue of any Act of Parliament, it shall not be deemed for the purposes of this Act to be an improper or defective rule or byelaw. (3.) In any case where the workman knew of the defect or negligence which caused his injur}', and failed within a leasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence (p). 3. The amount of comj)ensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the (m) Tliis evidently means only that the defence of "common em- ployment " shall not be available for the master ; not that tlie facts and circumstam-cs of the workman's employment are not to be considered, e.g. if there is a question of con- tributory iioj,'ligeiice. Nor does it exclude the defence that the work- man in fact knew and accepted the specific risk : 2'humns v. (Jiiarter- maine (1887) 18 Q. B. Div. 685, 56 L. J. Q. 1!. 340 ; hut such di'fenre is not admissible where the risk was created by breach of a statutory duty : BaJiJ.daj v. Emi Granville (1887) 19 Q. K. D. 423, 56 L. J. Q. ]■). 501 ; and a workman's con- tinuing to work A\itli delcclive plant after he has complained of the defect to the employer or fore- man, who has refiisetl or neglected to amend it, is not conclusive to show voluntary accejitance of the risk ; Yarmouth v. France (1887) 19 (,>. B. Div, 647, 57 L. J. Q. B. 7; Smilh V. Baker ,1891] A. C. 325. 60 L. J. Q. B, 683, see p]i. 164-167, above. (o) See Kiddle v. Lovett (1885) 16 Q. B. D. 605, 610. (p) This sub-section creates a new anil special statutory defence, see JFellin v. Ballard (1886) 17 Q. Limit of sum re- coverable 554 APPENDIX B. as com- pensation. Limit of time for recovery of com- pensation. Money payable under penalty to be de- ducted from com- pensation under Act. Trial of actions. estimated earnings (r/), during the three years preceding the injury, or a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury. 4. An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice (r) that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death : Provided always, that in case of death, the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice. 5, There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this Act, any penaltj' or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such workman, representati\'es, or persons in respect of the same cause of action ; and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman, for compen- sation in respect of any cause of action arising under this Act, and payment has not previously been made of any penaltj' or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under anj' other Act of Parliament in respect of the same cause of action. 6. — (1.) Every action for recovery of compensation under this Act shall be brought in a county court (rr), but may, upon the applica- tion of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed (s). B. D. 122, 125, 55 L. J. Q. B. 395. It does not enlarge by implication tlie right of action under sect. 1 : Thovuis V. Qunrteymaine, note (?i). iq) Nod V. Redruth Foundry Co. [1896] 1 Q. B. 463, 65 L. J. Q. B. 330. (?■) 'I'liis notice must be in wilt- ing : iloyU v. Jenkins (1881) 8 Q. B. D. 116, 51 L. J. Q. B. 112, and must contain in writing all the par- ticulars reipiired by sect. 7 : Keen V. Mihoall l)Mk Co. (ISS-i) 8 Q. B. biv. 4»2, 51 L. J. I,). B. 277. Where the work was done in the execution of auv public duty or authority, qu. whetlier the require- ment of notice is not abolished by the Public Authorities Protection Act, 1893, s. 2. sub-s. (c). (?■(') ^\'ant of notice under s. 5 is a statutory defence which must be |ileadi'd according to the County Court Rules ; Cuiiroi/ v. Peacock [1897] 2 Q. B. 6, 66 L. J. Q. B. 425. (s) Proceedings in the county court cannot be stayed under sect. employers' liability act, ISSO. 555 (2.) Upon the tiial'of an 3' such action in a Ofiunty court before the judge without a jury one or more assessors ma^- be appointed for the purpose of ascertaining the amount of compensation. (o.) For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, and all matters of procedure relating to their duties, and also for the jiurpose of consolidating any actions under this Act in a county coiu-t, and otherwise preventing multiplicity of such actions, rules and regula- tions may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procediu-e in other actions in county courts. "County coiu't" shall, with respect to Scotland, mean the '■ Sherifi's Court," and shall, with respect to Ireland, mean the '• Civil Bill Coui-t." In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed bj', section nine of the Sheriffs Courts (Scotland) Act, 1877. In Scotland the sheriff may conjoin actions arising out of the same occixiTence or cause of action, though at the instance of different parties and in respect of different injuiies. 7. Xotice in respect of an injury under this Act shall give the Mode of name and address of the person injured, and shall state in ordinarj' language the cause of the injurj'(<) and the date at which it was sustained, and shall be served on the employer or, if there is more than one employer, upon one of such emploj'ers. The notice may be served by delivering the same to or at the re^idence or place of business of the person on whom it is to be seived. The notice may also be served by post by a registered letter addies^ed to the person on whom it is to be served at his last known place of residence or place of business ; and, if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post ; and, in proving the service of such notice, it shall be sufficient to jirove that the notice was properly addressed and registered. to & 41 Vict. u. 50. servmg notice of mjury. 39 uC the County Conrts Act, }S;t6. Tl]at section ap|iliL'.s only to actions whiih niii^ht liave been brouglit in tlie .Siipi^rior Court : lieg. v. Jiulf/e of Villi of London Court (188.5) 14 Q. B.' liiv. 905, 54 L. J. Q. B. 3-30. As to grounds for removal, see MiiiiiJuij V. Thames Ironworks Co. (1882) 10 Q. B. D. 59, 52 L. J. y. B. ll'.i. (I) It need not state tlje causi- of action vvitli legiil accuracy: Clark- son V. .Uvsgrovp. (18N2) 9 (,l. B. D. 386, .".1 L. J. i). B. 525 ; ep. st„ne v. Hijde (1.SS2) 9 y. B. D. 76, 51 L. J. Q. B. 4r.2. 556 APPENDIX B. Defini- tions. 38 & 39 Vict. c. 90. Where tlie employer is a body of persons corporate or unincor- porate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body. A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy (h) therein, unless the judge who tries the action arising from, the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading. 8. For the purposes of this Act, unless the context otherwise requires, — The expression ' ' person who has superintendence entrusted to him " means a jjerson whose sole or principal dutj' is that of superintendence, and who is not ordinarilj' engaged in manual labour (x) : The expi'ession " employer" includes a body of persons corporate or unin corporate : The expression "workman" means a railway servant and any pierson to whom the Employers and Workmen Act, 1875, applies (;/). (m) Slono V. Hyde (1882) 9 Q. B. D. 76, SI L. J. Q. B. 4.52 ; Garters. Drysdah, 12 Q. B. D. 91. (x) Shaffers v. General Sleam Naviaatimi On. (1883) 10 Q. B. D. 356, "52 L. J. Q. B. 260 ; cp. and (list. Osborne v. Jackson (1883) 11 Q. B. D. 619; Kellard v. Eoole (1888) 21 Q. B. Div. 367, 57 L. J. Q. B. 599. The difference lietween a foreman who sometimes lends a hand and a workman who some- times gives directions is in itself, of course, a matter of fact. {y) " Any person [not being a domestic or menial servant] who, being a labourer, servant in hus- bandry, journeyman, artificer, handi- craftsman, miner, or otherwise en- gaged in manual labour, whether under the age of twenty-one years or above that aije, bas entered into or works under a contract with an employer. Avhetlier the contract be made before or after tlie passing of this Act, be exjiress or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour " ; 38 & 39 Vict, c 90, s. 10. This defi- nition does not include an omnibus conductor : Morgan v. London General Omnibus Go. (1884) 13 Q. B. Div. 832, 53 L. J. q. B. 352. i^Tor the driver of a tramcar : OooTc V. N. Metrop. Tramways Co. (1887) 18 Q. B. D. 683, 56 L. J. Q. B. 309. Nor a grocer's assistant in a shop, though he makes up and car- ries parcels in the course of his employment : Bound v. Lawrence [1891] 1 g. B. 226, 61 L. J. M. C. 21, C. A. (on the Eiuployers and Workmen Act). Nor a potraan in a public-house, whose duties are suhstantially of a menial or domestic nature : Pearce v. Lamdowne (1892) 62 L. J. Q. B. 441. It does include a driver of carts, &e., who also has to load and unload the goods car- ried : Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7. Tlie Act of 1875 did not apply to seamen or apprentices to tlie sea service, .sect. 13. By 43 & 44 Vict, c. 16, s. 11, it was extended to them, but not so as to affect the definition of "workman" in other Acts by employees' liability act, 1880. 557 9. This Act shall not come into operation imtil the first day of Janiiaiy, one thousand eight hundred and eightj'-one, which date is in this Act referred to as the commencenaent of this Act. 10. This Act may be cited as the Employers' Liability Act, 1880, and shall continue in force till the thirty-first day of December one thousand eight hundred and eighty-seven, and to the end of the then next session of Parliament, and no longer, unless Parliament shall otherwise determine, and all actions commenced under this Act before that period shall be continued as if the said Act had not expired. [The Act has been continued from time to time since 1887. Many proposals for amendment of it have been made, but none has yet become law. The "Workmen's Compensation Act, 1897, does not repeal or amend this Act, but practically supersedes its operation so far as concerns the employments to which the new Act is declared to be applicable. Outside those employments the Act of 1880 remains in force. It is observable that there do not seem, to be any very recent decisions upon it.] Cora- mence- mont of Act. Short title. reference to the persons to whom the Act of 1875 applies. Seamen, therefore, are not within the Em- ployers' Liability Act. 568 APPENDIX C. STATUTES OF LIMITATION. An Acte for lymytacion of Accions, and for avoyding of Suits in Lawe. (21 James I. c. 16.) S. 3. And be it further enacted, that all accions of trespas quare dausum fregit, all accions of trespas, detinue, accion sur trover and replevyn for taking away of goods and cattell, all accions of accompt and uppon the case, other than such accompts as conceme the trade of merchandize betweene marchant and marchant, their factors or servants, all accions of debt grounded upon any lending or contract without specialtie, all accions for arrerages of rents, and all accions of assault menace battery wounding and imprisonment, or any of them which shalbe sued or brought at any tyme after the end of this present session of parliament shalbe commenced and sued within the tyme and lymytacion hereafter expressed, and not after (that is to saie) the said accions upon the case (other then for slander), and the said accions for accompt, and the said accions for trespas debt detinue and replevin for goods or cattell, and the said accion of trespas, quare rldiisiun fregit, within three yeares next after the end of this present session of parliament, or within sixe yeares next after the cause of such accion or suite, and not after ; and the said accions of trespas of assault battery wounding imprisonment, or any of them, within one yeare next after the end of this present session of parHament, or within foure yeares next after the cause of such accions or suite, and not after ; and the said accions uppon the case for words, within one yeare after the end of this present session of parliament, or within two yeares next after the words spoken, and not after. . . . S. 7. Provided neverthelesse, and be it further enacted, that if any person or persons that is or shalbe intituled to any such accion STATUTES OF LIMITATION. 559 of trespas detinue aocion sur trover replevin acoions of accompts accions of debt, accions of trespas for assault menace battery wounding or imprisonment, accions uppon the case for words, bee or sbalbe at the tyme of any such cause of acoion given or accrued, fallen or come within the age of twentie-one yeares, feme covert, non composs mentis, imprisoned or beyond the seas, that then such person or persons shalbe at libertie to bring the same accions, soe as thej"- take the same within such times as are before lymitted, alter their coming to or being of full age, discovert, of sane memory, at large and retorned from beyond the seas, as other persons having no such impediment should have done. An Act for the Amendment of the Law and the better Advancement of Justice. (4 & 5 Anne, c. 3) («). S. 19. And be it further enacted, by the authority aforesaid, that if any person or persons against whom there is or shall be any such cause of suit or action for seamen's wages, or against whom there shall be any cause of action of trespass, detinue, action sur trover or replevin for taking away goods or cattle, or of action of account, or upon the case, or of debt grounded upon any lending or contract, without speciality of debt for arrearages of rent, or assault, menace, battery, wounding and imprisonment, or any of them, be or shall be at the time of any such cause of suit or action, given or accrued, fallen or come beyond the seas, that then such person or persons, who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons after their return from beyond the seas (so as they take the same after their return from beyond the seas), within such times as are respectively limited for the bringing of the said actions before by this Act, and by the said other Act made in the one and twentieth year of the reign of King James the First. (a) So in the Statutes of the Realm and Revised Statutes ; c. 16 in other editions. 560 APPENDIX C. An Act to amend the Laws of England and Ireland affecting Trade and Coynmerce. (Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 12.) No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of Her Majesty, shall be deemed to be beyond seas within the meaning of the Act of the fourth and fifth years of the reign of Queen Anne, chapter sixteen (&), or of this Act. (6) This is chap. 3 in the Statutes of the Realm. 561 APPENDIX D. CONTEIBUTOEY NEGLIGEXCl-^. IN EOMAN LAW. CorfTRiBUTORY iiegKgence, and the allied topics considered in the text, did not escape the Roman lawyers, but they are treated only in an incidental manner and no complete theory is worked out. The passages bearing on the point in the Digest " Ad legem Aquiliam " (ix. 2) are the following : — L. 9 § 4 (Ulpian). Sed si per lusum iaculantibus servus fuerit occisus, Aquiliae locus est : sed si cum alii in campo iacularentiir servus per eum locum transient, Aquilia cessat, quia non debuit per campum iaculatorium iter intempesti'\'e facere. Qui tamen data opera in eum iaculatus est, utique Aquilia tenebitui-. It is not clear whether the words •• data opera " are intended to cover the case of reckless peisistence in the javelin-throwing after the danger to the slave who has put himself in the way is manifest. There can be no doubt however that Ulpian would have considered such conduct equivalent to dolus. With this explanation, the result coincides with the English rule. ,L. 11, pr. (Ulpian). Item Mela scribit, si, cum pUa quidam luderent, vehementius quis pila percussa in tonsoiis manus earn deiecerit et sic servi quem tonsor habebat [«/. radebat] gula .sit praeoisa adiecto cultello : in quocuraque eorum culpa sit, eum lege Aquilia teneri. Proculus in tonsore esse culpam: et sane si ibi tondebat ubi ex consuetudine ludebatur vel ubi transitus frequens erat, est quod ei imputetui- : quamvis nee illud male dicatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere. Mela seems to have thought it a question of fact, to be determined by closer examination of the circumstances, whether the barber, or the player, or both, were in culpa. Probably the question he mainly considered was the proper form, of action. Proculus held the barber only to be liable. Ulpian agrees that there is negligence in his shaving a customer in a place exposed to the accident of a stray P.T. O O 562 APPENDIX D. ball, if the evidence shows that he did so with notice of the danger ; but he adds that the customer, if he in turn choose to come and be shaved in a dangerous place, has only his own want of care to thank for his hurt. To obtain this result it is assumed that the danger is equally obvious to the barber and the customer; it is likewise expressly assumed, as a condition of imputing culfia to either of them, that the game is carried on in an accustomed and couvenieat place. Given those facts, English law would arrive at the same result in a shghtly different form. The players would not be bound to anticipate the rashness of the barber, and the barber, though bound to provide reasonable accommodation for his customers, would not be bound to warn them against an external source of risk as obvious to them as to himself. It would therefore probably be held that there was no evidence of negligence at all as against either the players or the barber. If the game, on the other hand, were not being carried on in a lawful and convenient place, not only the player who struck the ball would be liable, but probably all concerned in the game. Ij. 28 (Paulus). Pr. (A man who makes jjitfalls in a highway is liable under the lex Aquilia for consequent damage : otherwise if in an accustomed lilace). § 1. Ilaec tamen actio ex causa danda est, id est si neque denuntiatum est neque scierit aut providere potuerit : et multa huiusmodi dcprehenduntur, quibus summovetur petitor, si evitare periculum potcrat. This comes \ery near the language of our own authorities. L. 31 (Paulus). Si putator ex arbore ramum cum deiceret vel machinarius hominem praetereuntem occidit, ita tenetur si is in publicum decidat neo ille proclamavit, ut casus eius evitari possit- Sed Mucins etiam dixit, si in private idem accidisset, posse de culpa agi : eulpam autem esse, quod cum a diligente provideri poterit (a) non esset provisum, aut turn denuntiatum esset cum periculum evitari non possit. Cp. Blackst. Comm. iv. 192, supra, p. 439. Here a person who is hurt in spite of the warning is not necessarily negligent ; as if for example he is deaf and cannot hear the warning ; but this is immaterial ; for the ground of the other not being liable is that he has fulfilled the duty of a prudent man. The words ' ' vel machinarius " spoil the sentence ; they are too much or too little. One would expect "vel machinarius ex aedibus lapidem," or the Hke. The passage as it stands can hardly be as (a) Sic MS. Flor., which Momm- Latinity would require potuissct. sen's text reproduces, but it is not "Pos.sit" ad fin. should obviously Latin. Potuerit is probably the be " posset," and is so corrected in true reading, though Augustan other edd. COXTRIBUTORY NEGLIGENCE IN ROMAN LAW. 563 Paiilus ^^•Tote it (though it is likely enough to be as Tribonian etlited it), and it seems more probable that " vel machinarius " is an interpolation than that other words have been omitted. Elsewhere Paulus says, Sent. Eec. I. 15 § 3 : Ei qui irritatu suo I'eram bestiam vel quam.cunf[ue aham quadrupedem in se prori- taverit, itaque damnum, ceperit [so Husolike : vuhj. " eaque dam.num. dederit,'' which does not seem necessarily wrong], neque in eius dominum neque in custodom actio datur. This is a case, according to English terminology, not of contribu- tory negligence, but of no evidence of negHgence in the defendant, the plaintiff's damages being due wholly to his own act. 2 664 DRAFT OF A CIYIL WRONGS BILL, Prepaebd for the Goveenjient of India. PEEFATOKY NOTE. Towards the end of 1882 I was instructed by the Govern- ment of India to prepare a draft Bill to codify the law of Civil Wrongs, or so much of it as might appear to be of general practical importance in British India. The draft was constructed pari passu with the writing of the present book, or very nearly so, and it was provisionally completed in 1886 ; it is now published with the consent of the Secretarj- of State for India. The text is given as it then stood, but the notes which accompanied it are considerably abridged. I have inserted in square brackets a few additional references and remarks, chiefly made necessary by important decisions given since the draft was completed. The Government of India has not finally decided whether it is desirable to codify the law on the subject at present. Sir Henry Maine thought many years ago that the time was ripe for it (a) ; but («) Minute of 17 July, 1879, on Lie vaoue, tliej' arc quite sufficiently Indian Codification, in "Minutes conscious of being wronged some- by Sir H. S. Maine," Calcutta, how to invito the jurisdiction of 1890, p. 224; "Civil wrongs are courts of justice. The result is suffered every day in India, and that, if the legislature does not though men's ideas on the quantity legislate, the courts of justice will of injury they have received may have to legislate ; for, indeed, legis- PUEFATOKV NOTE 56.': I understand that a considerable majority of the opinions which have been collected from judicial and other officers in India are vinfavourable to action. It may be proper to explain that the draft as it stands is not the mere production of an English lawyer un- acijuainted with India, but represents a certain amount of consideration and discussion by specially competent critics. In the preparation of the Bill I had, in parti- cular, the advantage of constant criticism from Sir A. Macpherson and Sir William Markby, who (I need hardly say) were excellently qualified both by their English learning and by their Indian judicial experience; and, without assuming to make either of those learned piersons at all answerable for my work, I ought to say that their criticism was the direct cause of material improvement in several points. A careful memorandum on the earlier parts of the draft was prepared by Mr. (since Justice) Syed Mahmud, and to this also I am indebted for good suggestions. Further, I endeavoured, so far as I had opportunity in England, to procure criticism and suggestions from Indian judicial and executive officers, with reference to the possible working of a code of Civil Wrongs in rural districts and in the non-regulation Provinces. Although such opportunities were limited, I thus had the benefit of acute and valuable lation is a process which perpetually iiiorJinateljr dilatory, aud inordi- goes on through some organ or natcly expensive, the cost of it another wherever there is a civOized falling ahnost exclusively on the government, and which cannot be litigants. But in India judicial sto[iiied. But lef,'islation by Indian legislation is, besides, in the long .I'ufiues has all the drawbacks of run, legislation by foreigners, :vho judicial legislation elsewln're, and are under the thraldom of prece- a great many more. As in other dents and analogies belonging to a countries, it is legislation by a foreign law, developed thousands legislature which, trom the nature of miles away, under a different of the case, is debarred from climate, and for a different civiliza- steadily keeping in view the stan- tion. I look with dismay, therefore, dard of general expediency. As on the indefinite postponement of a in other countries, it is haphazard, codified law of tort for India." 566 INDIAN CIVIL WRONGS BILL. remarks of which the substance was embodied in the draft or in the notes to it. The letter of my instructions would have justified me in merel.y stating in the form of a declaratory Act what I conceived to be the English law, and leaving all questions of Indian law and usage to be dealt with separately by the Government of India ; but such a course did not appear to be reasonably practi- cable. The reader will therefore bear in mind that in certain places the draft Bill deliberatel)' departs from existing English law. Special attention is called to all such departures, and the reasons for them indicated. TABLE OF CONTENTS. SECT. Pnliininari). 1. Short title. Extent. 2. Saving of rights, remedies and enactments independent of Act. 3. Repeal of enactments. 4. Interpretation clau.se. 6. Arrangement of Act. GENERAL TART. Chapter I. GrncraJ Vr'nxriplcH of Llahiliiy. 6. \Vrong.y and wrong-doeis. 7. Saving of lawful exceptions independent of Act. 8. Lialiility for wilfnl harm and unanthorized dealing Avith pro|ierty. fl. Liability for harm not wilfully done by breach or omission or neglect of legal duty, or by negligence. 10. Liability for consequences. 11. Survival of liabilities and rights to representatives. 12. LiaTjility for wrong unaffected by the same fact amounting to an offence. 13. Liability for wrongs of agent. 14. Liability for ivrongs of servant. 15. Joint wrongs. Chaptek II. .SECT. General &xej]tions. 16. Protection of judicial officers executing judicial orders. 17. Protection of executive officers and persons executing legal duties. IS. Protection ofcpiasi-judieialaets. l!i. Protection of acts of lawful authority. 20. Protection of acts done under authority conferred by law. 21. Accidental harm without negli- gence. 22. Harm incident to exercise of others' common rights 2-3. Harm from voluntary exposure to risk. 24. Acts done with con.sent. '}'>. Act done on emergency for a person's benefit A\ithout con- sent. 26. Acts causing slight harm. 27. Private defence. SPECIAL PART. Chapter III. Assault and False In^yrisonmeiit. 28. As.sault. 29. False imprisonment. 30. Exemplary damages. TABLE OF CONTENTS. 567 ClIArTEK IV. SECT. Defamation. 31. S;ivii!g and oxchision of Penal Code as to dot'aination. Saving of criminal jnrisdiction on other grounds. 3"2. Det'aiiiatiou defined. 33. Construction of words com- plained of as defamatory. 3i. Responsibility for statements re- peated on liearsay. o'l. Fair criticism is not defama- tion. 36. Fair public reports are not de- famation. 37. Exceptions on grounds of public policy— (1) Truth in substance. (2) Statements in course of judicial proceedings or legislative debate. 3S. (1) Statements on privileged occasions. (2) Immunity of statements in good faith on privileged occasions. Chapter V. Wrongs against Good Faith. 39. Deceit. 40. Deceit defined. 41. Slander of title. 42. Malicious prosecution. 43. Abuse of jirocess of Court. Chai'-]-er \1. Wrongs to Properly. 44. Trespass defined. 45. Protection of apparent right to possession. 46. Trespass by possessor for limited purpose exceeding his right. 47. Mistake does not generally ex- cuse trespass. Immunity of certain ministerial actions. 48. Mere claim of right cannot be trespass. 49. Licence defined. 50. Effect of licence. 51. Time of gi-ace after revocation of licence. 52. True owner's right of recap- ture. Chapter VII. SECT. Of Nuisance. ^>'i. Special damage from public nuisance. .54. Liability for private nuisance. 5.";. Private nuisance defined. 56. Pre-existence of nuisance im- material. 57. Same facts may be distinct nuisance to several persons. 58. Co-existence of other nuisances no defence. 59. When owner out of possession can sue for nuisances. 60. What persons are liable for a nuisance. 61. Concurrent civil and criminal jurisdiction in case of special damage from public nuisance. Chapter VI II. Of Xerjliejencc. 62. Negligence and diligence. 63. Eviilence of iiefi;lif,'cuce. 64. Contributory nef;li;,'euce. 65. Collateral negligence imma- terial. 66. Action under stress of danger caused by another's negli- gence. 67. Right to rely on others' dili- gence, and take lesser risk to avoid greater. 68. Custody of dangerous things. 69. Liability of occupiers of pro- perty. 70. Position of licensees using premises. CHAPTER IX. Of Damages for Civil Wrongs. 71. Measure of damages in general. 72. Damages for injury to specific property. 73. Aggravation or mitigation of damages. The Schedule. 568 INDIAN CIVI], WEONGS BILL. Short title. Com- mence- ment. Extent. Saving of riglits, remedies, and enact- ments in- dependent of Act. Repeal of enact- ments. Interpre- tation clause. XLV. of 1860. A Bill to define am] amend certain parts of the Laiv of Civil Wrongs. Preliiriinari/. 1. This Act may be cited as the Civil Wrongs Act, 18 ; and It shall come into force on the day of 18 . It extends to the whole of British India. 2. This Act does not affect any legal right or remedy, or any enactment creating or limiting rights or remedies, which is not abrogated or repealed by this Act or incon- sistent with any express provision of it. 3. The Acts mentioned in the schedule hereto are hereby repealed to the extent specified in that schedule. 4. In this Act, unless there be something repugnant in the subject or context, — " Court" includes every Court, judge, and magistrate and officer, having jurisdiction to hear and determine the suit or matter in question : " Good faith " implies the use of due care and atten- tion : " Grievous hurt " means any of the kinds of hurt which are so designated in the Indian Penal Code, section 320. Arrange- ment of Act. 5. This Act is arranged as follows : — [See Table of Contents prefixed. In the original draft this clause was left blank pending further revision.] GENERAL PART. 569 GENERAL PxiKT. Chapter I. Gbnekal Pkinciples of Liability. 6. Every one is a wrong-doer who does or omits to do Wiongs anything whereof the doing or omission respectively is ^vronc- by this Act declared to be a wrong. docvs. Any person thereby becoming entitled to a leftal remedy against the wrong-doer is said to be wronged by him. 7. The liabilities declared by this Act are subject to Saving of all lawful grounds of exception, justification and excuse, c'eptions whether expressed in this Act or not, except so far as they i°''6pen- are varied by this Act or inconsistent with its terms (a). -\''t. 8. Every one commits a wrong who harms another — Liability (a) by an act intended to cause harm (b) : ha'rm'and (b) by intermeddling without authority with anything iiu^yithor- which belongs to that other (r). ing with jii'dpcrty. Illustration. A. finds a watch which B. has lost, and in good faith, and intending the true owner's benefit, attempts to clean it and put it in order. In doing so A. spoils the watch. A. has wronged B. 9. Every one commits a wrong ( of tlio steamer. In deciding whether, under these eircunistanci's, A. acts with due care and caution, regard is to be had to the actual extent of his knowledge and skill. (3. A. and B. are out shooting. A tiger attacks them and canies olf I'>. iS'o other help being at hand. A., wdio is an indifferent shot, fires at tlic tii;i"r and kills it, but also wounds B. A. has not wronged B. , though a better shot might probably have killed the tiger without wounding IS. 10. A person is deemed to have harmed any one who Liability suffers harm by reason of an act or omission of the first- sequences, mentioned jaerson (/), provided that the harm is — (a) an ordinary consequence of that act or omission, whether intended l\v the person so acting or omitting or not ; or (b) a consequence thereof ^Yhich that person foresaw, or with due care and caution might have fore- seen (r/) ; a wrong-doer is hable tor all such consequences of his wrongful act or omission as in this section mentioned. Illustrations. 1. A. unhuvfull}' throws a stone at B., which misses B. and hits and breaks C. 's water jar. A. has wronged C. 2. A. lies in wait for B., intending to assault and beat him as he goes home in the e^'euing. Mistaking C. for E. in the dusk, A. assaults C A. has wronged C. 3. A. unlawfully diveits a stream for the purpose of depriving B. 's growing crojis of their irrigation. The diversion of the stream harms C.'s crops as well as B. 's by drought, and the water floods a piece of D.'s land and spoils the crops growing thereon. A. has wronged both C. and 1>. 4. A. and C, who is B. 's servant, quarrel in the street. A. draws a knife and threatens C. with it. C. runs hastily into B.'s house for pro- tection, and in so doing strikes and upsets a jar of ghee belonging to B., so that the jar is broken and the ghee lost. A. has wronged B. (h). (f) [As to tlie relation of the foresees, or whicli, in the particular period of limitation to the cause of case, a commonly prudent man in action, see Act XV. of 1877, s. 24, his position ouglit to foresee. Illus- and Daiiry Main CoUicni Co. v. trations 4 and 8 are cases of this MiUhdl, 11 App. Ca. 127.] kind. (g) This is not a repetition : for (A) Vamlnihurgh v. Truax, 4 there may be consequences, not Denio (N. Y.), 464, with change of ordinary, which a man nevertlieless local colouring. 572 IXDIAN CIVIL WRONGS BILL. 5. A. whips a horse which B. is riding. The horse runs away with B., and knoclcs down C, who falls against D.'s window and breaks it. A. has wronged hoth 0. and D. (i). 6. A. leaves his horse and cart unattended in the street of a town. B. and C. are children playing in the street. B. climbs into the cart ; as he is doing so C. causes the horse to move on, and B. is thereby thrown down under the wheel of the cart, which passes over him and injures him. A. has wronged B. (Jc). 7. A. leaves a loaded gun in a place where he knows that children are accustomed to play. B. and C. come with other children to play there ; B. takes up the gun and points it in sport at C. The gun goes off and wounds C. A. has wronged C. (/). S. A. unlawfully causes a stream of water to spout up in a public road. B. is driving l}is horse and carriage along the road : the liorse takes fright at the water and swerves to the other side, whereby tlie liorse and carriage iall into a cutting by the roadside which has been improperly left open by C, and B. is wounded and the horse and carriage damaged. A. has wronged B. (m). 9. The other facts being as in the last illustration, some of the water runs into the cuttuig, and wets and damages some clothes belonging to D., who is at work in an adjoining field and has deposited them there. A. has not wronged D. (ft). 10. A. leaves his gate, opening on a. highway, insufficiently fastened : A.'s horse gets through the gate and kicks B., who is lawfully on the highway. If the horse was not to A.'s knowledge a vicious one, A. has not wronged B. (o). 11. A. is the owner of a field in which he keeps horses. A. neglects the repair of the gate of this field, whereby a horse breaks down the gate, strays into B.'s adjoining field, and kicks and injures a horse of B. 's which is there kept. A. has wronged B. (^j). 12. A. is driving an ox through tlie street of a town with due care and caution. The ox goes off the road into B.'s shop and does damage to B.'s goods. The ox may be liable to bo impounded, but B. cannot sue A. for compensation, for, although the damage is the natural consequence of the ox straying, A. has done no wrong (j). (*) Illidge V. Uoodioin, Lynch v. between this and the next case is Nurdht, cited in Clarly"v. Chamhcr^^ possibly too fine. 3 Q. B. D. 331. The Squib case (a) Cf. Sha7-2} v, Puiccll, L. R. 7 {Scott V. Shc2]lierd) seems liardly C. P. 253. But illustrations 8 and worth adding to these. 9 Avould perhaps be better omitted. (I) Lynch \. Kurd in, 1 Q. B. (o) C'.j.t v. Jj?(r6irf(/c, 13C. B.N. S. 29. Mangan v. Attcrton, L. R. 1 430. Ex. 239, can hardly be supported {2> ) Lcc v. Riley, 18 C. B. N. S. against tlris. 722. {I) Case put by Denman C. J. in (q) Tillctt v. Ward, 10 Q. B. D. Lynch \. Xurdiu. 17. But ^iso-j/ whether desirable to (m) Hill V. Nen^ Ilivcr Co., 9 adopt this for India. An experienced B. & S. 303. The distinction judicial officer (Punjab) regards it GENERAL PART. i73 11. Subject to the provisions of this Act and to the law Survival of Hmitation eveiy right of action under this Act is avail- ties and able against and for the executors, administrators and "epresen- representatives of the wrong-doer and the person wronged tatives. respectively (c). 12. For the purposes of this Act, it is immaterial whether the facts constituting a wrong do or do not amount to an offence (s). Illufitrations. 1. A. being at work on a building, by fiuelessness lets fall a block of stone on B., who is lawfully passing by, and B. is thereby so injured that he shortly afterwards dies. A. has wronged B.,and B.'s executors can sue A., though A.'s act may be an offence under sect. 304a of the Penal Code. 2. A. wrongfully takes B.'s cow out of B.'s field and detains it under pretence that he bought it at an auction-sale in execution of a decree. B. can sue A., though A.'s act maybe an olfeuce uudcr sect. 378 of the Penal Code. Liability tor wrong unaffected by the same fact amount- ing to an ofience. 13. or done on his behalf and ratified b}' him (t). Every one is liable for wrongs done by his authority Liability for wrong of agent. as " very queer law and of doubtful equitv." As to impounding, Ben. Act iV. of 1866, s. 71 (and other local Acts). {»•) This is intended to supersede Acts Xn. and XIII. of 1855, and if adopted, will also involve some slight amendment of Act XV. of 1877 (Limitationl The maxim " aotio personalis moritur cum per- .sona," rests on no intelligible principle, and even in England is more than half falsified lij' par- ticular exceptions. I submit (after Bentharo.) that there is no place for it in a rational and simplified code. I do not overlook the consequence that in some cases persons who would have a right to compensation under Act XIII. of 1855 would, under this clause, have none. But I think that the rights created by Lord Campbell's Act, and Act XIII. of 1855, which copies it, are anoma- lous and objectionable, so far as they produce results different from those which would be more simply produced by abolishing the common law maxim. (s) Tlie old rule, or supposed rule, as to the civil remedy being "merged in the felony," is all but ex]iloded in England, and the H. C of Calcutta, as long ago as 1S66, decided against its adoption in India: see flliisl. 2; Shrifmi Churn Base V. Bluila Nalli Jliitt, 6 W. P.,. (Civil Eef.) . A local Act gives power to magistrates (among other things) to remove obstructions or encroachments in highways. A., a magistrate, makes an order purporting to be under tliis Act for the removal of certain steps in front of Z.'s house. If this order is in excess of the power given by the Act, A. has wronged Z., inasmuch as the proceeding is not a judicial one (s). 17. Where an act is done in a due or reasonable Protection of execu- manner— tive offi- (a) by a public officer in obedience to an order given persons by a person whom he is generally bound to f^~j^"''°^ obey, that order being such as he is bound to duties, obey, or such as he in good faith believes him- self bound to obey ; ip) Vindyab Disdkarv. Bdi Ilchd, 3 B. H. <:. Appendix, 36. (q) C'ullixloi- of Sen, Cicstoms v. Puiniiar Chitkambaram, I. L. K. 1 .Mad. 89. (/•) Jiagu'iiddaliauv. Xalluuiiuni, 6 il. H. C. 423. (s) Chundcr Narain Singh v. Brijo Biiilub Gooycc (A. C), 14 B. L. R. 2.54. But in Scshaiyangar V. R. llagunatha lion-, 5 M. H. C. 345, and the very similar case of 11. Eagimdda Bail, v. Nathaviuni TliaUmindyyangdr, 6 il. H. C. 423, it is assumed that the making of an order of the same kind under the similar general provisions of the Cr. P. C. 308, is a judicial act within the meaning of Act XVIII. of 1850. I cannot reconcile these authorities, and submit for con- sideration which view is to be preferred. The Bt-ngal case is the later (1874), and the Madras cases were cited in it, p p 2 580 INDIAN CIVIL WRONGS BILL. (b) by a person acting in execution of a duty or exer- cise of a discretion ^Yllich he is by law bound to perform or exercise, or as in execution of a duty or exercise of a discretion which he in good faith beUeves liimself to be bound by law to perform or exercise ; that act does not render the officer or other person so doing it liable as for a wrong. Illustrations. 1. A., a judge's peadah, is ordered by tlie judge to seize B.'s goods in execution of a decree, and does so. Though the proceedings may have been irregular, or the specific goods which A. is ordered to seize may not be the goods of the person against whom execution was adjudged, A. lias not wronged B. 2. A., a policeman, is ordered h)- his superior officer to arrest B., and in good faith belief es the order to be laA\-ful. Whether the order is lawful or not, A. does no wrong to 1). by using toward B. such force as is reasonably necessary to effect the arrest. But A. does wrong to B. if he strikes him otherwise than in self-defence, or in any other manner uses excessive force towards him. Protection 18. Nothing is a wrong which is done regularly and in judicial good faith by any person in the exercise of a discretion ^'^^^' of a judicial nature to which the party complaining is lawfully subject by custom or agreement {t). Illustraticms. 1. The articles of association of a joint stock company provide that "an extraordinary general meeting specially called for the purpose may remove from his office any director for negligence, misconduct in office, or any other reasonable cause." A., being a director of a company, is charged with misconduct in his office, and an extraordinary special meeting is duly called to consider these charges. A. is summoned to this meeting, but {t) The words ' ' regularly and in good faith " are meant to cover what the English authorities on depri- vation of office, expulsion from a club, and the like, call observing the rules of natural justice: Indertcick V. SncU, 2Mac. &G. 216. GENERAL PART. 58] Uoos not attend. The meeting resolves to remove A. from his office. No wrong is done to A., even if, in the opinion of tlie Conrt, tlie charges against him were not well founded. '2. The rules of a club provide that if in the opinion of the committee the conduct of a member is injurious to the character and interest of the club, the committee ]nay recommend tliat member to resign, and that if the committee unajiimously deem the offence of so grave a character as in the interests of the club to warrant the member's expulsion, they may suspend him from the use of the club. Tlie committee must not suspend a member under this rule ^vithout giving hira fair and sufficient notice of the charges against him, and an opportunity of meeting them (u). But if, after giving such notice and opportunity, and making reasonable imjuiry, the committee, acting in good faith, are of opinion that the con- duct of a member is so injurious to the character and interests of the club as to warrant his expulsion, and suspend him accordingly, they do not wrong that member (x). 3. [Stated for consideration.] A. and B. are members of the same Hindu caste. A. is president of the annual caste feast, to whicli B. is entitled, according to the usage of the caste, to he invited. A. wilfuUj', and without reasonable belief in the existence of any cause for which B. ought to be excluded, and without taliing any of the steps which, according to usage, ought to be taken before excluding a member of the caste from the feast, causes B. not to be in\'ited, whereby B. suffers in character and reputation. A. has wronged B. (;/). 19 [z). Nothing is a wrong which is done by or by Protection , . ifi ji-i 1- of ^cts of order or a person havnig iawtui autliority, and m exer- lawful cise thereof, to any one for the time being under that authority. authority, provided that the authority is exercised in good faith, without using excessive force, and in a (u) Fislicr V. Kranc, 11 Ch. D. 353. (.)•) LiiJjoueliere v. Jf'harndiffc, 13 Ch. D. at p. 352 ; Dmvkeus v. Anirohus, 17 Ch. Div. 615. (//J Dlcuf-mchuiul V. A'anabhaee Guiihiilchti.nd, 1 Borr. 11, sod qii. See JUiiijjirii.il Mcptlia v. Kasheeram (Jocvrdliaii, 2 Borr. 323. The better opinion seems to be that suits for loss of caste are not to be allowed. This illustration should then be omitted ; and the proper place for the rule that a suit for loss of caste as such does not lie would seem to bo tlie title of defamation and similar wrongs. (;) This is intended to cover the cases of masters of vessels, parents, guardians, and persons in loco paren- tis. The provisions of 21 Geo. III. u. 70, ss. 2, 3, will, I presume, be unatfccted by this. Illustrations of the authority of a parent or schooluuLster arc purposely omitted. Custom and feeling in these things vary from time to time, and from place to place. It may not be practicable to judge European, Hindu, and JIuhammadan parents or masters by precisely the same standard. 582 INDIAN CIVIL WRONGS BILL. regular, or in default of applicable rule or custom, an usual and reasonable manner. Protection of acts done under authority conferred by law. Illustrations. 1. A., the master of a sliip, believing and having reasonable cause to believe that B., one of the crew, is about to head a mutinj' against him, causes B. to be seized and put in confinement. A. has not wronged B., but, after having provided for the immediate discipline and safety of the ship, A. must not further punish B. without holding au inquiry and giving B. an opportunity of being Ijeard in his own defence. 2. A person having the lawful custody of a lunatic does no wrong to the lunatic by using for liis treatment sucli usual and reasonable restraint as is approved by the judgment and practice of competent persons {a). 20. Nothing is a wrong which is duly done by a person acting in execution of an authority conferred upon him by law : Provided that where the authority is conferred for the benefit of the person exercising it, he must comply with all conditions prescribed hy law for such exercise, and must avoid doing any unnecessray harm in such exercise. Illustrations. 1. The X. Railway Company is authorized to make and work a railwaj' passing near Z, 's house. Z. is put to inconvenience, and the structure of his house injured, by the noise and vibration necessarily produced liy the trains. The company has not wronged Z. (h). 2. The X. Railway Company in execution of its autliorized works makes a cutting which affects the supiiort of A.'s house and puts it in danger of falling. The company has wronged A. (c). [3. The X. Railway Company is authorized to raise and maintain on all or any part of certain lands a rail ivay with incidental works, workshops, and other buildings. The company builds ^^■orkshops within the authorized limits for the purpose of making plant and appliances for the use of the railway. A. is a liouseholdcr, near the site of the workshops, and the smoke from the workshops is such as to create a nuisance to A. in the use and occupation of his house. The company has wronged A.] {d). (a) JIaude & Pollock, Jlcrchant Shipping, I. 127, 4tli ed. (5) Cases in H. L. on compen- sation, pasxim. (c) JJlscuc V. G. E. n. Co., L. E. 16 Eq. 636. {(Z) Eiijiiuiltmi Bosc. v. E. I. B. Co., 10 B. L. K. 241. [Scdqu. see Liiiidm) tO Brlijhton B. Co. v. Trinnttn, 11 App. Cas. 4S.] GENERAL I^AKT. 583 21. A person is not wronged who suffers harm through Acci- the doing of a lawful act, in a lawful manner, by lawful harm means, and with due care and caution. without negli- t,'euce. lUustratioits. 1. A. is lawfully shooting at a riflu range. His shot strikes the target, and a splash of lead from it strikes B. , a passer-by, outside the limits which have been marked as the limits of danger by competent persons. A. has not wronged B. 2. A. is lawfully shooting at a riiie range. His shot falls short, ricochets over the butts, and strikes B., a jiasser-by, outside the limits of danger marked as aforesaid. It is a question of fact whethei', having regard to all the relevant circumstances, A. has or has not used due care and caution (e). If he has not ilone so, he has wronged B. 3. B. assaults A. witli a knife ; A. has a stick with which he defends himself. C, a. policeman, comes up to A.'s assistance. A., in warding off a blow aimed at him by B., strikes C. with the stick. A. has not wronged C. , unless by ordinary care he could have guarded himself without striking C. (/). 22. A person is not wronged who suffers harm or loss in consequence of any act done for a lawful purpose and in a lawful manner in the exercise of ordinary rights (g). Illustrations. 1. B. is a schoolmaster. A. sets up a new school in the same village which attracts scholars from B. 's school and so diminishes B.'s profits. A. has not wronged B. {h). 2. The facts being otherwise as in the last illustration, A. procures C. to waylay the cliildren going to B.'s school and intimidate them so that they cease to go there. Both A. and C. have wronged B., for A. may not attract scholars from B. 's scliool to his own by unlawful means. Harm in- cident to exercise of others common rights. (e) E.g., it will be manifest want of due care if on moving from a shorter range A. had omitted to put up his sight, and the unexplained fact of making a ricochet at a short distance, such as 200 yards, might well be held to show want of due care, though it might be explained as the result of something beyond the shooter's control, such as, for example, a defective cartridge ; while, on the other hand, it would, at a long range, such as 1,000 yards, of itself go for very little, being an accident which may happen even to a good marksman. (/) Cf Brown V. Kendall (Su- preme Court, Massachusetts), 6 Cush. 292. (g) " Ordinary right " is a ratlirr vague phrase, but I cannot lind a better one. The use of larger words like " li'gal rights " or " any right " would make this overlap Clause 20, and perliaps raise difficulties. {h}Y. B. 11 H. IV. 47, pL 21. 684 INDIAN CIVIL WRONGS BILL. 5. A. is driving at an ordinary pace along a road. B. is a foot-passenger walking by the side of the road. A splash of mud from the wheel of A.'s carriage goes into B.'s eye and injures it. A. has not wronged B. (i). i. A. and B. are adjacent land owners. A. digs a deep well on his land to obtain water supply for agricultural purposes. This digging intercepts underground waters wliich have hitherto supplied wells on B.'s land by percolation, and B.'s wells are dried up. A. has not wronged B. {k). [5. The facts mentioned in the last illustration having happened, B. supplies himself with water otherwise, but afterwards, not in order to obtain water, but in order to be revenged on A., B. digs a still deeper well on his own land, and thereby intentionally cuts off the supply of water to A.'s well. Here B. has wronged A., for he has used his own land not for any lawful purpose, but only fur the unlawful purpose of doing wilful harm to A. (Z).] 6. A. is the superintendent of marine at Calcutta. B. is the owner of a tug. The captain of B.'s tug having refused to tow a Queen's ship e.^ccept on terms which A. , in good faith, thinks exorbitant, A. issues an order prohibiting officers of the pilot service from allowing B.'s tug to take in tow any ship of which they have charge, and B. thereby loses employment and profits. A. has not wronged B., for the order is an exercise of his lawful discretion as to the manner in which a public duty is to he performed by ijersons under his direction («i). Harm 23. A person is not wronged who suffers accidental voluntary harm Or loss through a risk naturally incident to the to lislT'^ doing, by any other person, of a thing to the doing of which the first-mentioned person has consented, or at the doing of which he is voluntarilj^ present. Illustrations. 1. A. looks on at a fencing match between B. and C. In the course of play B.'s foil breaks, and the broken end flies off and strikes A. No wrong is done to A. (i) See L. R. 10 Ex. 267. that it ought to be, but was not (7 {k) 1 had written " for a neigh- H. L. C. at p. 388) ; but I know of bouring village " after Ohasemorc no distinct authority that it is not V. Itk/iiiirls, but I am told by an so ; the Roman law was so, and the Indian judicial officer (Punjab) that law ot Scotland is stated to be so for Indian purposes it would not do (Bell's Principles, referred to by to go so far, and that practice is Lord Wensleydale) ; and I submit in fact otherwise. Another (also that on principle it ought to be so Punjab) would omit both this and defiued. The question of policy lllust. 5. must, of course, be carefully con- (/)Thisis commonly supposed not siuered. [Butseenowp. 154, above, to be fhe law of England. Lord (vi) Rogers v. Rajendro Duit, 8 Wensli'vdale in Ghasemorc v. Moo. I. App. 103. JUchards appears to have thought GENERAL PART. 585 2. A. goes into a wood to cut down a tree, and B. goes with him fov his own pleasure. "While A. is cutting a tree the liead of his axe flies oft' and strikes B. A. has not wronged B., unless the axe was, to A.'s knowledge, unsafe for use. 3. B. and C. are letting off lireworks in a frequented place. A. stops near them to look at the fireworks. A firework explodes prematurely while B. is handling it, and the explosion injures both C. and A. B. has not wronged either C. or A., though B. and C. may be punishable under section 2S6 of the Indian Penal Code. 24. (1) A person is not wronged who suffers harm Acts done or loss in consequence of any act done in good faith gg,j(-_ and with his free consent or that of a person thereto authorized by him : Provided that the act must be done either in the manner to which he has consented, or with due care and caution and in a reasonable manner from which he has not dissented. ('2) In the case of a person under twelve years of age or of unsound mind, the consent of the guardian or other person having lawful charge of him is necessary for the purposes of this section, and is also sufficient : Provided that — (a) the act must be done for the benefit of the person under twelve years of age or of unsound mind ; (b) it must not be intended to cause death ; (c) unless it is intended to prevent death or grievous hurt or to cure any grievous disease or infirmity it must not be intended to cause grievous hurt, nor be known to the person doing it to be likely to cause death. Explanation. — Nothing is by this section exempted from being a wrong which is an offence under any section of the Indian Penal Code (»)• {n) Cf. P. C. ss. 87, 88, 89. For expressly dealt with, awkward ijues- the purposes of civil law it seems tions might arise whether the excep- desirable to consolidate and simplify tions were the same as in tlie Penal these rather minute provisions ; on Code or not. the other hand if the points are not 586 INDIAN CIVIL WRONGS BILL. Act done on emer- gency for a person's benefit without consent. Illustrations. 1. A. and B. are playing a game in which a hall is struck to and fro ; the ball, being struck by A. in the usual manner in the course of the game, strikes and hurts B. A. has not wronged B. 2. A. and B. practise sword-play together ivith sticks, and repeatedly strike one another. No wrong is done if the blows are fairly given in the usual course of play. 3. A. performs a surgical operation on B. with B.'s consent. Whatever the result of the operation, A. has not wronged B. if he lias acted in good faith with the ordinary skill and judgment of a competent surgeon. 4. A. has a valuable horse which has gone lame, and requests B., a farrier, to try on it a particular mode of treatment which has been recom- mended to A. B. docs so in good faith, following A.'s directions. The treatment is unsuccessful, and the horse becomes useless. B. has not wronged A. 5. A. and B. fight with sharp swords for the purpose of trying their skill, and wound one another. Here A. has wronged B. , and B. has wronged A., for their acts are offences under section 324 of the Indian Penal Code, and are not within the exco]ition in section 87. 6. A. re(luc■^ts B., a farrier, to perform an oj)cration on his horse. B. knows that A. has mistaken the character of the horse's injury, and that the operation is unnecessary, but conceals this from A. that he may gain more fees from the subsequent treatriient, and performs the operation according to A.'s request. Even if he performs it skilfully, B., not having acted in good faith, has wronged A. 25. A person is not ■oTonged who suffers harm or loss in consequence of an act clone for his benefit in good faith and witliout his consent, if tlie circumstances are such that it is impossible to obtain his consent, or the consent of the guardian or other person in lawful charge of him, if any, in time for the thing to be done with benefit (o) . Illustrations. 1. A.'s country house is on fire. A. is away on a journey, and no person authorized to act for him is on the spot. B. , C, and D., acting iu good faith for the purpose of saving A.'s house, throw water on the fire, which puts out the fire, but also damages A.'s furniture and goods. B., C, and D. have not wronged A. 2. Z. is thrown from his horse, and is insensible. A., a surgeon, finds that Z. requires to be trepanned. A., not intending Z. 's death but in good (o) Cf. P. C. Penal Code. 92. Illustrations 2 to 5 correspond with those of the GENERAL PART. 587 aitli for Z.'s benotit, porfonns tlio trepan with competent skill before Z. recovers his power of judi;iug for himself. A. has not wronged Z. 3. Z. is carried off by a. tiger. A. iires at the tiger, knowing it to be likely that the shot may kill Z., but not intending to kill Z., and in good faith intending Z.'s benefit. A.'s ball gives Z. a mortal wound. A. has not ■\\Tonged Z. 4. A., a surgeon, sees a child suffer an accident, which is likely to prove fatal irnless an operation be immediately performed. There is not time to apply to the child's guardian. A. performs the operation in spite of the entreaties of the child, intending in good faith to act for the child's benefit. A. has not wronged the child if the operation is proper in itself, and performed with competent skill. 5. A. is in a house which is on fire with Z., a child. People below hold out a blanket. A. drops the child from the housetop, knowing it to be likel}' that the fall may hurt the chiUl, bnt not intending to hurt the cliild, and intending in good faith the child's benefit. A. has not wronged Z. 26 (p). Except in the case of acts which if continued or Acts cans- repeated ■would tend to estabhsh an adverse claim of right, harm, nothing is a wrong of which under all the circumstances a person of ordinary sense and temper would not com- plain ; but acts which separately would not be wrongs may amount to a wrong by repetition or combination. Ilhistratio7is. 1. A. is driving along a dusty road, and the wheels of his carriage throw a, little dust on the clothes of B., a foot-passenger, which does them no harm. Even if A. was driving at an incautiously fast pace, A. has not wronged B. 2. A. walks across B.'s field without B.'s leave, doing no damage. A. has wronged B., because the act, if repeated, would tend to establish a claim to a right of way over B.'s land (j). 3. A. casts and draws a net in water where B. has the exclusive right of fishing. Whether any fish are caught or not, A. has wronged B., because the act, if repeated, would tend to establish a claim of right to fish in that water ()•). (;j) Cf. P. C. 95. As regards civil liability, this is not at present the law of England, but it is the practice and understanding of English people. (q) Undoubted English law ; but unless it has become familiar in India, qu. whether it be desirable to give prominence to it. {r) Holford v. Bailcii, Ex. Cli. 13 Q. P.. 426, 444, 18 L. J. Q. B. 109, 112. 688 INDIAN CIVIL WRONGS BILL. Private 27. A person who duly exercises the right of private . defence defence, as defined by the Indian Penal Code, does no wrong to the person against whom he exercises it. jVo/c. — "WoiJd it be proper to add exceptions answering to P. C. 81 and 94, or either of those enactments ? On tlie whole I think not. Even in criminal law the limits of the excuse furnished by "compulsive necessity " are dilticult to fix. In the first form of the Penal Code the problem was abandoned as hopeless (see Note B. to the Commissioners' draft as reported to the Cioveruor-Gcneral in Council) ;.and in the existing Code there is still some vagueness ; the illustrations to s. 81 are only of acts done for the benefit of others, though the text of the section would cover acts done to avoid harm to the agent's own person or property. The dicta in Scott V. Slicplieril certainly do tend to show that "compulsive necessity" (per De Ore}' C. J.) may furnish an excuse from civil liability; but I cannot help thinking that if in that case Willis or IJyal had been worth suing, and liad been .sued, it would have been held that they, as well as Shepherd, were trespassers. I am not aware of any authority for excluding civil liability in the cases provided for by P. C. 94, and I do not think it would be desirable to exclude it. A possible but rare class of exceptional cases is purposely left untouched. It is settled that infancy, lunacy, and voluntary drunkenness are not in themselves grounds of exemption from liability for civil wrong. But it may well be thought that in oases where the existence of -i particular intent or state of mind is material (as malicious prosecution, and in some parts of the law of libel), lunacy, &c., must, if present, be taken into account as facts relevant to the question whether that intent or state of mind did exist. And what of a person wdio is, without his own fault, in a state in which his movements are not voluntary — a sleep-walker or a man in a fit ? My guest walks in liis sleep and breaks a window in my house ; is he liable to me for the cost of mending it ? A man standing at the boundary of his own laud is seized with paralysis and falls on his neighbour's land ; is he a trespasser ? Shall we say that the man does not really act at all, and therefore is not liable ? Or that he is bound at his peril either to be capable of controlling his own limbs, or to provide against his incapacity being a cause of harm to others ? Either way of dealing with the question has plausible reasons in its favour. The pre- vailing bent of English legal minds would, I think, be against giving exemption. On the whole, these points appear so obscure and so unlikely to arise in practice that they are best passed over. I am not aware of any record in our books of a real case of this kind having occurred for decision. SPECIAL PART. SPECIAL PAET. 589 Chapter III. Assault and False Impeisonjient. 28. Whoever uses criminal force to any person or Assault, commits an assault upon any person, within the meaning of the Indian Penal Code, sections 350 and 351, wrongs that person. Illustrations. 1. A. and Z. are passing one another in a narrow way ; A. uninten- tionally pushes against Z. A. has not assaulted Z., though, if actual harm is caused, he may be liable to Z. for negligence (s). 2. A. and Z. are in a narrow way ; A. intentionally thrusts Z. aside, and forces his way past him. A. has assaulted Z. 3. A. and B. have occasion to speak to Z. A. gentlj' lays his hand on Z.'s arm to call his attention. B. seizes Z. and forcibly tarns him round. A. has not, but B. has, assaulted Z. (i). 4. A. presents a gun at Z. in a threatening manner. "Whether the gun is loaded or not, A. has assaulted Z., if in fact Z. is by A.'s action put in reasonable apprehension that A. is about to use unlawful force to him (it). 29. Whoever wrongfully restrains, or wrongfully con- I'aise fines, any person within the meaning of the Indian Penal ment. Code, sections 339 and 340, wrongs that person. Illustrations. 1. A. causes Z. to go within a walled space, and locks Z. in. There is another door not secured, by which Z., if he found it, could escape ; but that door is so disposed as to escape ordinary observation. A. has wronged Z. (x). 2. A. is a superintendent of police. Z. is accused of an offence for which he is not arrestable without warrant. A., without warrant, directs Z. to go to a certain place and present himself before a magistrate, and directs two constables to accompany Z. in order to prevent him from (s) See per Holt C. J., [Cole v. (?() Parke B. in R. v. St. Geonje, Turner, 6 Mod. 149. 9 C. & P. 493. (i) Coward v. Baddeley, 4 H. & {x) Messrs. Morgan and Mac- N. 478. pherson's note on P. C. 340. 590 INDIAN CIVIL WRONGS BILL. speaking to any one. Z. goes ivitli tlie two constables, as directed by A. Here Z. has been wrongfully confined, and A. has wronged Z. (y). Bxem- 30, In assessing damages for an assault, or wrongful plary damages, restraint or confinement, the Court may have regard to the probable effect of the assault on the plaintiff's feelings, standing, or reputation, by reason of the insulting character, publicity, or other circumstances of the act. Illustration. A. causes Z. to be beaten with a shoe. Z. may be entitled to substantial damages, though he has not sufl'ered a[)preciable bodily hurt or pecuniary loss {:). Note. — It does not seem desirable to depart from the definition of assault given in the Penal Code, though that definition is needlessly elaborate. The illustrations there given likewise appear to cover all the ordinary cases. A few negative illustrations are added ; they do not come under the general exception of slight harm, section 26 above, but are not within the definition at all. Self-defence has been provided for under the head of General Exceptions (clause 27 above), and does not seem to need further mention here. In the case of false imprisonment, as of assault, the inconvenience of having different definitions for civil and criminal purposes appears to outweigh any criticism to which the terms of the Penal Code may be open. It appears to have been decided in the North-West Provinces that "male relatives cannot sue for damages for an assault committed by the defendant on their female (?/) Faranl-usam Narasaya Pan- atheists by the disciples of ^ankara tula V. Sluart (1865) 2 Mnd. H. C. Achdrya ; and, for whatever reason 396. See Jlr. J. D. Mayne's note or combination of reasons, it is to P. C. 840. understood to be a gross form of (z) BJiyran Pcrshad v. Jsharcc insult in modern times. The law (1871) 3 H. 0. N. W. P. 313. and practice are well settled in Beating with slippers was the argu- England, ment administered to certain SPECIAL PART. 591 relatives" (Alexander, Indian Case-law on Torts, p. 159). It is certain that no such action lies in English law except on the ground of piT quod si'ivitmin atnisit. "Whether it ought or ought not to lie in British India, having regard to native usage and feelings, is a question of special policy outside the draftsman's functions. Next would come in logical order the causes of action for trespass to servants, &c., per quod servitiu)ih ainisit, with their peculiar development in modern times in the action for seducing the plaintiff's daughter, or person in a similar relation. I do not find that such actions are in use in British India. In English law they are now regarded as anomalous in principle and capricious in operation. As to trespass by intimidation of a man's servants, &c. (a rather prominent head in the old books of the common law), I apprehend that such matters may be left to the Penal Code. Chaptee IV. Defamation. Preliminary Note. — In dealing with assault and false imprisonment, the definitions of the Penal Code have been followed. With regard to defamation, it is much more difficult to determine the course to be taken. The common law presents — (1) minute distinctions between spoken and written words or, more exactly, between communications by means leaving no visible trace and communi- cations by writing or other permanent visible symbols, as affording a cause of action, spoken words being " actionable ))ar se " only when they convey certain kinds of imputation ; 592 INDIAN CIVIL WRONGS BILL. (2) an artificial theory of raalice, now reduced in effect to the doctrine that, exceptions excepted, a man acts at his peril in making defamatory eommmiications ; (3) an elaborate system of exceptions, reducible, how- ever, to sufficiently intelligible grounds of public policy and social expediency ; (4) peculiar and somewhat anomalous rules as to the respective office of the Court and the jury in dealing with those exceptional cases which conie under the title of " privileged communications." As to (1) , the Penal Code makes no distinction between slander and libel (a). In this I think it ought to be followed. The common law rules defining what words are and are not "actionable j^er se " seem to have been already disregarded in practice in suits between natives in British India. As to (2), the Penal Code does not make wroneful intention, but does make knowing or having reason to believe that the imputation uttered will harm the repu- tation of the person it concerns, an essential part of the offence. It seems doubtful whether for the purpose of civil liability this caution is necessary. The test of words being defamatory or not is, according to English authority, an "external" one; the question is what their natural effect would be, not whether the utterer knew or might have known it ; see per Lord Blackburn in Cctpital and Counties Bank v. Henty, 7 App. Ca., at pp. 771 — 72. Practically it can seldom make any difference in which form the question is put, but the language of the Penal Code, if applied to civil liability, would be open to mis- construction. On the other hand, the Explanations of the Penal Code, section 499, seem dangerously wide. («) See Parvals v. Mannar, I. L. E. 8 Mad. 175. SPECIAL PART. 593 (3) As to exceptions, in the Penal Code (following- English criminal la^y) truth is a justification only if he publication is for the public good. Such is not the English rule as to civil liabilit}-; the truth of the imputa- tion, on whatever occasion and for whatever purpose made, is an absolute defence. And this appears to be accepted in civil suits in British India. The other exceptions are not free from over-definition, and, if they were adopted for civil purposes, troublesome questions might arise as to their effect on the existing law. There are obvious inconveniences in having the criminal offence and the civil wrong of defamation differently defined. But these seem less than the inconvenience of following the Penal Code; and it seems best, on the whole, to take an independent line, with an express warning that the civil and criminal rules are to be kept distinct. If the text of the Penal Code were now adopted for civil purposes, British India would either lose the benefit of modern English jurisprudence, or (what seems more likely) the text of the Code would be strained to make it fit the English decisions. (4) The peculiar difficulty of distinguishing questions of fact from questions of law depends on the relation of the judge to the jury in a trial by jury, and therefore does not arise in British India. In the event of the Government of India being of opinion that the Penal Code ought to be substantially followed, these alternative clauses are submitted : — A. Every one who defames any person within the meaning of the Indian Penal Code, s. 499, commits a wrong for which he is liable to that person. Exceptions. B. It is not defamation to publish in good faith any fair comment on matter of public interest or open to P.T. Q Q < 594 INDIAN CIVIL WRONGS BILL. Saving and ex- clusion ot Penal Code as to d(;fama- tion. Saving of criminal j urisdic- tion on other grounds. Defama- tion defined. public criticism, or a correct and fair report of a public judicial or legislative proceeding ; or to communicate in good faith to any person in a manner not in excess of the occasion any information or opinion which it is proper to communicate in the interest of that person, or of the person making the communication, or of the public. This section does not affect the construction or appli- cation of the exceptions to s. 499 of the Indian Penal Code. C. Saving of criminal jurisdiction as in clause 31 of the jjresent draft. 31. Nothing in this Act shall affect the construction or operation of Chapter XXI. of the Indian Penal Code ; and nothing in Chapter XXI. of the Indian Penal Code shall affect the construction or operation of this chapter of this Act. Nothing in this Act shall justify or excuse in a court of criminal jurisdiction the publication of any matter the publication whereof is otherwise punishable. 32. (1) Every one commits a wrong who defames another without lawful justification or excuse. (2) A person is said to defame another if he makes to any third person a defamatory statement concerning that other (h) . (3) A statement is said to be defamatory which con- veys concerning a person any imputation tending to bring him into hatred, contempt, or ridicule, or, being made concerning him in the way of his office, profession, or calling, tends to injure him in respect thereof. (4) A statement may be made by spoken or written words, or by signs, or by pictorial or other representa- {b) 7 App. Ca. 771. SPECIAL PART. 595 tions or symbols, and either directly or by insinuation or irony (c). (5) A person is deemed to make to another person any statement which, knowing or having reasonable means of knowing its effect, he communicates or causes to be communicated to that person (rf). (6) A statement is deemed to concern any person thereby designated with reasonable certainty, including any member of a definite body of persons thereby col- lectively designated whose individual members can be identified (e). Illustrations. 1. A. -writes and sends a letter to B., in wliich he accuses B. of a criminal oflence. B. opens and reads the letter. A. has not defamed B., though the letter may cause pain and annoyance to B. (/). 2. A. having a dispute with B., makes an effigy of B., sets it up on a "bamboo in a public place, calls it by B.'s name, and beats it with shoes. A. has defamed B., and the Court may awai'd substantial damages to B. if he sues A. (■). 38. (1) Where a statement is made — (i) in discharge of a legal, moral or social duty existing, or by the person making the statement believed in good faith to exist, of giving information in the matter of the statement to the person to whom it is made ; or (ii) to a public servant, or other person in authority, in a subject-matter reasonably believed to be within his competence, with a view to the prevention or punishment of an offence or redress of a public grievance ; or (iii) with a view to the reasonably necessary pro- tection of some interest of the person making the statement ; or (iv) with a view to the reasonably necessary protection of an interest or the proper performance of a duty common to the person making the state- ment and the person to whom it is made ; (?■) It is not free from donbt whether reports made in the course of military (or other ofhcial ?) dutj', but not with reference to any pending judicial proceeding, are "'aljsoliitely privileged," or are only ordinaiy "privileged communica- tions," i.e., are protected only if made hoiid fide. This clause is intended to leave the unsettled points at large. [See now Ohatterton V. Secretary of State for India in Council [1895] 2 Q. B. 189, 64 L. J. Q. B. 676.] SPECIAL PART. (501 that statement is said to be made on a privileged occasion (s). (2) It is not defamation to make a statement on a immunity privileged occasion in good faith, and in a manner not ments in exceeding what is reasonably sufficient for the occasion. ■'^""'^ ^'''^ ^ J on pri- (3) A statement made on a privileged occasion is vileged occasion. presumed to have been made m good faith (t). (4) '\^Tiat is reasonably sufficient for the occasion is a question of fact to be determined with regard to the whole circumstances (i). Illustrations. 1. Z. has been A.'s servant, and offers himself as a servant to M. M. asks A. his opinion of Z.'s character and competence. This is a privileged occasion, and no wrong is done to Z., though A.'s account of liim given to M. be unfavourable, unless Z. can prove not only that A.'s account was not true in substance, but that A. spoke o> wrote, not with the honest pur- pose of giving information to M. which it was right that M. should have, but from personal ill-will to Z. 2. Z. is A.'s servant and a minor. A. dismisses Z. on suspicion of theft, and writes to Z.'s father explaining the grounds of his suspicion. After- wards A. sees Z. in conversation with P. and Q., other servants of A., and warns P. and Q. against having anything to do with Z. A.'s letter to Z.' parents is written, and his warning to P. and Q. is given, on a privileged occasion {u). 3. A., a merchant who has dealings with B., sends Z. to B.'s office with a message. After Z. has left B.'s office B. misses a purse from the room in which Z. has been. B. goes to A. and tells him that Z. must have taken the purse. This occasion is privileged (.c). 4. A. and B. are part owners of a ship. A. hears unfavourable reports of the master's conduct as a seaman and communicates them to B. This occasion is privileged {y). 5. A. and B. are partners. C. is their managing clerk. X. writes a (s) There is some temptation to v. Fine Art, iL-c, Insnrnnce Co. get rid of the term "privileged [1895] 2 i). B. 156, [1897] A. C. occasion " altogether : but as it 68] are perliajis unnecessary, would in any case persist in foiensic (u) James v. Jollij, Blfike Odgers usage, and is certainly convenient 212 ; Somerville v. Hawkins, 10 for separating the two distinct C. B. 583, 20 L. J. C. P. 131. questions of the character of the (».■) Amann v. Damm, 8 C. B. occasion, and whether it was legiti- N. S. 597, 29 L. J. C. P. 313. mately used, it seems best to keep (y) Coiiceasuiii, Coxhcad v. llich- it in the draft. ards, 2 C. B. 569, 15 L. J. C. P. (t) These sub-clauses [and the 278. latter part of sub-clause 2 : seeJfeviU 602 INDIAN CIVIL WRONGS BILL. letter to the firm proposing a business transaction. G. opens tlie letter and submits it to A., telling A. that from his own knowledge of X. he does not think the firm ought to trust him. A. shows X.'s letter and repeats this conversation to B., and A. and B. cause a letter to be sent in the name of the firm to P., a customer of theirs, stating the circumstances and asking for information as to X.'s business reputation. P. sends an answer in which he makes, partly as from his own knowledge and partly on general information, various unfavourable statements about X. These statements concerning X. are all made on a privileged occasion. 6. Sending defamatory matter by telegraph, or on a postcard, or the communication of such matter by any means to an exce.ssive number of persons, or to persons having no interest, or the communication by negli- gence to one person of matter intended for and proper to be communicated to another jierson, or the use of intemperate language, may make a statement wrongful, even if the occasion is otherwise privileged (-.). 7. A. and Z. are inhabitants of the same town. Z. is the executor of a friend who has left a widow and children surviving. X. is Z.'s agent in the executorship. A. says to Z. in the presence of other persons, "You and your agent are spoken of as robbing the widow and the orphan. " The occasion is privileged as regards both X. and Z., if A. intended in good faith to communicate to Z. matter wiiich A. thought it important that Z., for the sake of his own character, should know. The question of wliat A.'s intention really was depends, among other things, on the circumstances of the conversation and the number and condition of the persons present (a). Chaptee Y. "Weongs against Good Faith. [It is proper to mention that tliese clauses and the notes to them were written before Derrij v. Peck (pp. 281, 288, above) had come before either the Court of Appeal or the House of Lords.] Deceit. 39. A person wrongs another who deceives that other withm the meanmg of this Act (6). (z) Williamsmi \. Freer, L. R. 9 ground of deceit as a civil wrong. C. P. 39y ji&t/. V. jSVmtera, I. L. R. For in some cases an action for 6 Mad. 381 (notice of putling out deceit will lie without any bad of caste sent on a postcard). intention, and even in spite of good (a) Davies v. Snead (1870) L. E. intention, on the part of the defen- 5 y. B. 608 (with some doubt as to dant {Polhill v. Walter, 3 B. & Ad. the verdict). 114), the principle being that if a (6) The definition of cheating in man takes on himself to certify that the Penal Code, s. 41fi, is very wide, of wdiich he has no knowledge, even yet it does not completely cover the in the honest belief that he is acting SPECIAL PART. 603 40. (1) "Where one person makes a statement to Deceit ,, 1-1 defined. another which — (a) is untrue ; and (b) -which the person making it does not beheve to be true, whether knowing it to be untrue, or being ignorant whether it is true or not ; and (c) which the person making it intends or expects to be acted upon in a certain manner by the person to whom it is made, or with ordinarj- sense and prudence would expect to be so acted upon ; and (d) in rehance on which the person to whom it is made does act in that manner to his own harm ; there the person making the statement is said to deceive the person to whom it is made (c). (2) For the purposes of this section, a statement may be made in any of the ways mentioned in s. 32 (d) of this Act, and may be made either to a certain person or to all or any of a number of persons to whom it is coUectivel}' addressed. Explanation. — (1) A statement intended by the person making it to be communicated to and acted upon by a person is deemed to have been made to that person. for the best, he shall answer for it if strict duty of disclosing materitil the fact is otherwise. On the other facts is inijiosed by law ; but I am hand, the Penal Code does cover all not aware that a mere omission to ordinary cases of fraud, and the once give information has ever been ve-xed question as to the responsi- treated as an actionable wrong, bility of a principal in tort for the even in those cases where a contract fraud of his agent dues not seem " 'ubcrrimac fiilci" lias created a easy to treat as open in British speeialduty of giving it. Of course, India in the face of sect. 2.38 of the the remedy ex i-mttrac/u is better, Contract Act, thongh that enact- and this may account for such ment does not directly settle it. concealments and non-disclosures (c) It has been suggested that not being treated as t(jrts. How- there may be deceit by concealment ever, I believe that these clauses as of facts -without any statement at drafted go to the full extent of the all. Concpnlment, or even non- authorities. disclosure, may avoid a contract ; (d) The cHu.se defining defama- in some clas.ses of contracts, a very tion. 604 INDIAN CIVIL WKONGS BILL. (2) Where a person acts in reliance on the statement of another, it is immaterial that he had the means of examining the truth of that statement. (3) A statement may be mitrue, though no part of it is in terms untrue, if by reason of material facts being omitted the statement as a whole is fitted to deceive (e). Illustrations. 1. N. draws a hill on X. The bill is presented for acceptance at X.'s office when X. is not there. A., a friend of X., who is there but not con- cerned in X.'s business, accepts the bill as X.'s agent. He hasuot in fact any authority to accept, but believes that the bill is drawn in the regular course of business, and that X. will ratify the acceptance. The bill is dishonoured when due, aud Z., the holder in due course, is unable to obtain payment. A. has decei\ed Z., though he honestly meant to act for the benefit of all parties to the bill ; for he has I'epresented to all to whom it might be offered in the course of circulation that he had authority to accept in the name of X., knowing that he had not such authority, and Z. has incurred loss by acting on that representation (,/' ). 2. A., B., and C. are partners in a firm ; D. and E. agree with them to form a limited company to take over the business of the firm, and to become directors jointly with A., B. , and C. A prospectus is prepared aud is.sued with the authority of A., B., C, D., and E., stating, among other things, that the con.sidcration to be paid by the company for the goodwill of the business is Rs. 10,00,000. Z. applies for and obtains shares in the company on the faith of tliis prospectus. In fact the firm is insolvent, and the lis. 10,00,000 are intended to be applied in paying its debts. Tlie company fails aud is wound up, and Z. incurs liability as a contributory. A., 1>., C, I)., and E. have deceived Z. ((/). 3. In the case stated in the la.st illustration V. applies for and obtains shares on the formation of the conipanj'. Afterwards P. offers his shares for sale, and Q,, having read the prospectus and relying on the truth of its contents, buys P.'s shari's. The authors of the prospectus have not received Q., for it was addressed only to persons who might become original shareholders, and not to subsequent purchasers of shares (h). ■i. A. offers to sell his business to Z. ; assures Iiim that the annual profits, as shown by the books, exceed Us. 5, 000, and tells Z. that he may examine the books. Z., on the faith of A.'s statement, agrees to the {(•) See per Lord Cairns in Peck illustration for Indian use. V. Guntaj, L. R. 6 H. L. at p. 403. (g) Peek v. Gurnaj, L. R. 6 H. L (/) Pvlliill V. H'-allrr, 3 B. & Ad. 377. 114 [37 R. R. 344]. Doubt is (h) Ibid. expi-essed whether this be a suitable SPECIAL PART. 605 terms propused by A. without examining tlie liooks. If lie liad examined tliera he wouhl liave discovered, as the fact is, that the profits are much less than Rs. S.OOO. Tliis will not preclude Z. from suing A. for deceit (/). 5. A. deals with Z., a gunsraitli, and requires a gun for the use of A.'s son B. Z. in B.'s presence, and knowing tliat the gun is wanted for B.'s use, warrants to A. that the gun is of good workmanship and materials and safe to use. A. thereupon buys the gun, and gives it to B. The gun is in fact badly made, and Z. knows it, and by reason thereof, the first time B. fires the gun, it bursts and wounds B. Z. has deceived B. (k). 41. A person ^vl•ongs another who causes harm to that Slander of other by making, for the purpose of mjurmg that other, a statement which is untrue, and which he does not believe to be true — (a) concerning that other's title or interest in any property : (b) concerning any pretended exclusive right or interest of his own as against that other. 42. A person Avrongs another who — (a) without reasonable and probable cause, and (b) acting from some indirect and improper motive, and not in furtherance of justice, falsely accuses that other of an offence, of which offence that other is acquitted by the Court before which the accusation is made, or, having been convicted in the first instance, is ultimately acquitted on appeal by reason of the original conviction having proceeded on evidence known by the accuser to be false, or on the wilful suppression by him of material information (Z). Maliciuus prose- cution. (i) On this point, see Jirih/rarc v. Hurd, 20 L'h. D. 1. It is pointed out that Explanation 2, and this illustration, are hardl)- consistent with the exception to s. 19 of the Contract Act. That exception is not In accordance with English law as now settled, and ss. 17-19 are generally not very satisfactory. \k) Lanqridqe v. Zen/, 2 Jl. & W. 519, 4 M. ■& W. 33S [46 K. R. 689]. {I) Per Bowen, L. J., Abratli v. N. E. li. Co., 11 (,l. B. D. 440, 455. This case [since affirmed in H. L. 11 App. Ca. 247] is the latest authority in the Court of Appeal, and defines the cause of action carefully and completely. Tlie condition as to the proceedings liaving terminated iu favour of the accused is in British India compli- cated by tlie system of appeals in G06 INDIAN CIVIL WRONGS BrLL. Abuse of process of Court. E.xplaiiation. — The plaintiff must prove both the absence of reasonable and probable cause, and the existence of an indirect and improper motive for the prosecution {m). 43. A person wrongs another who causes harm to that other by wilful abuse of any process of the law (n) . Xotc. — Tliere are other miscellaneous wrongs which may be generally (lescril)ed as malicious interference with rights. I think the doctrine of Lumh'y V. Gije and Bourn v. Hall really comes under this head, and does not (as has been suggested) establish a sort of right in rem not to have the fulfilment of contracts made with one interfered with. To the same class belongs Ashby v. While, as explained in Tozer v. Child, 7 E. & B. 377. But I submit that the law on these questions is neither settled enougli to make immediate codification prudent, nor of sufficient practical importance to make it probable that delay will do any harm. [The decision and discussion in Allen v. Flood [1898] A. C. 1, 67 L. J. Q. B. 119, would appear to weaken the second branch of the foregoing sentence, but strengthen the first.] Tlie doctrine of Lumley v. Gye might be expressed in some such words as these : — " A person wrongs another who wilfully, and with the design of harming that other or gaining some advantage for himself over that other, procures a third person who has entered into a contract [qu. for exclusive personal services ?] with that other to break his contract, whereby that other loses the benefit of the contract." criminal jurisdiction. It does not stem desirable to depart from the common law as laid down in Abrath v. N. E. It. Co. without evident necessity ; but some provision has to be made for the case of a conviction being reversed. That which I submit is intended to represent the better Anglo-Indian opinion upon this point. (?») "Knowing that there is no just or lawful ground lor his accusa- tion " (after P. C. 211) has been suggested, and might be a good simplification to replace the two sub-clauses (a) and (b). The draft follows the language of recent Kn^lish authority. The explanation will have to be recast if the body of the clause is altered as suggested. The English authorities on malicious prosecution seem to be applicable in British India ; see II B. L. R. .328. (n) That malicious abuse of civil process 'may be actionable, see Baj Chunder Hoy v. Shaina Soondari Dchi, I. L. K. i Cal. 58-3. In this class of cases, as distinguished from malicious prosecution, special damage must alwavs be shown. See Bigelow, L. C. ISi, 206. I do not think it would be desirable to add illustrations to this clause ; at all events not without intimate know- ledge of Anglo-Indian judicial proceedings. The same remark applies to the clause on malicious prosecution. SPECIAL PART. 607 Chapter VI. Wrongs to Property. 44. Every one commits a wrong, and is said to commit Trespass defined. a trespass and to be a trespasser, who, without the con- sent of the owner of such property as in this section mentioned or other lawful justification or excuse [and to the damage or annoyance of the owner (o) j, — (1) enters on any immoveable property, or causes any animal to go upon such property, or permits any animal in his possession or custody, being to his knowledge or by its kind accustomed to stray, to go upon such property, or puts, casts or impels anything in, upon, or over such property ; (2) assumes to exercise ownership over any moveable property, or does any act which deprives the owner of its use permanently or for an indefinite time {}}) ; (3) destroys or damages any property ; (4) does any other act which directly interferes with the lawful possession of any property, moveable or immoveable. 45. For the purposes of the last foregoing section every Protection one who is in lawful possession of any property, or who rent right peaceably and as of right is in actual occupation, or s°,|j°^^^^' has the actual custody or control (q), of any property, is (o) See note at the end of this settled English authority. But it chapter. is by no means certain that in (p) Per Bramwell B., Hiort v. England a servant having the ous- Bott (1874) L. K. 9 Ex. 86, 89; tody of a chattel out of his master's cf. the judgment of Thesiger L. J. presence or the protection of his in Jones v. Hotujh (1880) 5 Ex. D. house cannot sue a trespasser in his 115, 128. own name ; see p. 328, above.] iq) [This probably goes beyond 608 INDIAN CIVIL WRONGS BILL. Trespass by pos- sessor for limited purpose deemed to be the owner thereof as agamst every one not having a better title. 46. A person who has lawful possession, custody or control of property under a contract with the owner of that property or otherwise may become a trespasser exceeding j^y dealing with the property in a manner inconsistent his right. . . . with the title by which he has that possession, custody or control, or in excess of his rights under that title. Illustration . If a pledgee with power of sale sells the pledge without the conditions being satisfied on which the pow'er of sale is exercisable, or a hirer of goods pledges them for liis own debt, or a bailee without the bailor's consent lends the goods in his custody to a third person, these and the like acts are trespasses (r). 47. Interference with the property of another is not excused by mistake even in good faith as to the owner- ship or the right of possession, or by an intention to act for the true owner's benefit : Provided that a carrier or other person using the carriage or custody of goods as a public employment does not commit a trespass by dealing with goods in the ordinary way of that employment and solely by the direction and on behalf of a person who delivers those goods to him for that purpose and whom he in good faith believes to be entitled to deal with those goods : Provided also that a workman or servant does not commit a trespass by dealing with any property in the ordinary way of his employment and in a manner autho- rized as between himself and his employer and which he in good faith believes his employer to be entitled to authorize. Illustrations. 1. M. obtains goods from Z. by fraud and false pretences, and, being apparent o«ner of the goods, purports to sell them to A., who in good Mistake does not generallj'" excuse trespass. Immunity, of certain minis- terial actions. (';•) Donald v. Sucklbuj, L. li. 1 T^. ]!. 585, is the modern leading case. SPECIAL PART. 609 faith accepts them and pays M. for them. A. is in fact dealing on behalf of P., and fovtUwith delivers the goods to P. M. absconds with the price. A. has wronged Z., and is liable to Z. for the value of the goods (s). 2. A. is a tenant of laud belonging to B. A. without authority, but intending to act for B.'s as well as A.'s benefit, converts part of this land into a tank. A. has wronged B., and li. need riot prove that the value of the land is diminished (t). 3. A. obtains goods by fraud and false pretences from Z. at Bombay, and sends them by railway to B. at Allaliabad. The railway company's servants deliver the goods at Allahabad to B. 's order according to the usual course of business. If the railway company has not before this delivery received any notice of an adverse claim on the part of Z., the railway company has not wronged Z. 4. Z. is the owner of 100 niaunds of wheat. A. obtains this wheat from him by fraud and false pretenci's, and offers it for sale to B., a miller, who accepts it in good faith. ]!. causes the wheat to be ground in his mill together with other wheat bought by B. from the true owners. The men employed in the mill do not know from whom the wheat was bought. Here B. may have wronged Z., but the men employed in the mill have not («). 48. The mere assertion of a right to deal with property or to prevent another from deahng with it is not a trespass. 49. The consent of an owner to entry upon or inter- ference with his property is called a licence, and a person to whom such consent is given is called a licensee. A licence, and the revocation of a licence, may be either express or tacit. Illustration. A man who keeps an open shop or ofBce thereby gives to all persons who may wish to deal with him in the way of his business a licence to Mere claim of right can- not be trespass. Licence defined. (s) HvUins v. Fcnolcr, L. E. 7 H. L. 757. (t) Turini Charan Base v. Beb- iiarat/an Mistri, 8 B. L. K. App. 69. If the conversion were proved to be beneficial to the property, quaere. {ii) As to these exceptions, see the opinion of Blackburn J . in Hollins v. Fuwhr, L. R. 7 H. L. at pp. 766-8, which seems to favour making them wide enough to protect the miller or spinner, if acting in good faith and without purporting to acquire any interest in the corn or cotton beyond that of bailee for P.T. a special purpose without notice of the true owner's claim, as well as his servant ; and as to carriers, of. iShcridan v. Xeio Quay Co., 4 C. 1!. N. S. B18. To give full efi'ect to Lord Blackburn's opinion the pro- viso would have to protect all per- sons handling the goods of others in the way of their business. Lord Blackburn himself points out that this would go beyond existing au- thority. 'Whether it should be done is submitted as a question of policy. R E 610 INDIAN CIVIL WRONGS BILL. enter the shop or office during business hours. If he gives up the business and turns the shop or office into a private dwelling-house, this licence is revoked. EfEoct of licence. 50 (x) . A licence — (1) does not bind the successors in title of the licensor; (2) is not assignable by the licensee ; (3) is limited to the purposes for which and subject to the conditions, if any, on which it is given ; (4) is revocable at the will of the licensor, unless coupled with an interest. Explanation. — A licence is said to be coupled with an interest where it is given as part of the same transaction with the conveyance of a legal interest in some property by the licensor to the licensee, and that interest cannot be enjoyed without doing the act permitted by the licence. Illustration. A. sells to B. cattle which are pasturing on A.'s laud, or trees growing on A.'s land. Tliis implies a licence to B. to enter on A.'s laud to take the cattle away, or to cut the trees, as the case may be, and A. cannot revoke the licence while the contract of the sale is in force. Time of 51. Notwithstanding the revocation of a licence, the filer i-evo- licensee is entitled to the benefit of the licence for a cation of reasonable time thereafter so far as may be necessary to licence. . enable him to restore the former state of things (y). {x) Chapter VI. of the Easements Act (V. of 1882) deals with licences as regards immoveable property only. It is submitted that, inasmuch as a licence does not create an interest in property, but merely excuses what would otherwise be a trespass, the subject belongs to the law of torts more properly than to the law of easements. This being so, and the local extent of the Easements Act being limited, I leave the matter to the consideration of the Government of India. The two sets of clauses are intended to de- clare the same law, and I do not know that any great harm would come of having both in force over a limited extent of territory. {y) Great trouble h-is been caused in the United States by the untimely levocation of parol licences to ernct dams, divert wateroouises, and the like ; and in some cases the law has been strained to confer rights on the licensees under the doctrine of estoppel or jiai t performance. I do not know whether similar diffi- culties are to be apprehended in Britisii India. SPECIAL TART. 611 Ilhistrations. i. B. is on A.'s laud midev a revocable licence. A. revokes the licence. A. must not remove 13. from the laud until B. has had a reasonable time to leave it. 2. H. luis timber lying ou A.'s wharf under a revocable licence. A. revokes the licence. A. must allow B. access to the wharf for a reasonable time for the purpose of removing his timber (s). 52. A person entitled to the possession of any moveable True property who has been wrongfully deprived thereof may ^^ht of [within a reasonable time] retake the same if he can 'ec'ipture. peaceably do so, and so far as necessary for that pm'pose may peaceably enter on the wrongdoer's land (a). JS'otc. — The term "trespass" has been extended to cover every kind of wrongful interference with property. Our distinctions between trespass, conversion, &c., are obviously not applicable in British India. Simplifi- cation at least as bold as that of the present draft is a necessity. It may be a grave question whether the strict rule that a man meddles ■with another's property absolutely at his peril be altogether fitted for Indian purposes, especially in its application to immoveable property. I suggest for consideration the insertion of the words "to the damage or annoyance of tlie owner," or words to the like effect, as part of the definition. So far as I am aware, the change would be only equivalent to what is the settled law of all civilized countries not under the common law, including Scotland. It is so much the case that the English law of trespass is unknown in Scotlaud that it has been found necessary to provide bv statute against camping out in private grounds, and other things ejicsdem gauris: 28 & 29 Vict. c. 56, which makes the acts there described police oHeuces. Not that other systems declare a right of "innocent passage " over a private owner's land, but they do not provide any means, other than "self-help " at the time, of treating such passage as a wrong where there is no damage and no anuoyauce. A\'hat circumstances are sufficient evidence of injurious intent, e.g. whether climbing over a fence would have this effect, must be a matter of detail to be regulated according to the habits of the country. (::) See Cornish v. Stuhhs (1870) Patrick v. ColericTc has the phrase L. li. 5 C. P. 334, 339 ; and Mcllor " fresh pursuit" ; the Court do not V. WatJciiis (1874) L. R. 9 Q. B. say anything of this being a neces- 400. ■ sary condition. But I suppose re- (a) Fatrickv. Colcrick, 3il. kW. capture should be, if not strictly 483, explaining Biackstone's state- on Iresh pursuit in every case, yet ment, Conim. iii. 4, which denies within a reasonable time. English the rif'ht of entry on a third person' s authorities are scanty on this point, land for capture, except where the There seem to be many modern taking was felonious. The plea in American cases. R R 2 612 INDIAN CIVIL WRONGS BILL. Chapter YII. Special from public nuisance. Nuisance. 53. Where special damage is caused to any person hj a public nuisance within the meaning of the Indian Penal Code, section 268, the person guilty of the nuisance wrongs and is liable to the person suffering the damage. Explaniition . — Special damage for the purpose of this section means some injury, obstruction, danger, or annoy- ance to a person, or to his property or business, conse- quent upon his exercise of a public right being interfered with, and distinct from the fact that it is interfered with. Illustrations. 1. Z. unlawfully digs a trench across a high road, whereby A. and others are prevented from freely passing and repassing thereon. This is no private wrong to A. But if A. , going along the road in the dark, and not knowing of the obstruction, falls into the trench and is lamed, this is a special damage for which Z. is liable to A. (h). 2. Z. unlawfully obstructs a navigable river. By this obstruction A. is prevented from taking a certain cargo of goods to market by water, and has to take them overland at increased cost. The expense thus incurred by A. is special damage for which Z. is liable to him (c). 3. Z. unlawfully obstructs a street in a town by conducting building operations in an unreasonable manner. A. is a shop-keeper in the same street, and by reason of the obstruction traflic is diverted from his shop and he loses custom and profits. This is special damage for which Z. is liable to A. (d). (h) Y. B. -27 H. YIIl. 27, pi. 10. (c) Rose V. Miles, i M. & S. 101 [16 R. R. 405]. (d) WWkcs \. Mmigcrford Mar- ket Co., 2 Bing. N. C."281; this has been thought to be overruled by lUi-ket v. Metropolitan E. Co., L. R. 2 H. L. 175 (see at pp. 188, 189) ; per Wilies J., Beckett v. Midland JR.. Co.., L. R. 3 C. P. 100. But this again is difficult to recon- cile with the principle of Lyon i . Fishmongers' C'n., 1 App. Ca. 662 ; see Fritz v. Hohson, 14 Ch. D. 542. ticket's case is perhaps best treated as an anomalous decision on the construction of a statute with regard to particular (acts ; the Court below seem to have thought the obstruc- tion was trifling. TFilkes's case has been followed by the Supreme Court of Massachusetts ; Stetson v. Faj-mi, 19 Pick. 47 ; cp. Benjamin \. Storr, h. R. 9 C. P. 400. SPECIAL PART. 618 i. Z. persistently obstructs a public footway which A. is in the habit of using. A. several times removes the obstruction for the purpose of passing along the way, and is put to trouble and expense in so doing. A. lias no right of action against Z., for A. lias not suffered any damage or inconvenience except in common with all persons using the way (e). Ti. A.. B., and others, being Mussulmans, are accustomed to carry tablets in procession along a certain public road for immersion in the sea. Z. unlawfully obstructs the road so that the tahuts cannot be carried along it in the accustomed manner. A. and B. have no right of action against Z. (/). 54. Every one who is guilty of a private nuisance as Liability 3tined by this . thereby harmed. defined by this Act wrongs and is Uable to any person n'^isanoe. 55. Private nuisance is the using or authorizing the Private . nuisance use of one's property, or of anythmg under one's control, defined. so as to injuriously affect an owner or occupier of property — (a) by diminishing the value of that property : (b) by continuously interfering with his power of control or enjoyment of that property : (c) by causing material disturbance or annoyance to him in his use or occupation of that property ((/). What amounts to material disturbance or annoyance is a question of fact to be decided with regard to the character of the neighbourhood, the ordinary habits of life and reasonable expectations of persons there dwelling, and other relevant circumstances (/<)• (e) JFia/xrhotto'iii v. Lord Derhy, L. II. 2 Ex. .316. (/) Satku Valad Kadir Smisare V. Ibrahim Aga Valad Jlirzd Agd, I. L, K. 2 Bom. 457, where English authorities are well collected. S. P. GcJiandji bin Kcs Palil v. Ganpati bin Lakshuiuan, ibid, at p. 469 ; Kariiii Buksh v. Budha, 1 All. 249. Jinn Randihod, v. Jodhd Ghelld, 1 Bom. H. C. 1, appears to be im]ierfectly re]Dorted. iil) It will not escape observation that to some extent the definition of nuisance overlaps that of trespass (e.g., the overhanging eaves in Illust. 2 seem to constitute a continuing trespass). This is .so in England and all common law jurisdictions, and it does not produce any diffi- culty or inconvtnienoe that 1 know of. (A) Waller v. Sdfc, 4 Ue G. & Sm. 315 ; Salvin v. North Brunce- peth Coal Co., L. R. 9 Ch. 705. 614 INDIAN CIVIL WRONGS BILL. Illustrations. 1. Z. has fhemical works near A.'s land, the fumes from which kill or stunt vegetation on A.'s land and reduee its selling value. "Whether the land is or is not rendered less wdiolesome for human habitation, Z. has wronged A. (i). 2. If Z. lias a house whose eaves overhang A.'s land, or if the branches of a tree growing on Z.'s land project over A.'s land, this is a nuisance to A., inasmuch as it interferes with his powers of control and enjoj'ment on his own property, and also tends to discharge rain-water on A.'s land {k). 3. Z. has a lirac-kiln so near A.'s house, that, when the kiln burns, the smoke enters A.'s house and prevents A. and his household from dwelling there with ordinary comfort. Tliis is a nuisance to A. (I). 4. Z., a neighbour of A.'s, causes bells to be rung on his land so loudly and frerjueutly that A. cannot dwell in his house in ordinary comfort. This is a nuisance to A. (in). 5. A., living in a street in Calcutta, complains of noises proceeding from the house of his neighbour Z. as being a nuisance to him. In deciding whether a nuisance exists or not, regard is to be had to the general habits of life of persons dwelling in cities. Pre-exist- 56. A person who enters on the occupation of land or nuisance of a house With knowledge that a state of facts which immate- causes or is likelj' to cause a nuisance to occupiers of that land or house exists or is likely to exist near it does not thereb}' lose his right to complain of any nuisance caused by that state of facts ()(). Explanation. — This section does not affect the acqui- sition or loss of any right under the Indian Limitation Act, 1877, or the Indian Easements' Act, 1882 (o). (/) St. Hchii's Smelling Co. v. knoviledge may suggest something Tijipbiii, 11 H. L. C. 642. more probable and apt. SoUau v. (A) t. N. B. 184 d ; Penruddoch's Dc Held, 2 Sim. K. S. 133. This case, 5 Co. Eepi. 100 b ; Fay \\ seems to cover a fortiori the cases Prentice, 1 C. B. 829 ; Earl of Pons- of noise and vibration of machinery, dale V. Kelson, 2 15. & C. at p. 311 ; letting off fireworks, &c. op. Plarrop v. Hirst, L. R. i Ex. (n) In other words, the old doc- 43, an example which must be trine that a man who " comes to a adapted for Indian use, if at all, nuisance'' cannot coniplain(Blackst. only on the spot, and with the ii. 403) is not now law ; St. Helens light of local knowledge. Smelting Co. v. Ti2}2nng, and other {I) Aldred' s ca.ie, 9 Go. Eep. 59 a ; recent authorities. 7KbMct- V. ,SV(/c, note (i) ; and other (o) Qii. Can prescriptive rights modern brick-burning cases, e.g. be acquired in British India other- Bamford v. Tiirnley, 3 B. & S. 6t). wise than under one of these Acts ? (m) I do not know whether bell- If so, the saving words should be ringintr is common in India. Local made to cover them. SPECIAL PART. 615 Illustrations. 1. Z. lias for some years carried on a noisy business on land adjoining a house built and occupied by A. on his own land. The noise is such as to be a nuisance to persons dwelling in the house. B., knowing these facts, buys A.'s house. Z. wrongs B. if, after B. has entered on the occupa- tion of the house, he continvies his business so as to prevent B. or his household from dwelling in the house with ordinary comfort. It is immaterial whether A., during his occnpation, did or did not complain of the nuisance. 2. The facts being otherwise as in the last illustration, Z.'s business has been carried on for such a time that he may at the date of B.'s purchase have acquired a prescriptive right as against A. and persons claiming through him. Here the previous conduct of A. and his predecessors in title is material as between Z. and B. 3. Z. has for more than twenty years carried on a noisy business on land adjoining land of A.'.s, on which there is not any dwelling-house. A. builds and enters on the occupation of a dwelling-house on his own land near Z. 's workshop. Z. wrongs A. if he continues his business so as to prevent A. from dwelling in the house with ordinary comfort : for tlie doing of acts which were not a nuisance to the occupier of A.'s land when done could not in any length of time entitle Z. to continue similar acts after they became a nuisance (p). 57. The same facts or conduct may constitute a nuisance to several persons, and the wrongdoer is severally liable to every such person. Ilhistration. Z. has a manufactory. The smoke from the chimneys ilows into A.'s house and prevents him from dwelling there, the noise and vibration of machinery make B.'s and C.'s shops unfit for carrying on their business, and the fumes spoil D.'s growing crops. Z. has wronged A., B., C, and D. 58. Where several persons are guilty of similar nuis- ances, every one of them is severally liable to any person thereby harmed, notwithstanding that any such person may suffer harm of the same kind and of equal or greater amount from the other co-existing nuisances. Same facts may be distinct nuisance to several persons. Co-exist- ence of other nuisances node- fence. Ilhistratioii. A., B., and C. liave dye-works on the banks of the same river, and pour noxious refuse into it to the damage of X., a riparian occupier. A. has (p) Sturges v. Bridgman, 11 Ch. D. 852. 616 INDIAN CIVIL WRONGS BILL. wronged X., even if the water flowing past X.'s land would not be made fit for nse by A. alone ceasing to foul tlie stream {q). When owner out of posses- sion can sue for nuisance. 59. An owner of immoveable property, not being in possession of it, can sue for a nuisance to that property only if the nuisance — (a) permanently affects the value of the property ; or (b) tends to establish an adverse claim of right. Illustraiiov s . 1. A. rents a liouse in a public street froiu B. '/i. keeps his horses and carts standing in the street for long and unreasonable times, in such a manner as to be an obstruction of the street, and a nuisance to the occupiers of the house. Z. has wronged A. only, and not B. (?■). 2. A. rents a field from B., together with a watercourse passing through the field. Z., an occupier higher up the stream, fouls the water so as to be a nuisance to A. Z. has wronged both A. and B., as his acts would, if not resisted, tend to establish a claim to foul the stream as against B. 3. Z. has smelting works near A.'s land. The fumes from the works Ivill or spoil the trees growing on A.'s land, make it generally less fit for occupation, and diminish its selling value. Whether A. is or is not occupying the land, Z. has wronged A. What per- sons are liable for a nuisance. 60. The following persons are liable for the creation or continuance of a nuisance, as the case may be : — (a) every one who actually creates or continues, or authorizes the creation or continuance of, a nuisance : (b) every one who knowingly suffers a nuisance to be created or continued on land in his possession (s): (c) every one who lets or sells land with an existing nuisance on it (i) ; but a lessor is not liable under this section by reason only of the iq) Wood V. Waud, 3 Ex. 748 ; '''rossloj \\ Lightowlcr, L. It. 2 Ch. 478. (r) Mott V. Shoolhred, L. R. 20 Eq. 22. (s) White V. Jameson, L. R. 18 Eq. 303. (I) EosewcU V. Prior, 12 iNtod. 635 ; Todd v. FliqU, 9 C. B. N. S. 377 ; AdsoH v. Livei-pool Brewery Co., 2 C. P. D. 311, and cases there cited. See, too, Gandy v. Jubber (undelivered judgment of Ex. Ch.), 9 B. & S. 15. SPECIAL PART. 617 omission of repairs which, as between liimself and the lessee, the lessee is bound to do (»)• Kxplaiiatiou. — Where a nuisance is caused by a tenant's use of property, the lessor is not liable for it by reason only that the property is capable of being so used. Illustration. A. lets to Z. a liouse, with a clninnoy near B.'s windows. Z. makes fires iu this chimnej', and the smoke thereof becomes a nuisance to B. Z. only, and not A., has -wronged B., unless A. let the house to Z. with express authority to use that chimney iu the manner in which Z. has used it {x). 61. A Civil Court may make an order for removing a Concur- public nuisance at the suit of any person who suffers special damage by that nuisance, notwithstanding that nuisance. minal jurisdic- an order for the like purpose might be made by a tion in CtlSG of magistrate (y). special damage ^'otc. — The subject of remedies for nuisance appears to be already suffi- from ciently dealt with by the .Specific Relief Act (I. of 1877), chaps. 9 and 10, JJ^J'Jf^^ and the Civil Procedure Code, chap. 35, .and Form 101 in Sched. 4. Abatement of nuisances by the act of the party wronged without process of law is hardly in use in England, except as against infractions of semi- public rights like rights of common. (it) It seems the better opinion 783. that the lessor's knowing of the (ij) As this point has been raised nuisance at the time of letting does and decided {Baj Koomar Sinijli v. not make any diiference, unless he Sahehzada Hoy, I. L. R. 3 Cal. 20), actually authorizes its continuance ; it may be worth while to deal with Pretty V. Bkbiiorc, L. R. 8 C. P. it in the Bill. I do not find that it 401 ; Gwiniiell v. Earner, L. R. 10 is noticed in the last revision of the C. P. 658. Civil Procedure Code. {x) Rich V. Beisterjicld, 4 C. B. 618 INDIAN CIVIL WRONGS BILL. Chapter VIII. Negligence. jq-g„li. 62. (1) Negligence is the omission or failure to use gence and (j^g gg^].g r^-^f^ caution for tlie safety of person or property diligence. j l i. l .i within the meaning of this Act, and a person so omitting or failing, whether in respect of his own person or pro- perty or that of others, is said to be negligent. (2) Diligence in this part of this Act has the same meaning as due care and caution, and a person using due care and caution is said to be diligent. Evidence 63. (1) Where harm is complained of as caused by the gence. negligence of an}- person, it is a question of fact whether that person has or has not been negligent. (2) A person is not liable for negligence where the facts are not less consistent with diligence than with negligence on that person's part. (3) In determining whether one person has or has not been negligent towards another, regard is to be had to that other's apparent means of taking care of himself (z). Ilhistrations. 1. A. occujiies a warehouse in which coal is kept. The coal takes fire, and hoth A. 's warehouse and an adjoining warehouse belonging to B. are burnt. B. sues A. for compensation. It is a question of fact whether there has been negligence on A. 's part, either in the manner in which the coal was kept, or in the precautions used against fire, or in the endeavours made to subdue the fire wdien it was discovered (a). ^VaiilessY. -■ The X. Railwa)' Company's line crosses a high road on the level. A., N. JE. R. a foot passenger, attempts to cross the line at this place, not being expressly (z) It is not easy to formulate, as like an authentic statement of it, a proposition of law, what amounts which is here followed. The cases or does not amount to ''evidence of to which it seems not to apply negligence." Still, as there is a (such as iJj/rree v. i?oa(ifc, 2 H. & C. question of law, some criterion 722, and in BigeloAv) are really cases must be assumed to exist, and the of special liability where the burden case of Haminadc v. Jl'hi/e (11 of proof is on the defendant. 0. B. X. S. 588, also in Bigelow (n) M'C'uUy v. Clark, a,]}. Bigelov.- L. C. on Torts) contains sometldng L. C. 559. SPECIAL PART. 619 warned by any servant of the company not to do so, and is knocked down Cn., L. R. and injured "by a train nndcr the management of the company's servants. ^^^- -'-'• It is a question of fact whether, having regard to the precautions for the jjellor j'*'^ safety of persons crossing the railway, which may have been prescribed by Cliff v. rules under the Indian Railway Act, 1879, to the local circumstances. Midland to the usnal course of traific, and to the state of things at the time of the ?'■ ^"-j; accident, the injury to A. was or was not caused by negligence on the q -g' ' (. company's part. p 261. 3. A gi-ass bank adjoins the X. Company's railway, and is part of the company's property. Grass cut by the company's servauts on this bank is there deposited during a dry season, and, after this grass has been there for some time, a train passes on tlie line, and the grass is immediately there- after seen to be on fire. The fire spreads across a field and burns A.'s house. A. sues the company for compensation. It is a question of fact whether the company has been negligent (i). 4. A. is lawfully passing under a crane belonging to B., and worked by B.'s servants, which overhangs A.'s path. A bale of cotton which is being lifted by the crane falls upon A. and hurts him. It is a question of fact whether B.'s servants have been negligent in the management of the crane (c). 5. A., while crossing a public road on foot, is run over by B.'s carriage. A. cannot recover compensation from B. without proving facts tending to show that B.'s driver was in fault rather than A., for drivers and passengers are equally bound to use due care and caution in a place where both may lawfully pass and repass (d) . 6. B. goes out riding in town with a horse he has just bought. While he is riding at a moderate pace, the horse, notwithstanding B.'s efforts to keep him in, runs away, and runs against and injures A., who is lawfully on the foot pavement. Uidess B. managed the horse unskilfully, or knew it to be unmanageable, B. has not wronged A. (c). 7. If a person riding or driving sees, or with ordinary care would see, that a blind man, an infant, or a cripple, is in tlie way, greater caution is required of him than if an able-bodied adult were in the same situation with regard to him (/). (ft) Smith \.,L. (C- S. IV. li. Co., this kind of case is the origin of L. E. 5 C. P. 98, 6 C. P. 14, a case the statement sometimes met with in which both Courts (0. P. and (which as a general pro])osition is Ex. Ch.) held with some difficulty evidently wrong in principle) that that there was evidence of uegli- it lies on the plaintiff in the first gence ; cf. the later Imlian case of instance not only to prove negli- JSalford -f. E. I. It. Co., 14 B. L. R. gence on the defendant's part, but 1, 0. C, where the decision seems to disprove contributory negligence to be one of fact on conflicting on his own. [See now JVakelin v. evidence. ' L. cfc S. W. li. Co., 12 App. Ca. (c) ScoU V. London Dock Co., 3 41, 47.] H. & C. 596, 34 L. J. Ex. 220. (e) ffammack v. White, 11 C. B. (d) Cotton V. Wood, 8 U. B. N. S. X. S. .588, and in Bigelow. 568, 29 L. J. 0. P. 333. Probably (/) Illust. 7 is tlie concrete state- 620 INDIAN CIVIL WEONGS BILL. Gontri- 64 (r/) . (1) A person is not liable for harm of which negii- the principal cause is the negligence of the person injured gence. j-^j^. ^^ ^ third person], although the harm would not have happened but for the negligence of the first-mentioned person, or of some person for whose negligence he is answerable. (2) A person suffering harm whereof his own negligence is the principal cause, though but for the negligence of some other person it would not have happened, is said to be guilty of contributory negligence. (3) A person's negligence is deemed to be the principal cause of harm which could immediately before its happen- ing [or perhaps better, ' ' immediately before it happened or became inevitable "] have been prevented by due care and caution on the part of that person alone. (4) Where by this Act any person is declared to be liable as for negligence, the rules of law concerning contributory negligence are applicable. Illustrations. 1. B. is driving on the wrong side of the road. A. is driving on the same side in tlie opposite diret-tion, and with ordinary care he might Ijeep clear of B. ; nevertheless A. runs into B. 's carriage. A. has wronged B. 2. B. is the owner of a sailing vessel, whicli by reason of B.'s servants in charge of her failing to keep a proper look-out is in the way of A.'s steamei'. If the position is such that with ordinary rare the steamer might avoid a collision, and the steamer runs down the sailing vessel, A. lias wronged B., notwithstanding that if B.'s vessel liad been properly navigated the collision would not have happened (A). 3. B. leaves a bullock tethered on the highway. A., driving at an incautiously fast pace, runs over and kills the bullock. A. has wronged ment of sub-clause 3. 1 know no a third person," which wereinserted case exactly in point, but I think with an expression of doubt, would this must be the law. now have to be omitted, and the (g) This clause was drafted before law as now laid down should be 1he decisions of the 0. A. and the more explicitly declared. House of Lords in The Bcrnina, (h) Tvff v. IVarman, '2 C. B. 12 P. D. 58 ; 3Iilh v. Armstrong, N. S. 740, in Ex. Ch. 5 C. B. K. S. 13 Ap)i. Ca. 1. The words " or of 573, 27 L. J. C. P. 322. SPECIAL PART. 621 B., for he might, -with ordinary care, have avoided nimiing over the bullock, though B. was negligent in leaving it in such a place unwatched(t). 4. A. wrongfully places a pole across a public street. The pole is of such a size that a rider in the street approaching at a reasonable pace would see it in time to pull up. B., riding along the street at a furious pace, comes against the pole and is hurt. A. has not wronged B., for B. might have avoided harm by using ordinary care, and A. could not by any ordinary care have prevented the consequences of B.'s negligence {1-). [5. The X. Railway Company is entitled to rua trains over the line of the Z. Company. A train of company X. running on the Z. Company's line is thrown off the rails by an obstruction placed there by the negligence of the Z. Company's servants. M,, a passenger in the train, is injured. If the driver of the train could, with ordinary care, have seen and stopped short of the obstruction, the X. Company has, but the Z. Company has not, wronged M. {!,).] 6. A. is a child of tender years, in the custody of B., who leads A. across a carriage road without using ordinary cave in watching for approaching carriages. C. , driving carelessly along the road, runs o\"cr both A. and B. ; but B. might have avoided the accident with ordinary care. C. has not wronged A. ();i). 7. A. is a child of tendei- j'ears, in the custody of B., who allows A. to go alone across the road. C, driving along the road, runs over A. AThether B. was negligent in letting A. go alone is not material to the question whether C. is liable to A., though it may be material whether C. perceived, or with ordinary care would liave perceived, that A. was not capable of using the care and caution which a grown man may reasonably be expected to use (/)). 65. A person who suffers harm by the negligence of Collateral another is not guilty of contributory negligence by reason negligence imma- terial. (/i Baviis V. JIaun, 10 it. & "W. ,540. The animal in that case was a donkey. (t) ButlerfirUl v. Fnrrcsin; 13 East 60. [10 R. R. 433.] (J) Ariiulroiiij v. L. = dangerous (a) collects, keeps, or uses any dangerous thmg on things. land occupied or used by him : (b) keeps a dangerous animal : (e) keeps or deals with loaded firearms, explosives, poison, or any other dangerous instrument or goods, or noxious or deadly thing : is bound to take and cause to be taken all reasonably practicable care and caution to prevent harm being thereby (q) In the summer of 188.S several L. E. 3 H. L. 330, that a man keeps passengers, including two English dangerous tilings at his peril (except judges, were in a precisely analogous as regards vis major, Xichoh v. situation in a runaway car on the Marslaiid, 2 E.x. D. 1, &c. ), seems ^forthern Pacific Railway. Ulti- needlessly harsh. The extent of raately those who did not jump out the exceptions made in later de- came to less harm than those who cisions shows that it is accepted did. But surely it could not be with reluctance. It has not been maintained that it w:is contributory generally followed in the United negligence fo jump out under the States, and in British India one circumstances. In some (;ases it important application of it has may be prudent even to run a very been disallowed tis uusuited to the gi-eat risk, as to jump from the facts and conditions of Indian land roof or top windows of a house on tenure ; Madras It. Co. v. Zamln- fii-e. (Idr of Carvateiiagaram, L. R. 1 (r) Illustration 3 is Clayards v. Ind. App. 364. Nor is there any- Bethick, 12 Q. B. 439. Clayards thing answering to it in Roman V. Dethick is disapproved by Lnrd law. It tlierelore seems to require Bramwcll ; see appendix to Horace modification in some such way as Smith on Negligence, 2nd ed. Mr. here jiroposed. Tiiis will of course Horace Smith thinks Clayards v. not affect liability for nuisance. In Dethick is right notwithstanding, a case short of that, the require- and I agree with him. nient of exact diligence is, one (s) 'iho n\\e in Ry lands y.Fletclier, would think, enough. 624 INDIAN CIVIL WRONGS BILL. caused to others, and is liable as for negligence to make compensation for any harm thereby caused, unless he proves that all reasonably practicable care and caution wei-e in fact used. Explanations. — 1. Dangerous things for the purposes of this section are fire (not being used in the ordinary way of domestic purposes), earth or water artificially collected in large quantities, explosive and inflammable matters, and any other thing likely for default of safe keeping to cause harm to neighbouring persons or property. 2. A dangerous animal for the purposes of this section is — (a) any animal of a kind accustomed to do mischief : (b) any animal of whatever kind which the person keeping it knows to be fierce, mischievous, or vicious. 3. A person who deals with a dangerous thing and is in good faith ignorant of its dangerous character is not subject to the liability declared by this section {t). Illustrations. G. W. 1- A. is tlie owner of an embankment constructed by authority of the ^V- of Govei-nment. Part of this embankment is carried away in a stonn, Oinar/ii X. -jyi^gj-eby B.'s adjacent land and crops are damaged. If A. lias in fact Moo P. C ^^^'^ diligent in constructing and maintaining tlie embankment in such a N. S. 101, manner as to be capable of resisting all such violence of weather as in that and cases part of the country may be expected to occur, or if the storm was so extra- ^^'''r' ordinary that no practicable precaution could have guarded against its effects, then A. has not wronged B. If the storm was such as might have been reasonably provided against, and if A. has not been so diligent as aforesaid (which may be inferred as a fact from the failure of the embank- ment in the absence of proof that the best known precautions were used), then A. has wronged B. 2. Sparks escape from a railway engine used by the X. Railway Company on their line, and set fire to A. 's corn in an adjoining field. The X. {t) As to poison, fire, explosives, and dangerous animals, cf. the Penal Code, ss. 284, 285, 286, 289. SPECIAL PART. t)25 Compau}' must make compensation to A. unless they prove that the best known pvacticable precautions were used to prevent the escape of sparks from the engines (u). 3. A. burns weeds on his own land. Sparks from the fire are carried into B.'s growing crop and set fire to it. A. must make compensation to B. , unless he proves that the fire was carried liy a sudden and extraordinary •wind, or iu some other unusual manner which he could not, by reasonable and practicable precaution, have prevented. 4. A., a zamiudeir, maintains an ancient tank on his zainindari for the benefit of agricidture. An extraordinary rainfall causes the tank to burst, and the water escaped therefrom carries away a building belonging to B. If A. has been diligent in maintaining the tank, and making provision against any oi'dinary overflow of water, A. has not wronged B. (x). 5. A. sends a parcel containing a detonating mixture to a railway station, to be carried as goods by the railway comj)any, without informing the company's servants of the nature of the contents. Wlule B., a servant of the company, is handling the box for the purpose of despatching it by train, and with care STiflicient for the safe and proper handling of ordinary goods, the contents explode and injure B. There is nothing to show the specific cause of the explosion. A. has wronged B. The explosion also damages a cart of C.'s, which has brought other goods to be despatched by train. A. has, but the company has not, wronged C. (y). 6. A., having left a loaded gun iu his house, sends B., a young person inexperienced in handling firearms, to fetch it. A. tells B. that the gun is loaded, and directs him to handle it carefully. B. fetches the gun, and on his way back points it in sport at C. The gun goes oft', and wounds C. A. has wronged C. (;). («) .^ee Vavglmn v. Ta,ff Yale Ji. of Carrnleiuitjanriii, L. R. 1 Inil. Co., 5 H. & N. 679; Fremantli'. v. App. 364. L. . Cf. Franci.'i v, Gockrdl, L. R. 5 Q. B. 601 (Ex. Oh.), where, however, the duty was also put on the ground of contract ; Ilenmi v. Prnder, 11 (^ B. Div. 503. (i) Kearney ^. L. B. ,C- ^S". C. i?. Co., Ex. Ch.' L. E. 6 Q. B. 759 ; cp. Ih/rnc V. Boaelle, 2 H. & C. 722, 33 L. J. Ex. 13, and in Bigelow L. C, where it is said that "it is the duty of persons who keep barrels in a warehouse to take care that they do not roll out," and there was no positive eviden'>e that the barrel was being handled by servants of the defendant, or being handled carelessly. {Ti) Tarry v. Askton, 1 Q. B. D. 314. [l] See p. 563, above. (m) Hownscll v. Smyth, 7 C. B. N. S. 731, 29 L. J. C. P. 203. SPECIAL PART. 629 2. A. is possessed of a yard in which machinery is in motion, and permits B. to use a path across it for B.'s own convenience. If the danger of approaching the machinery is apparent to a person using ordinary care, A. is not under any duty towards B. to liave the machinery fenced or guarded («). . 3. A. is driving his carriage, and offers B. a seat in it. B. enters the carriage, and shortly afterwards the carriage is upset by the breaking of a bolt, and B. is thrown out and hurt. Unless A. knew the carriage to be in an imsafe condition, A. has not wronged B. (o). Chapter IX. Of Damages for Civil Wrongs (_/j). 71. A person who has been wronged is entitled to Measure . , , , T , of dama- recover trom the wrongdoer as damages such a sum as ges in in the judgment of the Court will fairly compensate him general. for the harm or loss he has sustained. 72. Where specific property has been wrongfully dealt Damages with, the Court may award damages equivalent to the to specific extent to which the value of that property is diminished, P^P^rty- but is not bound to award as compensation the cost of replacing the property in its former condition. Illustration. A. wrongfully digs out and carries away a quantity of earth from Z.'s land. Z. must make compensation to A., but A. cannot claim to fix the damages by what would be the cost of replacing the earth dug out {q). 73. In awarding damages for wrongs the Court may Aggrava- have regard to the knowledge, intention, and conduct of mitigation either or both parties, and may increase or diminish the "gg*^^™^" amount of its award accordingly. (>i) Jjolch V. Smiih, 7 H. & N". (p) These clauses on damages 736, 31 L. J. Ex. 201, a rather are a mere sketch; but it maybe strong case, but for that very reason a que.stion whether anything more a good illustration. elaborate is desirable. (u) MoffcUt V. Baieman, L. R. 3 (?) Whilham f, Kershmo, 16 P. 0. 115. Q. B. Div. 613. 6.30 INDIAN CIVIL WRONGS BILL. Illustrations. 1. A. lias defamed Z. A. may show in mitigation of damages that when he made the defamatory statement he believed on reasonable grounds that it was true. 2. A. has negligently pulled down a building on his own land to the damage of Z.'s adjacent land. Z. may show in aggravation of damages that A. wished to disturb Z. in hi.s occupation, and purposely caused the work to be done in a reckless manner (r). (?•) E'hihlen V. Mijcrs, 6 H. & X. 54, 30 L. J. Ex. 71. Schedule SPECIAL PART. 631 THE SCHEDULE. Acts of the Governor General in Council. Year and Chapter. XII. of 1855 XIII. of 1855. XVIII. of 1355. XV. of 1877.... Title or Short Title. An Act to enable executors, administrators, or repre- sentatives to sue and be sued for certain wrongs. An Act to provide com- pensation to families for loss occasioned by the death of a person caused by actionable wrong. An Act for the protection of judicial officers. The Indian Act, 1877. Limitation Extent of Repeal. The whole as regards causes of action within this Act. The like. The like The descriptions of suits numbered respectively 20, 21, and 33 in the Second Schedule are to be read, as regards causes of action within this Act, as if "the Civil Wrongs Act, 18 ," were substi- tuted for the references to Acts XII. and XIII. of 1855, in those descrip- tions respectively con- tained. INDEX. *^* The italic letters refer to foot-notes ; tluis 55 t means note t on page 55. Aeatement of Nuisance : abator must avoid unnecessary damage, 406. ancient process for judicial, 407. difficulty of, no excuse, 413. injured party, by, 403. notice to wrong-doer, whetlier necessary, 404. nuisance by omission, whether applicable to, 405. Accident : inevitable, American law as to, 135 — 139. English authorities as to, 139 — 146. cases of, distinguished from voluntarj' risk, 161. lawful act, resulting from, 131 — 146. liability for, in special cases, 467. non-liability for, iu special cases, 475. in performance of legal duty, 476, Act : lawful, liability for accidental conseijuences of, 131 — 146. Act of God : non-liability for damage caused by, 475. Act of Parliament : actionable damage must be within mischief aimed at by, 194. remedy under, when exclusive, 26, 192. Actio Personalis Motj run cum Peksona : an old Common Law maxim, 60. exceptions to the rule, 64 — 72. Action : case, on the, 13, 14. case, on the, development of, 508. cause of, when it arises, 183. for breach of statutory duty, 192. under Lord Campbell's Act, 66. causes of, in contract or tort, 3, 5. concurrent but severable, 189. 634 INDEX. Action — continued. causes of, early theory of, 507. history of classification of, 3. modern classification of, 609. concurrent, in contract and tort, 518. concurrent, against different parties, 522. convicted felons and alien enemies cannot have, 54. felony, when wrong amounts to, 197. form of, duty not varied by, 61 5. forms of, early division of, 13. historical note on the classification of, 543. for injury ^w)' quod consortium amisit, 223. per quod servitiutn amisit, 62, 223 — 226. for wrongs to property, when it survives for or against executors, 64, 65. local or transitory, 202. malicious bringing of, whether it can be a tort, 310. personal, efiect of a party's death on, 60. survival of cause of, exception in early English law, 61. viceroy or colonial ;;overnor, against, 111. Acts of Executive Goverxmext : 116 — 119. Acts of State : definition of, 108. no action of tort lies in respect of, 109, 113. AliMlKALTT ■ rule of, where both ships in fault, 458. Agent : corporation, how far liable for deceit of, 299. false representations made by or through, 297 — 299. implied warranty of authority of, 521, indemnity, when agent entitled to, 1 95. liability of person assuming authority as, 290. principal's command does not excusi- wrongs of, 72. principalliable for authorized or ratified acts of, 74. Agreement : imlawful, cause of action connected with, 176. Air : no specific right to access of, 399. Alien Enemy ■ cannot sue, 54. Allen r. Flood : effect of judgments in : interference with a man's occupation not in itself a separate kind of wrong, 232, 317 sqq. malice, when material, 23 c, 24 c. right of choosing where or with whom one will work, 153. INDEX. 635 Amendment : of statement of claim to increase damages claimed, 184 u. American Law • as to accidents during Sunday travelling, 175. accident, inevitable, being no ground of liability, 135—139. acts, judicial, corresponds with English, 116. animals trespassing, 171. care, want of ordinary, 44 it. common employment, doctrine of, 96. conspiracy not being cause of action, 315. deceit, 2S2. giving compensation for damage by death, 70. liability of corporations, 58 u. of employers, 103. of master for acts of servant, 76. negligence, 423, 428, 441 ,,■, 457. negligence, contributory, 463. contributory, separation of law and fact in cases of, 465. parol licences, 366. rights of receiver of erroneous telegram, 532. .slander of title, 304. waste, 337. Animals : American law as to trespassing, 171. dangerous or vicious, responsibility for, 480. kiUing of, in defence of property, 171. Arbitkation : death of party before award, 60. Arbitrator : not liable for errors in judgment, 116. Arrest: when justified, 217. See False Imprisonment. Asportation : 334. AssArLT : acts not amounting to, 212. acts for benefit of person who cannot consent, 168. self-defence, 169, 214. what is, 210. when action barred by summary process, 215. when justified by consent, 213. when not justified by consent, 157. words cannot be, 213. Assets : following property or its value into wrong-doer's, 70. 636 INDEX. Assumpsit : action of, its relation to negligence, 419. development of, from general action on the case, 511. implied, where tort is waived, 520. AvEKASE : general, law of, 168. Bad Faith : a better term than Jlalice, 272. Bailee : bailment over by, 358. conversion by, 348, 357. interpleader by, 348. liable to action of trespass for abusing subject-matter of bail- ment at will, 342. when justified in re-delivering to bailor, 348. Balloon : trespass by, 37, 332. Bankruptcy : debt dischai'ged by, in American law, 204. imputation of, to tradesmen, actionable, 243. malicious proceedings in, 311. no duty to prosecute upon trustee in, 199. Bamiister : revising, powers of, 114. slander of, 242. A^id see Couxsel. Battery : what is, 210. And see Assault. Breaking Doors : when justified, 373. Buildings : duty of keeping in safe condition, 489, 494. falling into street, 499. occupiers of, their duty to passers by, 497. Business : slander on, injunction to restrain, 190. slander of a man in the way of his, 241. words indirectly causing damage in, 243. Cairns's Act (Lord), 21 & 22 Vict. c. 27 : 408 s. Campbell's Act (Lord), 6 & 7 Vict. o. 96 : as to pleading apology, &o., in action for defamation, 270. Campbell's Act (Lord), 9 & 10 Vict. l. 93 : cause of action under, not cumulative, 69. INDEX. 637 Camvekll's Act {Lout>)— continued. claim under, does not lie in Admiralty jurisdiction, 67 y. construction of, 68. damages that may be recovered under, 68. peculiar rights created by, 66. relatives who may recover under, 67 y. Canal ; escape of water from, 477. Capacity : personal, with respect to torts, 53 sqq. Carriage : responsibilities of owner of, 494, 496, 505. Caekier : common, duty of, 513. Case : action on the, development of, 13, 14, 508. Cattle : bitten by dog, no scienter need be proved, 481. rights of owner of, to safe condition of market-place, 495. trespass by, 333 trespass by, liability for, 479. Calt.^e : meaning of "immediate," 30 proximate, in law of contributory negligence, 441. proximate or decisive, 446, 449. proximate or remote, 39 sqq. reasonable and probable^ for arrest, 220. of action. See Action. Cal'TIOn : consummate, required with dangerous instrument, 49, 138. And see Negligence. Children • when deprived of remedy by contributory negligence of parentj &c., 455. Civil Proceedings : malicious bringing of, whether a tort, 310. Clergyman : complaint to, regarding curate, 263. Club : cases on expulsion from, 121 m, 121 x. chance of being elected to, no subject of legal loss, 238. committee of, quasi-judicial power of, 120. Codification : of law of civil wrongs in India, 564. College : quasi-judicial powers of, 120. Collision ■ between ships, 458. And see Negligence. Colonial Governmext : liable for management of public harbour, 59. CoLONiAij Legislature : control of, over its own members, 119 r. 638 INDEX. Colony : governor of, liaWe in courts of colony for debt, 111. Comity : rule of, as to suits affecting foreign sovereigns and states, 112. Comment : fair, not actionable, 251. what is open to, 253. Common : no right of distress by commoners inter se, 375. Co.MMON CARUiEn : duty of, 513. Common Emi'LOYmbnt : doctrine of, 95. no defence for master under Employers' Liability Act, 553. relative ranl< of servants immaterial, 99. what is, 97. Common Eights: immunity in exercise of, 146 — 156. Commoner : any, can sue for injurj', 398. may pull down house on common after notice, 404. may pull down fence without notice, 405. Co.MMUNlOATiON : what is a privileged, 259 sqq. Company ■ false statements in prospectus of, 278, 291, 294. fraud of directors of, 93. malicious proceedings to wind up, 311. remedy of shareholder against, for fraud, 93 k. Compensation ; statutory, for damage done by authorized works, 126. Competition : bad faith in connection with, when acts lawful, 154. in business or trade, no wrong, 146 — 150. underselling at a loss, not unfair, 307. Consent: effect of, in justifying force, 156 — 160, 213. And see Licence. Consequences of Act or Default : liability in relation to, 28. of wilful wrong-doer for, 31, 47. natural and probable, 33 sqq. natural in kind though not in circumstance, 49. remote, 38. Conspiracy : relation of to acts of third persons, 316. whether a substantive wrong, 313. liNDEX. 639 Constable : liable for mistake of fact, 118. limitation of actions against, 207. must produce warrant, 117. powei'S of, to arrest on suspicion, 217. protection of, in cases of forcible entry, .374. statutory protection of, 117. " Consummate Care : " cannot always avoid accident, 132. requirement of, 49. 138. Contagious Disease ; imputation of, 240. CONTKACT : breaoli of, distinguished from tort, 3, 5. whether third party can sue for an act which is 624. concurring with dulict in Roman law, 529. breach of duty, founded on, 515. causing breach of, under what conditions a tort, 529. effect of, on title to property, 324. on negligence, 428. has no place in early forms of action, 15. implied in law, as alternative of tort, 520. interference with, actual damage must be ]iroved, 530. law of, complicated with that of tort in province of deceit, 273. measure of damages in, as compared with tort, 540. negligence in performing, how far a tort, 514. overlaps with tort in law of negligence, 419. persuading party not to renew, not actionable, 317. relations of, to tort, 507 sqq. lights arising from, not aH'ected by suing in case, 516. right of action upon, not extended by changing form, 54, 515. stranger to, cannot sue for damage consequential on mere breach of, 528. to marry, exceptional features of, 540. where action of tort lies notwithstanding doubt as to, 51S. with one p)arty, comjiatible with actionable breach of duty in same matter by another, 522. with servant, effect of, on master's rights, 525. Contkaotor : independent, responsibility of occupier for acts and defaults of, 490. independent, duties extending to acts of, 494 I, 500. Contribution : between wrong-doers, 195. 640 INDEX. CONTEIDVTORY NeGLIGESCIO : what it is, 441. accidents to children in custody of adult or unattended, 455. doctrine of " identiiication " not now law, 452. in Koman law, 561. not punishable as a positive wrong, 175. plaintiff not bound to negative, 428. proximate or decisive cause of damage, bars remedy for tort, 441, 449. proper direction to juiy, 442. rule of, founded on public utility, 443. self-created disability to avoid consequences of another's negligence, 447. separation of law and fact in United States, 465. third persons, of, its effect, 451, 453. unknown in Admiralty jurisdiction, 458. Anil sec Negligexoe. COXVBUSION : what is, 340. acts in good faith may be, 312. apparent authority, qiimj as to dealings under, 345. by bailees, 348, 357. by estoppel, 352. claim of title on collateral breach of contract is not, 344. distinguished from injury to reversionary interest, 341. distinction between varieties of, and cases of injury without conversion, 351. of non-negotiable document, 351 h. Convict : cannot sue, 54. COIIPOKATION : liability of for wrongs, 58. for trespass and trover, 58 ^l. for fraud of agent, 93 /.-, 299. maintenance cannot be committed by, 321. malicious prosecution, whether action will lie against, 59 ,c, 309. Costs : of action against public officer, 207 o. present procedure as to, 181 j^. presumed to be indemnity to successful defendant, 310. relation of, to damages, 181 m. Counsel : immunity of words spoken by, 257. County Council . licensing sessions of, 258 t. County Court : statutory distinction of actions in, 517, 549. INDEX. 641 County Cotjet Judge : powers of, 114. CouKT : control of, over jury, 2t>9. contribHtory negligence, proper direction to jury as to, 442. negligence, functions of court and jury respectively in eases of, 425. privilege of statements made in, 257. CouET- Martial : protection of members of, 11.5. whether action lies for bringing one before, without probable cause, 118. Ceime : distinguished from toi-t, 2, 4. oral imputation of, when actionable, 238. Ceiminal Conveesation : former action of, 224. Criminal Laav : asportation, 334. conversion necessary for larceny, 340. cause of death, what is immediate, 39. distinction of receiving from theft, 358. forfeiture of deodand, 133. individuals bound to enforce, 199 c prosecution for public nuisance, 385. self-defence, 170. Ckitioism : limits of allowable, 251, 253. Culpa : equivalent to negligence, 17. licensor not lialile to gratuitous licensee for, 505. Culpa Lata : equivalent to dolus, 275, 422. Custody : distinguished from possession, 328. Custom : no action lies for withdrawing, 152. CusTOJi OF THE REALM : meaning of, 514. Customer : right of, to safe condition of buildings, &c., 491. Damage : act of God, caused by, non-liability fnj-, 475. actual, unnecessary to constitute trespass, 331. breach, or non-performance of, statutory duty causing, 192. date of, when cause of action arises, 183. execution of authorized works causing, 126 — 131. effect of, as regards limitation, 206. P.T. T T 642 INDEX. Damage — continued. " nervous or mental shock" causing, whether too remote, 50. particular, necessary in action for public niiisance, 387. not necessary wlien private riglit infringed, 397. relation of, to wrong, 19. remoteness of, 29 sqq., 319. resulting by inevitable accident from lawful act, 131 sqq. special, iu law of slander, 236. involves definite temporal loss, 237. procuring breach of contract actionable only with, 530. Damages : assessed to what date, 408. carrying costs, 181 vi, p. costs, relation of to, 3S2. distinction when motive necessarj' part of cause of action, 188. exemplar}', 185. false representation, for, 191. gist of action, when damage is, 182. marriage, for breach of promise of, 188, 540. measure of, 29. measure of, in action for inducing plaintiff by false statements to take shares in a company, 192 a. measure of, in contract and tort, 538. mitigation of, 188. by apology in action for slander or libel, 270. negligence, in cases of contributory, 450. nuisance, for, 407. nominal, ordinary, or exemplarj', 180 — 188. nominal, as test of absolute right, 180. ordinary, measure of, 184. only once given for same cause of action. 189. seduction, in actions for, 228. Damnum Sine iNiuniA, 22, 147. Danger : concealed to bare licensee, 504. diligence proportioned to, 439. duty of person repelling imminent, 170. going to, 160. voluntary exposure to known, 175. Dangerous Things: strict responsibility in dealing with, 48, 150, 467, 482 sqq. Death : of party, effect of, on rights of action, 60. INDEX. 643 Death — continual. of human being, said to be never cause of action at common law, 62. Deceit : action of, damages must be shown, 183. action of, against falsifier of telegram, .532. American law, as to, 282. ambiguous statements, reliance on, 295. assertion, reckless, 285. concurrent jurisdiction at Common Law and in Equity, 273. conditions of right to sue for, 276. false guarantees, 295. garbling, by, 280. ground of belief looked to as test of its reality, 281. intention as element of, 289. liability of corporations, 299. misrepresentation by or through agent, 297. misstatement of law, 279. may give innocent agent claim for indemnity, 196 /(. nature of the wrong, 272. no cause of action without both fraud and actual damage, 277. plaintiffs means of knowledge, effect of, 293. prospectus of new company, 291. public representations, 290. statement, believed by maker at the time is not, 280. statement not relied on is not, 292. Defamatiox : business, of a man in his, 241. construction of words as to defamatory meaning, 247. exception of fair comment, 251 . generally, 233 sqq. gross, damages for, 186. immunity of Members of Parliament and Judges, 256. justified by truth of matter, 254. " malicious," in what sense, 244. malice, express, exception of, 260. pleading apology, 270. privilege of fair reports, 264. privileged occasions, what are, 261. privilege, excess of, 267. privileged communications, qualified immunity of, 259. publication, 245. reports by newspapers of public meetings, 267. T T 2 644 INDEX. Defamation — continued. special damages in actions of slander, 184. spiritual, 240 re. Sec Libel, Slandek. Defect : latent, non-responsibility for, 496. in structure, responsibility of occupier for, 497. Delicts : Roman law of, 16. Detinue : writ of, 13. supplanted by trover, 14. whether founded in contract or tort, 15. nature of writ of, 33.5. Digest : of Justinian, ad legem Aquiliam, 17, 561. And see Lex Aqvilia. Diligence : amount of, required by law, 27. 28. due, varies as apparent risk, 439. general standard of, 418, 422. includes competent skill when required, 424, 429. See Negligekce. Directors' Liability Act, 1890 : compensation under is not statutory penalty within 3 & 4 Will. IV. c. 423.. 36. decision in Dcrrii v. Peek, how affected by, 388. Disabilities : suspending Statutes of Limitation, 206. Discretion • where given by Legislature must be exercised with regard to other rights, 128. Distress : in general, 374 sqq. damage feasant, 374, 381. Docks : owner of, ansvverable for safety of appliances, 493. Dog: whether owner liable for mere trespass of, 4S0. liability for vice of, 481. statutorj' protection against, 481 x. Dog-si'ears : authorities on injuries by, 171 ■-. Dolus ; equivalent to unlawful intention, 17. equivalent to culpa lata, 275, 422. INDEX. 645 DoMiNUs Peo Tempore, 79. Driveu : duty of, 166. Duel : always unlawful, 158. Duty : absolute, imposed by policy of law, 10, 18, 26, 72. acts in breach of specilio legal, 25. breach of, in course of employment, action for, 512. of competence, 27. of diligence, 27. of respecting property, 10, 26. of warning, knowledge of risk as opposed to, 163. relation of legal to moral, 12. statutory, remedy of breach of, 192. to one's neighbour, nowhere broadly stated, 21. Easement : disturbance of, analogous to trespass, 360. licence cannot confer, 365. of light, 399. Editor . admitting publication, not bound to disclose actual author 247. Election : to sue in contract or tort for misfeasance, 510. Employer : when answerable as master, 78, 79. Emplotehs' Liability Act, 1880; 101 eqq. as regards "volenti aonfit injuria," 164. text of, 551. See AVoekmen's Compensatios" Act. Employment : what is course of, 82. doctrine of " common employment, " 95—99. public, of carriers and iunkeepers, 513. Entry : forcible, at suit of Crown, 374. fresh, on trespasser, 371. necessity justifying, 376. relation, by, 359. to take distress, 371. Equity : fomier concurrent jurisdiction of, iu cases of deceit, 191. remedies formerly peculiar to, 177. Error : clerical, responsibility for, 243. 646 INDEX. Estoppel : conversion by, 352. if no contract or breach of specific duty, statements to be made good only on ground of fraud or, 287. Evidence : of contributory Jiegligeuce, 444. of conversion, 343. of malice, 268. of negligence, 421. question whether any, for court : inference from admitted evidence, for jury, 425. ExEOUTios : of process, justification of trespass in, 373. Executors : liability of, for wrongs of testator, 65. to restore property or its value, 70. statiitory rights of action by, for wrongs to testator's property, 64, 65. cannot sue for personal injuries to testator, even on a contract, 541. whether not bound to prosecute for felony before bringing civil action, 201. Explosives -. liability for improper dealing with. 135, 485. liability for sending w-ithout notice, 485. Eaotoks Acts : good title acquired under, 537. validity of dealings under, 325. Faculties : ordinary use of, presumed, 439. False Imppjsonment : damages for, 186. definition of, 216. distinguished from malicious prosecution, 219. justified by local statute, 201. on mistaken charge, followed by remand, 220. prosecutor or officer answerable for, 219. what is reasonable cause for, 220. Felony : arrest for, justification of, 217. imputation of, when libellous, 238, 240. "merger" of trespass in, 197. INDEX. 647 Fence : when trespass for defective, 375. falling ill neiglibour's land, 474. Ferry : refusal to carry passengers by, 343. franchise of, 361 /t. nuisance to, 403. FiiiE : escape of, from railway engines, 437. justification for trespass, 377. negligence as to, 422. responsibility for carrying, 4S3. safe keeping of, 4S2. Fire-arms : accidents with, 13S. consummate caution required in dealing with, 484. Footpath : diversion of, creates duty to warn passengers, 498. Forcible Entry : statutes against, 368. with good title, whether civilly wrongful, 370. Forms of Aotiox, 13, 14, 15. Sec Action. Fox-hunting : trespass in, not justified, 37^. France (law of): Conseil d'Etat inquires into "acts of state," 113. rule of, of five years' prescription, 204. Franchise : malicious interference with exercise of, 32(J. Fraud : agent or servant, of, 92. agents, of, 276. compensation for, in equity, formerly by waj' of restitution, 191. concealed, effect of, on period of limitation, 207. " constructive," 275. effect of, on transfer of property or possession, 324. equitable jurisdiction founded on, 273. "legal," 275, 283. negligence, however great does not of itself constitute, 283. partners, of, 94. relation of, to infringement of trade marks, &c., 305. Frost : damage brought about by extraordinary, 46. 648 INDEX. Gas : escape of, 486. Goodwill : protection of privileges analogous to, 304. GovEiiNOE : colonial, actions against. 111. Geant : distinguished from licence, 363. ,but may be inseparately connected with licence, 363. distinction of licence from, as regards strangers, 366. GuAEAis^TY : misrepresentations amounting to, 295. Guest : gratuitous, is more licensee in law, 505. Highway ■ cattle straying off', 375, 480. justification for deviating from, 375. nuisances by obstruction of, 386 — 388. rights of persons using, to safe condition of adjacent property, 497, 499. traction or steam engine on, 483. HoKSE : injuries caused by, 44. trespass by, 479. Husband and Wife : actions by and against, 56. action of personal tort between, does not lie, 57. action for taking or enticing away wife, 123 d. assault or crim. con., 224. husband may not now beat wife, 123 d. libel on husband by letter to wife, 247. loss of consortium between, is special damage, 238. " Identification : " exploded doctrine of, in cases of negligence, 452, 457. Imprisonment : does not affect period of limitation, 206 d. Impeisonment, False : see False Impeisonjient. Inconvenience : not amounting to nuisance, not made actionable by allegation of evil motive, 155. Incoepoeeal Eights : in property, violation of, 360. Indemnity : claim to, of agent who has acted in good faith, 195. colonial Act of, 201. " Independent CoNTEAOTOE : " 78, 490, 494 ?, 500, 501. INDEX. 649 India, British : deiJings of East India Company with niitive states, 109. protection of executive and judicial oIKcers in, 119. Indian Civil Wiiongs Bill : draft of, 564. Inevitable Accident : 131 — 146. ^i/ifZ sec Accident. Infant : cannot be made liable on contract by changing form of action, 54, 515. cannot take advantage of his own fraud, 55. liable for substantive wrong though occasioned by contract, 55. liability of, for torts, 53. liability of, whether limited to wrongs conira jxiocin, 68. Injunction • interlocutory, 190. jurisdiction to grant, 190, 408. mandatory, 408. not refused on ground of difficulty of removing nuisance, 413. nuisance, to restrain, 408. trespass, to restrain, continuing, 383. on what principles granted, 409 sqq. under C. L. P. Acts, 177 b. Innkeepek ; selling goods of guest, 350 u. cannot dispute entry of guest, 379. duty of, 513. Inns of Court : quasi-judicial powers of, 120. Innuendo : meaning and necessity of, 247, 248. Insteu.ment, Dangerous : responsibility of person using, 48, 138, 467, 489. Insurance : construction of policy of, excepting obvious risk, 160. effect of, on necessity of salvage work, 168^. duty in nature of, 468, 473. Intention : not material in trespass, 9, 12. general relation of, to liability, 31, 32. inference or presumption of, 33. Intimidation : of servants and tenants, 230. when "picketing" becomes, 230 k. 650 INDEX. Invitation : rights of persons coming on another's property by, 490 sqq. " Invitation to Aught" cases, 431. Ireland : Lord-Lieutenant exempt from actions in, for official acts, 111. Joint "Wuong-doers : joint and several liability of, 194. effect of judgment against one of several, 194. contribution between, 195. Judge : allegation of malice will not support action against, 115. bill of e.'cceptions, could not refuse to seal, 115. habeas corpus, must grant even in vacation, 115. jurisdiction, judge of inferior court must show, 114. jurisdiction, judge not liable for latent want of, 115. protection of, in exercise of office, 113. And see Coukt. Judgment : against one of several wrong-doers, effect of, 194. Judicial Acts : of persons not judges, immunity for, 115. distinguished from ministerial, 219. protection of, 257. Judicial Proceedings : reports of, 263. Judicium Rusticum, 458. Jurisdiction : to grant injunctions, 190. local limits of, 200. Jury ■ control of court over, 269. functions of, in cases of negligence, 425. proper direction to, as to contributory negligence, 442. Jus Tertii : cannot justify trespass or conversion, 355. Justice of the Peace : limitation of actions against, 207. memorial as to conduct of, 263 i. Justification and E.xcuse : general grounds of, 106 sqq. by authority of law, 367. by licence, 361. determination of, 379. defamatory statement.? excused by truth, 254. INDEX. C51 JUhTIPICATluX AMI ]ixuVSK—i-Oilliinicd. for re-entry on land, 368. for re-takiug goods, 372. for taking distress, 374. under legal process, 373. Labottreus, Statute of : action under, 225, 230. Land : acts done in natural user of, not wrongful, 150. artificial works, on, 151 h. Landlord axu Tenant : questions of waste between, 337. whicli liable for nuisances, 415. Landow.n'eus : duty of, a.s to escape of dangerous or noxious things, 468, 474. adjacent, duties of, 497. Larceny : when trespass becomes, 372. Law : misrepresentation of, 279. Leave and Licence : defence of, 156 sqq. as justification for assault, 213. Aiul see Licence. Lessee : for years holding over, no trespasser, 379. as to liability of for nuisance, 415. Lex Aquilia . rules of liability under, compared with English law, 134 c. Digest on, compared with English law, 189 o. Eoman law of, liability under, 604 y, 529 Jc, 561. Lex Fori : regard to, in English courts, 200. Libel : comment, fair, is no, 251. construction of, 247. damages for trespass on plaintiff 's paper, where no libel for want of publication, 187. innocent circulator, 246. Law of Libel Amendment Act, 1888 . . 267. publication, injunction to restrain, lUO. slander distinguished from, 233. what is prima fac is libellous, 235. what Is publication, 245. And see Defamation. 652 INDEX. Licence : assignable, is not, 367, bodily force, to apply, 156, 213. bodily harm, to do, good only with just cause, 157. fraud, obtained by, void, 160. grant, may be annexed by law to, 363. how given or revoked, 366. interest by way of equitable estoppel arising from, 366. meaning of, 361. revocation of, etlectual even though breach of contract, 363. revocation of, right of licensee to sue when contract exists, 363. revocation of executed, having permanent results, 364:. revocable unless coupled with interest, 362. strangers, regarding, 367. Licensee : rights of, in use of private way, 498. what risks he must take, 503. gratuitous guest is mere, 505. L1CEX.SOK : liable for ordinary negligence, 505. Lien : right at Common Law to, 350. Light : disturbance of, what amounts to, 400. effect of altering or enlarging window, 401. nature of right to, 399. obstruction of, 399. supposed rule as to angle of 45°, 401. Limitation of Actions : effect of foreign law of, 204. exception of concealed fraud, 207. statute of, 54, 205. statutory penalties, two years' limitation, 206. text of statutes concerning, 558. where damage is gist of action, 205. Locality : of wrongful acts, when material, 200. Lukatic : authorized restraint of, 123. Magistkates : limitation of actions against, 207. memorial as to conduct of, 263 i. Maintenance : actions for, 321. Mala Phohibitia . no distinction between mala in se and, 25. "-' INDEX. 653 Malice : ambiguity of word, 154. "bad faith," a better term, 272. express, in communication on privileged occasions, 260. essential in slander of title, 301. evidence of, 268. "implied," meaning of, 244. malicious prosecutions and abuse of legal process, 307 sqq. material only in exceptional cases, 23. Malice ix Fact : 59, 260, 269. Malicious Hindrance : cause of action not determined by presence of bad faith, 317. remoteness of damage in these cases, 319. Malicious Pi!Osecution : action for, for prosecuting action in name of third person, 312. action for, whether it lies against corporations, 309. distinguished from false imprisonment, 219. plaintiff must prove malice, 308. privilege, abuse of, analogous to, 309. Mandamus : 177 h. Market ■- franchise of, 361 k. Market Overt : title acquired in, 325, 537. Maeicet-Place ; dutj' of persons conti'oUing structures in, 495. Marriage : breach of promise of, 188, 540. Married Womax : damages and costs recovered against, how payable, 56. can now sue and bo sued alone, 56. whether liability at common law limited to wrongs cuntrtf paccm, 58. Mareied "Women's Property Act, 1882 : etfect of, 56. husband still liable for wife's torts, 57. right of action under, how limited, 57. Master axd Servant : action for beating servant, 224. enticing away, 225. menacing servants, 230. constructive service, what is, 229. defence of servant by master, 170. delegation of duty by servant, 80. 654 INDEX. Master and Sekvant — continued. liability of master, for acts or defaults of servants, 72 sqq. rule as to, expressed by Willes, J., 75. reason of, 76. for servant's negligence in conduct of master's business, 83. does not arise, when servant wholly departs from course of master's business, 84, 89. for servant's excess or mistake in executing authority, 87. for servant's fraud, 92. for servant's forgery, 92 c. for servant's wilful wrong, 91. loss of service, whether master can sue when servant killed by injury, 62. power of controlling work, 81. jjroper servant, master must choose, 100. protection to master, giving character, 261. warning fellow-servants, 263. servant, who is a, 78. .servant travelling by rail, nl9. servant, breach of contract with, whether master can sue for loss of service arising from, 525. servant, injured by fellow-servant, 9.j. service, temporary transfer of, 80. suitable materials, master must furnish, 100. And see Sekvant. Maxims : a man is presumed to intend the natural consequences of his acts, 33. actio personalis moritur cum persond, 60. advcrsus extraneos vitiosa possessio prodesse solet, 355. culpa lata dolo aequiparatur, 275. imperitia culpae adnumeratur, 27. in jure non remota causa sed proxima spectatur, 29. uuUus videtur dolo facere qui suo jure utitur, 125/ qui faeit per alium facit per se, 76. ratum quis habere non potest, qui ipsius nomine non est gestum, 75. I'es ipsa loquitur, 499. respondeat superior, 76. sic utere tuo ut alienum non laedas, 107, 125. volenti non fit injuria, 156, 160, 162, 497. Medical Education : General Council of, powers of, over registered medical practioners, 120. INDEX. 655 Meeting : public, newspaper reports of, 267. Menace : when actionable, 215. to servants and tenants, 230. Mental ok iSTervous Shock : damages for, whether too remote, .oO. MiLrrAKY Court : privilege of, 257. Minister : of Baptist chapel, removal of, 121 .t. MISREPRESENTATION : breach of special duty of disclosure, query whether deceit, 286, 287. construction of ambiguous statement, 295. fact or law, of, 279. intention to harm by, not necessary condition of liability, 289. omission, by, 280. promise or guaranty, when misrepresentation amounts to, 295. reliance of plaintiff on the, 292. reckless assertion, by, 285. See Deceit. Mistake : does not excuse interference with property, 9. of sheriff, in taking goods, 373. MoiiTGAGOR : may be guilty of conversion, 350. Motive : considered in aggravation of reduction of damages, 186 sqq. material in exercise of rights, whether, 152 sqq. material part of cause of action, when, 23. Sec Malice. Name : no exclusive right to use of, 155. of house, no exclusive right to, 305. Natural Justice : must be observed in exercise of quasi-judicial powers, 121. "Natural User : ' of property, non-liability for, 471. Navigation : negligence in, 43, 460. requirements of, as limiting statutory powers, 128. Necessity : as excuse for unskilled person, 28. as justification generally, 168. " compulsive," 172. destruction of pioperty justified by, 168. trespasses justified by, 168, 376. 656 INDEX. Negligence : anticipate another's, one is not bound to, 460. Alderson's definition of, 420. as to action under difScuIty caused bj' another, 459. burden of proof on plaintiff, 426. care, due, varies as apparent risk, 439. choice of risks caused by another's, 460. concurrence of liability ex contractu and ex delicto, 419. contract, how affected by, 428. contributory, 142 z. doctrine of, general, not applicable to statements, 534. duties of judge and jury, 432. Alld sec COXTEIBUTOEY NEGLIGENCE, evidence of, 425. equivalent to culpa, 17. failure in average prudence is, 422. fraud, not constituted by negligence however great, 283. liability for, 11. liability for, concurrent with another party's liability on con- tract, 532. depends on probability of consequence, 39. notice of special danger through personal infirmity, 441. notion of, general, 417. presumption of, in cases of unexplained accident, 499. presumed, when, 429. principles illustrated by railway cases, 431. And see Railway. recklessness aggravates, 187. risk, voluntary, excludes question of, 161. risk, knowledge of, opposed to duty of warning, 163. servant, action for conversion against, grounded on, 347 i. wrong, negligence of independent persons may be joint, 451. Newspaper : Law of Libel Amendment Act, 1888. .267. special procedure in action for libel, 270. vendor of, not liable for libel, 246. volunteered reports to, 267. New Tp.ial : for excessive or inadequate damages, 179. And see Court. Notice : effect of, on liability for negligence, 421. judicial, of common facts, 430. of special risks, 441. of special circumstances, as affecting measure of damages, 539. INDEX. 657 NuisAXCE : what amounts to, 3fl'2. abatement of, 403 — 407, 413. -Jjki sec Abatement of Xui.saxoe. acts useful in themselves and in convenient ^ilaoes may be, 394, 395. "coming to nuisance,'' doctrine abrogated, 393. damages, 407. damage, particular from public, 387. from private, 389. enjoyment and comfort affected by, 391. forms of, miscellaneous, 396. injunction, 408. injury common to many persons, 397. jtira in re aliena affected by, 391. liability of lessor and lessee for, 415. liability of vendor or purchaser, 416. light, obstruction of, 399. And see Light. market or ferry, to, 403. ownership, affected by, 390. parties entitled to sue for, 415. jjarties liable for, 416. property, by use of, for unusual purpose, 397. public or private, 385. remedies for, 403. single accident, whether it can be, 472 /. statutory authority, when it justifies, 1211. Obligatjon : ex delicto in Roman law, 16. quasi ex delicto, 18. imposed by statute, 25, 126. and ownership, 529. Office : judicial or ministerial, 122. Officees : costs of actions against, 207 o. commanding, liability of, for accident, 138. excess of authority by, 117. liability of, for malicious misconduct, 321. limitation of actions against, 207. naval and military, acts of, 118. public, acts of, 116. subordinate, to what extent protected, 118. Omission • of legal duty, liability for, 25. P.T. i; u 658 INDEX. Pauent, authority of, 12B. Paemament : disciplinary orders of Housr of Commons not examinable, 119. fair reports of debates in, 264. governing body may be given absolute powers by, 120, 122. position of presiding and returning officers at election for, 122. protection of words spoken in, 256. proceedings of committee, 258. publication of papers and proceedings, 269. Paetner : expulsion of, 121. liability of, for co-partner's fraud, 94. of firm, 94. Passenger : rights of person accepted as, 518, 523. Patent Rights : principle of slander of title extended to, 305. relation of, to possession, 361. Fercol.ation : underground, no cause of action for, 150 sjy. Person : wrongs to the, 7. See Assault. Personal Action : effect of party's death on, 60. classification of forms of, 543. Personal Capacity : with respect to torts, 53 sqix. Personal Estate : damaged by personal injur}', no cause of action, 65. "Picketing," 230 I:. Plaintiff : a wrong-doer, may still recover, 173. Pledgee : abuse of authority by, when conversion, 348. Poison : responsibility by persons dealing with, 486 sqq. Possession : constructive, 330. derivative, 358. derived throu<;h trespasser, 358. distinguished from custody, 328. immediate, plaintifi' in trover must have right to, 341. more regarded than ownership in early law, 326. obtaining of, by trick, 537. owner not in, how far liable, 506. protected by law, the reason why, 356. relation of trespass to, 329. INDEX. (J59 PossEssrox — continued. restitution of, after fovuible outiy, 370. right to, commonly called property, 3i:7. taken by trespass, when complete, 371. without title, protected against strangers, 354. Post-Cakd : sending defamatory matter on, 267. Pound : feeding animals in, 376. Pkescription Act: effect of, on right to light, 400. Pkincipal akd Aqent : liability of agent misrepresenting principal's authority, 521. liability of principal for fraud of agent, 297. for wrong of agent, 72 — 74. reason of liability, 300. when principal must indemnify agent, 195. ^^■here principal is a corporation, 299. Pkinting of Libel ; prima facie a publication, 245 v. Peisox : what is, 216. Pp.ivileoe ; "absolute," in law of defamation, 258. communications in interest of society or in self-protection, of, 261, 262. conditions of, 2C0. fair reports, 264. information for public good, 263. judicial and parliamentary, in law of dcfanuition, 256. privileged occasions, and excess, 261, 267. "qualified," 259. Prize-Fight : why unlawful, 157. presence at, 159. Pkopekty : defence of, acts done in, 168. duty to respect, 323. goods, of, commonly means right to possess, 326, 340. transferred by satished judgment in trover, 344. wrongs to, 7 sijq. Pkosecution ; whether necessary before offender can be civilly sued, 197 scjq. Pkospeltus of Company : false statements in, 278, 291, 294. 660 INDEX. Publication : Ly agent, 247. of libel, what, 245. PlTRCHASEn : innocent, may be liable for conversion, 344, 347. Railway : breaking down of embankment, 477. distraint of engine damage feasant, 374 o. duty of company as to safety of carriages and platforms, 495. escape of sparks, 437, 477, 483. evidence of negligence in accidents on, 426. execution of undertaking, immunity or liability of company for damage in, 127, 128, 129. "invitation to alight" cases, 431 sqq., 463. level crossing cases, 431 sqq. liabilitj' of comjiany for misiaken acts of servants, Sli. for assumption of duty, independent of contract, 518, 523. overcrowded carriage, 45. remoteness of damage suffered on, 38, 45. time-tables, effect of statement in company's, 290. train fails to stop, 463. unguarded crossing, responsibility of company for, 42. Eats : damage by. 476 a. Reasonable Cause : for imprisonment, 220. Recaption: of goods wrongfully taken, 372, 381. Remedies : at common law in general, 177. alternative, on one cause of action, 510. damages, 179—189. damages or compensation for deceit, 191. injunctions, 190. self-help, 178. statutory duty, for breaoli'of, 192. trespass and conversion lai-gely interchangeable, 330. Remoteness : of consequence or damage, 30 sqq. Replevin, 336. Reports : confidential, to official superiors, 261. fair, of public proceedings, 264. naval and militarj' officers, of, how far privileged, 258. newspaper, of public meetings, 267. INDEX. 661 Repeesentatiok : compensation or damages for false, 191. to a class of persons, 290. Res Iudicata, 195. Revenue Offioeks : protection of, in cases of forcible entry, 374. IvEVEKSiox : injury to, measure of damages, 184, 335. Eevocatiox : of licence, 362, 366. Right : absolute, at least nominal damages recoverable for violation of, 181. assertion of, distinguished from self-defence, 172. exercise of, not cause of action, 146. whetlier made wrongful by malice in fact, 154. Risk : voluntary taking of, 141 c, 143, 160, 163, 166. Roman Law : concurrent breach of contract with delict in, 529. contributory negligence in, 561. death of party, effect of, on rights of action, 60. distinction between right to personal security and right of propertj-, 189. inevitable accident, man not liable for, 134. Ugis actioncs in, compared with common law forms of action, 509. noxal actions of, 133. obligations ex delicto, 16. possession, 329, 356 q, r. theory of culpa, 511 /. value of human life, 640. Running-down Cases, 142, 189. Rylands r. Fletcher : the rule in, 468 sqq. SCAXDALUM Magnatu.m, 234 c. Scientei: : doctrine of, as to damage by animals, 481. Scotland (law of) : acmulatio vicini, 155. compensation for damage by death, 66 •>•, 70. dangerous animals, protection against, 4S1 a-, theory of " common employment" forced upon, 97. trespass by parachute, 37 h. P.T. U U* 662 INDEX. Sedtiction : actions for, 226. what is service for this purpose, 227 sqq. damages, 228. Self-Dei'ence : against wrongful assault, 214. assertion of disputed right distinguished from, ] 72. injuries to third person resulting from, 32. right of, 169. Self-Help, 178. ^Lirf sec Abatement, Distress, Recaption. Separate Peopbrty : costs and damages payable out of, 56. trespasser on, 57. whether husband can be indemnified from, 58. Servant : who is, 71. acts of, outside his authoritj', 89. arrest of supposed offender by, 89. custody or possession of, 328 h. conversion by, in master's interest, 342, 346. departure from master's business, 84. injuries to, by fellow-servants, 95. injury to, when master interferes, 101. may change master pro tempore, 80. menace to, 230. mistake or excess of authority bj', 87. negligence of, in conduct of master's business, 83. service, what is course of, 82. wilful wrongs of, for master's purposes, 91. And sec Master and Servant. Service ; proved or presumed in action for seduction, 226 sqq. of young child, 228. ■Sheriff ; immunity or liability of, 116. power and duty of, to break doors, &c. , in execution of process, 373. remaining unduly long in possession, 380. Ship: authority of master, 124. contributory negligence of, 443, 458. division of damage, rule of Admiralty as to, 458. duty of owner as to safety of cargo, 495. INDEX. 663 Ship — uontiiiued. liability of owner as carrier, 513 n. how airected by ncgleet of statutory regulations, 194. shipowner's rights to refuse services of particular tug, 153. Shooting : liability for accident in, 139. Skill : requirement of, in particular undertakings, 27, 429, 511 d. Slander : actionable, when, 235. disparagement in office or business, 241. imputation of crime, 238. of contagious disease, 240. indirect damage in business, 243. injunction to resti-ain, 190. special damage, 236. Slander of Women Act, 1891 . .239. temporal loss necessary to special damage, 237. And see Defamation. Slandee of Title, 149, 301. nature of damage required to support action of, 302. relation of, to ordinary defamation, 301. Sovereign: foreign, cannot be sued in England for political acts, 112. Sovereignty : acts of, how far examinable, 113. Special Damage : involves definite temporal loss, 237. Sport : hurt received in lawful, 158, 160, 214. Spring Guns : authorities on injuries by, 162, threat of, useless, 382. Staircase : when not dangerous, 430, 439. Stand : safety of, guaranteed by contractor, 494. State : acts of, 1 08. Statute : acts authorized by, 126. caution required in exercise of powers conferred by, 128. duties created by, breach of, 25, 26. Stranger : has no cause of action on breach of contract, 531. Sunday : statutes for the observance of, in United States, 175. Surgeon : action against, for misfeasance, 511 d. 664 INDEX. Teleguaph : conflict between English and American authorities as to rights of receiver of message, 532 sqq. sending defamatory matter bj', 245. Tenants : intimidation of, 230. ill common, trespass between, 352. Tenterden's Act (Loed), qu. how far now operative, 295. Thiud Peksos : intervention of, no excuse for negligence, 48 h. injuries resulting to, from self-defence, 32, 172, 173. TiMnEE : waste by cutting, 339. Toirr : nature of, in general, 1, 9. cases of, whether contract or no contract between same parties, 518. cause of action in, co-existing with contract, 522. common-law term exclusively, 5. classification of, 6, 19. distinguished from breach of contract, 2. domestic duties, 3. duty not to do unlawful harm, 21. law of, in three main heads, 22. liability of infants for, 53. relation of, to contract, 507 sqq. to moral wrong, 12. statutory divisions of actions founded on contract or, ".19. waiver of, for purpose of suing in contract, 520. wrongs which are not, 5. Tuade-Marks : protection of, 305. Tkap : dangers in nature of, 498, 504, 506. set by railway company, 523. Tree : projecting over neighbour's land, 474. Trespass : ab initio, 379. ah initio cannot arise ft-om misfeas.mce, 380, above or under ground, 333. actual damage not material in, 182. aggravated, 187. bailee, by, 343. rattle, by, 333, 479. INDEX. 665 TiiESi'Ass — coiilinucd. case, or, whether action for seduction in, 224 g, 225 i. continuing, 371. continuing, restrainable by injunction, 383, costs in :iclion for, 382. damages in actions for, 179, 187. fox-hunting, in, 378. felony, merged in, 197. foreign land, to, not actionable, 202. goods, to, how committed, 332. inevitable accident excuses, 131 sgq. invasion of property, however slight, is, 9. justification of, 361 — 378. justification, special, when proper, 143. land or goods, to, 331, 332. liability for consequences of, 37. necessity as excuse for, 168. nuisance, distinguished from, 385 sqq. owner entitled tOjimmediate possession may sue for, 356. penal action originally, 548. possession derived through trespasser, 358. relation of, to conversion, 329. to larceny, 328, 334, 340. tenants in common, between, 352. theory of, 139. wanton, 186. wife, taking away of, &c., 223. writ of, 13. Tresp^vssek : effect of delivery by, 358. not disqualified to sue, 173. Tkovee : action of, 14, 326. property transferred by satisfied judgment in, 344. special action in some cases where trover does not lie, 34ii. TiiusTEE IN Bankhui-tcv : not bound to prosecute for felony before bringing civil action, 199. Teuth : as justification, 254. Ukdekselling: no action maintainable for, 149. Univeksity: quasi-judicial powers of, 120. Unlawful Agreement : cause of action connected with, 176. User : presumption drawn from, 338. 666 INDEX. Vehicle : safety of, how far guaranteed by builder, 496. Venue : old law of, 201. Viceroy : local actions against. 111. Vi ET AllMls : what trespass is, 158. Voluntary taking of Risk : continuing work under risk which is incident to work itself is, 160. distinction between inevitable accident cases and, 161. distinction where no negligence, 166. question whether plaintiff took the risk is usually question of fact, 164, 165. relation of emjiloyer's negligence to, 165. VoLUNTliER : assistant, is as regards master in same position as servant, 101. Warranty : obligation of, on sale for specific purpose, 496 x. implied, of agent's authoritj', 63 m, 521. Waste : what is, 337. American law as to, 337. equitable, 339 h. landlord and tenant, as between, 340. reasonable user of tenement is not, 338. remedies for, 336. timber, by cutting, &c., 338. Water . escape of, from canal, 477. responsibility of persons artificially collecting, 468. except where storage is a duty, 476. under land, rights of using, 150. Way ; limited right of, 377 c. Wharfinger : duties of, as regards river bed in his possession, 495. Windows : alteration in, does not destroy claim to light, 401. Witness : immunity of words .spoken by, 257. Words : cannot be assault, 213. alleged defamatory construction of, 247. repetition of, 246, 249. Workman : who is, within Employers' Liability Act, 1880. .556 y. Workmen's Compensation Act, 1897.. 95, 104, 557. INDEX. 667 Wkit : of account, 13 /.'. of assize, 14. of coveuant. 13 k: of debt, 13,!-. of deceit, 13 I. of detinue, 13, 15. of entry, 14. of right, 13 k: of trespass, 13 I. of trespass on the case, 13. AVkong-doehs : contribution between, 195. do not forfeit rights of action, 173. joint and several liability of joint, 194. Wrongs : to the person, 7. to property, 7. to person and property, 8. Sec Tor.T. THE END. BRADBURY, AOKEW, & CO. LD., PRINTERS, LONDON AND TONBRIDQE. TELEGtiAPHIO ADDHESS- »„„„ 1QAI TELEPHONE— "RHODRONS, LONDON." JUUC, lOUl. No. 1388 (HOLBORM). c4T4Loam OF LAW WORKS PUBLISHED BT STBYfiNS MB SONS, Ltd. 779 & 120, Chancery Lane, London. (And at 14, Bell Yard, Lincoln's Inn.) A Catalogue of Modern Law "Works, together with a complete Chronological List of all the English, Irish, and Scotch Reports, an Alphabetical Table of Abbrevia- tions used in reference to Law Reports and Text Books, and an Index of Subjects. Demy 8vo. 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ADULTERATION,— Bartley's Adulteration of Food.— Statutes and Cases dealing with Coffee, Tea, Bread, Seeds, Food and Drugs, Margarine, Fertilisers and Feeding Stuffs, &c., &c., including the Food and Drugs Act, 1899. Second Edition. By DotroLAS C. Bahtlet, Esq., Barrister-at-Law. Roy. 12mo. 1899. 8*. " Not only concise but precise." — Law Times, ADVOCACY. — Harris' Hints on Advocacy, — Conduct of Cases, Civi] and Criminal. Classes of Witnesses and Suggestions for Cross- examining them, &c., &c. By Riohaed Habeis, K.C. Eleventh Edition, with an Introduction. Royal 12mo. 1897. 7». 6d, ** A very complete Manual of the Advocate's art in Trial by Jury." — Sol. Jour. " Deserves to be carefully read by the young barrister whose career is yet before him." — Law Magazine. AFFILIATION.— Bott's Manual of the Law and Practice in Affiliation Proceedings, with Statutes and Forms, Table of Gesta- tion, Forms of Agreement, &c. By W. Hollowat Bott, Solicitor. Demy 12mo. 1894. 6». AGRICULTURAL LAW,— Dixon,— Fi* "Farm." Spencer's Agricultural Holdings (England) Acts, 1883— 1900, with Explanatory Notes and General Forms; also the Board of Agriculture and County Court Rules and Forms, together with the Allotments and Cottage Gardens Compensation for Crops Act, 1887. —Second Edition. By Aubeey J. Spenoee, Esq., Barrister-at-Law. Demy 8vo. 1901. 75. Qd. "■We do not be-itate to recommend this book. The value of the book is enhanced by the addition of a large number of useful forms. The Index has satisfactorily stood the test to which we subjected it."— Law Jour., Max. 23, 1901. •„* All standard Law Works are kept in Stock, in Imv calf and other bindings. STEVENS AND SONS, LIMITED, ANNUAL COUNTY COURT PRACTICE,— The Annual County Court Practice, 1901, with Supplement containing New Rules, &c. — By His Honour Judge Smylt, K.C, assisted by W. J. Brooks, Esq., Barrister-at-Law. 2 vols. Demy 8to. 25«. *^* The Supplement may "be had separately, sewed, 2s. 6d. " The profession generally have gratefully recognized the very great value of this book. It admirably f uLflls the essential requisites of a practice book. It is complete without being discursive or of unwieldy bulk ; it is accurate and easy of reference, and throughout bears the stamp of having been compiled by a man who is thoroughly acquainted with his subject.'* — Law Times. ANNUAL DIGEST.— Mews'.— FJrfe "Digest." ANNUAL LIBRARY, THE LAWYER'S:— (1) The Annual Practice. — Snow, Btienet, andSisiNQBE. (2) The Annual Digest. — Mews. {Also issued Quarterly/.) (3) The Annual Statutes. — Lelt. (4) The Annual County Court Practice. — Smylt. 1^^ Annual Sutscriptions. For Complete Series, as ahove, delivered on the day of puhlieation, net, 11. bs. Nos. 1, 2, and 3 only, net, \l. lbs. Nos. 2, 3, and 4 only, net, \l. 15». {Carriage extra. Is.) Full prospectus forwarded on application. ANNUAL PRACTICE.— The Annual Practice. 1901. Edited by Thomas Snow, Barrister-at-Law; Chaeles Buenet, a Master of the Supreme Court ; and E. A. STEmaEE, of the Central OfSoe. 2 vols. 8to. Net 25s. t^'Dr. Slake Odgers, K.O., has re-written the Notes to Orders XIX., XX., XXI., XXV. and XXVIII., relating to Pleading, Statement of Claim, De- fence and Counter-elaim, Proceedings inLieu of Demurrer, and Amendinent. " A book which every practising English lawyer must have." — Law Quarterly. " It is only by the help of this established book of practice that a practitioner can carry on his business." — Law Times. "Everymember of thebar,iD practice, and every London solicitor,atall events, finds the last edition of the Anmffll Practice a necessity." — Solicitor^ Journal, ANNUAL STATUTES.— Lely.— FJ& "Statutes." ARBITRATION,— Wlozley-Stark's Duties of an Arbitrator underthe Workmen's Compensation Act, 1897.— With Notes on the Act and Rules, and Appendices containing the Act, a selection from the Workmen's Compensation Rules, 1898, and the Medical Referees' Regulations. By A. Mozlet-Staee, Solicitor. Roy. 12mo. 1898. 5s. Russell's Treatise on the Power and Duty of an Arbitrator, and the Law of Submissions and Awards; with an Appendix of Eorms, and of the Statutes relating to Arbitration. By Eeaucis RxTSSELL. Eighth Edition. By Edwaed Pollooe, Esq., an Oflacial Referee of the Supreme Court of Judicature, and the late Heebeet Rtjssell, Esq., Barrister-at-Law. Royal 8vo. 1900. 30s. " The execution of the work leaves nothing to be desired."— Law Times. "After a careful examination of the way in which the work has been done, we may say that nothing which the practitioner will want to know seems to have been omitted." — Law Journal. ARCHITECTS.— r«e " CivU Engineers." AVERAGE.— Hopkins' Hand-Book of Average.— Fourth Edition. By Manlet Hopkins, Esq. Demy 8vo. 1884. \l. Is. Lowndes' Law of General Average.— English and Foreign! Fourth Edition. By Eiohaed Lowndes, Average Adjuster. Autiior of "The Law of Marine Insurance," &o. Royal 8vo. 1888. 1?. 10s. " The most complete store of materials relating to the subject in every par- ticular." — Law Quarterly Review. AUCTIONEERS,— Hart's Law relatingto Auctioneers,— By Hebee Haet, Esq., LL.D., Barrister-at-Law. Demy 8vo. 1895. 7s. 6rf. BANKING,— Walker's Treatise on Banking Law.— Second Edition. By J. D. Waikee, Esq., K.O. Demy8vo. 1885. 15j. %'• A II standard Daw Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W-O. 3 BANKRUPTCY.— Lawrance's Precedents of Deeds of Arrange- ment between Debtors and their Creditors! including Eorms, with Introductory Chapters, also the Deeds of Arrangement Acts, 1887 and 1890, with Notes. Pifth Ed. By Aethub Lawbenoe, Esq., Barrister-at-Law. Demy 8vo. 1900. 7«. 6d. " Concise, practical, and reliable." — Law Times, Williams' Law and Practice in Banl SONS, LIMITED, C H A N C E RY, o«(? Vide ' ' Eqiiity." Daniell's Chancery Practice.— The Practice of the Chancery Dmsion of the High Court of Justice and on appeal therefrom. Seventh Edition. By Cecil C. M. Dale, C. W. Geeen-wood, Stdhet E. Williams, Esqrs., Barristers- at-Law, and Feanois A. Steinsee, Esq., of the Central Office. 2 vols. {In the press.) Daniell's Forms and Precedents of Proceedings in the Chancery Division of the High Court of Justice and on Appeal there- from, Fifth Edition. By Chaeles Bueitet, Esq., B.A. (Oxon.), a Master of the Supreme Court. Royal 8vo. (In the press.) CHARTER PARTIES,— Carver.— Fi«?e "Carriers." Leggett's Treatise on the Law of Charter Parties,— By Eugene Leqoett, Solicitor and Notary Public. Demy 8vo. 1894. 25«. CHILDREN,— Hall's Law Relating to Children, By W. Claeke Hall, Esq., Barrister-at-La-w. Demy 8vo. 1894. is. CHURCH LAW, —Whitehead's Church Law,— Being a Concise Dictionary of Statutes, Canons, Regulations, and Decided Cases • affecting the Clergy and Laity. Second Edition. By Benjamin Whitehead, Esq., Barrister-at-Law. Demy 8vo. 1899. 10s. 6d. "A perfect mine of learning on all topics ecclesiastical." — Daily Telegraph. The Statutes relating to Chui-ch and Clergy, with Preface and Index. By Benjamin Whitehead, Esq., Barrister-at-Law. Royal 8vo. 1894. 6»- CIVIL ENGINEERS.— Macassey and Strahan's Law relating to Civil Engineers, Architects and Contractors.— With a Chapter on Arbitrations. Second Edition. By L. LrviNOSTON Maoasset and J. A. Steasan, Esqrs., Barristers-at-Law. Demy 8vo. 1897. 12s. 6rf. COLLISIONS.— Marsden's Treatise on the Law of Collisions at Sea, — Fourth Edition. By Reoinalii Gr. Maesdbn, Esq., Barrister- at-Law. Demy 8vo. 1897. H. 8s. "Mr. Marsden's book stands -witliout a rival." — Law Quarterly Beview. COMMON LAW.— Chitty's Archbold's Practice. Fourteenth Edition. By Thomas Wtt.t.ks Chuty, assisted by J. St. L. Leslie, Esqrs., Barristers-at-Law. 2 vols. Demy 8vo. 1885. (Published at Zl. 13s. 6rf.) Reduced to net, 30s. Chitty's Forms.— Fiife " Forms." Elliott's Outlines of Common Law.— By Maetin Elliott, Esq., Barrister-at-Law. Demy 8vo. 1898. 10s. &d. " Will prove of the greatest assistance to students." — Law Times. Pollock and Wright's Possession in the Common Law. — Parts I. and II. by Sir F. Pollock, Bart. , Barrister-at-Law. Part III. by R. S. Weight, Esq., Barrister-at-Law. 8vo. 1888. 8s. M. Shirley. — Vide "Leading Cases." Smith's Manual of Common Law. — For Practitioners and Students. Comprising the Fundamental Principles, with useful Practical Rules and Decisions. Eleventh Edition. By C. Spueling, Esq., Barrister- at-Law. Demy 8vo. 1898. 15s. " The arrangement is clear and methodical, and wiU increase the usefulness of the work, not only for elementary study, but as a handy book of reference." — Law Quarterly Review, COMPANY LAW.— Hamilton's Manual of Company Law. By W. P. Hamilton, Esq., LL.D. Lond., K.C. Second Edition. By the Author, assisted by Peeot TrKDAi-RoBEETSOsr, Esq., B.A., Barrister-at-Law. Demy 8vo. 1901. 21s. *' Everyone interested in the working of a company will iind in this new edition all that is necessary from the legal poiLt of view." — The Stock Exchange. " It is difficult to conceive a question relating to the law affecting companies which cannot be answered by reference to this work." — Southampton Times. *j(* All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 6 COMPANY LAW—contiiuwd. Palmer's Company Law, — A Practical Handbook for Lawyers and Business Men. With an Appendix oontaininff the Companies Acts, 1862 to 1900, and Rules. Third Edition. By Fbajjois Beatxfoet Palmee, Esq., Barrister- at-Law, Author of "Company Precedents," &o. Royal 8ro. 1901. 12s. 6d. *' The work is a marvel — for cleamess, fulneqs, and accuracy, nothing could be better." — Law Notes. *' Of especial use to students and business men who need a clear exposition by a master hand." — Law Journal. " The subject is dealt with in a clear and comprehensive manner, and in such a way as to be intelligible not only to la^vyers but to others to whom a knowledge of Company Law may be essential." — Law Students' Journal. " All the principal topics of company are dealt with in a substantial manner, the arrangement and typography are excellent, and the whole of the Statute Law — an mdispensable adjunct— is collected in an appendix. Perhaps what practising lawyers and business men will value most is the precious quality of practicality."— iaw Quarterly Bevieia. " Popular in style, also accurate, with sufficient references to authoritiea to make the book useful to the practitioner." — The Times. Palmer's Companies Act, 1900, with Explanatory Notes, and Appendix containing Prescribed and other Forms, together with Addenda to " Company Precedents." Second Edition. By Feaucis Beaufoet Paimee, Esq., Barrister-at-Law. Royal 8vo. 1901. Ts.&d. *' It is essentially a book that all interested in companies or company law should procure." — Law Times. " This book will be indispensable in considering the new requirements, and how they are to be met." — Solicitors' Journal. Palmer's Company Precedents, — For use in relation to Companies subject to the Companies Acts. Part I. COMPANY FORMS. Arranged as follows:— Promoters, Prospectuses, Underwriting, Agreements, Memoranda and Articles of Association, Private Companies, Employes' Benefits, Resolutions, Notices, Certificates, Powers of Attorney, Debentures and Debenture Stock, Banking and Advance Securities, Petitions, Writs, Pleadings, Judgments and Orders, Reconstruction, Amalgamation, Special Acts. With Copious Notes and an Appendix containing the Acts and Rules. Seventh Edition. By Fhancis Beadfoet Palmee, Esq. , Barrister-at- Law, assisted by the Hon. Chaeles Maonaohten, K.C, and Aeihttb John Chitty, Esq., Barrister-at-Law. Royal 8to. 1898. 36«. ** No company lawyer can afford to be without it." — Law Journal. Part II. ■WINBING-TTP rOBMS AND PEACTICE. Arranged as follows: — Compulsory Winding-Up, Voluntary Winding-Up,Wind- ing-Up under Supervision, Arrangements and Compromises, with Copious Notes, and an Appendix of Acts and Rules. Eighth Edition. By Feanois Beatjeoet Paimee, assisted by Feank Evahb, Esqrs., Barristers-at-Law. Royal 8vo. 1900. 32s. " Palmer's ' Company Precedents ' is the book par excellence for practitioners. There is nothing we can think of which should be within the covers which we do not find." — Law Journal. Part III. DEBENTUKES AND DEBENTTJEE STOCK, including Debentures, Trust Deeds, Stock Certificates, Resolutions, Prospectuses, Writs, Pleadings, Judgments, Orders, Receiverships, Notices, Mis- cellaneous. With Copious Notes. Eighth Edition. By Feanois Beattfoet Palmee, Esq., Barrister-at-Law. Royal 8vo. 1900. 21«. " The result of much careful study Simply invaluable to debenture- holders and to the legal advisers of such iu\estoTa."— Financial News. " Embraces practically the whole law relating to debentures and debenture stock. . . . Must take front rank among the works on the subject."— iam Times. Palmer's Private Companies and Syndicates, their Formation and Advantages ; being a Concise Popular Statement of the Mode of Con- verting a Business into a Private Company, and of establishing and working Private Companies and Syndicates for Miscellaneous Pur- poses. Sixteenth Edition. By P. B. Paimee, Esq., Barrister-at- Law. 12mo. 1901. Net, Is. *,* All standard Law Works are kept in Stock, in law calf and other Hndtngf . STEVENS AND SONS, LIMITED, COMPANY LM^— continued. Palmer's Shareholders, Directors, and Voluntary Liquidators Legal Companion. — A Manual of JEvery-day Law and Practice for Promoters, Shareholders, Directors, Secretaries, Creditors, Solicitors, and Voluntary Liquidators of Companies under the Companies Acts, 1862 to 1900, with Appendis of useful Forms. Twentieth Edit. By E. B. Palkee, Esq., Barrister-at-Law. 12mo. 1901. Netfis.M. COMPENSATION,— Cripps' Treatise on the Principles of the Law of Compensation, Fourth Edition. By C. A. Oeipps, Esq., K.C. Royal 8vo. 1900. II. 5s. " An accurate and complete exposition of the law relating to compensation." ■ — Law Journal^ June 9, 1900. " Mr. Cripps' book is recognized as one of the best. . . . There are few men whose practical knowledge of the subject exceeds that of the learned author." — Law Quarterly Sev'tew^ July, 1900. COMPOSITION DEEDS,— Lawrance,— Fi(?« "Bankruptcy." CONDITIONS OF SALE,— Webster.— riHEETS,E8qrs.,Barristers-at-Law. Sup. royalSvo. 1888. 3l.3s. Chambers. — Vide "District Councils." Humphreys. — Vide " Parish Law." LONDON LOCAL GOVERNMENT, — Hunt's London Local Government, The Law relating to the London Coimty Council, the Vestries and District Boards elected under the Metropolis Management Acts, and other Local Authorities. By John Hunt, Esq., Barrister-at-Law. 2 vols. Eoyal 8vo. 1897. SI. 3s. " This very comprehensive and well-arranged code of London Local Govern- ment will be invaluable to local authorities, the legal profession and others directly interested in the subject." — London, " Concise, accurate and useful." — Law Journal. "We heartily recommend Mr. Hunt's work." — County Council Times. LUNACY. — Heywood and Massey's Lunacy Practice, — ByAETHUE Hetwood and Aenold Masset, Sohcitors. Demy8vo. 1900. 7s. 6d. " A very useful little handbook, which contains a clear account of the practice in lunacy." — Lata Jourrial. *' An exceedingly useful handbook on lunacy practice." — Law Kntes. " A clear and able handbook. ... A feature of the work are the precedents given, which have nearly all stood the test of actual practice." — Law Times. MAGISTRATES' PRACTICE and MAGISTERIAL LMI.— Vide ' ' Justice of the Peace. ' ' MARINE INSURANCE.— r«(fo "Insurance." MARITIME DECISIONS.— Douglas' Maritime Law Decisions.— Compiled by Eobt. E. Douglas. Demy 8to. 1888. 7s. 6d. MARRIAGE,— Kelly's French Law of Marriage, Marriage Con- tracts, and Divorce, and the Conflict of Laws arising there- from, Second Edition. By OliveeE. Bodington, Esq., Barrister-at- Law, Lieencie en Droit de la Eaculte de Paris. Eoy. 8vo. 1895. 21s. MARRIED Vi/OMEN'S PROPERTY.— Lush's Married Women's Rights and Liabilities in relation to Contracts, Torts, and Trusts. By Montague Lush, Esq., Barrister-at-Law, Author of " The Law of Husband and Wife." Eoyal 12mo. 1887. 6s. MASTER AND SERVANT.— Macdonell's Law of Master and Servant, Second Edition. By JohnMacdoneu., Esq., LL.D.,M.A., C.B., a Master of the Supreme Court. (in preparation.) MEDICAL PARTNERSHIPS,— Barnard and Stocker's Medical Partnerships, Transfers, and Assistantships,— By William Baenaed, Esq., Barrister-at-Law, and G. Beeteam Stogkee, Esq., Managing Director of the Scholastic, Clerical and Medical Associa- tion (Limited). Demy 8vo. 1895. 10s. 6d. *f* All standard Law Works are kept in Stock, in law calf and other binding. 119 & 120, OHANCERY LANE, LONDON, W.O. 21 MERCANTILE LAW.— Smith's Compendium of Mercantile Law. — Tenth Edition. By John Macdonell, Esq., C.B., » Master of the Supreme Court of Judicature, assisted by Geo. Humphbeys, Esq. , Barrister-at-Law. 2 vols. Eoyal 8vo. 1890. 2/. 2s. ** Of the greatest value to the mercantile lawyer." — Law Times. ** One of the most scientific treatises extant on mercantile law." — SoU Jl. Tudor's Selection of Leading Cases on Mercantile and Maritime Law. — With Notes. By O. D. Tudob, Esq., Barrister-at-Law. Third Edition. Royal 8vo. 1884. 21. 2s. Wilson's Mercantile Handbook of the Liabilities of Merchant, Shipowner, and Underwriter on Shipments by General Ves- sels. — By A. Wilson, Solicitor and Notary. Royall2nio. 1883. 6s. MERCHANDISE MARKS ACT,— Payn's Merchandise Marks Act,! 887.— By H. Patn, Barrister-at-Law. Royal 12mo. 1888. 3s. 6d. ** A safe guide to all who are interested in the Act." — Law Times. METROPOLIS BUILDING ACTS.— Craies' London Building Act, 1894; with Introduction, Notes, and Index, and a Table showing how the Eormer Enactments relating to Buildings have been dealt with. — By W.F.Cbaiks, Esq., Barrister-at-Law. Royal8vo. 1894. 5s. MORALS AND LEGISLATION.— Bentham's Introduction to the Principles of Morals and Legislation. — By Jebemt Bbntham, H.A., Bencher of Lincoln's Inn. Crown 8vo. 1879. 6s. Gd. MORTGAGE.— Beddoes' Concise Treatise on the Law of Mort- gage, — ByW.F.BKDDOES, Esq., Barrister-at-Law. 8vo. 1893. 10s. '* Compiled carefully and with discretion." — Law Times. " A useful addition to the literature of its subject." —Law Journal. ** We commend the work as a reliable and useful Httle manual."— Z,aiy Students' Journal. , ,., . . ** We c£in cordially recommend this work to a practitioner who likes to have small compact books at hand on all subjects."— Lam Xotes. Robbins' Treatise on the Law of Mortgages, Pledges and Hypothecations.— By L. G-. Goedon Robbqis, Assisted by F. T. Maw, Esqrs., Barristers-at-Law. Founded on " Coote's Law of Mortgage." 2 vols. Royal 8to. 1897. 3?. " It is not a patched-up edition of an old work ; it is a new book, containing of the old what is good and is still law, with the advantage of the work of a modem editor."— iuw Journal. ^. ^ . -vi "The practising lawyer will find m detail everythmg that he can possibly want." — Solicitors' Journal. . " A complete treatise on the law of mortgages."- iam Quarterly Eemew. MOTOR CARS.— Bonner's Law of Motor Cars, Hackney and other Carriages. An Epitome of the Law, Statutes, and Regulations. By G. A. BoNNEE, Esq., Barrister-at-Law. Demy8vo. 1897. 7s. 6rf. "The book is full of useful information, and will undoubtedly prove of service to those who require advice on this subject."— iaui Times. MUNICIPAL CORPORATIONS.— Bazalgette and Humphreys.— Vide " Local and Municipal Government." NAVY,— Manual of Naval Law and Court Martial Procedure; in which is embodied Thring's Criminal Law of the Navy, together with the Naval Discipline Act and an Appendix of Practical Forms —By J. E. R. Stephens, Esq., Barrister-at-Law, C. E. Gdtoed, Esq., C.B., Fleet Paymaster, Royal Navy, and F. Haeeison Smith, Esq., StafE Paymaster, Royal Navy. Demy 8vo. 1901. ^^*- NEGLIGENCE,— Smith's Treatise on the Law of Negligence, Second Edition. By Hoeaob Smith, Esq., Bamster-at-Law, Editor of "Addison on Contracts, and Torts," &c. 8vo. 1884. 12s. 6rf. • * All standard law Worhs are /cept in Stock, in law calf and other bindings. 22 STEVENS AND SONS, LIMITED, NISI PRIUS.— Roscoe's Digest of the Law of Evidence on the Trial of Actions at Nisi Pri us. —Sepenteenth. Edition. ByMAXTBioB TowELi,, Esq., Barrister-at-Law. 2 vols. DemySvo. 1900. 21. Is. " Continues to be a vast and closely packed storehoufle of information on practice at Nisi Prius." — Law Journal. " Almost invaluable to a Nisi Prius practitioner. . . We have nothing hut praise for the new edition." — Law Quarterly Beview. NOTARY, — Brooke's Treatise on the Office and Practice of a Notary of England, — "With a full colleotiou of Precedents. SixtliEd. By James Ceaustoun, Esq., Barrister-at-Law. DemySvo. 1901. 25s. OATHS, — Stringer's Oaths and Affirmations in Great Britain and Ireland; being a Collection of Statutes, Cases, and Forms, with Notes and Practical Directions for the use of Commissioners for Oaths, and of all Courts of Civil Procedure and OiEces attached thereto. By Ebancis a. Steingee, of the Central Office, Royal Courts of Justice, one of the Editors of the "Annual Practice." Second Edition. Crown 8vo. 1893. is. " Indispensable to all commissioners." — Solicitors' Journal. OTTOMAN CIVIL LAW.— Grigsby's Medjelle, or Ottoman Civil Law.— Translated into English. By W. E. Geigsbt, LL.D., Esq., Barrister-at-Law. Demy Svo. 1895. 21s. PARISH LAW.— Humphreys' Parish Councils. — The Law relating to Parish Councils, being the Local Government Act, 1894 ; with an Appendix of Statutes, together with an Introduction, Notes, and a Copious Index. Second Edition. By Geoeqe Humpheets, Esq., ■ Barrister-at-Law, Author of "The Lawrelating to County Councils," &c. Eoyal Svo. 1895. 10s. Steer's Parish Law, Being a Digest of the Law relating to the Civil and Ecclesiastical Government of Parishes and the Relief of the Poor. Sixth Edition. By W. H. Macnamaea, Esq., Assistant Master of the Supreme Court, Registrar of the Court constituted under the Benefices Act, 1898. Demy Svo. 1899. 20s. " Of great service both to lawyers and to parochial officers." — Solicitors' Jour. " A most useful book of reference on all matters connected with the parish, both civil and ecclesiastical." — Law Journal. PARTNERSHIP,— Pollock's Digest of the Law of Partnership, Seventh Edition. With an Appendix of Forms. By Sir Eeedeeick Pollock, Bart., Barrister-at-Law, Author of "Principles of Con- tract," "The Law of Torts," &c. DemySvo. 1900. 10s. " We are confident this book will be most popular as well as extremely useful." — Law Times. *' Of the execution of the work we can speak in terms of the highest praise. The language is simple, concise, and clear." — Lnw Magazine. " Praiseworthy in design, scholarly and complete in execution." — Sat. Review. PATENTS,— Campbell's Ruling Cases, Vol, XX.— Vide "Digests," p. 10. Edmunds on Patents. — The Law and Practice of Letters Patent for Inventions. By Lewis Edmunhs, K.C. Second Edition. ByT. M. Stevens, Esq., Barrister-at-Law. Roy. Svo. 1897. H. 12s. " We have nothing but commendation for the book." — Solicitors' Journal. " It would be difficult to make it more complete." — Law Times. Edmunds' Patents, Designs and Trade Marks Acts, 1883 to 1888, Consolidated with an Index. Second Edition. By Lewis Edmunds, K.C., D.Sc, LL.B. Imp. Svo. 1895. Net2s.6d. Gordon's Monopolies by Patents and the Statutable Remedies available to the Public, By J. W. Goedon, Esq., Barrister-at- Law. DemySvo. 1897. 18s. "A treatise which we think must take a unique place in our legal literature." ■ — Law Times. Gordon's Compulsory Licences under the Patents Acts. By J. W. GoEDON, Esq., Barrister-at-Law, Author of " Monopolies by Patent." DemySvo. 1899. 15s. *:^* All standard Zato Works are kept in Stock, in law calf and other bindings. 119 & 120, OHAKCEET LANE, LONBON, W.C. 23 PAT E N TS — continued. Johnson's Patentees' Manual. — A Treatise on the Law and Practice of Patents for Inventions. Sixth Edition. By James John- son, Esq., Barrister-at-Law ; and J. Hbnet Johnson, Solicitor and Patent Agent. DemySvo. 1890. Wa.&d. Johnson's Epitome of Patent Laws and Practice. Third Edition. Crown 8to. 1900. Net, 2s. M. Morris's Patents Conveyancing. — Being a Collection of Precedents in Conveyancing in relation to Letters Patent for Inventions. With Dissertations and Copious Notes on the Law and Practice. By EoBEET MoKKis, Esq., Barrister-at-Law. Royal 8vo. 1887. 1?. 6s. Thompson's Handbool< of Patent Law of all Countries. — By Wm. p. Thompson. Tenth Edition, with Addendum. 12mo. 1899. Net, Is. 6d. Thompson's Handbook of British Patent Law. Eleventh Edition. 12mo. 1899. Net, 6d. PAWNBROKING.— Attenborough's Law of Pawnbroking, with the Pawnbrokers Act, 1872, and the Factors Act, 1889, and Notes thereon. By Chables L. Attbnboeouqh, Esq., Barrister- at-Law. Post 8vo. 1897. Net, 3s. PERSONAL PROPERTY.— Smith.— Ficfe " Eeal Property." PLEADING. — Bullen and Leake's Precedents of Pleadings, with Notes and Eules relating to Pleading. Fifth Edition. Revised and Adapted to the Present Practice in the Queen's Bench Division of the High Court of Justice. By Thomas J. Bullbn, Esq., Barrister- at-Law, Cteil Doed, Esq., K.C., and C. W. Cleffobd, Esq., Bar- rister-at-Law. Demy 8vo. 1897. 38s. " The standard work on modem pleading." — Law Journal. '* A very large number of precedents are collected together, and the notes are full and clear." — Law Times. " The Editors have in every way preserved the high standard of the work, and brought it down to date effecti^-ely and conscientiously." —iaw Magazine. Odgers' Principles of Pleading, Practice and Procedure in Civil Actions in the High Court of Justice.— Fourth Edition. By W. Blaxe Odobks, LL.D., K.C, Recorder of Plymouth, Author of "A Digest of the Law of Libel and Slander." Demy 8vo. 1900. 12.«. dd. ** The student or practitioner who desires instruction and practical guidance in our modem system of pleading cannot do better than possess himself of Mr. Odgers' book." — Law Journal. '* Includes a careful outline of the procedure in an ordinary action at law. Thia sketch will be of the utmost value to students, and ought to win the ap- proval also of examining bodies, as it is remarkably free from any adaptability to the purposes of the mere crammer."— iitera(ure. " Of immense assistance to junior counsel."— Lam Notes. "Terse, clear and pointed." — Law Quarterly Review. POISONS. — Reports of Trials for Murder by Poisoning. — With Chemical Introductions and Notes. By G. Latham Beownb, Esq., Barrister-at-Law, and C. G. Stewabt, Senior Assistant in the Labo- ratory of St. Thomas's Hospital, &c. Demy 8vo. 1883. 12s. 6d. POWERS. Farwell on Powers, — A Concise Treatise on Powers. Second Edition. By the Hon. Sir Geoeob Faewell, a Justice of the High Court, assisted by W. R. Sheldon, Esq., Barrister-at- Law. Royal 8vo. 1893. U. 5s. " "We have looked through the volume with some care, and we believe that the practitioner and the judge will find it comprehensive and complete."— £aw " Of great service to the conveyancing lawyer."— iaw Gazette. PRINCIPAL AND AGENT.— Wright's Law of Principal and Agent. By E. B. Wbiqht, Esq., Barrister-at-Law. Demy 8to. 1894. 18s. " Clearly arranged and clearly written."— into Times. ** May with confidence be recommended to all legal practitioners as an accu- rate and handy text book on the subjects comprised in it."— Solicitors' Journal. * * All Standard Law Works are Jcept in iStoc/c, in law calf amd other bindings. 24 STEVENS AND SONS, LIMITED, PRIVY COUNCIL LAW,— Wheeler's Privy Council Law: A Synop- sis of all the Appeals decided by tlie Judicial Committee (including Indian Appeals) from 1876 to 1891. Together with a precis of the Cases from the Supreme Court of Canada. By Geobqe "Wheelee, Esq., Barrister-at-Law, and of the Judicial Department of the Privy Council. Royal 8to. 1893. 31«. 6rf. PROBATE. — Nelson's Handboolc on Probate Practice (Non-Con- tentious), witPi Rules, Forms, Costs, and General Instructions to Solicitors and their Assistants in Extracting Grants of Probate and Administration (in the High Court of Justice, 1 reland). — By Howakd A. Nelson, Esq., Barrister-at-Law, District Probate Kegistrar, Londonderry. Demy 8vo. 1901. 12s. 6d. Powles and Oakley's Law and Practice relating to Probate and Administration. By L. D. Powxes, Barrister-at-Law, and T. W. H. Oaklet, of the Probate Kegistry. (Being a Third Edition of "Browne on Probate.") Demy 8vo. 1892. 11. 10s. PROPERTY.— &« also " Beal Property." Raleigh'sOutlineoftheLawof Property,— Demy 8vo. 1890. 7s. 6d. Strahan's General View of the Law of Property, — Second Edit. By J. A. Stbattan, assisted by J. Sinolaib Baxteb, Esqrs., Barris- ters-at-Law. Demy 8vo. 1897. 12«. 6d. " Tlie student -will not easily find a better general view of tlie law of property than that -which is contained in this book." — Solicitors' Journal. " We kno-w of no better book for the class-room." — Law Times. PUBLIC MEETINGS.— Chambers' Handbook for Public Meet- ings, including Hints as to the Summoning and Management of them. Second Edition. By GBOEaE E. Chambees, Esq., Barrister- at-Law. Demy 8vo. 1888. Wet, 2s. 6d. QUARTER SESSIONS.— &« " Criminal Law." RAILWAY RATES,— Darlington's Railway Rates and the Carriage of Merchandise by Railway ; including the Provisional Orders of the Board of Trade as sanctioned by Parliament, containing the Classification of Traffic and Schedule of Maximum Rates and Charges applicable to the Railways of Great Britain and Ireland. By H. R. Darlington, Esq., Barrister-at-Law. Demy 8vo. 1893. 11. 5s. RAILWAYS,— Browne and Theobald's Law of Railway Com- panies, — Being a Collection of the Acts and Orders relating to Railway Companies in Great Britain and Ireland, with Notes of all the Cases decided thereon. Third Edition. By J. H. Balpoub Bbownb, Esq., one of His Majesty's Counsel, and FEAira; Balpoue Bbowne, Esq., Barrister-at-Law. Royal 8vo. 1899. 21. 2s. *' Contains in a very concise form the whole law of railways." — The Times. " It is difficult to find in this work any subject in connection with railways which is not dealt with." — Law Times. "Practitioners who require a comprehensive treatise on railway law will find it —Law Journal. Campbell's Ruling Cases, Vol. XX.ll.— Vide "Digests," p. 10. RATES AND RATING,— Castle's Law and Practice of Rating,— Third Edition. By Edwabd James Castlb, Esq., one of His Majesty's Counsel. Demy 8vo. 1896. 25s. " A sure and safe guide." — Law Magazine. " Mr. Castle's book has hitherto held a very high place, and the success that has attended it seems assured to the new edition." — Law Journal. " A compendious treatise, which has earned the goodwill of the Profession on account of its conciseness, its lucidity, and its accuracy."— iawj Times. Chambers' Law relating to Local Rates; with especial reference to the Powers and Duties of Rate-levying Local Authorities, and their Officers ; comprising the Statutes in fuU and a Digest of 718 Cases. Second Edition. By G. F. Chambbes, Esq., Barrister-at- Law. Royal 8vo. 1889. 10s. 6d. REAL PROPERTY,— Digby's History of the Law of Real Pro- perty, Fifth Edition. Demy 8vo. 1897. 12s. 6d. *0* All standard Law Worlcs are kept in Stock, in law calf and other iindinga. 119 & 120, CHANCERY LANE, LONDON, W.O. 25 REAL PROPERTY— continued. Lightwood's Treatise on Possession of Land ! ■with a chapter on the Real Property Limitation Acts, 1833 and 1874.— By John M. LiaHTVooD, Esq., Barrister- at- Law. Demy 8vo. 1894. 15«. Sliearwood's Real Property. — A Concise Abridgment of the Law of Real Property and an Introduction to Conveyancing. Designed to facilitate the subject for Students preparing for examination. By Joseph A. Shkaewood, Esq., Barrister-at-Law. Third Edition. Demy 8to. 1886. 8*. 6d. Shelford's Real Property Statutes, — Comprising the principal Statutes relating to Real Property passed in the reigns of Kmg "WUliam PV. and Queen Victoria, with Notes of Decided Cases. Ninth Edition. By Thomas H. Carson, Esq., K.C., assisted by HaeoldB. BoMPAS, Esq., Barrister-at-Law. Royal 8vo. 1893. 30*. *' Absolutely indispensable to conveyancing and equity lawyers." Smith's Real and Personal Property. — A Compendium of the Law of Real and Personal Property, primarily connected with Con- veyancing. Designed as a Second Book for Students, and as a Digest of the most useful learning for Practitioners. Sixth Edition. By the Atjthok and J. Teustsam, LL.M., Barrister-at-Law. 2 vols. Demy 8vo. 1884. 21. 2s. " A book ■which he (the student] may read over and over again with profit and pleasure." — Law Times. » ** "Will be found of very great service to the practitioner." — Solicitors' Journal. " A really useful and v^uable work on our system of Conveyancing." — Law Students' Journal. Strahan.— Ftifc " Property." REGISTR AT ION.— Rogers.— Vide ' ' Elections." Fox and Smith's Registration Cases. (1886—1895). Royal 8vo. Calf, net, 21. 10«. Smith's (0. Lacey) Registration Cases. Part I. (1895-96). Net, 6s. U. Part II. (1896), 5s. Part III. (1897), 4s. Part IV. (1898-9), 6s. Part V. (1899-1900), 4s. Lawson's Notes of Decisions under the Representation of the People Acts and the Registration Acts, 1885— 1893, inclu- sive. — By Wm. Lawson, Barrister-at-Law. Demy 8vo. 1894. 24s. Ditto, ditto, for 1894, 1895, 1896 and 1897. Bach net 4s. U. Ditto, ditto, for 1898. Net, Is. 6d. Ditto, ditto, for 1899. JHet, 4s. 6d. REQUISITIONS ON TITLE.— Diokins.— rWe "Conveyancing." RIVERS POLLUTION.— Haworth's Rivers Pollution.— The Statute Law relating to Rivers Pollution, containing the Rivers PoUutiou Prevention Acts, 1876 and 1893, together with the Special Acts in force in the "West Riding of Yorkshire and the County of Lancaster. By Chaeles Joseph Hawobth, Solicitor, B.A. (Cantab.), LL.B. (London). Royal 12mo. 1897. 6s. ROMAN LAW,— Abdy and Walker's Institutes of Justinian, Trans- lated, with Notes, by J. T. Abdt.LL.D., and the late BetanWaikee, M.A., LL.D. Crown 8vo. 1876. 16s. Abdy and Walker's Commentaries of Gaius and Rules of Ulpian. With a Translation and Notes, by J. T. Abdy, LL.D., late Regius Professor of Laws in the University of Cambridge, and the late Betan "WAiKEE, M.A., LL.D. New Edition by Betan Walkbe. Crown 8vo. 1885. 16s. Buckler's Origin and History of Contract in Roman Law down to the end of the Republican Period. By W. H. Bugklee, B.A., LL.B. Post8vo. Second Edition. {In the press.) * * All standard Law Works are kept in Stock, in law calf and other bindings. STEVENS AJiTD SOKS, LIMITED, ROMAN LA^N— continued. Goodwin's XII. Tables, — By Febdbeiok Goodwin, LL.D. London. Royal 12mo. 1886. 3s. 6d. Greene's Outlines of Roman Law. — Consisting chiefly of an Analysis and Summary of the Institutes. Eor the use of Students. By T. Whitoombb Gbeenb, Barrister-at-law. Fourth Edition. Foolscap 8vo. 1884. 7«. 6d. Grueber's Lex Aquilia. — The Boman Law of Damage to Property: being a Commentary on the Title of the Digest " Ad Legem Aqui- liam" (ix. 2). With an Introduction to the Study of the Corpus luiis Civilis. ByEEWiNGEUEBEE, Dr. Jur.,M.A. 8vo. 1886. 10s. 6d. Holland's Institutes of Justinian. — Second Edition. Extra fcap. 8to. 1881. 6a. Holland and Shadwell's Select Titles from the Digest of Jus- tinian.— Demy Svo. 1881. 14s. Holland's Gentilis Alberici, I. CD., I.C.P.R,, de lure Belli Libri Tres. — EdiditT.E. HoLLAUD, LCD. Small 4to.,half-morocco. 21s. Monro's Digest IX, 2. Lex Aquilia. Translated, with Notes, by C H. MoNEO, M.A. Crown 8vo. 1898. 6s. Monro's Digest XIX. 2. Locati Conducti. Translated, with Notes, by C. H. MoNEO, M.A. Crown 8to. 1891. 6s. Monro's Digest XLVII. 2, De Furtis. Translated, with Notes, by C H. MoNEO, M.A. Crown 8vo. 1893. 5s Monro's Digest XLI, 1, De Adquirendo Rerum Dominic. Trans- lated, with Notes, by C. H. Moneo, M.A. Crown 8vo. 1900. 5s. Moyle's Imperatoris Justiniani Institutiones, — Third Edition. 2 vols. Demy 8to. 1896. 1/. 2s. Poste's Elements of Roman Law, — ByGaius. With a Translation and Commentary. Third Edition. By Edwaed Posts, Esq., Barrister-at-Law. Demy 8vo. 1890. 18s. Roby's Introduction to tFie Study of Justinian's Digest, con- taining an account of its composition and of the Jurists used or referred to therein. By H. J. Bobt, M.A. Demy 8to. 1886. 9s. Roby's Justinian's Digest, — Lib. VII., Tit. I. De Usufruotu, with a Legal and Philological Commentary. By H. J. Eobt, M.A. Demy 8to. 1884. 9s. Or the Two Parts complete in One Volume. Demy Svo. 18s. Sohm's Institutes of Roman Law. — Second Edition. Demy Svo. 1901. 18s. Walker's Selected Titles from Justinian's Digest, — Annotated by the late Betan Walkee, M.A., LL.D. Part I. Mandati vel Contra. Digest xvn. i. Crown Svo. 1S79. 5s. Part III. De Condictionibus. Digest xn. 1 and 4 — 7, and Digest xm. 1—3. Crown Svo. 1881. 6s. Walker's Fragments of the Perpetual Edict of Salvius Julianus, Collected and annotated by Betah Waikee, M.A., LL.D. Crown 8vo. 1877. 6s. Whewell's Grotius de Jure Belli et Pacis, with the Notes of Bar- beyrao and others ; accompanied by an abridged Translation of the Text, by W. "Whewell, D.D. 3 vols. Demy Svo. 1853. 12s. *j,* A II standard Law Works are Icept in Stock, in law calf and other bindings. 119 & 120, CHAJ TCERY LAITE, LONDON, W.O. 27 RULING CASES.— Campbell.— FW« "Digests," p. 10. SALES.— Blackburn on Sales. A Treatise on the Effect of the Con- tract of Sale on the Legal Rights of Property and Possession in Goods, Wares, and Merchandise. By Lord Biackbuen. 2nd Edit. By J. C. Graham, Esq.,Barrister-at-Law. Royal 8vo. 1885. IZ. Is. " We have no hesitation in saying that the work has been edited with re- markable ability and success." — Law Quarterly Eeview. SALVAGE. — Kennedy's Treatise on the Law of Civil Salvage.— By the Hon. Sir WiLUiM R. Kennedy, a Justice of the High Court. Royal 8vo. 1891. 12*. *_* The best work on the law of salvage. It is a complete exposition of the subject, and as such is accurate and exhaustive." — Law Times. SHERIFF LAW.— Mather's Compendium of Sheriff Law, espe- cially in relation to Writs of Execution. — By Philip E. Mathee, Solicitor and Notary, formerly Under Sheriff of Newcastle-ou-Tyne. Royal Svo. 1894. 25s. " "We think that this book will be of very great assistance to any persons who may fill the positions of high sheriff and xmder-sheriff from this time forth. The whole of the legal profession will derive great advantage from haying this volume to consult." — Law Times, SHIPPING.— Carver.— 7'j&" Carriers." Marsden's Digest of Cases relating to Shipping, Admiralty, and Insurance Law, down to the end of 1897, — By Reginald G-. Maesden, Esq., Barrister-at-Law, Author of "The Law of Collisions at Sea." Royal 8vo. 1899. 30s. Pulling's Merchant Shipping Act, 1894. — With Introduction, Notes, and Index. By AJlexandeb Phllino, Esq., Barrister-at- Law. Royal Svo. 1894. Net 6s. Pulling's Shipping Code; being the Merchant Shipping Act, 1894 (57 & 68 Vict. 0. 60) ; With Introduction, Notes, Tables, Rules, Orders, Forms, and a Full Index. — By Axexandee PpT.T.ma, Esq., Barrister-at-Law. Royal 8to. 1894. Net 7s. Gd. Temperley's Merchant Shipping Act, 1894 (57 & 58 Vict, c. 60). With an Introduction ; Notes, including all Cases decided under the former enactments consolidated in this Act ; a Comparative Table of Sections of the Former and Present Acts ; an Appendix of Rules, Regulations, Forms, etc. , and a Copious Index. — By Robeet Tempeelet, Esq., Barrister-at-Law. Royal 8to. 1895. 25s. ** A full, complete, and most satisfactory work." — Law Quarterly Review, "A monument of well-directed industry and knowledge directed to the elucidation of the most comprehensive and complicated Act."— iaw Journal, SLAN DER.— Odgers.— r«fe " Libel and Slander." SOLICITORS. — Cordery's Law relating to Solicitors of the Supreme Court of Judicature. With an Appendix of Statutes and Rules, the Colonial Attomies Relief Acts, and Notes on Appoint- ments open to Solicitors, and the Right to Admission to the Colonies, to which is added an Appendix of Precedents. Third Edition. By A. CoEDEET, Esq., Barrister-at-Law. Demy Svo. 1899. 21s. " The leading authority on the law relating to solicitors."— iaui Journal, "A complete compendium of the law." — Law Times, " Thoroughly up to date in every respect."- iaw Quarterly Review, Turner. — Vide "Conveyancing" and "Vendors and Purchasers." SPECIFIC PERFORMANCE.— Fry's Treatise on the Specific Performance of Contracts. By the Right Hon. Sir EdwaedFet. Third Edition. By the Author and E. Poetsmouth Fet, Esq., Barrister-at-Law. Royal Svo. 1892. i;. 16s. *,* All standard Law Works are kept in Stock, in law calf and other bindings. 28 STEVENS AND SONS, LIMITED, STAMP LAWS.— Highmore's Stamp Laws. — Being the Stamp Acts of 1891 : with the Acts amending and extending the same, in- eluding the Finance Act, 1899, tofiether with other Acts imposing or relating to Stamp Duties, and Notes of Decided Cases ; also an Introduction, and an Appendix containing Tables showing the com- parison with the antecedent Law. By Nathaniel Joseph Highmobe, Assistant-Solicitor of the Inland Kevenue. DemySvo. 1900. 10s. 6rf. "Will be found of the neatest use to solicitors, the officers of companies, and all men of business." — Law Journal, Feb. 10, 1900. " This work is not only complete up to the present year, but is excellently arranged." — Irish Law Times, Feb. 10, 1900. "A very comprehensive volume, fulfilling^ every requirement. . . . The various notes to the sections of the several Acts incorporated in the volume are fully and accurately set out, the points of the decided cases clearly expressed, and the effect and object of the enactment indicated ; and what must be of especial value to the practitioner, the practice at Somerset House with regard to all matters coming before that institution is stated." — Justice of the Peace, Feb. 24, 1900. *'Mr. Highmore's 'Stamp Laws* leaves nothing undone." — The Civilian^ March 3, 1900. STATUTE LAW,— Wilberforce on Statute Law. The Principles which govern the Construction and Operation of Statutes. By E. "WiLBEEFOEOE, Esq., a Master of the Supreme Court. 1881. 18*. STATUTES, and vide " Acts of Parliament." Chitty's Statutes. — New Edition. — The Statutes of PracticalUtility, from the earliest times to 1894 inclusive. Arranged in Alpha- betical and Chronological Order ; with Notes and Indexes. Fifth Edition. By J. M. Lelt, Esq., Barrister-at-Law. Royal 8to. Complete with Index. In 13 Volumes. 1894-1895. 13Z. 13s. Annual Supplennents. By J. M. Lely, Esq. 1895, 6s. 1896, 10s. 1897, 5s. 1898, 7s. Gd. 1899, 7s. Gd. 1900, 7s. 6(?. "It is a book which no public library should be without." — Spectator. ' ' A work of permanent value to the practising lawyer." — Solicitors' Journal. "The profession will feel grateful both to the editor and the publishers of a work which will be found of the highest value," — law Journal. " A legal work of the very highest importance. . . . Few besides lawyers will, we suspect, realise the amount of work which such an undertaking involves to the editor, who appears to have spared no pains to give a clear, orderly, and methodical character to the com- pilation." — Daili/ Keu's. " This collection has fulfilled a purpose of usefulness only to be understood by those who are acquainted with the amazing com- plexity of English statute law. with its bewildering incoherence and painful heterogeneity." — Pall Mall Gazette. ' ' Indispensable in the library of every lawyer." — Saturday Review. "To all concerned with the laws of England, Chitty's Statutes of Practical Utility are of essential importance, whilst to the practising lawyer ihey are an absolute necessity." — Law Times. "It is apparently the belief of some popular novelists that lawyers in their difficulties still uniformly consult daily Coke upon Littleton and Blackstone. Those who know better are aware that the lawyer's Bible is the ' Statutes of Practical TTtiiity ' — that they are his working tools, even more than accredited text-books or ' authorised reports.' More than one judge has been heard to say that with the ' Statutes of Practical Utility ' at bis elbow on the bench he was apprehensive of no difficulties which might arise." — The Times. *„* All standard Law Works are Jcept in Stock, in law calf and other bindings. 119 & 120, OHANOERY LANE, LOK DON, W.O. 29 SUCCESSION. — Holdsworth and Vickers' Law of Succession, Testamentary and Intestate. Demy 8vo. 1899. 10s. 6d. SUMMARY CONVICTIONS.— Palsy's Law and Practice of Sum- mary Convictions under the Summary Jurisdiction Acts, 1848 — 1884; including Proceedings Preliminary and Subse- quent to Convictions, and tlie Responsibility of Convicting Magistrates and their Officers, with the Summary Jurisdic- tion Rules, 1886, and Forms,— Seventh Edition. By W. H. MA.CNAaL4.BA, Esq., Barrister-at-La-w. Demy 8vo. 1892. 245. TAXPAYERS'GUIDES.— ri