OJnrnpU ICaui €>rl)nnl ICibrary Cornell University Library KD 1949.S17 1912 The law of torts :a treatise on the Engl 3 1924 022 354 132 Cornell University Library The original of tinis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022354132 THE LAW OF TORTS BT THE SAME AUTHOR JURISPRUDENCE OR THE THEORY OF THE LAW THIRD EDITION LONDON STEVENS AND HAYNES 1910 THE LAW OF TORTS A TREATISE ON THE ENGLISH LAAV OF LIABILITY FOR CIVIL INJURIES BY JOHN W. SAI.MOND .M.A., LI..H. ; PELLOM' or INnEHSITV (III. I. IK; i:. I.'iNIHlN soi.urruil-tiEN i.llAL oi' m;m' zialvmi THIRD EDITIOX LONDON STEVENS AND HAYNES BELL YARD, TEMPLE BAR 19)2 f :jf6"6' BALLANTYNE & COMPANY LTD Tavistock Street Covent Garden London PEEFACE TO THE THIRD EDITION Since the publication of the second edition of this book in 1910 the most important development of the law of torts is that which is due to the passing of the Maritime Conventions Act, 1911, and in this edition the section dealing with liability for collisions at sea has been rewritten accordingly. I have also rewritten the section relating to the liability of bodies corporate, and have recanted the opinion formerly expressed by me, in good company, that there is no such liability for torts committed in the course of any business or undertaking which is ultra vires of the corporation. On this point I have accepted the American decisions to the contrary as authorita- tive. Most of the longer notes in earlier editions have now been incorporated in the text. In other respects this edition differs little from the second. In a former preface I expressed the hope that this book would be of use both to lawyers and to students of law. As to students, I trust that the con- current publication by me of an abridgment for their especial needs will not be regarded as an admission that the larger work is in any way unsuitable for use by them. As to lawyers, the book is admittedly a compendium of legal principles rather than a comprehensive digest of judicial decisions, but, in view of the formidable growth of authority in modern law, a book may be none the less useful on that account. I have to thank Mr. A. W. Chaster, LL.B., Barrister-at-Law, for his care in attending to the passage of this edition through the press and for the preparation of the Table of Cases and Index. J. W. S. Wellington, New Zealand, March 1912 PREFACE TO THE FIRST EDITION I HAVE endeavoured in this book to set forth the principles of the law of torts with as much precision, cMjherence, and system as the subject admits of, and with as much detailed consideration as is necessary to make the work one of practical utility. No book is justified by the good intent of its author ; but I hope that the present work will be found of use to lawyers and to students of law as a general exposition, in moderate compass, of an extensive and in some respects difficult and imperfectly developed department of our legal system. J. W. S. Wellington, New Zealand, Aug-ust 5, 1907 CONTENTS CHAPTER I GENERAL PRINCIPLES OF LLiBII.TTY SECTION TAGE 1. The Nature of a Tort 1 2. The General Conditioiii^ of Liabihty ' 7 3. Absolute Liability 14 4. Wrongful Intent ami Malice 17 5. NegUgence 21 6. The Standard of Care 26 7. The Proof of Negligence 28 8. -Res ipsa loquitur 32 9. Contributory Negligence 34 10. The Rule in Davies v. Mann 38 1 1 . Contributory Negligence of Plaintiff's Servants and Agents 43 12. The Burden of Proof of Contributory Neghgenoc 44 13. Contributory Negligence and Collisions at Sea 40 14. Volenti non fit injuria 49 CHAPTER n 15. The Crown 54 16. Public Officials 65 17. Foreign Sovereigns and Ambassadors 56 18. Bodies Corporate 57 19. Trade Unions 61 20. Minors 62 21. Lunatics 65 22. Married Women 66 23. Executors and Administrators 69 24. Joint Wrongdoers 74 25. Contribution between Wrongdoers 78 25a. Persons jointly Iniiired 80 26. Principal and Agent 81 27. Partners 84 28. Masters and Servants 84 29. The Course of Employment 89 30. Excess of a Servant's Authority 91 X CONTENTS SECTION PAGE 31. Acts done by a Servant on his own Behalf 92 32. The Rule of Common Employment 97 33. The Employers' Liability Act, 1880 102 34. The Workmen's Compensation Act, 1906 105 CHAPTER III JUDICIAL EEMEDIES 35. Classes of Remedies for Torts 106 36. Damages 107 37. Remoteness of Damage 109 38. Successive Actions on the same Facts 119 39. Lijunotions 128 40. The Limitation of Actions 135 41. Special Periods of Limitation 138 42. Felonious Torts 140 43. Assignment of Rights of Action for Torts 142 44. The Waiver of Torts 144 45. Foreit,'n Torts 147 CHAPTER IV . EXTRAJUDICIAL BEMEDIES 46. Self -Defence 150 47. Prevention of Trespass 151 48. Re-entry on Land 153 49. Defence and Recaption of Chattels 155 50. Abatement of Nuisances 156 51. Distress Damage Feasant 159 CHAPTER V TRESPASS TO LAND 52. Old Forms of Action. Trespass and Case 163 53. The Nature of Trespass to Land 166 54. The Title of the Plaintiff 172 55. Trespass ab initio 175 56. The Measure of Damages in Trespass 178 CHAPTER VI DISPOSSESSION OF LAND 57. The Action of Ejectment 182 58. The Action for Mesne Profits 184 CONTENTS xi CHAPTER VII NUISANCE SECTION PAGE 59. The Nature of Nuisance 189 60. Damage caused by Nuisance 194 61. Ineffectual Defences 198 62. The Rule in Rvlands v. Fletcher 200 63. First Exception : Things Naturally on Land 205 64. Second Exception : Consent of the Plaintiff 208 65. Tliird Exception : The Act of a Stranger 209 66. Fourth Exception : The Act of God 211 67. Nuisances in a Highway 215 68. The Legalisation of Nuisances by Prescription 217 69. The Legalisation of Nuisances by Statute 218 70. Liability for Fire 222 71. The Incidence of Liability for Nuisances 226 72. Liability of a Landlord 229 CHAPTER VIII INJURIES TO SERVITUDES 73. Kinds of Servitudes 234 74. Easements 235 75. Profits 241 76. Equitable Servitudes : Licenses 242 77. The Rule in Wood v. Leadbitter 246 78. Equitable Servitudes : Restrictive Contracts 248 CHAPTER IX INJURIES TO SERVITUDES (continued) 79. The Right of Support 250 80. Disturbance of the Right of Support 252 81. The Right to Light 258 82. The Right to Air 2G5 83. Rights to Water --'(iO 84. Wrongful Abstraction of Water 260 85. Abstraction for Non-riparian Uses i(i!) 86. Abstraction for Riparian Uses 272 87. Abstraction of Underground Water 276 88. The PoUution of Water 278 89. Obstruction of a Stream 279 90. Rights of Way 281 91. Disturbance of the Right of Access to a Highway 283 92. Nuisance to a Highway 284 93. Absolute Liability for Danger to Highway 287 xii CONTENTS SECTION PAGE 94. Liability for the Non-repair of Roads 291 95. Wrongful Damage 294 96. Injuries to Reversionary Interests 295 CHAPTER X CONVERSION AND OTHER INjrEIBS TO CHATTEL 97. History of the Action of Trover 299 98. Conversion defined 308 99. Conversion by Taking 311 100. Conversion by Detention 312 101. Conversion by Wrongful Delivery 316 102. Conversion by Wrongful Disposition 316 103. Conversion by Wrongful Destruction 31 7 104. Other Forms of Conversion 317 105. Acts not amounting to Conversion 318 106. Conversion by Estoppel 321 107. The Title of the Plaintiff 322 107a. Conversion as between Co-owners 328 108. Conversion and the Limitation of Actions 329 109. The Measure of Damages for Conversion 332 110. Specific Restitution of Chattels 336 111. Replevin 341 112. Effect of Judgment in an Action of Trover 342 113. Trespass to Chattels 344 114. Wrongful Damage to Chattels 345 115. Wrongful Loss of Chattels 346 CHAPTER XI INJTJRIES TO THE PERSON 116. Death 347 117. Assault 351 118. Bodily Harm 352 119. False Imprisonment 354 CHAPTER XII liability for DANGEROUS PROPERTY 120. Liabihty of Occupiers for Negligence 359 121. Liability of Occupiers on a Warranty of Safety 362 122. Liabihty of Occupiers to Bare Licensees 364 123. Liabihty of Occupiers to Trespassers 368 124. Liabihty of the Owner of Premises 372 125. Liabihty for Dangerous Chattels 375 126. Dangerous Animals : Proof of Scienter 383 126a. Absolute ResponsibiUty for Animals 386 CONTENTS xiii CHAPTER XIII nSTJITEIES TO DOMESTIC RELATIONS SECTION PAQE 127. Parent and Child 395 128. Master and Servant : Seduction 396 129. Master and Servant : Other Injuries 401 130. Husband and Wife 403 CHAPTER XIV DEFAMATION 131. Defamation defined. Libel and Slander 406 132. The Defamatory Nature of a Statement 407 133. Defamation of a Corporation 410 134. Interpretation of Defamatory Statements 411 135. The Innuendo 413 136. Proof of Reference to the Plaintiff 414 137. Publication 416 138. Justification 420 139. Privilege 422 140. Absolute Privilege 424 141. Qualified Privilege 427 142. Statements in Performance of Duty 431 143. Statements in the Protection of an Interest 432 144. Fair Comment 434 145. Privileged Reports 441 146. Slander and Special Damage 443 147. Slander actionable per se 445 CHAPTER XV DECEIT AND VSIXTRIOVS FALSEHOOD 148. Deceit 447 149. Injurious Falsehood 456 150. Deceptive Trade Names, Marks, and Descriptions 459 CHAPTER XVI INTIMIDATION 151. Intimidation of a Person to his own Injury 469 152. Intimidation of a Person to another's Injury 470 CHAPTER XVII WRONGFITL PROCESS OF LAW 153. liability of the Superior Courts of Justice 480 154. Liability of Inferior Courts of Justice 481 xiv CONTENTS SECTION PASE iri5. Malicious Prosecution and other Malicious Process 485 156. Erroneous and Irregular Proceedings 495 157. Maintenance 497 CHAPTER XVIII RESIDUARY FORMS OF INJURY 1 58. Inducement of Breach of Contract 500 159. The Breach of Statutory Duties 502 100. The Breach of Common-Law Obligations 507 161. Injuries to Immaterial Property 507 INDEX OF CASES Abraham v. Bullock, 94 Abrahams i: Deakin, 92 Abrath r. N.E. Raihvay Co., 57, 485, 489, 491, 492 Ackroyd v. Smith, •2m. 237 Aotoui'. BlundeO. 277 Adam t: British and Foreign Steam- ship Co., 351 Adamson i: Jarvis, 79, 8tl Addis r. Gramaphone Co., 109 Addison v. Overend, 81 Alabaster v. Harness, 498, 499 Aloott V. Millar's Karri Forests, Ltd., 458 Alexander v. Jenkins, 446 V. N.E. Railway Co., 421 r. Southey, 304, 314 Allan V. LiTerpool, 173 AUbutt V. General Council of Medical Education, 442 Allcock V. HaU, 30 Allen V. Flood, 18, 20, 470, 472, 473. 478, 500 V. London & S.AV. Railway Co., 92 V. Rivington, 184 V. Wright, 358 AUsop v., Allsop, 444 Alston V. Scales, 296 Alton V. Midland Railway Co., 401 Ambergate Railway Co. v. Midland Railway Co., 160 Ambler v. Gordon, 262 Anderson v. Gorrie, 480, 481 V. Oppenheimer, 209 V. Pacific Insurance Co., 449 V. RadclifEe, 174 Andrews v. Abertillery, 172 V. Mockford, 453, 454 V. Kott Bower, 432 Anglo-Algerian Steamship Co. v. The Houlder Line, 10 Angus V. Clifford, 450, 451 Ankersen v. ConneDy, 203 Anscomb v. Shore, 162 Anthony v. Haneys. 1 Sfl Apollo, The, 360, 367 Applebee v. Percy, 386 Appleby v. Franklin, 141 Arkwright v. Newbold, 448, 451 Armory v. Delamirie, 178, 184, 325, 332, 335 Armstrong v. Milburn, 137 Arris v. Stukeley, 145 Arrowsmith v. Le Mesurier, 354 Ash I'. DaA^•ney, 168 Ashby V. A\'hite, 167 Asheru. Whitlock, 183, 184 Atkinson v. Newcastle AVaterworlcs Co., 503, 504, 506 Attenborough v. London & St. Katharine's Docks Co., 322, 328, 335 Attornej'-General v. Borough of Birmingham, 133 V. Cockermouth Local Board, 279 V. Cole, 200 V. Conduit Colliery Co., 253 V. Corporation of Manchester, 129 »'. Corporation of Nottingham, 129, 190 V. Metropolitan Railway Co., 219 ( , Thames Conservators, 283 r. Tod-Heatley, 228 r. Tomline, 205 Austin ('. Bowling, 355, 495 V. Manchester, &c., Railway Co., 28 Ayre v. Craven, 446 Backhotjse v. Bonomi, 135, 130, 252 Bagshaw v. Go ward, 176 Bahia and San Francisco Railway Co., In re, 452 Bailiffs of Romney Marsh v. Trinity House, 113, 117 Baily v. Morland, 267, 273, 274 Bainbridge v. Postmaster-General, 89 Biird V. Williamson, 207, 208 Baker v. Bolton, 347, 348, 403 ('. Carrick, 432 INDEX OF CASES Baker v. Snell, 390, 391, 392, 393 Baldwin v. Casella, 386 V. Cole, 305, 311 Ball V. Ray, 190, 217 Ball, ex parte, 141, 142 Ballard v. Tomlinson, 191, 277, 278 Bamfield v. Goole, Ltd., 380 Bamford v. Turnley, 196, 199, 200 Bank of New South A\'ak's ?'. Owston, 92 Barber v. Houston, 137 V. Penley, 284, 285 Barham v. Dennis, 395 Barker v. Herbert, 228, 289 V. Furlong, 309, 311, 315, 316, 321, 326 Barnes v. Lucille, 386 V. Ward, 285, 369 Barnett v. Earl of Guildford, 174 Barratt v. Kearns, 425 Barrett v. Associated Newspapers, Limited, 458 Barry v. Croskey, 453 Bartlett v. Wells, 64 BartonshiU Coal Co. v. McQuire, 101 V. Beid, 98, 101 Barwick v. English Joint Stock Bank, 58, 90, 93 Baseb6 v. Matthews, 494 Basely v. Clarkson, 16, 167 Bass V. Gregory, 265 Batohelor v. Fortescue, 368 Baten's case, 172 Bateson v. Gosling, 78 Batt V. Metropolitan Water Board, 293 Battishill v. Reed, 122, 123 Battley v. Faulkner, 135 Baxter v. Taylor, 296, 298 Bayley v. Manchester Railway Co., 92 Beard v. London General Omnibus Co., 91 Beam, The, 360 Beattie v. Lord Ebury, 449 Beauchamp, In re, 68 Beaulieu v. Finglam, 209, 223, 226 Beaumont v. K.aye, 68 Beckett v. Midland Railway Co., 287 Beckwith v. Philby, 17, 358 Beddall v. Maitland, 154, 155 Bede Steamship Co. v. River Wear Commissioners, 360 Behrens v. Richards, 132 Bell V. Great Northern Railway Co., 353 V. Midland Railway Co., 109, 297 Benjamin v. Storr, 192, 215, 284 Bennett v. AUcott, 398 Bernina, The, 40, 41, 43, 44, 46, 48, 118 Berringer v. Great Eastern Railway Co., 401 Berry v. Adamson, 354 Berthon v. Cartwright, 403, 404 Besozzi V. Harris, 384, 388 Betjemann v. Betjemann, 138 Betts V. Gibbins, 79 Bibby v. Carter, 240, 241, 255 Bickett V. Morris, 280 Biddle v. Bond, 322, 327, 334 Bird V, Brown, 83 V. Holbrook, 369 V. Jones, 355 Birmingham Corporation v. Allen, 250 Bishop V. Balkis Consolidated Co., 456 V. Montagu (Viscountess), 306 Black V. Christchurch Finance Co., 15, 56, 202, 209, 210, 223, 226 Blackborough v. Graves, 81 Blackmore v. Vestry of Mile End, 292 Blades v. Higgs, 154, 155 Blake v. Barnard, 352 V. Lanyon, 402 V. Midland Railway Co., 8, 349 V. Woolf, 205, 209 Blakemore v. Bristol & Exeter Railway Co., 379 Blanchenay v. Burt, 497 Blaymire v. Haley, 401 Bliss V. HaU, 198, 217 Blofeld V. Payne, 462 Bloodworth v. Gray, 445 Blyth V. Birmingham Waterworks Co., 22, 289 Bodenw. Roscoe, 160, 161, 162 Bodley v. Reynolds, 336 Bonnard v. Perryman, 129 Booth V. Arnold, 446 Boots V. Grundy, 479 Borough of Bathurst v. Macplierson, 292 Bott V. Ackroyd, 484 Bottomley v. Brougham, 425 Bound V. Lawrence, 104 Bourne v. Fosbrooke, 326 Bowen v. Anderson, 231, 232 ■ V. HaU, 118, 402, 473, 500, 502 Bower v. Peate, 254, 256 Bowlston V. Hardy, 206 Bowyer v. Cook, 121, 123, 170 Box V. Jubb, 209, 210, 212 Boxsius V. Goblet Freres, 417, 419, 430 Boydell v. Jones, 413 Bradford Corporation v. Ferrand, 277 Bradford (Mayor of) v. Pickles, 8, 10, 19, 277 INDEX OF CASES Bradlaugh v. Newdegate, 497, 498 Bradley i'. Copley, 323 Bradshaw i'. L. & Y. Railway Co., 70, 72 Brady v. Warren, 206 Brass v. JMaltland, 370 Brent v. Haddon, 227, 230, 258 Brewer c. Sparrow, 146 Bridges v. Hawkesworth, 325, 335 *. North London Railwaj' C'o., 37 Brierly v. Kendall, 333 Briggs V. Oliver, 33 Brinsmead v. Harrison, 77, 342, 343 Bristol & \Vest of England Bank V. Midland Railway Co., 321 British Cash and Parcel Conveyors, Ltd., I'. Lamson Store Service Co., 498, 499 British Slutual Banking Co. v. Charnwood Forest Railway Co., 93 British South Africa Company v. Companhia de Mocambique, 147 British Vacuum Cleaner C'u. z: New Vacuum Cleaner Co., 460, 404 Brittain v. Kinnaird, 483, 484 Broad v. Ham, 488, 489 Broadbent v. Ledward, 81 V. Ramsbotham, 268 Brock V. Copeland, 370 Brockbank v. Whitehaven Railway Co., 403 Broder v. Saillard, 190, 191, 200, 207, 227, 257 Bromage v. Prosser, 18 Brook V. Rawl, 19 Brooks V. Hodgkinson, 497 Brown v. Boorman, 6 V. Chapman, 356, 495 V. Eastern and Midland Railway Co., 285 V. Giles, 194 V. Great W. Railway Co., 46 V. Hawkes, 491, 492, 493 ■V. Robins, 254, 255 V. Smith, 445 Browne v. Powell, 162 Brownlie v. Campbell, 448 Bruen v. Roe, 307 Brunsden v. Humphrey, 120, 121 Brunswick (Buke of) v. Harmer, 50 Bryant v. Herbert, 4 V. Lefever, 266 Buccleuch (Duke of) v. Wakefield, 251 Buokland v. Johnson, 146, 147 Buckley v. Gross, 325, 326,. 327, 339 Bulcock V. St. Anne's Master Builders' Federation, 479 Bullen V. Swan Electric Engraving Co., 33 BuUi Coal Mining Co. v. Osborne, 137, 138 Bullock V. London General Omnibus Co., 76 Bulnier v. Balmer, 349. Bunting v. Hicks, 267 Burgess v. Burgess, 465, 466 Burley v. Bethune, 482 Burling v. Read, 154 Burn V. Morris, 140 Burnard v. Haggis, 63 Burnett v. Lynch, 6 Buron v. Denman, 56, 83 Burr V. Smith, 425 V. Theatre Royal Drury Lane, 101 Burroughes v. Bayne, 314 Burrows v. March Gas Co., 117, 118 V. Rhodes, 79, 80 Burt V. Moor, 160 Bussy V. Amalgamated Society of Railway Servants, 62 Butcher v. Butcher, 174 Butler V. Fife Coal Co., 24, 102 V. Manchester Railway Co., 245 Butt V. Imperial Gas Co., 237 Butterfield v. Forrester, 34, 36, 40 Butterknowle Colliery Co. v. Bishop Auckland Co-operative Co., 251 Butterley Co. v. New Hucknall Colliery Co., 251 Byrne v. Boadle, 33 c Judd, 257 Byron (Lord) v. Johnston, 460 Bywell Castle, The, 37 Cable v. Bryant, 265 Calder v. Halkett, 485 Caledonian Railway Co. v. JIul- hoUand, 382 Calliope, The, 360 Cameron v. Nystrom, 99 V. Young, 232, 374 Campbell Davys v. Lloyd, 159 Campbell v. Paddington, 59, 237, 286 0. Spottiswoode, 437 Canadian Pacific Railway Co. i: Parke, 221 Capel V. Powell, 68 Capital and Counties Bank v. Henty, 407, 408, 411, 412 Card V. Case, 387 Carr v. Clarke, 398, 401 V. Fracis Times & Co., 148 Carratt v. Morley, 356, 483 Carstairs v. Taylor, 209, 211 Casey v. Arnott, 457 Cash, Limited, v. Joseph Cash, 466 Castriquc v. Behrens, 494 Cator V. Lewisham, 59 INDEX OF CASES Cattle V. Stockton Waterworks Co., ' 11, 192 Caudle v. Seymour, 483 Cavalier v. Pope, 232, 374, 378 Cave V. Mountain, 482, 484 Cellular Clothing Co. v. Maxton, 462, 464 Central, c&c., Co. ■;;. Smith, 59 Chamberlain v. AVilliamson, 70 Chambers v. Donaldson, 173 Chaplin v. Westminster Corpora- tion, 283, 284 Chapman v. Fylde Waterworks Co., 293 Chapman Morsons & Co. v. Auck- land Union, 123 Charles v. Taylor, 101 Chasemore v. Richards, 19, 254, 276, 277, 278 Chastey v. Ackland, 266 Chatterton v. Secretary of State for India, 426 Cheetham v. Hampson, 230 Cheshire v. Bailey, 94 Chilton V. Carrington, 338 Chinery v. Viall, 333 Christie v. Davey, 190, 195, 196 Churchill v. Siggers, 486 Citizens' Life Assurance Co. v. Brown, 17, 58 City of London Brewery Co. v. Tennant, 265 Claridge v. South Staifordshire Tramways Co., 332 Clark V. Chambers, 38, 76, 116, 118 ■u. London General Omnibus Co., 347, 348, 350 V. Molyneux, 427, 428, 429 Clarke ■!). Army and Navy Co- operative Society, 377 V. Holmes, 52 V. Yorke, 119, 127 Clay V. Roberts, 409 Clayards v. Dethick, 52 Clayton v. Le Roy, 312, 314 Clegg V. Dearden, 170 Clement v. Chivis, 408 Clements v. Might, 313 V. Tyrone County Council, 288 Clifton V. Viscount Bury, 172 Clissold V. Cratchley, 486 Cobb V. Great W. Railway Co., 114, 115 Cobbett V. Grey, 352 Cochrane v. Rymm, 311, 315 Cockroft V. Smith, 151 Codrington v. Lloyd, 497 Coggs V. Bernard, 27, 214 Cohen v. Morgan, 488 Coldriok v. Partridge, Jones, & Co., Ltd., 101 Cole V. Turner, 351 Colebeck v. Girdlers Co., 253 CoUen V. Wright, 452 Collins V. Renison, 152 Colls V. Home & Colonial Stores, 131, 132, 133, 196, 259, 261, 262, 264, 265 Compania, &c., v. Houlder, 76 Consolidated Co. v. Curtis, 16, 309, 311 315 317 321 Conway v. Wade, 474, 477, 478, 479 Cook V. Beal, 151 V. North Metropolitan Tram- ways Co., 104 V. Ward, 408 Cooke V. Forbes, 198 V. Holgate, 341 V. Midland Gt. W. Railway of Ireland, 364, 368,371,372, 383 V. Wareing, 386, 388 .;. Wildes, 432 Cooper V. Chitty, 306 V. Crabtree, 172, 296 Cope V. Sharpe, 16 Corbett v. Hill, 170, 171 Corby v. Hill, 367 Cornish v. Stubbs, 248 Cory V. France & Co., Ill Cotton V. Wood, 28, 31 Couch V. Steel, 503, 506 Coughlin V. Gillison, 52, 376, 380 Coupe Co. f. Maddiok, 95 Coupland v. Hardingham, 228 Coverdale ?;. Charlton, 170 Cowley V. Newmarket Local Board, 291, 503 Cox V. Burbidgp, 110, 203, 204, 384, 385, 387 V. Cooper, 414 V. Cox, 404 -u. Peeney, 437 ■u. Lee, 408 V. Paxton, 141 Grafter v. Metropolitan Railway Co., 31 Crawshay v. Thompson, 461 Cribb V. Kynooh, 98 Croft V. Day, 466 Crogate v. Morris, 224 Cropp V. TUney, 408 Crossfield v. Such, 340 Crossley v. Lightowler, 191, 278, 279 Crowhurst v. Burial Board of Amersham, 191 Crumble v. Wallsend Local Board, 123, 136 Crump V. Lambert, 190 Cuenod v. Leslie, 67, 68 CuUen V. Knowles, 81 Daxhyl v. Labouchere, 438 Dale V. Wood, 151 INDEX OP OASES TJaltoii V. Aimus, ■^■^'.). I'oO, 251, l':>2. 254, 290 r. S.E. Railway IVl, 350 B.ilv ('. Dublin, &i.'.. Railway Co., 70 D '.uiel r. Ferguson, 133, 134 t'. Janes. IS D.irlcy ilain Colliery Co. v. Jlitchcll, 125. 120. 127. 130, 252 l>.\uniev V. Holloway, 446 Davev v. L. & S.AV. Railway Co., 45' David v. Britannic Mortlivr Coal Co., 102. 503, 50G. 507 Davidsson i\ Hill, 351 Davies v. Monn, 38, 39, 40, 41, 42, 43, 48 V. Solomon, 444 i: Treharne, 251 V. Williams, 397 Davis V. Bromley Corporation, 505 V. Duncan, 437 V. Garrett, 118 V. Shepstone, 434 Davison v. Gent, 184 Dawkins v. Lord Rokeby, 425 V. Lord Paulet 426 Dawson v. Bingley U.D.C. 453 V. Gt. N. Railway Co., 142, 143. 144 D.iy V. Brownrigg, 466 Dean v. Hogg. 151 V. Peel. 400 Deane v. Clayton, 370 De Francesco v. Barnum, 402 Degg V. Midland Railway Co., 99 De la Bere v. Pearson, Ltd., 118, 451 Dclegal V. Highley, 489 Dent V. Auction Mart Co., 263 Derry v. Handley, 444 V. Peek, 10, 14, 447, 449, 450, 451, 452, 453 D.;vonsliire (Duke of) v. Eglin, 244 Dcwar v. Tasker, 88 Dickinson v. N.E. Railway Co., 348 Dickson v. Renter's Telegram Co., 4, 10, 451 Digby V. Financial News, 434, 435 Dimes v. Petley, 159 Dixon V. Bell, 65, 383 V. Smith, 444, 445 Dockrell v. Dougall, 460 Dod V. Monger, 178 Doe d. Carter v. Barnard, 184 Doe d. Crisp v. Barber, 184 Doe V. Harlow, 187 Dominion Natural Gas Co., The, v. Collins, 374, 375, 382 Donaghy v. Brennan, 66 Donald V. Suckling, 323, 324, 334, 337 Donovan r. Laing Constnictiou Syndicate, 87 Doolan v. Midland Railway, 59 Doswell V. Impoy, 482, 483 Dovnston r. Payne, 167 Doylcy v. Roberts, 446 Drake, ex purtc, :!42 Dreyfus v. Peruvian Guano Co., 12-i, 135 Drumlanrig, The, 47 Drury v. N.E. Railway Co., 32 ])ublin Railway Co. v. Slattery, 29, 45, 40 Dublin Tramways Co. v. Fitzgerald, 291, 293 Dubois V. Keats, 488 Du Bost V. BcrcKford, 406 Duck V. Mayeu, 77, 78 Duckworth v. Johnson, 350 Dudden v. CHutton Union, 267, 277 Dulieu V. White, 8, 113, 353 Dunlop V. Macedo, 186 Dunn V. Birmingham Canal Co., 219 ■u. Large, 187 Eagek v. Grimwood, 397 Eagle V. Charing Cross Railway Co., 287 Eaglesfield v. Marquis of London- derry, 449 Earl V. Lubbock, 4, 11, 377, 378, 379, 381, 382 Earle v. Kingscote, 17, 64, 67, 69 Eason v. Newman, 304, 305 Eastern and S.A. Telegraph Co. V. Cape Town Tramways Com- panies, 191, 198, 205, 219 Eastwood V. Holmes, 416 Edelstein v. Edelstein, 462 Edge V. Straflford, 234 Edgington v. Fitzmaurice, 453, 454, 455 Edmondson v. Birch & Co., 419, 430 Edmundson v. Machell, 398 Edwards v. London & N.W. Railway Co., 92 ■u. Mallan, 5 Edwick V. Hawkes, 153, 154 Electromobile Co. v. British Elec- tromobile Co., 464 Ellen V. Gt. N. Railway Co., 127 EUiotson V. Feetham, 51, 198, 217 Elliott V. Hall, 382 Ellis V. Loftus Iron Co., 15, 203, 385 Elsee V. Smith, 17, 356 Emblen v. Myers, 109 Embrey v. Owen, 269, 275 Emmens v. Pottle, 419 English V. Metropolitan Water Board, 277 INDEX OF CASES Englishman and the Australia, The, 79 Entick V. Carrington, 12 Evans v. Harlow, 458 V. Liverpool Corporation, 86 V. Walton, 402 Ewing V. Orr Ewing, 147 Eaicke v. Gray, 337 Fanny M. Carvill, The, 49 Earrant v. Barnes, 379 Parrar v. Beswick, 329 Earrer v. Nelson, 206 Fay V. Prentice, 172 Feather v. The Queen, 54 Fennings v. Lord Grenvdle, 328 Field V. Adames, 161 Filburn v. People's Palace Co., 15, 384, 385, 387, 390 Filliter v. Phippard, 222, 223, 225, 226 Findon v. Parker, 498 Fine Art Society v. Union Bank of London, 319 Finlay v. Chirney, 69, 70 Fisher v. Nation Newspaper, 414 V. Prince, 341 V. Prowse, 285 Fitter v. Veal, 119, 127 Fitzgerald v. Firbank, 236, 242, 281 Fitzjohn v. Mackinder, 488 Fleming v. Newton, 443 Fletcher v. Rylands, 203, 204, 390 Flight V. Leman, 499 Flower v. Adam, 34 Foreman v. Mayor of Canterbury, 292 Fores v. Wilson, 398 Forward v. Pittard, 213 Foster v. Stewart, 146 Fouldes V. Willoughby, 307, 312 Foulkes V. Metropolitan Railway Co., 4 Fowler v. HoUins, 16, 320 Fox V. Broderick, 415 France v. Gaudet, 336 Francis v. Cockrell, 362, 363, 375 Frankcnburg v. Great Horseless Carriage Co., 76 Franklin v. S.E. Railway Co., 350 Fray v. Blackburn, 480 Freeman v. Rosher, 83 French v. Hills Plymouth Co., 368 Fritz V. Hobson, 123, 134, 196, 284, 287 Frost V. Aylesbury Dairy Co., 376 FuUwood V. FuUwood, 133 Gallaghbe v. Humphrey, 367 Gandy v. Jubber, 231, 232 Garnett v. Ferrand, 484 Gaskin v. Balls, 133 Gates V. Bill, 86 Gaunt V. Fynney, 195 Gautret v. Egerton, 362, 365, 375, 376 Gayford v. Nichols, 256 Gee V. Metropolitan Railway Co., 33, 36 Gelen v. Hall, 482 George and Richard, The, 348 George v. Skivington, 382, 452 Gibbs V. Cruilcshank, 120, 342 V. Guild, 137 Giblan v. National Amalgamated Labourers' Union. 472, 473, 476 Giblin v. McMullen, 28, 94 Gilbert v. Trinity House, 55 V. Schwenck, 401 Gilding v. Eyre, 488, 494 Giles V. ^Valker, 205 Gill V. Edouin, 209, 210 Gladwell v. Steggall, 5 Glasspoole v. Young, 16 Gledstane v. Hewitt, 302 Glenwood Lumber Co. v. Phillips, 234, 325, 332 Glover v. London & S.W. Railway Co., 116 Gofi V. Gt. W. Railway Co., 92 Goffin V. Donnehy, 425 Goodman v. Boycott, 321 Goodtitle v. Tombs, 184, 187 Goodwyn v. Cheveley, 160 Gordon v. Harper, 323 Gorris v. Scott, 505 Gower v. Couldridge, 76 Gracey v. Belfast Tramway Co., 95 Graham v. Peat, 173, 184 Grainger v. Hill, 354 Grand Hotel Co. of Caledonia Springs v. Wilson, 464 Grand Junction Canal Co. v. Shugar, 277 Grand Trunk Railway of Canada ?>. Jennings, 350 V. Barnett, 369 Grange v. Silcock, 390 Granger v. George, 315, 329, 330 Grant v. Thompson, 498 Gray v. Pullen, 288 Great Western Railway Co. v. Sutton. 507 Green v. Button. 457 •t/. Duckett, 162 V. Goddard, 151, 152, 351 V. Greenbank, 6, 64 Greening v. A^'ilkinson, 336 Greenland v. Chaplin, 111 Greenway v. Fisher, 320 Greenwell v. Howell, 139 V. Low Beechburn Coal Co., 126, 228, 257 Gregory i'. Duke of Brunswick, 479 TXDEX OF CASES Grfgoi_\- r. Hurrill. 13ti K Piper, 167, 1(39 Greta. Holme, The, 70 Grevrensteyn v. HattinE;h, 207 Grimths i: Earl of Dudley-, 349 V. London and St. Katharine's Docks Co., 302 V. Tcetgen, 398 Gi'ill ('. General Iron Screw Collier Co., 21, 28 Grinhani v. Willcy, 357 ( irinnell v. Wells, 390 Grosvenor Hotel Co. r. Hamilton, 252 (-troves !'. ^Aimbornc, 102, 502, 506, 507 Guardians of Holborn Union v. Vestry of St. Leonards, 505 Guest V. A^'arren, 120 Gulliver v. Cosens, 162 Gumbleton v. Grafton, 303 Gunter v. James, 199 Guv V. Churchill, 143, 498 Gwinnell v. Eamer, 37, 230, 232 Hadwell v. Righton, 385 Haggard i: Pelicier Freres, 480, 482 Hailes v. Marks, 357, 490 Halcomb v. Rawlyns, 187 Halestrap v. Gregory, 117 Hall V. HoUander, 395, 399, 401 V. Lees, 88 i: Lichfield Brewery Co., 265 I'. Duke of Norfolk, 126, 228, 257 Halley, The, 149 Halliday v. Holgate, 323, 324, 333, 334 Halsey v. Brotherhood, 457 Hambly v. Trott, 72, 146 Hamilton v. Long, 397, 398 Hamlyn v. Houston, 17, 84 Hammack v. White, 31 Hammersmith Railway Co. v. Brand, 219 Hammond v. Vestry of St. Pancras, 506 Hankinson v. BUby, 411 Hansen v. Waller, 92 Hardaker v. Idle District Council, 216, 222, 288, 290 Hardcastle v. S. Yorkshire Railway Co., 285 Hargroves v. Hartopp, 373 Harman v. Tappenden, 61 Harrington (Earl) v. Derby Cor- poration, 129, 139, 191 Harris v. Briscoe, 498 V. Dignum, 357 V. James, 230, 231 V. Jlobbs, 285 V. Perry, 367, 377 Harris v. De Pinna, 259, 266 Harrison ?'. Blackburn, 172 V. Bush, 433 V. L. & N.AV. Railway Co., 350 V. Dukcof Rutland, 108 V. South wark Water Co., 196 V. Thornborough, 416 Harrold v. Watney, 37, 63, 285, 372 Hartley v. Rochdale Corporation, 293 Harvey i>. Brydges, 154 V. Pocock, 178 Hastings (Corporation of) v. Ivall, 173 Hatchard v. Mege, 72 Hayne v. Oulliford, 4 Haywood v. Brunswick Building Society, 249 Head v. Briscoe, 68 Heath v. Mayor of Brighton, 195 Heaven v. Pender, 21, 25, 360, 379, 382 Hebditch v. Mcllwaine, 418, 429 Hedges v. Tagg, 397, 400 Hedley v. Pinkney & Sons, 99 Hellwig V. Mitchell, 445 Henderson v. Squire, 187 V. Williams, 321 Hendrilis v. Montague, 460 Heuriques v. Dutch West India Co., 60 Henwood v. Harrison, 408, 434, 437 Hero, The, 49 Hertfordshire County Council v. Great Eastern Railway, 294 Hervey v. Smith, 244 Heslop V. Chapman, 489 Hetherington v. N.E. Railway Co., 350 Heugh V. London & N.AV. Railway Co., 316 Hewlins v. Shippam, 237 Hext V. Gill, 253 Hey V. Moorhouse, 168, 174 Hibbins v. Lee, 437 Hickman v. Maisey, 168 Hicks V. Faulkner, 358, 488, 489 V. Newport Railway Co., 350 Hilberry v. Hatton, 83 Hill V. Tupper, 237, 241, 245, 246 Hillyer v. Governors of St. Bar- tholomew's Hospital, 86 Hinchcliffe v. Sharpe, 330 Hinton v. Dibbin, 28 Hiort V. Bott, 118, 308, 310 Hirst V. West Riding Union Bank- ing Co., 456 Hitchin v. Campbell, 147 Hoare v. Metropolitan Board of Works, 237 Hobbs V. London & S.W. Railway Co., 117 INDEX OF CASES Hodgson V. Mayor of York, 20G HodsoU V. Taylor, 109 V. Stallebras, 119, 127 Hodson V. Pare, 409, 425 Hoey V. Felton, 116 Hogg V. Ward, 358 Holden v. Thompson, 498 Hole V. Barlow, 199 V. Chard Union, 121 V. Sittingbonrne Railway C'o., 288, 290 Holford V. Bailey, 237 Holker v. Porritt, 28] Holland v. Wdrley, 124 Holleran v. Bagnell, 340 HoUiday v. National Telephone Co., 222, 288, 290 HoUins V. Fowler, 309, 315, 317, 319, 320 Holmes v. Bagge, ]51 V. Mather 15. 166, 167 V. N.E. Railway Co., 360, 367 V. Wilson, 170 Hope V. Evered, 356 Hopkins V. Crowe, 357 Hopper V. Reeve, 166, 351 Hopwood V. Thorn, 445 Horsfall v. Thomas, 447, 448, 454 Hosking V. Phillips, 178 Houlden v. Smith, 483, 485 Hounsell v. Smyth, 365 Howard v. Crowther, 398 Howell V. Young, 135 Hubbuek & Sons v. "Wilkinson, 458 Huckle V. Money, 109 Hudson V. Nicholson, 123, 170 V. Roberts, 385 HufEer v. Allen. 494 Huggett V. Miers, 373 Hughes V. Maefie, 38 V. Peroival, 253, 254, 2.56 V. Twisden, 135 Hull V. Piokersgill, 83 Hulton & Co. V. Jones, 412, 415 Humphries v. Brogden, 250, 252, 253 V. Cousins, 202 Hunt V. Gt. N. Railway Co., 104, 433 V. Peake, 254 V. Star Newspaper Co., 436, 438, 439 Hurdman ?>. N.E. Ra^Uway Co., 191, 207, 208 Hutchinson v. York, &c.. Railway Co., 98, 101 Huttley V. Simmons, 479 Hyman v. Nye, 376 V. Ogden, 337 Ilott v. Wilkes, 370 Imperial Gas Light Co. v. Broad- bent, 130, 133 Imperial Gas Eight Co. v. London Cias Light Co., 137 Indermaur v. Dames, 359, 360, 361, 362, 363, 364, 366, 373, 375, 382 Irwin V. Dearman, 397 Isack V. Clarice, 305 Ivay V. Hedges, 373 Ivcson V. Moore, 286, 287 Izard V. Izard, 403 Jackson ik Hopperton, 431 V. Normanby Brick Co., 134 V. Smithson, 387, 388 V. AV'atson & Souk, 348, 403 Jacobs V. Schmaltz, 414 V. Seward, 175, 329 Jaromb v. Knight, 132 Jarmain v. Hooper, 86 JefEries v. Gt. W. Railway Co., 325 V. Williams, 240, 241, 255 Jegon V. Vivian, 180, 181 Jenkinson v. Neild, 479 Jcnks V. Viscount Clifden, 73 Jennings i'. Rundall, 63, 64 Jenoure v. Delmegc. 428 Je^ser v. Gilford, 297 Jcwson V. Gatti, 38, 372 Joel I'. Morison, 95 Johnson v. Emerson, 486, 488, 494 V. Lindsay, 99 V. Pye, 64 V. Stear, 324, 333 Johnston v. Orr Ewing, 462 Johnstone v. Sutton, 493 Jolly V. Kine, 261, 264 Jones V. Boyce, 53 V. Brow-n, 399, 401 V. Chappell, 296 V. C'orporation of Liverpool, 88 V. Dowlc, 301, 305 V. Eestiniog Railway Co., 199, 219, 225 V. Einancial Times, 443 V. Eoley, 154 V. Gooday, 178 V. Gurdon, 483 V. Moore, 339 V. SouUard, 87, 88 V. Williams, 157, 158, 159 Jones & Sons v. Tankerville (Earl of), 247, 248 Jorden v. Money, 449 Jordeson v. Sutton, &c.. Gas Co., 131, 132, 255, 277 Jordin v. Crump, 371 Jose V, Metallic Roofing Co., 475 Joynt V. Cycle Trade Publishing Co., 437 Kearsey v. Lloyd, 475 V. London, Brighton, &c., Railway Co., 33 INDEX OF CASKS Kcatis (>. ('alloxan, ',\~)1 Kreu r. Hemv, >SU Kriuhli-v. Maxsted, and Co. r. I^urant. 8i! Kolly r. Metropolitan Uaihvay Co., 4 V. Tinlinj;. 437 Kensit v. (Ircat Eastern Railway Co., 271. 281 Knit r. \\'orthiny Local Board, 211:5 Kent Coal Exploration L^o. v. Martin, 76 Kcnyon v. Hart, 172 Ivoppcl i\ Bailey. 237 Korrison i\ Smith, 24."i. 247 Kettlewell v. AVatson, 21, 27 Keyse v. Keyse, 109 Ivhedivc, The, 49 Kidgill V. Moor, 297 Kiniber i: Press Association, 442 Kinaston v. Jloorc, 300 Kine r. Joll\-. 131, 132. 133 r. Sew-cll, 431 King r. Huare, 77 r. Victoria Insurance Co., 143, 144 Knight i: CUbbs, 433 Lamb c. Walker, 127 Lambert i: Great Eastern Railw-av Co.. 89 V. Lowestoft Corporation, 289 Lambton v. Jlellish, 200 Limond v. Richard, .507 Lancashire Wairgou Co. v. Eitz- hugh, 316, 323 Lane v. Capscy. 1 .">8 (. Cox, 3'72. 374 Langridge v. Levy, 5, 379 Larner v. Larner, 67 Laugher i\ Pointer, 227 Laughton r. Bishop o£ Sodor and Man. 428, 429 Law V. Llewellyn, 425 Lawless v. Anglo-Egyptian Cotton Co., 430, 432, 433 Lax V. Corporation of Darlington, 361 Lazenby i\ White, 465 Le Fanu v. Malcolmson, 415 Le Lievre v. Gould, 450 Lea V. Charrington, 356 Leame v. Bray, 164, 165, 344 Lee V. Riley, 385 Leech v. Schweder, 237, 249 Leeds (Duke of) v. Earl of Am- herst, 133 Lsfroy v. Burnside, 434 Leggott V. (it. Northern Rail«'ay Co., 70, 351 Lohain v. Philpott, 162 Lemaitre v. Davis, 251, 254 Lommon c. A\'elib, l."i(;, l,",?, I5S l.-|9, 105, 171. 193. 194 Ijeveiie tj. Briiugliain. (i4 Lever ('. Goodwin, 4(i2 Leward v. Basely, 151 Lewis i\ Read, 83 Liebig's Extract of Meat Co. v. Hanbury, 4(i4 Liford's case. 187 Liggins ?'. Inge, 248 Lightly V. ('li>iiston. 145 Lillcy'i'. Doubleclay, 118, 317 LimpuK V. London Genenil Omnibus Co., 17, 90 Linford v. Pitzroy, 482. 483, 484 Linoty])e Co. r. British Empire T\ pc-setting Machine Co., 407, 4.58 Lister V. Perryman, 357, 490, 491 J^itehfield v. Ready, 174, 180 Liver Alkali (lo. i'. Johnson, 2)3 Liverpool Adclphi Loan Association V. l'\iirhurst, 04. 68 Livingstone r. Rawyards Coal C 181 Llandudno LIrban Council r. A\'oocis, 132 Lloyd V. Grace & Co., 93 )'. AA'oolland Bros., 302 Lock i: Ashton. 350. 495 Lodge Holes Colliery v. A\'ednesbury Corporation, 178 London, Brighton, &c.. Railway Co. V. Truman, 219 London & S.W. Railway Co. v. Gomm, 249 Lonsdale, Earl of, r. Nelson, 157, 159 Lord V. Price, 323 Love V. Bell, 2.5 1 Low V. Botiverie, 450 LoM-c V. Adams, 244. 245, 247 LoMcry v. 'Walker. 304, 371 Lumley v. Gye, 402. 500 Lupton V. White, 339 Lydc V. Barnard, 455, 456 Lygo V. Newbold, 377 Lyies V. Southend-on-Sea Corpora- 'tion, 139 Lynch v. Knight, 9, 111, 118, 353, 405, 444 V. Nurdin. 37, 63, 383 Lyon V. Fishmongers Co., 267, 283 Lyons v. A\'ilkins, 471 Lythgoe v. Vernon, 146 McriARTNEY V. Londonderry Rail- . way Co.. 270, 271, 273, 275, 282 McClelland v. Manchester, 292 McCombio v. Davi.s, 319 Macdougall v. Knight, 121, 442 INDEX OF CASES McDowallw. Gt. W. Raihyay Co., 32 McEntire v. Potter, ,320 McGlone v. Smith, 280 Machado v. Pontes, 148 Macintosh v. Dun, 431, 432 McKoan v. Mclvor, 316 Maclcenzie v. Hardingc, 398 McKone v. Wood, 393 M'Mahonw. Field, 117 McManus v. Cooke, 244, 249 McPherson v. Daniels, 420, 421 McQuire v. Western Morning News, 428, 437, 439, 441 Macleay v. Tait, 454, 455 Magdalena Steam Navigation Co. V. Martin, 57 Maguire v. Corporation of Liver- pool, 291 Malachy v. Soper, 457 Malone v. Laskey, 192, 374 Manchester Brewery Clo. v. North Cheshire and Manchester Brewery Co., 460 grander v. Palcke, 245, 249 Manders v. Williams, 323 Mangan v. Atterton, 38 Mangena v. Wright, 427, 435 Manvell v. Thomson, 397, 398 Manzoni v. Douglas, 31 Margaret, The, 49 Marney v. Scott, 363, 375 Marpesia, The, 14 Marsh v. Keating, 141, 142 Martin v. Goble, 263 V. Porter, 73, 180 V. Price, 124, 135 Martinez v. Gerber. 401 Jlarzetti v. WOliams, 6 Mason v. Hill, 269 V. Keeling, 194, 204, 384 Massam v. Thorley's Cattle Pood Co., 460, 461 Matthews v. Biddulph, 358 Maunder v. Venn, 399 Mawe V. Pigott, 409 May V. Burdett, 384, 386, 387, 388, 389, 393 V. Lane, 142, 143 Mayhew v. Herrick, 329 Mayor of Bradford v. Pickles, 8, 10, 19, 277 Mayor of Manchester v. Williams, 411 Mayor of Tunbridge Wells v. Baird, 170 Mears v. London and S.W. Railway Co., 323, 345 Mediana, The, 107 Mee V. Cruikshank, 355 , Mellor V. Watkins, 248 Mennie v. Blake, 341 Menzies v. Breadalbane, 280 Merest v. Harvey, 109 Merivale v. Carson, 437, 440 Merryweather v. Nixan, 77, 78, 79 Mersey Docks Trustees v. Gibbs, 55, 60, 89 Metropolitan Association v. Petch, 297 Metropolitan Asylums District Board v. Hill, 190, 220, 221 Metropolitan Bank v. Pooley, 494 Metropolitan Board of Works v. McCarthy, 284, 287 Metropolitan Railway Co. v. Jack- son, 30 Metropolitan Railway Co. v. Wright, 30 Metropolitan Saloon Omnibus Co. V. Hawkins, 410 Meux V. Gt. E. Railway Co., 4, 401 Midland Insurance Co. v. Smith, 141 Midwood V. Mayor of Manchester, 191, 215 Mighell V. Sultan of Johore, 57 Migotti V. Colvill, 355 Milan, The, 47 Miles V. Hutchings, 18 Mill V. Hawker, 59, 61 Miller v. David, 409 V. Dell, 318, 331 V. Hancock, 373 V. Seare, 481 Millington v. Pox, 461, 462 Miner v. Gilmour, 272, 273, 275 Mires v. Solebay, 305 Mitchell V. Crassweller, 94 V. Darley Main Colliery Co., 253 V. Poster, 483 V. Jenkins, 19, 492, 493 V. Tarbutt, 74 Mitchil V. Alestree, 394 Mitten v. Paudrey, 194 MofEatt V. Bateman, 377 Mogul Steamship Co. v. McGregor, Gow, & Co., 8, 10, 18, 470, 473 Monson v. Tussaud's, Ltd.,-406, 421 Monte Rosa, The, 49 Montgomery v. Thompson, 460, 463 Moody V. Steggles, 237 Moon V. Raphael, 340 Moorcock, The, 360 Moore v. Lambeth Waterworks Co., 293, 294 V. Meagher, 444 Moreland v. Richardson. 244 Moreton v. Hardern, 166 Morgan v. Liugan, 409 V. London General Omnibus Co., 104 V. Marquis, 329 V. PoweU, 180, 336 1'. Vale of Neath Railway Co., 100, 101 INDEX OF CASES .Morlov I'. Caisford. 106 Morris v. Kobinson, 76, 77, 147, 342 V. Salberg, 80 Morrison r. Ritchie, 412 Mostvn )'. Atherton, 2()7 MotTc. Shoolbred. 2110, 207, 298 Moxhara, The, 148. 149 Jliilliner v. Florcnec, .■!24, 334 .Miimford i'. Oxfordshire Railway Co.. 296 ilimicipal Council of Sydney v. Bourke, 291, 292 Jlunicii^ality of Pictou ■;. Geldert, 291. 292 Minister i'. Lamb, 425 Murley v. Grove, 369, 390 Murray v. Currie, 87 V. East India Co., 136 V. Hall, 175. 184 Musgrave v. Pulido, 55 Musurus Bey v. Gadban, 57, 136 Nagle v. Shea, 184 Nash V. Calthorpe, 454 National Bank v. Graham, 58 National Mercantile Bank v. Rymill, 320 National Phonograph Co. v. Edison- Bell Consolidated Phonograph Co., 500 National Telephone Co. v. Baker, 191. 219 Neate v. Harding, 145 Nelson v. Liverpool Brewery Co., 231 Nevill V. Eine Arts Insurance Co., 411, 412. 427,428 Newby v. Van Oppen, 60 New River Co. v. Johnson, 277 Newton v. Harland, 154, 155, 168, 174 Nichols V. Marsland, 210, 211, 212, 214, 224, 390 Nicolls V. Bastard, 334 Nield V. London & N.W. Railway Co., 206, 207, 280 Nims V. Mount Hermon Boys' School, 59 Norman v. BeD, 311 V. Vaiars, 68 N.E. Railway Co. v. Wanlcss, 37 Nugent V. Smith, 213, 215 Nuttall V. Bracewell, 237, 241, 268, 281 Nyberg v. Handelaar, 323, 324, 329 Oakey v. Dalton, 72 Ocean Accident Corporation v. Ilford Gas Co., 174 Odell V. Cleveland Ho., Ltd., 227 Ogden V. Lancashire, 400 Ogle V. Barnes, 166 O'Gorman v. O'llorman, 206 Oliver V. North-Easteru Railway Co., 294 Ormerod v. Todmorden Mill Co., 270, 274, 278, 2.S2 Orr Ewing r. Colquhoun, 2S0 oVhorn V. (iillott, 141, 347, 401 V. Veitrh, 352 Oxley V. \\'atts, 170, 177 Pain r. Rochester, 490 Painter v. Liverpool Gas Light Co., 357, 496 Palmer v. Bateman, 289 ■u. Wick and Pultency-town Steam Shipping Co.. 78, 79 Panhard et Lcvassor v. Panhard Levassor Motor Co., 460 Panton v. Williams, 490, 491 Parker v. L.C.C., 139 Parkes v. Prescott, 417 Parkinson v. Garstang Co., 369 Parlement Beige, The, 57 Parmiter v. Coupland, 407, 437 Parry v. Smith. 374, 382 Partridge r. Scott, 251 Pasley v. Freeman, 447 Pater v. Baker, 457 Patrick v. Colerick, 156 Payne v. Rogers, 5, 231, 232 Payton & Co. v. Snelling & Co., Ltd., 461 Pease r. Chaytor, 485 Peek i'. Gurney, 448, 453 Penney v. Slade, 484 Penny v. Wimbledon Urban Council, 56, 221, 285, 287, 290, 292 Penruddock's case, 157, 172, 228 Perkins v. Smith, 304 Perry v. Clissold, 184 Peruvian Guano Co. v. Dreyfus Bros., 181, 338 Petrel, The, 101 Petrie v, Rostrevor Owners, 371 Peyton v. Mayor of London, 256 Phillips V. Barnett, 66 V. Clagett, 81 V. Eyre, 148, 149 V. Homfray, 69, 71, 72, 146, 180 V. Naylor, 490 Philp V. Squire, 403, 404 Philpott V. Kelley, 330 Phipps!'. New Claridge Hotel Co., 33 Pickard v. Smith, 289 Pickering v. Rudd, 169, 172 V. Truste, 341 Pillott V. AVilkinson, 314 Pinet & Cie v. Maison Louis Pine, 460 Pippin V. Sheppard. 5 Pitt V. Donovan, 457 Pittard v. Oliver, 428, 430 INDEX OF CASES Planta v. Glasgow Corporation, 37 Piayfair v. Musgrove, 168 Pjlkinliorn ji. Wright, 152 Pollen V. J3reW£r, 154 Policy V. Pordham, 485 Poliuc and Alfieri, Ltd.,w. Rushmcr, 190, 196 Pontifex v. Midland Railway Co., 4 Ponting V. Noakes, 369 Popplewell V. Hodkinson, 254, 255 Poulton V. London & S.W. Railway Gj., 59 Powell V. Birmingham Vinegar Brewery Co., 460, 464 V. Pall, 199, 220, 225 Pr .ttv V. Bickmore, 227, 230, 231, 232, 285 Price's Patent Candle Co. v. London Ciounty Council, 221 Prickett v. Gratrex, 483 Priest V. Last, 376 Priestly V. Fowler, 98 Pi-octor V. Bayley, 129 Prosser v. Edmonds, 142 V. Lancashire & Yorkshire Acci- dent Insurance Co., 127 PuUan V. Roughfort Bleaching Co. 241 Palling V. Gt. E. Railway Co., 72 Pullman v. Hill, 417, 419, 430 Purcell V. Sowler, 433, 437, 442 Pursell V. Horn, 351 Pusey V. Pusey, 337 Pym V. Git. N. Railway Co., 350 QuAEMAN V. Burnett, 85, 88, 289 Qiartz Hill Gold Mining Co. v. Beall, 433 V. Eyre, 486, 487, 491 Q linn v. Leathern, 472, 473, 474, 475. 476, 477, 478, 479, 500, 501 R. ('. Adams, 417 )'. Barnard, 447 V. Child, 18 V. Coney, 50 V. Cross, 218 V. Harvey, 110 V. Jackson, 404 V. James, 352 V. Matthews, 18 V. Metropolitan Bsard of Works, 277 V. Pedley, 231 V. Pembliton, 18 V. Rosewell, 157 V. St. George, 352 Race V. Ward, 235 Radcliffe v. Anderson, 186 Radley v. London and N.W. Rail- way Co., 38, 39, 40, 41 Raleigh v. Goscheu, 55, 89 Ramcshur v. Kooni, 207 Randall v. Newson, 376 Rangelcy v. Midland Railway C'c. 236 Rapier v. London Traln^\'ays Co., 190, 199, 220 Ratcliffc V. Evans, 407, 444. 457 Ravenga v. Mackintosh, 490 Rawstron v. Taylor, 268 Rayner v. Mitchell, 94 Read v. Cokcr, 352 V. Edwards, 194, 204, 388, 390 V. Friendly Society of Stone- masons, .500, 501, 502 V. Great Eastern Railway Co., 119, 127, 349 )'. Hud.son, 409 Readhead v. Midland Railway Co., 375 Reddaway v. Banham, 463 V. Bentham Hemp Spinning Co., 462 Redgrave v. Hurd, 455 Reedie v. London & N.W. Railway Co., 290 Reeve v. Palmer, 301, 305 Reid r. Fairbanks, 336 Roinhardt v. Mentasti, 190, 200 Reis V. Perry, 443 Remorquage, &c., v. Bennetts, 1 1 Rey V. Lecouturier, 463 Reynolds v. Clarke, 165, 193 Rhodes r. Smethurst, 136, 137 Rice V. Reed, 146, 147 Rich V. Ba^terfield, 231 Richards v. Jenkins, 327 Richardson v. Silvester. 454 Ricket V. Metropolitan Railway Co., 287 Riddell v. Pakeman, 497 Rideal v. Gt. W. Railway Co., 127 Riding v. Smith, 457 Rigby V. Bennett, 252 Bist V. Faux, 400 Robbins v. Jones, 285 Roberts v. G^vyfrai District Council, 270 V. Holland, 81 V. Read, 135 V. Roberts, 444 V. Rose, 157, 158 1'. Tayler, 132 Robinson v. Beaconsfield, 216 V. Jenkins, 322, 328 V. Kilvert, 190, 198 Robshaw v. Smith, 431 Robson V. N.E. Railway Co., 53 Rodgers v. Maw, 145 Rogers v. Hosegood, 249 V. Lambert, 322, 327 V. Rajendro Dutt, 55 V. Taylor, 251 INDEX OF CASES XXVI 1 Roope V. d'Avigdor, 141 Rose i\ Gruyca. 283, 2S7 v. ililes, 2S(.i (. X.E. RaUwav Cu., 53 Ross t: Fcdden, 20'.'l Roswcll V. Prior, 228, 229, 230 Rourke t: White Jloss Colliery Co., 87 Roval Aquarium Co. v. Parkinson, 424, 425, 427, 428 Roval Baking Powder Co. v. \\'right, Crossley, & Co., 458 Ruddiman v. Smith, 97 Rumsey v. N.E. Railway Co., 146 Rushmer c. Polsue & Altieri, 196 Russell c. Bell, 146 r. Jlen of Devon, 291 !'. Shenton, 230 Rust ('. ^'ictoria Graving Dock, 290, 297 Rylands v. Fleteher, l.'i, 200, 201. 203, 204, 205, 208, 209, 210, 211, 212, 215, 216, 221, 222, 224, 289, 388, 389, 390, 392 Ryppon V. Bowles, 228, 230, 257 Sachs v. Henderson, 4 Sidgrove v. Hole, 408, 411, 417, 418, 419 Sidler V. Gt. W. Railway Co., 75, 76, 200 Silt Lake City v. HoUister, 59 S lit Union v. Brunner, 277 Silvin V. North Brancepath Coal Co., 191 Simpson V. Hoddinott, 275, 276 Sxnders v. Teape, 110, 385 Smders-Clark v. Grosvenor Man- sions Co., 200 Sanderson v. Collins, 94, 95 Sins Pareil, The, 48, 49 Sarch v. Blackburn, 369, 370, 390 Sirson V. Roberts, 372 Saunders v. Edwards, 138 V. Holborn Bistrict Board of Works, 505 V. Teape, 385 Saxby v. Manchester & Sheifield Railway Co., 157, 228 Schneider v. Heath, 448 Scott V. Firth, 200 V. London Docks Co., 33 V. National Society for the Prevention of Cruelty to Children, 498 V. Shepherd, 166 V. Stansfield, 425, 480. 481 Seaman v. Netherclift, 425 Searles v. Scarlett, 443 Sears v. Lyons, 109 Sed<'worth v. Overend, 81 Seear v. Lawson. 143 Senior v. A\'ard, 349 Seroka c. Kattenburg, 67 Scton r. Lafone, 321" Sevmour v. Greenwood, 92 Shaih\ell r. Hutchinson, 122, 297 Shannon r. Shannon, 341 Sharp !■. Powell, 109, 111, 116 I'. Skucs, 410 Shelter t'. City of London Electric Lighting Co., 130, 131, 133, 191, 199, 296 Shepheard v. 'Whitaker, 409, 418 Shepherd v. Batcman, 457 Sheridan v. Xew Quay Co., 320 Sheriff v. James, 162 Shoreditch (t'orporation of) r. Bull, 292 SlKjrt i.'. JlcCarthy, 1 35 Siddons ■('. Short, 252 Simmons i'. Mitchell, 414. 445 Simpson v. Godmanehestcr Cor- poration, 237 V. Savage, 296 Sint,'cr Machine Manufacturers t. Wilson, 462 Sini,'cr Manufacturing Co. v. Loog, 462 Six Carpenters' Case, 162, 175. 176, 177 Skelton v. L. & N.W. Railwav Co., 34, 45 Skinner v. L.B. & S.E. Railway Co., 33 Slazenger & Sons v. Spalding. 462 Smith V. Baker, 50, 51, 52, 104, 140, 147, 361, 362 V. Chadwick, 447, 450, 451 V. Cook, 385 V. Egginton, 177 1 . Enright, 342 V. Giddy, 157, 171, 191, 193, 194 V. Johnson, 353 V. Kaye, 403 V. Keal, 86 V. Kenrick, 205, 207, 208 V. London and St. Katharine's Docks Co., 360, 367 V. London & S.W. Railway Co., 115, 116 V. Marrable, 372 V. Martin, 86 r. South-Eastern Rrilway Co., 31 V. Spooner, 457 ('. Steele, 375 V. Sydney, 496 V. Thaokerah, 253 Smithies v. National Association of Operative Plasterers, 501, 502 Smurthwaite v. Hannay, 76 INDEX OP CASES Snark, The, 288 Sneesby v. L. & Y. Railway Co., 113, 117 Snow V. Whitehead, 191 SomerviUe v. Hawkins, 428, 433 Southcote V. Stanley, 365 South Hetton Coal Co. v. N.E. News Association, 407, 410, 437 South Staffordshire Water Co. v. Sharman, 325 South Wales Miners' Federation v. Glamorgan Coal Co., 500, 501 Spackman v. Poster, 318, 319, 331 Speake v. Hughes, 114, 115, 444 Speight V. Oliviera, 402 Speuce V. Union Marine Insurance Co., 339 Spill V. Maule, 429 St. Helens Smelting Co. v. Tipping, 190, 196, 199 Stanbury v. Exeter Corporation, 89 Stanley v. Powell, 15, 167 Starkey v. Bank of England, 452 Stephens v. Elwall, 304, 310, 316, 320 V. Myers, 352 Stephenson v. Hart, 316 Stewart v. Gromett, 495 V. Young, 457 Stiles V. Cardiff Steam Navigation Co., 386, 388 Stimpson v. Wood, 350 Stockdale v. Hansard, 427 Stockport Waterworks Co. v. Potter, 241, 267, 281, 282 Storey v. Ashton, 94, 95 V. Robinson, 161 Street v. Union Bank of Spain, 467 Stroyan v. Knowles, 255 Stuart V. Bell, 422, 428. 431, 432 Sturges V. Bridgman, 190, 195, 197, 217 SuUivan v. Creed, 65, 383 V. Waters, 367 Sutclifie V. Booth, 267 Sutton V. Buck, 325 V. Temple, 372 Swaine v. Gt. N. Railway Co., 132 Swift V. Jewsbury, 456 Swindon Waterworks Co. v. Wilts Canal Co., 270, 273 Sykes v. N.E. Railway Co., 350 Symonds v. HaUett, 67 Taafe v. Downes, 481 TafE Vale Railway Co. v. Amal- gamated Society of Railway Servants, 61 Tancred v. Allgood, 323 Tarleton v. MoGauley, 471 Tarrant v. Webb, 102 Tarry v. Ashton, 288, 289 Tasmania, The, 37 Taunton v. Costar, 153 Taylor v. Manchester, &c., Railway Co., 4 V. Mostyn, 180, 336 V. Nesfield, 482 Temperton v. Russell, 472 Terry v. Hutchinson, 399 Thatcher v. Gt. W. Railway Co.. 368 Thomas v. Bradbury, Agnew, & Co.. 434, 437, 439 V. Churton, 425 V. Harries, 162 V. Quartermaine, 24, 34, 50, 52 V. The Queen, 54 v. Winchester, 382 Thompson v. Gibson, 123, 192, 229, 256 V. London County Council, 75, 76 V. Mayor of Brighton, 293, 294 V. Ross, 400, 401 Thomson v. Lord Clanmorris, 13."i, 140 Thorogood v. Bryan, 44 Thurman v. WDd, 77 Thurston v. Charles, 336 Tillett V. Ward, 160, 216, 390 TiDing v. Dick, Kerr, & Co., 139 Tobin V. The Queen, 54 Todd V. Plight, 231, 232 V. Hawkins, 432 Tompson v. Dashwood, 418 Toogood V. Spyring, 431, 433 Townsend v. Hughes, 127 V. Wathen, 369 Trinidad Asphalt Co. v. Ambard, 255 TroUope v. London Building Trades Pederation, 479 Trotter v. Maclean, 181 Trower v. Chadwick, 256 Tuberville v. Savage, 352 Tucker v. Newman, 296 V. Wright, 340 Tuff V. Warman, 38, 41 Tulk V. Moxhay, 238, 248, 249 TuUidge v. Wade, 109 Tunney v. Midland Railway Co., 101 Turberville v. Stampe, 224, 226 Turner v. Ambler, 488, 489 V. Cameron's Coal Co., 172 o. Meymott, 154 V. Spooner, 237 V. Stallibras, 4 Turton v. Turton, 466 Tussaud V. Tussaud, 460 Twycross v. Grant, 72, 73 T^x'yman v. Knowles, 179 INDEX OF CASES XXIX Union Credit Bank v. Mersey Docks and Harbour Board, 319 Union Lighterage c. London Grav- ing Dock Co.. 251, 251! Usill i: Hales, 442 Valentine Meat Jiiii'o Co. v. Valentine Extract Co., 465 Vallance v. Falle, 504, 506 ^'alpy V. Sanders, 147 Vaspor V. Edvyards, 161, 162 ^'aughan v. Menlove. 26, 27 V. TafE Vale Baihvay Co., 219 V. Watt, 314 Vera Cruz, The, 39 Vemon v. Keys, 449 Vicars v. Wilcocks, 118 Victorian Railways Commissioners V. Coultas, 353 Vizetellv v. Mudie's Select Library, 41S ■ ^ AVaite v. N.E. Railway Co., 44 AVakelin v. London & S.AV. Railway Co., 31, 35, 45 Wakley v. Cooke, 421 Waldeck v. "Winfield, 88 Walker v. Gt. N. Railway Co. of Ireland, 353 Walker & Sons, Ltd., Peter, v. Hodgson, 434, 435 WaUey v. Holt, 63 Wallis V. Hands, 172 Walter v. Selfe, 195 Wandsworth Board of Works v. United Telephone Co., 171, 172,282 Ward V. Hobbs, 377 V. Macauley, 323, 345 V. Weeks, 444 Warner v. Riddiford, 354 Warren v. Brown, 261 V. Warren, 418 Wason, ex parte, 426 V. Walter, 437, 440, 442 Watkin v. Hall, 414, 421 WatMns ■;;. Lee, 494 Watson V. McEwen, 425 Weall V. King, 6 Weaver v. Ward, 66 Webb V. Beaven, 156, 445 V. Bird, 266 Webber v. Sparkes, 159 Weblin v. Ballard, 103 Weedon v. Timbrell, 403, 404 Weingarten v. Bayer, 461 Weir V. Barnett, 89 V. Bell, 89 Weldon v. De Bathe, 67 Welfare v. London & Brighton RaUway Co., 33 WeUock V. Constantine, 141 Wells V. Abrahams, 140, 141 V. lUngston-on-Hull, 245 Winman v. Ash, 417 Wi'nnhak v. Morgan, 417 West i: Bristol Tramways Co., 205 V. Nibbs, 162, 177 V. Smallwood, 356, 495 "West Leigh CoUierv C(j. v. Tunni- cliffc and Hamiwon, Ltd., 122, 253 West London Commercial Bank v. Kitson, 449 "Westminster Brymbo Coal and Coke Co. V. Clayton. 208 Wlialey v. Laing, 241 A\'halley v. Lancashire & Yorkshire Railway Co., 206, 208 Wheatley v. Patrick, 86 AVhitbourne v. \\'illiams, 400 White V. France, 360, 367 V. Hindley Board of Health, 292 V. Jameson, 227 V. Mellin, 457, 458 V. Spettigue, 141 Whitehead v. Taylor, 83 Whitehouse v. Felluwes, 123, 136 Whitely v. Adams, 431 Whitmore's, Ltd., v. Stanford, 210 Whitwham v. Westminster Brymbo Coal Co., 179 Whyler v. Bingham Rural Council, 292 Wicks V. Fentham. 494 Wigsell V. School for Indigent Blind, 178 Wilbraham v. Snow, 306, 311 AVild V. Holt, 180 Wilde V. "Waters, 156 "Wilkes V. Hungerford Market Co., 287 "Wilkins v. Day, 285 AA'illdnson v. Downton, 353 V. Haygarth, 175 V. Verity, 329, 330 Willans v. Taylor, 488, 489, 491 William Edge, Ltd., v. W. Nicolls, Ltd., 461 Williams v. Birmingham Battery Co., 51, 361 V. Eady, 383 V. Gesse, 305, 309, 314 V. Hays, 66 V. Jones, 96, 97 V. Mersey Docks and Harbour Board, 139. 349 V. Morland, 274 V. Protheroe, 144 V. Smith, 443, 496 Williamson v. Freer, 429 Willis V. Maclachlan, 484 Wilson V. Brett, 28 XXX INDEX 01? CASES Wilson V. Chambers, 305 Wood v. Wood, 67 V. Finch Hatton, 372 Woodhouse v. Newry Navigation V. Merry, 99 Co., 134 i: Nc\\birry, 209 v. A\'allicr, 73, 74 V. 'J'avener, 245 Wormcr ?'. Biggs, 161 V. Tumman, 74, 81, 82 Worth v. Gilling, 386 V. Waddell, 207 Wotherspoon v. Curric, 460, 463 Windsor Railway Co. v. The Queen, Wren v. Weild, 457 54 Wright v. Lefever, 373 ^Ving V. London General Omnibus v. Leonard, 68 Co., 32 V. London & N.W. Railway Winkfield, The, 178, 179, 323, 325, Co., 99 332, 333, 334, 335, 336 v. Midland Railway Co., 349 WJnsmore v. Greenbank, 403 v, Stavert, 234 Winter v. Banclis, 319, 328 Wyatt v. Harrison, 256 ^Vinterbottom c. Lord Derby, 9, 159, 286 Yaehouth v. France, 50, 51, 53, 104 V. Wright, 378 Ydun, The, 139 Winterbournc v. Morgan, 108, 169 Young v. Bankier Distillery, 276, Withamw. Kershaw, 178 278 Wood V. Leadbitter, 168, 246, 247 v. Davis. 291 V. Manley. 248 v. Hoffmann Manufacturing V. Morewood, 73, 181 Co., 98 V. Waud, 267, 273, 278, 279 v. Macrae, 458 THE LAW OF TORTS CHAPTER I GENERAL PRINCIPLES OF LIABILITY § I. The Nature of a Tort 1. A tort is a species of civil injury or wrong. The dis- Civil and criminal \vrongs. tinction between civil and criminal wrongs depends on the '^'■™™^1 nature of the appropriate remedy provided by law. A civil wrong is one which gives rise to civil proceedings — proceed- ings, that is to say, which have as their purpose the enforce- ment of some right claimed by the plaintiff as against the defendant : for example, an action for the recovery of a debt, or for the restitution of property, or for the specific perform- ance of a contract, or for an injunction against a threatened injury, or for the recovery of damages for an injury com- mitted. Criminal proceedings, on the other hand, are those which have for their object the punishment of the defendant for some act of which he is accused. He who proceeds civilly is a claimant, demanding the enforcement of some right vested in himself ; he who proceeds criminally is an accuser, demand- ing nothing for himself, but merely the punishment of the defendant for a wrong committed by him. It is often the case that the same wrong is both civil and criminal — capable of being made the subject of proceedings of both kinds. Assault, hbel, theft, and malicious injury to property, for example, are wrongs of this kind. Speaking generally, ^in all such cases the civil and criminal remedies are not alternative but concurrent, each being independent of the other. The wrongdoer may be punished criminally by imprisonment or otherwise, and also compelled in a civil 2 GENERAL PRINCIPLES OE LIABILITY [Chap. I Action fot damages the essential remedy for a tort. Tort and breach of contract. action to make compensation or restitution to the injured person. 2. Although a tort is a civil injury, all civil injuries are not torts, there being certain classes of such injuries which for special reasons are excluded from this department of the law. In the first place, no civil injury is to be classed as a tort unless the appropriate remedy for it is an action for damages. Such an action is an essential characteristic of every true tort. Thus, a pubhc nuisance is not to be deemed a tort merely on account of the fact that the civil remedy of injunction may be obtained at the suit of the Attorney- General ; it is a tort only in those exceptional instances in which a private person may recover damages for loss sustained by him in consequence thereof. Nor is a refusal to perform a statutory duty a tort if the only remedy is a mandamus. Nor is any wrong a tort if the appropriate remedy is an action, not for unliquidated damages, but for a liquidated sum of money — e.g. an action for money paid by mistake, or due under a judgment, or paid to the use of another without contract. Such claims are classed by our law as quasi- contractual, being based on a fictitious contract implied in law, but in truth they belong neither to the sphere of contract nor to that of tort. Although an action for damages is the essential remedy for a tort, there may be and often are other remedies also. In an action for a private nuisance an injunction may be obtained in addition to damages. In an action for the deten- tion of a chattel an order for specific restitution may be obtained, if the plaintiff pleases, instead of judgment for its value. In an action by a plaintiff dispossessed of his land he recovers the land itself, in addition to damages for the loss suffered during the period of his dispossession. But in all such cases it is solely by virtue of the right to damages that the wrong complained of is to be classed as a tort. 3. In the second place, no civil injury is to be classed as a tort if it is solely a breach of contract. Breach of contract is a species of wrong which stands apart from all others and is governed by a special body of law different in many im- portant respects from that which determines other forms of civil liabihty. Sec. 1.] THE NATURE OF A TORT 3 It is often the case, however, that the same wrong is both Concurrence a breach of contract and a tort ; and this happens in at least ?* *°^' ^^^ , Tii^/1,1 ■ • breach of two ways. In the nrst place, there are many uistances m contract. which a person voluntarily binds himself by a contract to ■'■'''™' ^o^e. perform some duty which already lies upon him independently of any contract. The breach of such a contract is also a tort, inasmuch as liability would equally have existed in such a case had there been no contract at all : for example, a physician who harms his patient by negligently administering a dele- terious drug is guilty of a wrong which is both a breach of contract and a tort. It is a breach of contract because the physician has impHedly promised to use due care and skill in the treatment of his patient, a,iid it is also a tort because, apart froin contract altogether, no one has a right to do another physical harm by giving him poison. Similarly, a bailee who wrongfully refuses to restore the property lent to him is liable both in contract and in tort : in contract because of his promise to restore it in due time, and in tort because no one has a right to detain another's property without some special justification. So also in all other cases in which, by a wilful or neghgent act of misfeasance, harm is done to the person or property of another in the course of performing a contract made with him which involves the use of care and skill : for example, injury done to a borrowed horse by overdriving it. 4. There is, however, a second and more difficult form of the Second concurrence of tort and breach of contract ; there are cases of ™'"^® °^ which the defendant takes upon himself by contract a duty which did not precedently and independently exist, and yet the breach of which is at the same time a tort. The explana- tion of these cases is that the defendant has by his contract — although it is a contract to do something which he was not otherwise bound to do — put himself in such a position that he cannot now break that contract without at the same time causing damage to the person or property of another, and so committing a tort by violating a right which existed inde- pendently of contract. If I lend my horse to one who injures it by overdriving, he is, as we have already seen, guilty of a tort as well as of a breach of contract ; for the duty not to overdrive another person's horse exists at common law independently of any contract. But if he kills the horse concurrence. 4 GENERAL PRINCIPLES OP LIABILITY [Chap. I. by failing to give it food, it may be assumed with some confidence that he is equally guilty of a tort : yet he was under no obligation to feed the horse except by reason of his contract to do so. The failure to supply food is per se merely a breach of contract, but the killing of the horse by reason of this failure is a tort ; for I have a right apart from contract that my horse shall not be killed, and the defendant, by undertaking to feed it and by failing to do so, has been the direct cause of the animal's death, just as much as if he had killed it by administering poison or by any other misfeasance. Therefore if A lends his horse to B, who lends it to C, who starves it to death, we may assume that A would have a good cause of action in tort against C, and that C could not plead that he owed no duty save a contractual one towards B. It must not be supposed, indeed, that there is any general rule of English law that he who, by breaking a contract with one person, causes harm to another is liable to that other in an action of tort. In general, as we shall see in the sequel, he is under no such liability, and owes no duty save to the person with whom he contracted.^ Nevertheless in certain exceptional instances this concurrence of contractual and de- lictal liability does exist, and we are here concerned, not with the details of the matter, but merely with the significance of such concurrence in respect of the nature and definition of a tort.^ 1 Dickson V. Reuicr's Telegram Co. (1877) 3 C.P.D. 1 ; Ead v. Lub- bock (1905) 1 K.B. 253. ' The concurrence of contractual and delictal liability is illustrated by the fcllowing cases, in all oi -which the act of the defendant was held to be a tort, although clearly at the same time a breach of contract : Bryant v. Herbert (1878) 3 C.P.D. 389 (wrongful detention of chattels lent) ; Kelly v. Metropolitan Ely. Go. (1895) 1 Q.B. 944 (injury to passenger through negligence of railway servant) ; Taylor v. Man- chester, etc., lily. Co. (1895) 1 Q.B. 134 (the same) ; Foulkes v. Metro- politan My. Co. (1880) 5 C.P.D. 157 (the same) ; Turner v. Stallibrass (1898) 1 Q.B. 56 (injury to horse lent) ; Pontifex v. Midland Ely. Co. (1877) 3 Q.B.D. 23 (wrongful delivery of goods by carrier to consignee after notice of stoppage in transitu,) ; Sachs v. Henderson (1902) 1 K.B. 612 (wrongful removal of fixtures by landlord in interval bet-iieen agreement for lease and actual demise) ; Hayne v. Culliford (1879) 4 C.P.D. 182 (injury to goods by negligence of carrier, whether contract of carriage made with owner of goods or not) ; Meux v. Gt. E. Ely, Go, Sec. 1.] THE NATURE OP A TORT 5 5. The true boundary-line between contract and tort is Fictitious obscured bv the reco£;nition in the older law (a recognition concurrence 1 • 1 -L " i 1 1 11 i\ /■ • ■ ' of tort and wnicli has not yet wholly ceased) oi certain quasi-contracts breach of the breach of which is really a mere tort, and of certain contract, quasi-torts which are in reality mere breaches of contract. (a) Qiiosi-confracts. It was, under the old practice, and indeed still is, permissible in certain cases to waive a tort and sue instead on a fictitious contract implied in law. Thus, if A takes away and sells a chattel belonging to B, B instead of suing him in tort for the value of the chattel may sue him for the price so received by him on its sale, on a fictitious contract of agency. This doctrine of the waiver of torts will be considered by us more fully in a subsequent chapter. (b) Qtiasi-torts. Since the abolition of forms of action, fictitious or quasi-torts have ceased to perplex our modern law. They were the outcome of a perverted development of legal procedure, and have disappeared with the procedure to which they owed their origin. A knowledge that they once existed, however, is still essential if we would read with understanding the older authorities. The historical explanation of these fictitious torts, which are in reality mere breaches of contract, is to be found in the fact that the action of assumpsit, which was the general remedy for the breach of a simple contract, was in its origin a mere variety of the action of case, which was one of the most important remedies for a tort. Our law possessed originally no effective remedy for the breach of a simple contract. When the breach of such a contract was also a true tort, the delictal remedies of trespass and case were available ; but when the wrong was a mere breach of contract the rigour of the older law supplied no action save in exceptional cases. This defect was ulti- mately overcome by the device of suing in tort (in the action of case), even when there was no real tort at all, but merely (1895) 2 Q.B. 387 (the same) ; Gladwdl v. Steggall (1839) 5 Bing. N.C. 733, and Pippin v. Sheppard (1822) 11 Price, 400 (negligence of .surgeon) ; Langridge v. Leiry (1837) 2 M. & W. 519, 4 M. & W. 337 (personal injuries caused to plaintiil through fraud of defendant in selling a dangerous chattel to a third person) ; Payne v. Rogers (1794) 2 H.Bl. 350 (injury to passenger in highway caused by failure of landlord to fulfil his contract with tenant to keep the premises in repair) ; Edwards V. Mallan (1908) 1 K.B. 1002 (negligent extraction of a tooth). 6 GENEEAL PRINCIPLES OF LIABILITY [Chap. I- a breach of contract. In the result the action of case, when so perverted from its proper uses and employed as a con- tractual remedy, became differentiated into a distinct action — namely, assumpsit. The improvement thus effected in the law was great, for it rendered possible for the first time the development of a comprehensive law of contract. But this benefit was not obtained without cost. It was based upon a fictitious identification of torts with breaches of contract, and until the last days of common-law pleading the effects remained visible of this confusion and partial obliteration of the boundary-fine between the law of torts and the law of contracts. For, notwithstanding the differentiation of the action of assumvsit, it continued to be permissible in many cases to sue in the original deliotal action of case for causes of action which were undoubtedly merely contractual. Until the abohtion of forms of action, therefore, it remained impossible to draw any logical distinction between contract and tort whieh would have conformed to the established rules of procedure. At the present day we are at liberty to disregard these perversities of the old pleading and practice and to draw in accordance with logical requirements the boundary-line between contract and tort. For examples of such actions of tort for pure breaches of contract, see Marzetti v. Williams^ (banker dishonouring customer's cheque) ; Weall V. King^ and Green v. Greenhank^ (breach of warranty on sale) ; Burnett v. Lynch^ (breach of contract of indemnity). There are even judicial dicta which carry these and similar cases to their ultimate logical conclusion — namely, the inclusion of the whole sphere of contract within that of tort. " Wherever there is a contract," says Lord Campbell in Brown v. Boorman,'' " and something to be done in the course of the employment which is the subject of that con- tract, if there is a breach of duty in the course of that employ- ment, the plaintiff may either recover in tort or in contract." If this were indeed so, the whole distinction between tort and breach of contract would be reduced to a matter of the form of pleading. Fortunately for the rationaUty of our = (1830) 1 B. & Ad. 415. " (1810) 12 East 452. ' (1816) 2 Marsh. 485. " (1826) 5 B. & C. 589. ' (1844) 11 01. & P. p. 44. Sec. 1.] THE NATURE OP A TORT 7 law the abolition of the old system of procedure has enabled us to get back to the substance of the matter, talcing no further account of these anomalies of form. 6. No civil iniurv is tn be classed as a tort if it is merely Tort and a breach of trust or a breach of some other merely equitable ^^^^ " obligation. The reason of this exclusion is historical only. The law of torts is in its origin a part of the common law, as distinguished from equity, and it was unknown to the Court of Chancery. Wrongs, therefore, such as breach of trust, which fell exclusively within the jurisdiction of that Court stand outside the category of tort, and are governed, just as breach of contract is, by a body of special rules differing in sundry respects from those which have been developed by the common law of torts. And although at the present day the difference between equitable and common-law jurisdictirn has dis- appeared, it is still requisite to preserve the memory of it in defining the limits of the law of torts. 7. Summing the matter up, we have seen that there are Summary four classes of wrongs which stand outside the sphere of tort : — (a) Wrongs exclusively criminal ; (b) Civil wrongs which create no right of action for damages, but give rise to some other form of civil remedy ex- clusively ; (c) Civil wrongs which are exclusively breaches of contract ; (d) Civil wrongs which are exclusively breaches of trust or of some other merely equitable obligation. We may accordingly define a tort as a civil wrong for which Tort defined. the remedy is an action for damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.^ § 2. The General Conditions of Liability 1. In general, though subject to important exceptions, a tort Two con- consists in some act done by the defendant whereby he has liability. ' The terms tort and wrong were originally synonymou.s and coex- tensive in application. Tort is derived from the Latin tortum, while vrrong is in its origin identic- with wrung, both the English and the Latin terms meaning pnV/it therefore, conduct which is crooked or twisted, as opposed to ^-, ^j e: '^°^ ■« straight or right {rectum). Tort, however, has becomyehcnsi *d in its apphcation, -nhile wrong has Temained generic, j ^o recoT 8 GENERAL PRINCIPLES OP LIABILITY [Chap. I. wilfully or negligently caused some form of harm to th? plaintiff. That is to say, liability for a tort is commonly based on the co-existence of two conditions : — (a) Damage suffered by the plaintifi from the act of the defendant ; (h) Wrongful intent or culpable negligence on the part of the defendant. Damage. 2. Damage. The law of torts exists for the purpose of pre- venting men from hurting one another, whether in respect of their property, their persons, their reputations, or anything else which is theirs. The fundamental principle of this branch of the law is Alterum non laedere — to hurt nobody by word or deed. An action of tort, therefore, is usually a claim for pecuniary compensation in respect of damage so suffered. Damnum 3. Damnum sine injuria. Nevertheless there are many tine injuria, forms of harm of which the law takes no account. There are many acts which, though harmful, are not wrongful, and give no right of action to him who suffers their effects. Damage so done and suffered is called damnum sine injuria,^ and the reasons for its permission by the law are various and not capable of exhaustive statement. For example, the harm done to the individual may be more than counterbalanced by the benefit accruing to the public at large : as in the case of the loss inflicted on individual traders by competition in trade,^ or certain forms of harm done to one's neighbour in the exercise of one's rights of property.^ Or the harm com- plained of may be too trivial, too indefinite, or too difficult of proof for the legal suppression of it to be expedient or effective. Thus no action, it seems, will lie to recover damages for mere mental suffering unaccompanied by physical harm, I though caused by the wilful act or the negligence of the defendant.* " Mental pain or anxiety the law cannot value ^ The term injuria, is here used in its original and proper sense of wrong (in jus, contrary to law). The modern use of injury as a syno- nym for damage is unfortunate but inveterate. ' Mogul Steamship Co. v. McGregor, Gow, Glasspoole v. Young (1829) 2 B. & 0. 696. Sec. 3.] ABSOLUTE LIABILITY 17 wrong ; for such a rule would effectually prevent the admini- stration of the criminal law. A prosecutor incurs no liability unless he acted both malicioiisly and without reasonable cause. 1^ So the mistaken arrest of an innocent man on sus- picion of felony is not actionable, if a felony has actually been committed, and if there is reasonable ground for believing that the person arrested is guilty of it.'^ So although, as we have seen, a mistaken defamatory statement is actionable in ordinary cases, yet in those special cases which are said to be privileged, mistake creates no liability unless the statement is not merely erroneous but is also made maliciously from an improper motive. 5. Vicarious liability. The third and last form of absolute Vicarious liability is that which may be distinguished as vicarious. In ''^ " ^' general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of others. The most important and far-reaching instance of this is the responsibility of a master for his servant. A master is liable for the torts of his servant provided that they are committed in the course of the servant's employment, even though they were not authorised by the master, and indeed even though they were expressly forbidden by him.*^ Minor instances of vicarious hability are the re- sponsibility of a husband for the torts of his wife,i* that of a partner for the torts of his partner in and about the partner- ship business,!^ and that of a corporation for the torts of its directors and other agents in the conduct of its affairs.^'' § 4. Wrongful Intent and Malice 1 . The term mahce, as used in law, is ambiguous, and Ambiguity possesses two distinct meanings which require to be carefully ^^1!™ distinguished. It signifies either (1) wilful and conscious wrongdoing, or (2) action determined by an improper motive. To act maliciously means sometimes to do the act intentionally, " Elsee V. Smith (1822) 1 Dowl. & Ry. 97. " Beckmth v. Philhy (1827) 6 B. & C. 635. " Lim-pu8 V. London Qe.ne.ral Omnibus Co. (1862) 1 H. & C. 526. " Earle v. Kingscote (1900) 1 Ch. 203. 15 Harrdyn v. Houston (1903) 1 K.B. 81. i« Citizen's Life Assurance Co. v. Brown (1904) A.C. 423. B the term. 18 GENERAL PRINCIPLES OP LIABILITY [Chap. I. with knowledge that it is wrongful, while at other times it means to do the act from some wrong and improper motive, some motive of which the law disapproves. This motive need not be that of spite or ill-will — that is to say, it need not amount to mahce in the narrow and popular sense of the term. Any motive is malicious in the' legal sense which is not recognised by law as a sufficient and proper one for the act in question. First sense of As an example of the use of malice in the first sense — i.e. wilful and conscious wrongdoing — we may take the criminal law as to unlawful and malicious injuries to property.^ To kill an animal unlawfully and maliciously means to kill it intentionally, knowing that the act is illegal. The term malicious refers here not to the motive or reason of the act, but to the knowledge with which it is committed. A malicious wrong in this sense is opposed to a negligent wrong and to one committed under an honest though mistaken claim of right. " Malice," it has been said,^ in reference to this class of cases, " may be defined to be where any person wilfully does an act injurious to another without lawful excuse." It is to malice in this sense that the well-known definition given by Bayley, J., in Bromage v. Prosser^ is exclusively applicable : " Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse."* Second sense 2. Clearly to be distinguished from this first sense of the term malice is the second sense, in which it signifies the exist- 1 24 & 25 Vict. 0. 97, ss. 40, 51, etc. 2 B. V. Pembliton (1874) L.R. 2 O.C. at p. 122, per Blackburn, J. ' (1825) 4 B. & C. at p. 255. * Of. Bowen, L.J., in Mogul Steamship Co. v. McGregor, Oow, Mighdl v. Sultan of Johorc (1894) 1 Q.B. 149 ; The Parlement Beige (1880) 5 P.D. 197. '^ Magdalma Steam Navigation Co. v. Martin (1859) 2 E. & E. 94 ; 7 Anne, c. 12. ' Musuru8 Bey v. Gadban (1894) 2 Q.B. 362. 1 Abrath v. N.E. Ely. Co. (1886) 11 A.C. 247, per Lord Bramwell. 68 PARTIES [Chap. II. that the Habihty of a corporation for the torts committed by its agents or servants is governed by the same rules as those which determine the liability of any other principal or employer. This liability extends, moreover, to wrongs of malice or fraud, no less than to wrongs of other descriptions. Thus a corporation can be sued for malicious prosecution, or for malicious libel on a privileged occasion, or for fraudu- lent misrepresentation, no less than for trespass, conversion, or negligence.^ LiabUity of 3. It is commonly said, however, that this liabihty of ioT^Uravirls ^ corporation for the acts of its agents or servants exists torts. only where the scope of the authority or employment of those agents or servants is within the statutory or other legal limits of the corporation's powers, and that if a cor- poration goes beyond the limits set by law for its activities, and enters upon any business or undertaking which is ultra vires, it cannot be made liable for torts committed by its agents or servants in the course of that business or under- taking. In other words, the rule that a corporation is not bound by contracts which are ultra vires is commonly said to apply also to torts which are Ultra vires, in the sense that they are committed in the course of some activity which is beyond the hmits of the corporation's powers.^ There is, however, no sufficient authority for any such exemption of corporations from the consequences of their disregard of the limits of their powers. It seems contrary to principle, and has been decisively rejected in numerous American decisions. Thus, in The National Bank v. Graham,^ it is said by the Supreme Court of the United States : " Cor- porations are hable for every wrong they commit, and in such cases the doctrine of ultra vires has no application. . . . An action may be maintained against a corporation for its ^ Citizens' Life Assurance Co. v. Brown (190-1) A.C. 423 ; Barwick v. English Joint Slock Bank (1867) L.R. 2 Ex. 259. ' Clerk and Lindsell's Torts, p. 56 n. (d) 5tli ed. : " To fix a corpora- tion with liability for the acts of its agents, two conditions must be fulfilled : First, the act must have been within the scope of the agent's employment ; second, that employment must have been within the scope of the corporate powers." See also Lindley on Companies, Vol. I. pp. 257-259, 6th ed. ; Halsbury's Laws of England, Vol. VIII. s. 854. ^ (1879) 100 U.S. 699 at p. 702. Sec. 18.] BODIES CORPORATE 59 malicious or negligent torts, however foreign they may be to the object of its creation or beyond its granted powers." So in Salt Lake City v. Hollister^ it is said by the same Court : " The argument is unsound that whatever is done by a corporation in excess of the corporate powers as defined by its charter is as though it was not done at all. . . . The truth is that with the great increase in corporations in very recent times and in their extension to nearly all the business transactions of life, it has been foimd necessary to hold them responsible for acts not strictly within their corporate powers, but done in their corporate name and by corporate officers who were competent to exercise all the corporate powers."^ The English decision commonly cited as an authority for the supposed exemption of corporations from liability for ultra vires torts is Poulton v. London & S.W. Ely. CoJ In this case a railway company, having statutory authority to arrest passengers for non-payment of their fares but not for other reasons, was held not responsible for the act of a stationmaster in arresting a passenger for refusing to pay the freight payable for a horse. The true ground of this decision, however, was merely that the implied authority of a stationmaster does not extend to the doing of acts which are uUra vires of the company, and that in the absence of any proof of express authority the stationmaster was acting beyond the scope of his employment and the company was therefore not responsible.^ The true principle is, it is submitted, the following : Every * (1885) 118 U.S. 256 at p. 260. ' See also Nims v. Mount Herman Boys' School (1893) 39 Am. State Rep. 467 : Central Railroad and Banking Company v. Smith (1889) 52 Am. Rep. 333. ' (1867) L.R. 2 Q.B. 534. ' See the explanation of this case by Kelly, C.B., in Mill v. Hawker L.R. 9 Ex. 309, p. 324. In the last-mentioned case Pigott and CTcasby, B.B. (Kelly, C.B., dissenting) were apparently of opinion that a corpora- tion could not be held liable for ultra vires torts, and that the action in such casta lay only against the members or agents by whom the wrong- ful act was done on behalf of the corporation. It is submitted that this is not so, and that the American decisions cited above to the opposite effect are sound in principle and should be followed. See also Doolan v. Midland Railway Go. (1877) 2 A.O. 793 ; Cator v. Board of Works for Lewisham District (1864) 34 L.J. Q.B. 74 ; Campbell v. Paddington Corporation (1911) 1 K.B. 869. statutory limits of liability o£ corporations CO PARTIES [Chap. II. act done, authorised, or ratified on behalf of a corporation by the supreme governing authority of that corporation, or by any person or body of persons to whom the general powers of the corporation are delegated, is for the purpose of the law of torts the act of the corporation itself, whether ifitra vires or ultra vires of the corporation, and the corporation is liable accordingly for that act or for any tort committed in respect of it by any agent or servant of the corporation within the scope of his authority or employment. If, for example, a municipal council establishes the business of a tramway, the municipal corporation will be liable in tort for the negligence of the servants employed in the management of the tramway, or for any nuisance created by the working of it, not- withstanding the fact that the business so undertaken is beyond the limits of the corporation's statutory powers. Jr. The foregoing rules as to the liabihty of a corporation are subject to any express or implied indication of a contrary intention in the statute to which the corporation owes its existence. A body corporate which is created by a statute is subject only to the liabilities which the Legislature intended to impose upon it. But, in the absence of anything to the contrary, it is presumed that the Legislature intended the corporation to incur the same liabilities as would be incurred by an individual doing the same things. " In every case the liability of a body created by statute must be determined upon a true interpretation of the statutes imder which it is created."' " The proper rule of construction of such statutes is that in the absence of something to show a contrary inten- tion the Legislature intends that the body, the creature of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities as the general law would impose on a private person doing the same things."^" 5. A foreign corporation (that is to say, one which is corporations, ^j-eated by the law of any country other than England) may sue and be sued in England for a tort, just as an English corporation may.^i ' Mersey Docks Trustees v. Gibhs (1866) L.E. 1 H.L. at p. 104. " Ihid. at p. 110. I'- Henriques v. Dutch West India Go 2 Ld. Raym. 1532 ; Newbij v. Van Oppen (1872) L.R. 7 Q.B. 293. Foreign Sec. 18.] BODIES CORPORATE 61 6. The members of a corporation are not as such liable Liability of for torts committed by the corporation. For the purposes ^r^J'raTion of the law of torts, no less than for those of the law of con- for torts tracts or of property, a body corporate is a personality by"^™'**^ distinct from its members ; and just as a member is not responsible for the debts contracted by a corporation, so also he is not responsible for torts committed by it. From this imdoubted principle the very doubtful inference has sometimes been drawn that the members of a corporation are not liable for torts committed by it, even if they have themselves acted as the agents by whom the corporation has so acted. " I conceive it to be settled law," says Kelly, C.B., in Mill v. Hawker,^^ " that no action lies against the individual members of a corporation for a corporate act done by the corporation in its corporate capacity, unless the act be maliciously done by the individual charged, and the corporate name be used as a mere colour for the malicious act, or imless the act is ultra vires and is not and cannot be in contemplation of law a corporate act at all. . . . An individual corporator is no more liable for a tort committed in his corporate capacity than for a debt due by the cor- poration."^' This, however, is a hard saying. It is un- doubted law that the servants or agents by whom a corpora- tion commits a tort are themselves personally liable in the same case and to the same extent as any other servants or agents who commit torts in the service or on behalf of their principals or employers. It is difficult, therefore, to under- stand why the corporators themselves, if they act as the agents of the corporation, should not be equally liable for any wrongful acts so committed by them. § 19. Trade Unions In The Taff Vale Railway Co. v. Amalgamated Society of No action Railway Servants^ it was held by the House of Lords that a ^^^^^^ ^ trade union, though not a corporate body, could be sued in trade union, an action of tort for the wrongful acts of its officials. Now, " (1874) L.R. 9 Ex. 309, p. 321. " On appeal to the Exchequer Chamber no opinion was expressed on this point, the Court being apparently divided. See also Harman V. Tappenden (1801) 1 East 565. » (1901) A.C. 426. 62 PARTIES [Chap. II. however, by section 4 of the Trade Disputes Act, 1906,^ it is provided that " an action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union, in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any Court."'' It is not easy to understand on what principle of justice these wealthy and powerful asso- ciations have thus been raised above the law and exempted from all liability for their wrongful acts. Infancy no defence in action of tort. Evidential effect of infancy. § 20. Minors 1. A minor is in general liable for his torts in the same manner and to the same extent as an adult. In certain other branches of the law liability is excluded by the fact that the defendant is below a certain age. Thus, a child under seven years of age is exempt from all responsibility for crimes com- mitted by him. A child between the ages of seven and fourteen is presumed to be incapable of criminal intent, though this presumption may be rebutted by proof to the contrary. A person under the age of twenty-one is in general free from all liability for breach of contract. In the law of torts, however, there are no similar rules of exemption. Thus, a child of any age may be sued for trespass to land or injury to property, and will be held liable in damages just as if he were an adult. The youth of the defendant is not in all cases wholly irrele- vant, however, even in an action of tort. For it may be evidence of the absence of the particular mens rea which is an essential element in the kind of tort in question. Thus, if an action is based on malice or on some special intent, the fact that the defendant is extremely young is relevant as tending to disprove the existence of any such malice or intent. Similarly, it would seem that in order to make a child liable for negligence, it must be proved that he failed to show the amount of care reasonably to be expected from a child of that age. It is not 2 6 Ed. VII. c. 47. ' This does not protect i fficials of a trade union from personal liabihtyfor wrongful acts done by or on behalf of the union. Bussy v. Amalgamated Society o/ Ely. Servants (1908) 24 T.L.R. 437. See. 20.] MINORS 63 enough that an adult would have been guilty of negligence had he acted in the same way in the same circumstances. This, indeed, seems never to have been decided, but it would seem implied in the decisions on the contributory neghgence of children. 1 2. ^Mien the act of a minor is both a tort and a breach of Liability of contract, is he liable for the tort, notwithstanding that the ^ortg which contract is not binding on him, or does his exemption from ^^'^ »'^o an action for breach of contract protect him against an action contract. for the tort also ? On this point the law cannot be regarded as settled, but the better opinion would seem to be that in such cases liability for the tort exists, and that it is no defence that the act was also the breach of an invalid contract. Thus, in Burnard v. Haggis^ the defendant, a young man under the age of twenty-one, hired a mare for riding, and in breach of his agreement he used her for jumping and so injured her. It was held by the Court of Common Pleas that the defendant was hable for the tort of doing negligent harm to property, not- withstanding the fact that it was at the same time the breach of a non-actionable contract. In Walley v. Holt^ a similar decision was given by a Divisional Court in the case of a minor who hired a horse and injured it by overdriving. So if an infant bailee refuses to redeliver the chattel bailed, he can doubtless be sued in trover for the tort of conversion. So if a minor purchases goods, and retains them in his possession while refusing to pay for them, he presumably commits an actionable conversion. Having exercised his right of avoiding the contract, the goods revest in the seller, who is entitled to demand them and sue in trover.* 1 Lynch v. Nurdin (1841) 1 Q.B. 29; Harrold v. Watney (1898) 2 Q.B. 320. 2 (1863) 14 C.B. (N.S.) 45. = (1876) 35 L.T. 631. * The rule, as above stated, to the effect that .■ n infant is liable for his torts even though they are also breaches of contract is contrary, indeed, to the early case of Jennings v. Rundall (1799) 8 T.R. 335, but it is submitted that tliis case is wrongly decided. The facts were that the defendant hired a horse, and injured it by driving it too far ; and he was held not liable in an action of tort, on the ground that the contract of bailment was not binding on him. ITie decision, therefore, would seem to be directly in conflict with the later cases of Burnard v. Haggis and Walley v. Holt. An attempt is sometimes made to reconcile them by drawing a distinction between torts which are merely wrongful 64 PARTIES [Chap. II. An infant's liability for fraud in procuring contract. 3. There seems to be one exception to the rule that a minor is liable for his torts. It seems that he is not liable in tort for procuring a contract by means of fraudulent representations either as to his age or as to any other matter.'' If a minor fraudulently pretends to be of full age, whereby the plaintiff is induced to contract with him, the contract is not for that reason binding on the minor, nor is he estopped from pleading his infancy.^ Neither, it seems, can the plaintiff sue in tort for the deceit. So if an infant sells a horse and fraudulently represents it to be sound, this representation creates no liability either in contract or in tort. Yet if an infant is capable of fraud, there would seem to be little reason why he should not be Kable for it.'' modes of performing a contract and torts whicli are outside the contract altogether. This distinction, however, seems a merely verbal one, having no logical basis or substance in it. It is submitted that Jennings V. Rundall is a mistaken application of a correct principle — namel}', that if the act of a minor is in reality merely a breach of contract, he cannot be made liable by being sued in tort instead. In the old days of forms of action and of legal fictions this was a principle very necessary to be insisted on ; for in those days the tort sued on in a dehctal action was often a mere fiction, the real cause of action being a breach of con- tract and nothing more. Thus, a breach of warranty on a sale of goods was commonly sued on in tort instead of contract — case intead of assumpsit. It was in reference to these quasi-torts or fictitious torts that the Courts laid down the rule that an infant or married woman could not be sued in tort unless also liable in contract. Thus, in Oreen V. Greenhank (1816) 2 Marsh. 485, an infant was sued in case for breach of warranty, and the action was held not to lie. Gibbs, C. J., says : "The oases . . . clearly show that where the substantial ground of action rests on promises, the plaintiff cannot by changing the form of action render a person liable who would not have been liable on his promise." But this rule has no appHcation where there is at the same time a real tort as well as a real breach of contract. Supra, s. 1 (5). 5 Johnson v. Pye (1665) 1 Sid. 258 ; Oreen v. Greenbanh (1816) 2 Marsh. 485. Since this rule applied at common law to the torts of married women, it would seem clear that it must apply to minors also. Earle v. Kingseote (1900) 2 Ch. 585. ' Liverpool Adelphi Association v. Fairhurst (1854) 9 Ex. p. 430 ; Bartlett v. Wells (1862) 1 B. c& S. 836 ;' Levene v. Brougham (1909) 25 T.L.R. 265. ' Although a minor who procures a contract by a fraudulent repre- sentation that he is of age is not liable either on the contract or in tort, he is nevertheless subject to an equitable obligation to restore any advantage thereby obtained by him. See Pollock on Contracts, p. 57, 8th ed. Seo. 20.] MINORS 65 i. A father is not liable for the torts of his children, oven Pathcis not while they are under age and living in his house. It is to be rcsp^'usible observed, however, that a child may be his father's servant, chUdren'a so as to bring the father within the rule as to employers' lia- *°'^'^- bihty. If a father sends his son on an errand with a horse and cart, he will answer for his son's neghgence in driving ; but he will answer for him, not as being his father, but as being ^ his employer. Moreover, a father may be liable for his own personal neghgence in affording or allowing his child an opportunity of doing mischief.^ § 21. Lunatics There is no adequate English authority as to the liability Lunacy as of lunatics for torts committed by them. On principle, how- * defence in •' ^ '^. . an action ever, we may say with some confidence that lunacy is not m of tort. itself any gTound of exemption, but that, like infancy, it operates (if at all) only as evidence that the requisite mens rea is not present. In applying this rule it is necessary to dis- tinguish between different species of wrongs : — (a) In wrongs based on malice or on some specific intent, like mahcious prosecution, malicious libel on a privileged occasion, or deceit, lunacy may be a good defence as dis- proving the existence of any such mahce or intent. (6) In wrongs of wilful interference with the person, pro- perty, reputation, or other rights of other persons, such as trespass, assault, conversion, or defamation, it is no defence that the defendant was under an insane delusion as to the existence of a sufficient legal justification. For in such cases, as we have seen,^ mistake, however inevitable, is no defence ; and it can make no difference that the mistake is due to unsoundness of mind. A lunatic, therefore, who converts another's property to his own use under the insane delusion that it is his own, or who publishes a defamatory statement under the insane belief that it is true, is just as hable as if he were sane. If, however, the lunacy of the defendant is of so extreme a type as to preclude any genuine intention to do the act complained of, there is no voluntary act at all, and 8 See Sullivan v. Creed (1904) 2 Ir. R. 317 ; Dixon v. Bell (1816) 5 M. & S. 198. » Ante, s. 3 (3). 6ii PARTIES [Chap. II. therefore no liability. Mischief done by an epileptic in one of his paroxysms, or by a fever patient in his delirium, or by a somnambulist in his sleep is presumably not actionable. (c) In wrongs of absolute liability there is no reason why lunacy should be any defence at all. (d) In wrongs of negligence the conduct of the defendant must be judged by reference to his knowledge or means of knowledge. Lunacy, therefore, may be relevant as evidence that the necessary knowledge or means of knowledge did not exist. A lunatic who is so mad that he does not know the dangerous nature of poisons and explosives, and who causes harm in consequence, is not negligent in fact ; and there seems no sufficient reason why he should be deemed guilty of negli- gence in law. If inevitable ignorance of danger is a good defence to a sane man, it would seem clear that it must be none the less a good defence though due to unsoundness of mind.- § 22. Married Women Actions of 1. In general no husband can sue his wife for a tort, nor tort between ^,^y^ ^^ ^j^g g^^g j^gj, ]ius})an(i for a tort. This is a common- nusband and ■' wife. law rule which has been expressly preserved by the Married Women's Property Act, 1882. ^ It is subject, however, to the following quahfications : — (ft) A wife may sue her husband in any action for the 2 The Enghsh authorities as to the habihty of lunatics for tort.s are merely early dicta to the effect that lunacy is no defence in an action of trespass. Bacon's Maxims of the La^Y, Reg. VII. ; Weaver v. Ward, Hobart, 134 ; Bacon's Abr. Trespass G. I. ; Hale's Pleas of the Crown, I, 15. These chela arc clearly sound in the case of intentional trespasses on a supposed justification. As to unintentional trespasses, however, they must be regarded as based on the old and now obsolete idea that trespass is in all respects a wrong of absolute liability. In America there have been numerous cases as to the liability of lunatics, and the authorities will be found collected in Williams v. Hays, 42 Am. St. Rep. 743 (1894). The statement in this case that a lunatic will be judged in an action for negligence exactly as if he were sane seems much too absolute. Cf. Williams v. Hays, 68 Am. St. Rep. 797 (1899). In Donaghy v. Brennan, 19 N.Z. L.R. 289 (1900), the Court of Appeal of New Zealand held a lunatic liable for intentionally wounding the plaintiff by firing a gun at him. See Sir Frederick Pollock's criticism of this case in his Law of Torts, p. 55, 8th ed. 1 Sec. 12. Phillips v. Barri^U (1876) 1 Q.B.D. 436. Seic. 22.] MARRIED WOMEN 67 protection and security of her separate property, as if she were unmarried.'- Thus, she may sue him for the detention or conversion of chattels belonging to her,^ or for negligent injury to her property, or in certain circumstances even for trespass by entering her dwelling-house without her permission.'' But she can- not sue him for assault, libel, false imprisonment, or other personal injury. Her remedies for wrongs of this description are to be found in the criminal law, not in the law of torts. (b) Special provision is made by the Married Women's Property Act, 1882,^ for the settlement of disputes between husband and wife as to the ownership or possession of property, a Judge of the High Court or of a County Court being empowered, on apphcation by summons, to make in such a case such order as he thinks just. 2. By virtue of the Married Women's Property Act, 1882," Liability of a married woman may be sued for her torts by any one except ^o'^an her husband, in the same manner as a feme sole, and her free separate property is liable to satisfy any judgment so obtained against her. 3. A husband is liable for all torts committed by his wife Responsi- during the subsistence of the marriage. This -was the common band for his" law, and the vicarious hability so imposed upon the husband wife's torts, has not been taken away by the Married Women's Property Acts.' In an action against her husband the wife must be joined as co-defendant. They must defend jointly, and must 2 Married Women's Property Act, 1882, sec. 12. 3 Larner v. Lamer (1905) 2 K.B. 539. •i See Weldon v. Dc Bathe (1884) U Q.B.D. 339 ; Symomh v. Halldf (1883) 24 Ch.D. 346 ; Wood v. Wood (1871) 19 W.R. 1049. 5 Sec. 17. " Sec. 1. ' Seroka v. Kallenbarg (1886) 17 Q.B.D. 177 ; Earle v. Kingscote (1900) 2 Ch. oS.5. Some doubt is oast on the correctness of these deci- sions by the criticisms of Fletoher-Moulton, L.J., in Cuenod v. Leslie (1909) 1 K.B. 880 at pp. 886-889. It may be that the liabihly at common law of a husband for his wife's torts was based solely on the rule of procedure that a married woman could not be sued alone, but that her husband must be joined as a defendant for conformity. This necessity has now been abolished by the Married Women's Property Act, 1882, sec. 1. Duration of liuaband's liability. 68 PARTIES [C!hap. 11. not put in separate defences, and the judgment cannot be executed against the wife's separate property. The plaintiff, however, may join a claim against the wife separately with a claim against the husband and wife jointly ; and in such a case the wife may defend separately, and her separate property will be liable to satisfy the judgment. In the case of a married woman's torts, therefore, the plaintiff has three alternatives : — (a) To sue the wife alone, under the Married Women's Pro- perty Act ; (6) To sue the husband and wife jointly at common law ; (c) To sue the husband and wife jointly at common law, adding a claim against the wife separately under the Act. 8 i. The liability of the husband ceases on the termination of the marriage, whether by the death of either party or by divorce, even as to torts already committed, and actions already commenced, during the marriage.^ Therefore, vmless an action is commenced and judgment is obtained during the joint lives of husband and wife, it cannot be commenced or continued against the husband or his executors afterwards. So also if a decree absolute of divorce is obtained before judgment in the action for the tort.^" But the separate liability of the wife remains unaffected. The liability of the husband extends to torts committed by his wife even \\'hile they are living apart, but it does not extend to torts committed after a judicial separation. ^^ A decree of judicial separation obtained before judgment in the action of tort puts an end to the liability of the husband, but does not affect that of the wife.^^ Wife's frauds. 5. The hability of a husband does not extend to a fraud committed by his wife in procuring a contract to be made with her.^^ A husband, though Uable for his wife's torts, is upt 8 Beaumont v. Kaye (1904) 1 K.B. 292. '■> Capd V. Powell (1864) 17 C.B. (N.S.) 743. i» In re Beauchamp (1904) 1 K.B. 572 ; Norman v. Villars (1877) 2 Ex. D. 359. 11 20 & 21 Viot. u. 85, ^. 20. Head v. Briscoe (1833) 5 C. & P. 484. " Cuenod v. Leslie (1909) 1 K.B. 880. 1^ Liverpool Adelphi Loan Association v. Fairhwsl (1854) 9 Ex. 422 ,' Wright v. Leonard (1861) 11 C.B. (N.IS.) 258. Divorce and judicial separation. Sec. 22.] MARRIED WOMEN 69 liable for her contracts ; and, indeed, at common law she was not liable herself on her contracts. A fraud in procuring a contract was and is in the same position in this respect as the contract itself. Since the Married Women's Property Act the wife is liable for her contracts, and therefore for frauds in procuring them, but the husband still remains exempt in each case.^'' C). A husband is not liable for his wife's antenuptial torts, AYife'a except to the extent of any property which he has acquired ^"^fnupti'^l from her on marriage.^^ Nor is he responsible for his wife's breaches of trust, unless he has acted in the administration of the trust. ^* § 23. Executors and Administrators Actio personalis moritur cum persona 1. Subject to the exceptions hereinafter mentioned, no Causes o£ executor or administrator can sue or be sued for any tort com- ^L^wltlTthe mitted against or by the deceased in his lifetime. This is parties. the purport of the maxim of the common law Actio perso- nalis moritur cum persona — a personal action dies with the parties to the cause of action. An action for a tort must be begun in the joint lifetime of the wrongdoer and the person injured. If, after it has been so begun, either of the parties dies before a verdict has been obtained, the action abates, and cannot be continued or recommenced by or against the repre- sentatives of the deceased.^ This rule, however, which seems destitute of any rational basis, has been to a very large extent eaten away by excep- tions, some of which were admitted by the common law itself, while others have been introduced by statutes ancient and " Earle v. Kingscote (1900) 2 Ch. 685. '= Married Women's Property Act, 1882, s. 14. i« Hid. s. 24. 1 Sec Finlayv. Ohirney (1888) 20 Q.B.D. 494; Phillips v. Homfray (1883) 24 Ch.D. 439 ; Ord. 17, r. 1. The question whether a cause of action survives the death of the person injured must be carefully dis- tinguished from the question whether the act of causing the death of a person gives any right of action for damages to his relatives. The former question is that which is considered in this section ; the latter will be dealt with later in connection with the provisions of the Fatal Accidents Act. See Chap. XI. 70 PARTIES [Chap. II. Survival of right of action in contract. modern. Their aggregate effect is, speaking general^, to abolish the rule so far as it relates to injuries to propert}'. but to leave it in full operation with respect to injuries of other kinds. 2. Exception I. The rule does not apply to breaches of contract (even though they are also torts) which result in pecuniary damage, though it does apply to breaches of contract which are merely personal injuries causing no such damage. Thus, in Bradsliaw v. L. & Y. Rly. Co} a passenger on the de- fendants' railway was injured by an accident due to the defendants' negligence, and after an interval he died of the injuries so received. His executrix was held entitled to recover, in an action for breach of contract, the damage to his personal estate arising in his lifetime from medical expenses and his inability to attend to business. But even a breach of contract will die with the parties, if and so far as it is a merely personal injury without any direct or consequential pecuniary loss. Thus, executors can neither sue nor be sued for a breach of promise of marriage, unless pecuniary damage is shown. ^ So in Bradshaw's case which has just been cited no damages were recovered in respect of the personal injuries and suffering of the deceased. 3. Exception II. The maxim Actio personalis moritur cum persona does not apply to torts which involve the wrongful appropriation appropriation or acquisition by one man of property belonging o proper y. ^^ another. Executors may sue and be sued for the value of that property. This is a second exception established by the common law, the maxim in question not being applied so as to allow a wrongdoer to retain another's property, or the proceeds of it, simply because the owner from w^hom he wrong- fully took it has since died. Nor, conversely, is it tolerable that the executors of a wrongdoer should refuse to pay the value of property wrongfully appropriated by the deceased, simply because the wrongdoer is now dead. " The only cases," 2 (1875) L.R. 10 C.P. 189. This case was doubted in LeggoU v. Gt. N. Rly. Co. (1876) 1 Q.B.D. at pp. 605, 607, but it seems sound in principle. It was followed in Daly v. Dublin, dr., Rly. Co. (1892) .30 L.R. Ir. 514. See also The Greia Holme (1897) A.G. p. 601, per Lord Halsbury. ^ Chamberlain v. \Yilliamson (1814) 2 M. & S. 408 ; Finlay v. Chirney (1888) 20 Q.B.D. 494. Survival of claims for wrongful Sec. 23.] EXECUTORS AND ADMINISTRATORS 71 it has been said,* " in wliich, apart from questions of breach of contract, express or iniphod, a remedy for a wrongful act can be pursued against the estate of a. deceased person who has done the act appear to us to be those in which property, or the proceeds or value of property, belonging to another have been appropriated by the deceased person and added to his own estate or moneys." In order that this exception shall apply, it is not necessary that the property thus appropriated b}^ a deceased person should be traceable in specie into the hands of his executors, or even that its proceeds should be so traceable. The rule is not analogous to the rule as to following trust property. All that is necessary to make the executors liable is that the deceased shall have wrongfully appropriated the property and got the benefit of it. Whether he kept it, or consmned it, or sold it makes no difference. For all unjust benefit so derived by hini his executors must account. It is not enough, however, that the wi'ongdoer has in some way derived benefit from the wrong ; the benefit must have resulted from the wrongful appropriation of property, other- wise there is no obligation of restitution that will survive. Thus, in Phillips v. Homfray'^ the deceased had owned a Phillips u. coal mine adjoining the plaintiff's farm, and had trespassed Homfray. below the surface of the farm, excavating and removing the coal that was there, and also using the passages so made for the conveyance of large quantities of coal from the deceased's own mine. The plaintiff sued the executors of the wrong- doer, claiming (1) the value of the coal so taken, (2) payment for the use of the passages upon the plaintiff's property, and (3) compensation for damage done to that property. It was held by the Court of Appeal that the first of these claims was valid, that the second was invalid (since the benefit thus obtained by the deceased was not due to the appro- priation of the plaintiff's property), and that the third claim was also invalid (since it was not a claim for the restitution of a wrongful benefit, but one for compensation for wrongful harm).^ * Phillips V. Homfmy (1883) 24 Ch.D. p. 454. ^ (1883) 24 Ch.D. 439. « Historically this exception to the maxim as to actio personalis is apparently an application of the doctrine of w.iiving a tort and suing 72 PAETIES [Chap. II. Actions by executors for injury to personal estate. 4. Exception III. By the statute 4 Ed. III. c. 7 executors and administrators may sue for any injury done to the per- sonal estate of the deceased. This is the first of three statu- tory exceptions to the rule which we are considering. The words of the statute have been Hberally construed to include not only executors but also administrators, and not only trespasses but all injuries directly affecting the personal estate of the deceased. Thus, in Twycross v. Granf it was held by the Court of Appeal that the executors of a deceased shareholder could sue the promoters of the company for the issue of a fraudulent prospectus whereby the deceased had been induced to take shares in the company and to part with his money in payment for them. So in Hatchard v. Mege^ it was held that an action of slander of title to a trade mark survived, and was maintainable by executors. It seems, however, that the statute does not enable execu- tors to sue for pecuniary loss which is consequential upon injuries to the person or reputation or other personal rights of the deceased. There must be a direct injury to the deceased's estate, and not merely a pecuniary loss resulting from an injury of some other kind. Thus, in Pulling v. Gt. Eastern Ely. Co.^ the plaintiff sued as executrix of her late husband, who, while crossing the defendants' railway, was run down in consequence of the defendants' negligence and so injured as to be disabled from working. Some time afterwards he died, and the claim was for loss of wages during his incapacity and for medical expenses ; but it was held that the cause of action did not survive the deceased, Bradshaw v. Lancashire and Yorkshire Ely. Go.^° being distinguished as a case of contract. So in Hatchard v. Mege^'^ it is laid down that an action of on an implied or quasi-contract. Actions of tort died with the parties ; actions of contract did not. In those cases, therefore, in which it was permissible to waive the tort and sue instead on a fictitious contract, the maxim could be evaded. The exception, however, must now be regarded as standing on an independent foundation of its own. In modern law there seems to be no subsisting connection between the doctrine of the survival of actions and the doctrine as to the waiver of torts. See Hambly v. Trott (1776) 1 Cowp. p. 375 ; Phillips v. Homfray, 24 Ch.D. p. 457. ' (1878) 4 C.P.D. 40. » (1887) 18 Q.B.D. 771. See also Oakey v. Dalton (1887) 35 Ch. D. 700. ^ (1882) 9 Q.B.D. 110. 10 (1875) L.R. 10 C.P. 189. " (1887) 18 Q.B.D.. 771. Sec. 23.] EXECUTORS AND ADMINISTRATORS 73 defamation cannot be brought by executors, even on proof of pecuniary damage. The distinction thus indicated is unsatis- factory in principle, and the matter is one that may admit of further judicial consideration. If a false representation causing pecuniary loss is actionable at the suit of executors, as in Twycross v. Grant}'- as being an injury to the personal estate, it is difficult to see on what principle defamation or even personal injury, causing pecuniary damage, should not be actionable on the same ground. 5. Exception IV. By the Civil Procedure Act, 1833,i^ Actions by executors and administrators may sue for any injury done to p^.'^cutors for •' , . _ •' J J mjunos to the real estate of the deceased within six calendar months real estate. before his death, but the action must be brought within one year after his death. This rule supplements the rule established by the statute of Edward III., which, as we have seen, is limited to injuries to the personal estate. It will be noticed, however, that the later statute imposes certain conditions as to time which do not exist in the earlier. Where the wrong to the real estate consists in the severance and removal of things from the freehold, such as the wrongful excavation of coal, the executors may, if they please, waive the injury to the real estate, and sue in trover or trespass as for an injury to the personal estate, the things so taken having become chattels by the severance.^* By this device the executors may avoid the limitation of time imposed by the statute of William IV. and sue for injuries committed more than six months before the death of the deceased. Where the wrong is a continuing one, it is sufficient if it continues up to a period within six months before the death, even though it commenced long before ; and damages may then be recovered, subject to the operation of the Statute of Limitations, for the whole duration of the injury.^^ Appar- ently it makes no difference that the injury was a concealed fraud, unknown to the deceased ; if it was committed more than six months before the death, there is no remedy for it under the statute. " (1878) 4 C.P.D. 40. " 3 & 4 Will. IV. o. 42. s. 2. " MaHin v. Porter (1839) 5 M. & W. 351 ; Wood v. Morewood (1841) "^ Q.B. 440 n. " Woodhouse v. Walkfr (1880) f, Q.B.D. 404 ; Jenks v. Viscount Olifden (1897) 1 Ch. 694, 74 PARTIES [Chap. II. Action8 6. Exception V. By the Civil Procedure Act, ]8.33,i^ executors for executors and administrators may be sued for all injuries injury to real committed by the deceased within six months of his death in estate. ^^ respect of the property, real or personal, of the plaintiff ; but the action must be brought within six months after the defendants have entered on the administration of the estate. ^'^ Liability o£ joint wrongdoers. Who are joint wrongdoers. § 24. Joint Wrongdoers 1. Joint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of the loss ; or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any one of them.^- How far there is any right of contribution or indemnity as between the wrongdoers themselves we shall consider later. 2. Persons are to be deemed joint \\T:ongdoers within the meaning of this rule whenever they are responsible for the same tort — that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases — namely, agency, vicarious liability, and common action. (a) Agency. Whenever one person employs, or authorises, or procures another to commit a tort, it is imputed in law to both principal and agent, and they are jointly and severally responsible for it as joint wrongdoers : Qui facit per alium facit per se.^ (b) Vicarious liability. There are many cases in which the law for various reasons imputes to one person, who has in fact had no part in it, a wrongful act committed by another. In these cases the person who really commits the act and the " 3 & 4 Wm. IV. 0. 42, s. 2. 1' See, for example, Woodhouse v. Walker (1880) 5 Q.B.D. 404. 1 Mitchell V. Tarbutt (1794) 5 T.R. 649. It is said, however, in the older authorities that liability arising from the ownership or occupation of land in common is not joint and several, but merely joint. Wms. Saund. I, 291, g. Sed qu. ^ " All who procure a trespass to be done are trespas^sers themselves." W'ilnon V. Tumman (1843) 6 M. & G. at p. 244. Sec. 24.] JOINT WRONGDOERS 75 person wlio is thus held vicariously responsible for it are joint wron<;doors. Thus, a master and his servant are jointly and severally liable for acts done by the ser\'ant in the course of his employment, although imt authorised by the master. Similarly, partners are joint wrcmgdoers in respect of anj' ttu-t committed by one of them within the sco])e of the jiart- nership business. So the employer of an independent con- tractor is a joint wrongdoer with him in those exceptional cases in which the negligence of such a contractor renders his employer liable.^ (c) Common action. The third and last class of joint wrong- doers consist of persons who, by joining together in some form of common action, become responsible together for some tort which is committed in the course of it : for example, two persons agree together to publish a defamatory libel, or they hire a conveyance and drive it neghgently and cause an accident, or while walking together they trespass by mistake upon another's property. Under this head must be included all cases in which persons incur a common responsibility by owning or occupying property in common, as when two partners are held liable for the dangerous state of the partner- ship premises, or two owners of a horse or dog are held respon- sible for mischief done by it. So if two men engage the same servant in the same service they are jointly and severally responsible for him. .3. Persons are not joint wrongdoers simply because their Not neces- independent acts have been the cause of the same wrongful ■''^"'y J°™* damage. They must, in fact or in law, have committed the because they same wrongful act. Thus, in Thompson v. London County gamT damage Council* the plaintiff's house was injured by the subsidence of its foundations, caused by excavations negligently made by A, taken in conjunction with the negligence of B, a water company, in leaving a water-main insufficiently stopped. It was held that A and B, inasmuch as their acts were inde- pendent of each other, were not joint wrongdoers, and could ndt be joined as such in the same action. " The damage," ' The vicarious liability of a husband for his wife's torts is sui generis, and is governed by rules which arc not in conformity with the ordinary law as to joint vTongdoer,:. * (1899) 1 Q.B. 840. See also Sadler v. Gt. W. Rly. Uo. (1896) A.U. 450. 76 PARTIES [Chap. II. said Collins, L.J./ " is one, but the causes of action which have led to that damage are two, committed by two distinct personalities." Similarly, where successive and independent acts of conversion have been committed by different persons in respect of the same chattel, each of those persons is liable in trover to the owner for the full value of the chattel, but they are not joint wrongdoers." They are severally liable for the same damage, not jointly hable for the same tort. So also in all those cases in which a person is held liable for negligence, notwithstanding the fact that the immediate cause of the accident was the intervening negligence of another person.' Those persons are both liable for the damage done, but they are liable severally, not jointly. ^ « (1899) 1 Q.B. p. 845. = See Morris v. Robinson (1824) 3 B. & C. 196. ' Such as Glark v. Chambers (1878) 3 Q.B.D. 327. ^ The rules appKcable to persons who are thus severally hable for the same damage, instead of being jointly and severally hable for the same tort, seem to be the following : — (a) At common law they could not be joined in the same action for damages, for it was not permissible in one and the same action to claim damages from A for one tort and from B for another. In what cases they can now be joined depends on the true construction of 0. 16, r. 4 : " All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alterna- tive." In Sadler v. Ot. W. Ely. Go. (1896) A.C. 450, it was held that this rule did not justify the joinder of two distinct causes of action in tort against different defendants, and that causes of action are distinct, within the meaning of this doctrine, even though it is the same damage which is recoverable in each case. Since the decision of the House of Lords in that ease, however, an alteration has been made in 0. 16, r. 1 (deahng with joinder of plaintiffs), in order to get rid of the effect of the decision in Smurihwaite v. Hannay (1894) A.C. 494 that Order 16 relates solely to joinder of parties and not to joinder of causes of action. This alteration of 0. 16, r. 1, probably affects the interpreta- tion of O. 16, r. 4, also, so as to render possible, notwithstanding Sadler v. Ot. W. Sly. Co., the joinder of distinct causes of action in certain classes of cases. It is difficult, however, as the authorities stand, to state definitely how far this joinder is permissible : see Campania Sansinena de Games Congeladas v. Hovlder Bros. (1910) 2 K.B. 354 ; Thompson v. London County Council (1899) 1 Q.B. 840 ; Bullock v. London General Omnibus Go. (1907) 1 K.B. 264 ; Frankenburg v. Great Horseless Carriage Go. (1900) 1 Q.B. 504 ; Kent Coal Exploration Go. v. Martin (1900) 16 T.L.R. 486 ; Oower v. Gouldridge (1898) 1 Q.B. 348. (6) Judgment against one of them is no bar to an action against the other, but since the plaintiff cannot be allowed to recover satisfac- Sec. 24.] JOINT WRONGDOERS 77 ■i. A judgment obtained against one jomt wrongdoer re- Judgment leases all the others, even though it is not satisfied. This rule oneToint was established by the judgment of the Court of Exchequer wrongckier. Chamber in Brinsmead v. Harrison.^ It applies even to cases Brinsmcad v. in which the plaintifE was ignorant, when he obtained judg- ment against the one ■ftTongdoer, that he possessed any right of action against the other : as, for example, when the other is a concealed principal in the matter. For the judgment, even when so obtained in ignorance, merges and destroys the whole cause of action. A different rule is applicable to joint and several liability for breach of contract, for in that case a judgment obtained against one Mill not, unless satisfied in full, be any bar to a subsequent action against the others.^" In ordinary cases, however, liability for breach of contract is merely joint, and not joint and several ; and a judgment against one contractor so liable will discharge the others even without satisfaction. 5. The release of one joint wrongdoer releases all the others, itcleasc of even though this was not the intention of the parties. " It is, °°ongdoor. we think," says A. L. Smith, L.J., in Dvck v. Mayeu,^^ " clear law that a release granted to one joint tortfeasor or to one joint debtor operates as a discharge of the other joint tortfeasor or the other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released." This rule is equally applicable to a release under seal and to a release by way of accord and satisfaction.^^ A mere covenant or other agreement not to sue one of the joint wrongdoers must, however, be distinguished from an actual release given to him, whether by deed or by accord and tiun more than once, payment by one of the wrongdoers will reduce the damages recoverable from the others. Morris v. Robinson (1824) 3 B. & C. 196. (c) A release fif one will presumably not release the others. {d) Unless the wrong is a ivilful one, so as to come within the analogy of the rule in Mcrrywmthcr v. Nixan, there seems to be no reason why such wrongdoers should not have a claim for contribution inter sc. Infra, s. 25. ^ (1871) L.B. 7 C.P. 547. " King v. Hoare (1844) 13 M. & W . 494. " (1892) 2 Q.B. at p. 513. 12 Thurman v. Wild (1840) 11 A. & E. 453. 78 PARTIES [Chap. II. satisfaction. An agreement not to sue does not, like a release, destroy the cause of action, but merely prevents it from being enforced against the particular wrongdoer with whom the agreement was made.^^ A transaction which is in form an actual release, whether by deed or by accord and satisfaction, will be construed as being merely an agreement not to sue, if it contains an express reservation of the right to proceed against the other wrong- doers. For this reservation would otherwise be wholly in- effective. i* § 25. Contribution between Wrongdoers Rule 1. No person who has been guilty of fraud or any other weatheTy form of wilful wrongdoing, and has been made liable in Nixan. damages, has any right of contribution or indemnity against any other person who is a joint wrongdoer with him. This is commonly known as the rule in Merryweather v. Nixan,^ the case in which it was first laid down, but in which it was very imperfectly considered and formulated. Where the rule is applicable, any wrongdoer who is compelled to pay the whole or more than his proportionate share of the damage is pre- cluded from making any claim upon his fellow-offenders for a fair division of the burden between them. The reason alleged is the technical one that any such claim must be based on an implied contract between the wrongdoers, and that such a contract is necessarily illegal and void, as being made in contemplation of the commission of an illegal act. But this reasoning is unconvincing ; contribution between joint wrongdoers is no more based on a contract than is contribution between joint sureties. It is based on the principle of justice, that a burden which the law imposes on two men should not be borne wholly by one of them. The rule in Merryweather v. Nixan, however, is now too firmly established to be ques- tioned. Lord Herschell says in a Scottish case : ^ " It is now too late to question that decision in this country ; but when " Duck V. Mmj&u (1892) 2 Q.B. 511. " Ibid. ; Bateson v. Gosling (1871) L.R. 7 C.P. 9. 1 (1799) 8 T.R. 18(). . - Palmer V. Wick and Pidteneytown Steam Shipping Co. (1894) A.C.- at p. 324. Sec. 25.] CONTRIBUTION BETWEEN WRONGDOERS 79 1 am asked to hold it to be part of the law of Scotland, I am bound to say that it does not appear to me to be founded on any principle of justice or equity or even of public policy which justifies its extension to the jurisprudence of other countries." 2. The better opinion is that the rule in Merry weather v. Limits of Nixan applies only to cases of wilful and conscious wrong- ^ ^^ ^' doing, and that it is not applicable to cases of mere neghgence, accident, mistake, or other unintentional breaches of the law. In Betts V. Gibbins ^ it is said by Denman, C.J. : " The general rule is that between wrongdoers there is neither indemnity nor contribution ; the exception is where the act is not clearly illegal in itself." So in Adamson v. Jarvis,'^ Best, C.J., says : " From reason, justice, and sound policy, the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an un- lawful act." In Palmer v. Wick and Pulteneytown Steam Shipping Co.^ Lord Herschell quotes these observations with approval, and regards them as establishing a right of con- tribution in a case of joint negligence.^ 3. A statutory exception to the rule in Mcrrytveather v. statutory Nixa>i has been created by section 84 of the Companies (Con- exception. sohdation) Act, 1908, which provides that there shall be a right of contribution between directors or promoters who are jointly and severally liable, under the provisions of that Act, for mis- representations contained in a prospectus. Even in this case, however, a person guilty of fraud has no claim against another who is guilty merely of negligence. 4. Except in the case of wilful wrongdoing, there is, if the Contribution foregoing interpretation of the rule in Merryweather v. Nixan '^}^ mdem- 3 (1834) 2 A. & E. p. 74. * (1827) 4 Bing. p. 73. 5 (1804) A.C. p. 324. See also Burrows v. Rhodes (1899) 1 Q.B. p. 828, per Kennedy, J. ' On the iithcr hand, in The Englishman and the Australia (1895) P. 212, Bruce, J., held in a case of damage due to negligence that there was no right of contribution or indemnity in the absence of special circum- stances creating an implied contract to that effect. It is not easy to see, however, why an implied contract of contribution should be re- quired in the case of joint wrongdoers any more than in the case of sureties. 80 PASTIES [Chap. II. is correct, a right either of contribution or of indemnity between joint wrongdoers. The right is one of contribution ■ — all the wrongdoers sharing equally — unless there is some special reason why one or some of them should bear the whole loss and indemnify the others. Such a right of indemnity exists in at least two classes of cases : — (a) A principal must indemnify his agent for all liability incurred by him in consequence of the act authorised being (without the knowledge of the agent) an illegal one. Thus, in Adamson v. Jarvis'^ the plaintiff, an auctioneer, was held entitled to be indemnified by the defendant, a chent who had instructed him to sell goods to which, as it subsequently appeared, he had no title. (6) It seems clear on principle, also, that in all cases of vicarious liability the person held vicariously liable for the tort of another must have a right of indemnity as against that other. Thus, a master who has paid for the negligence of his servant can doubtless sue that servant for indemnity.^ At common law, all persons jointly injured must join in one action. § 25a. Persons Jointly Injured 1. Where two or more persons possess a right of action in respect of one and the same injury — as, for example, a trespass or other wrong to the property of co-owners, or a libel on a firm of partners in the way of their business — ^is it necessary that those persons should all join in one and the same action, or can one of them sue without the others 1 The old rule of the common law on this point was that (with certain excep- tions which need not be now considered) all persons so suffering a joint injury must join in one action. The objection of non- joinder, however, could be taken only by way of a plea in abatement, and if the defendant omitted so to plead, one of two co-owners, for example, could recover damages in respect of his own interest in the property, although the other co- owner was not a party to the action. After judgment had ' (1827) 4 Bing. 66. See also Burrows v. Rhodes (1899) 1 Q.B. 816. ' See s. 13 (5) supra as to the special statutory right of contribution created by the Maritime Conventions Act, 1911, in the case of loss of life or personal injuries caused by the collision of ships which are both to blame. Sec. 25a.] persons JOINTLY INJURED 81 been so recovered by him, a second action would lie at the suit of the other co-owner in respect of his own interest, and in the second action no plea of abatement was available.^ 2. Pleas in abatement beine now abolished, it follows that ^Wer since . T 1"+' f the noii-joindor of persons jointly injured is no longer a bar to pie°aa in" ° an action by one or some of them. The only effect of such abatement. a non-joinder is that the Court may, in its discretion, order the other persons so jointly injured to be joined as parties to the action, either as plaintiffs or (if they will not consent) as defendants.^ 3. Where two or more persons have suffered a joint injury, Release by a release granted by one of them will, in the absence of fraud, persons^'^^^'^" destroy the whole cause of action, and operate as a bar to an jointly action by any of the others.^ injure . § 26. Principal and Agent 1. Any person who authorises or procures a tort to be Respon- committed by another is responsible for that tort as if he had prJnJ.iL'i for committed it himself : Qui jacit fer alium faeit per se. " All agent. who procure a trespass to be done are trespassers them- selves."^ Principal and agent, therefore, are jointly and severally liable as joint wrongdoers for any tort authorised by the former and committed by the latter. Speaking generally, a principal is liable only for those acts of his agent which he actually authorises (expressly or im- pliedly). He is not in general liable for unauthorised torts committed by the agent in the course of his agency. He is not, for example, responsible in ordinary cases if the agent by negligence, mistake, or fraud does some illegal act in the execution of his employment. This rule, however, is subject to exceptions. By far the most important of them is that which governs that particular form of agency which exists in the case of master and servant ; this we shall consider 1 Addison v. Overend (1796) 6 T.R. 766 ; Sedgworth r. Overend (1797) 7 T.R. 279 ; Blackborough v. Graves, 1 Mod. 102 ; Broadbent v. Ledward (1839) 11 A. & E. 212 ; Chitty on Pleading, I., 73. 2 Roberts v. Holland (1893) 1 Q.B. 665 ; Cidlen v. Enowhs (1898) 2 Q.B. 380. 3 Phillips V. Clagett (1843) 11 M. & W. 84. 1 WUson r. Tumman (1843) 6 M. & G. at p. 244. 82 PAETIES [Chap. II. separately in succeeding sections of this chapter. Other exceptions exist in the case of particular kinds of torts, and will be considered in connection with them : by reason of certain anomalous rules of absolute or vicarious liability, there are cases in which a person cannot delegate to an agent the performance of certain kinds of acts without being responsible for the negligence or other illegality of the agent in the doing of them. Liability 2. Ratification. If one person commits a tort while acting ratification. '^^ behalf of another, but without his authority, and that other subsequently ratifies and assents to the act so done, he thereby becomes responsible for it, just as if he had given a precedent authority for its commission. " That an act done for another by a person not assuming to act for himself but for such other person, though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is the known and well-established rule of law. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent as by, and with all the consequences which follow from, the same act done by his previous authority."^ In other words, the rule that an authority subsequent is equivalent to an authority precedent is applicable not merely in the law of contracts, but in the law of torts also. Conditions of 3. In Order that ratification of an unauthorised act should rati cation, thus make the principal responsible for it, the following con- ditions mtist be fulfilled : — (a) The wrongful act must have been done on behalf of the principal. No man can ratify an act which was done, not on his behalf, but on behalf of the doer himself. " By the com- mon law," says Coke,^ " he that receiveth a trespasser and agreeth to a trespass after it be done is no trespasser unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment." In the case of contracts it has been decided by the House of Lords in Keighley Maxsted & Co. v. Durant* that there can be no rati- fication unless the agent not merely contracts on behalf of the " WUson V. Tumman (1843) 6 M. & G. p. 242. ' Fourth Inst. 317. * (1901) A.C. 240. Sec. 26.] PRINCIPAL AND AGENT 83 principal, but also avows that intention at the time. Possibly the same rule applies to torts also.^ But if this is so, it must be understood that the necessary avowal need not be expressed in words, but may sufficiently appear from the conduct of the parties and the facts of the case. It cannot be necessary for a railway official who arrests a passenger for defrauding the railway company to state in terms that he does so on behalf of the company. (b) A second condition of effective ratification is that the principal must know the nature of the act which has thus been done on his behalf, unless, indeed, he is content to dispense with any such knowledge and to approve and sanction the acts of the agent whatever they may be.* It is sufficient, however, if the principal has such knowledge of the nature of the act as would have sufficed to make him liable had he actually autho- rised it or done it himself. Mistake or ignorance is no greater defence to a principal who gives an authority subsequent than to one who gives an authority precedent.' 4. When an illegal act done by one person on behalf of Act of agent another but without his authority would have been legal had JaUfication. it been done with his authority, it becomes legal ab initio if he subsequently ratifies it.^ This rule, taken in conjunction with the one which has just been considered, shows that the ratifi- cation of a tortious act has two quite distinct effects — (a) it sometimes makes the principal liable as well as the agent ; (6) in other cases it justifies the act, and destroys the liability which the agent has already incurred by doing it. Which of these two effects it produces in any case depends on whether the principal himself could lawfully have done or authorised the act. An act may be thus justified by ratification, even after the commencement of an action against the agent ; but the ratifi- cation must in all cases have taken place at a time when the principal still retained the power of lawfully authorising the act to be done.* ' See, however, Lord Robertson's observations (1901) A.C. at p. 260. ' Freeman v. Bosher (1849) 13 Q.B. 780; Lewis v. Read (1845) 13 M. & W. 834. ' Hilbery v. Hatton (1864) 2 H. & C. 822. 8 Whitehead v. Taylor (1839) 10 A. & E. 210 ; Buron v. Denman (1848) 2 Ex. 167 ; Hull v. Pickersgill (1819) 3 Moore 612. • Bird V. Brown (1850) 4 Ex. 786. 84 PARTIES [aap. II. Partners liable for each other's torts. § 27. Partners By the Partnership Act, 1890, sections 10 and 12, it is pro- vided, in affirmance of the common law, that partners are jointly and severally liable for each other's torts committed " in the ordinary course of the business of the firm." Thus, in Hamlyn v. Houston^ a firm was held liable for the act of one of the partners who, on behalf of the firm, induced by bribery a servant of the plaintiff to commit a breach of his contract of service. Whether the act of a partner is one done in the course of the business of the firm is a question to be determined on the same considerations as those which determine the responsibility of a master for the acts of his servant. Indeed, for this purpose we may regard each partner as the servant of the firm. Employers' liability. General con- ditions of. § 28. Masters and Servants 1. A master is liable for any tort committed by his servant while acting in the course of his employment. This is by far the most important of the various cases in which vicarious responsibility is recognised by the law. Its rational justifi- cation is to be found in the presumption that the negligence and other torts of a servant in the execution of his master's business are either actually authorised by the master, or, at least, are the result of some want of care on the master's part in the choice of competent servants or in the superintendence and control of their work. Very often this presumption does not correspond with the facts ; but the difficulty of actually proving some default on the part of the master would be so great that it is better, on the whole, to create a legal presumption against the master, and even to make that presumption irrebuttable. 2. In order that this rule of vicarious responsibility may apply, there are two conditions which must co-exist : — (a) The relationship of master and servant must exist between the defendant and the person committing the wrong complained of ; (6) The servant must in committing the wrong have been acting in the course of his employment. » (1903) 1 K.B. 81, Sec. 28.] MASTERS AND SERVANTS 85 3. A servant may be defined as any person employed by Who is a another to do work for liim on the terms that he, the servant, ^®'''°'°*- is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done. If we use the term agent to mean any person employed to do work for another, we may say that agents are of two kinds, distinguishable as (1) servants and (2) independent con- tractors. It is for the first kind of agent only that his employer is responsible under the rule which we are now considering. When the agent is an independent contractor, his employer is not answerable save for torts actually authorised by him. But when the agent is a servant, his employer will answer not merely for all torts actually authorised, but also for all those which are committed by the servant while engaged in doing his master's business, whether they are authorised or not. 4:. What, then, is the test of this distinction between a Servant servant and an independent contractor ? The test is the distinguished . from existence of a right of control over the agent in respect of the independent manner in which his work is to be done. A servant is an <=o>it''a''t°'^'- agent who works under the supervision and direction of his employer ; an independent contractor is one who is his own master. A servant is a person engaged to obey his employer's orders from time to time ; an independent contractor is a person engaged to do certain work, but to exercise his own discretion as to the mode and time of doing it — he is bound by his contract, but not by his employer's orders. " Upon the principle that quifacit per aliumfacit per se," says Baron Parke in Quarman v. Burnett,^ " the master is responsible for the acts of his servant ; and that person is undoubtedly liable who stood in the relation of master to the wrongdoer — ^he who selected him as his servant from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey." Thus, my coachman is my servant ; and if by negligent driving he runs over some one in the street, I am responsible. But the cabman whom I engage for a particular journey is not my servant ; he is not under my orders ; he has made a contract with me, not that he will obey my directions, but 1 (1840) 6 M. & W. at p. 509. 86 PARTIES [Chap. II. Temporary that he will drive me to a certain place ; if an accident happens by his negligence he is responsible, and not I. So I am responsible for the domestic servants in my house, but I am not responsible for a skilled artisan whom I engage to do a certain job in my house — for example, to paint it, or to mend a window. So in Evans v. Liverpool Corporation^ it was held that a municipal corporation establishing a hospital is not responsible for the negligence of a physician appointed by them.^ 5. One person may be the servant of another although servioeTuffi-^ employed not continuously, but for a single transaction only. oient. Effect of lending a servant. and even if his service is gratuitous or de facto merely. The relationship of master and servant is commonly a continuing engagement in consideration of wages paid ; but this is not essential. One person may be the servant of another on a single occasion and for an individual transaction, provided that the element of control and supervision is present. Moreover, the service may be merely gratuitous, as when the owner of a carriage asks a friend to drive it for him.* On the same principle a father may be responsible for the torts of his children, provided that they are acting de facto as his servants. 6. A servant may have two or more masters at the same time in respect of different employments. In particular a master may lend his servant to another person for a certain transaction so that quoad that employment he becomes the servant of the person to whom he is so lent, though he remains ' (1906) 1 K.B. 160. See also Hillyer v. Governors of St. Bartholo- mew's Hospital (1909) 2 K.B. 820. Aliter with school-teachers ap- pointed by the Education Authority. Smith v. Martin (1911) 2 K.B. 775. * By statute 1 & 2 Wm. IV. c. 22, the proprietors of hackney cabs in London are made responsible for the negligence of the drivers to whom the cabs are hired, as if the relationship of master and servant existed between them. In fact, the relationship is that of bailor and bailee. Keen v. Henry (1894) 1 Q.B. 292 ; Gates v. Bill (1902) 2 K.B. 38. Another anomalous rule makes a litigant, though no relationship of master and servant exists between him and his solicitor, liable in certain cases for mistaken and illegal acts done by the latter in the course of the litigation. Jarmain v. Hooper (1843) 6 M. & G. 827 ; Smith v. Keal (1882) 9 Q.B.D. 340 ; Morris v. Salberg (1889) 22 Q.B.D. 614. « Wheatley v. Patrick (1837) 2 M. & W. 650. Aliter if he lent the carriage to a friend. Sec. 28.] MASTERS AND SERVANTS 87 for other purposes the servant of the lender. When a servant is sent by his employer to do work for another, it is a question of fact, depending on the nature of the arrangement and the degree of control exercised over the servant, whether he becomes quoad hoc the servant of the person for whom he is working, or remains in all respects the servant of his ordinary employer. When a servant has thus two masters, the respon- sibility for a tort committed by him lies exclusively upon the master for whom and under whose control he was working when he did the act complained of. Thus, in Donovan v. Lahig Construction Syndicate^ the defendants contracted to supply a firm of wharfingers with a crane and a man to work it. This man received directions from the wharfingers or their servants as to the working of the crane, and the defendants had in that respect no control over him. An accident having happened through the negli- gent management of the crane, it was held that the defendants were not liable, on the ground that the man in charge of the craiie was quoad hoc the servant of the wharfingers, and that they alone were responsible for him. " For some purposes," says Lord Esher,^ " no doubt the man was the servant of the defendants. Probably if he had let the crane get out of order by his neglect, and in consequence any one was injured thereby, the defendants might be liable ; but the accident in this case did not happen from that cause, but from the manner of working the crane. The man was bound to work the crane according to the orders and under the entire and absolute control of Jones & Co." So Bowen, L.J., says ;' "We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act." Similar decisions are Rourlce v. While 3Io.^s Collicnj Co.,^ Murraij v. Currie,^ and Jones v. ScuUitrd.^" In the first of these cases Cockburn, C.J., says :" " When one person lends his servant to anotlier for a particular employment, the s (1893) 1 Q.B. 629. ' (1893) 1 Q.B. 632. ' (1893) 1 Q.B. 633. » (1877) 2 C.P.D. 205. » (1870) L.B. 6 C.P. 24. "= (1898) 2 Q.B. 565. " (1877) 2 O.P.D. at p. 209. 88 PARTIES [Chap. II. Quarman v. Burnett. Superior servant not responsible for subordi- nates. servant for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him." So in Hall v. Lees^^ it was held that a nursing association was not liable for the negligence of a nurse while employed in the house of a patient, the nurse being in these circumstances no longer the servant of the association. 7. Where, on the other hand, the servant of A is appointed by him to do work for B, but remains exclusively subject to the control and direction of A, he remains the servant of A, and B is not responsible for him. Thus, in Quarman v. Bur- nett^^ it was held that he who hires horses from a livery-stable keeper, together with a man to drive them, is not responsible for the negligence of the driver ; and that this is so even though the defendant habitually engages the same driver, and even if he is the owner of the carriage driven. So in Jones V. Corforation of LiverpooV-^ the defendant corporation was held not liable for the negligence of the driver of a watering- cart belonging to them, the driver and horses having been supplied to the defendants by a contractor who employed and paid the driver, and the defendants having exercised no con- trol over him, except to instruct him what streets to water. Similarly, in Waldeck v. Winfield}^ a company hired from the defendant a van, horse, and driver for the purpose of delivering goods to their customers ; and it was held that responsibility for the negligence of the driver rested on the defendant who supplied and not on the company who used him.^* 8. A superior servant is not the master of the inferiors who are under his control, and he is not responsible for their torts. Thus, the head of a Government department or other public official is not responsible for the wrongdoing of servants " (1904) 2 K.B. 602. " (1840) 6 M. & W. 499. " (1895) 14 Q.B.D. 890. ■5 (1901) 2 K.B. 596. See also Dewar v. Taaker, 23 T.L.R. 259. " In Jones v. Smdlard (1898) 2 Q.B. 565 the defendant o«Tied his own horses and carriage, but hired a driver from a livery-stable, and was held liable for his negligence, Quarman v. Burnett being distin- guished. It is clear that the owner of ho-rscs must have a complete right of control over the driver, even when hired from a livery -stable, which is absent if the horses are liired also. Sec. 28.] MASTERS AND SERVANTS 89 engaged by him and under his control. The relationship betwcou them is not that of master and servant ; they are fellow-servants of the Crown. i' For the same reason the directors of a company are not responsible for torts committed by inferior servants of the company, although those servants are appointed and controlled by the directors." 9. The rule of employers' liability extends to trustees and Publiu bodies corporate charged with the management of public authontira , . .,.° ^ responsible property and with the exercise of public functionw, in the for their same manner and to the same extent as in the case of private '^'-^'^"''"■'^^^■ employers, subject, however, to the two following qualifica- tions ; — ((() Such trustees or bodies corporate are in some cases merely departments of the central executive Government, and so mere servants of the Crown, and exempt from liability in accordance with the rule stated in the last paragraph. (b) Such trustees or bodies corporate may be expressly or impliedly exempted from liability for the acts of their servants by the statute under which they exercise their functions. ^^ § 29. The Course of Employment 1. A master is not responsible for a wrongful act done by Master not his servant unless it is done in the course of his employment, j'^^. f^'f,t"£io^g It is deemed to be so done if it is either [a) a wrongful act in course of authorised by the master, or (b) a wrongful and unauthorised employment. mode of doing some act authorised by the master. It is clear that the master is responsible for acts actually authorised by him : for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the " Raleigh v. Goschen (1898) 1 Ch. 73 ; Bainbridge v. Postmaster- General (1906) 1 K.B. 178. " IVeir V. Barnett (1877) L.R. 3 Ex. D. 32 ; Weir v. Bell (1878) 3 Ex. D. 238. " See Mersey Docks Trustees v. Gibbs (1866) L.R. 1 H.L. 93. More- over, a subordinate official is not necessarily the servant of a public body simply because he is appointed to his position by that body under a statutory authority or duty in that behalf. Slanbury v. Exeter Cor- poration (1905) 2 K.B. 838. Cf. Lambert v. Great Eastern lily. Co. (1909) 2 K.B. 776. 90 PARTIES [Chap. II. EfiEect of express prohibition. employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes — although improper modes — of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. In respect of the manner of his work a servant is, as we have seen, under the control of his master ; and this control brings with it a corresponding responsibility. Therefore, if a servant does negligently that which he was authorised to do carefully, or if he does fraudulently that which he was autho- rised to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud, or mistake. " In all these cases," says the Court of Exchequer Chamber in Barwick v. English Joint Stock Banh,^ " it may be said that the master has not autho- rised the act. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in." On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible : for in such a case the servant is not acting in the course of his employment, but has gone outside of it. He can no longer be said to be doing, although in a wrong and un- authorised way, what he was authorised to do ; he is doing what he was not authorised to do at all. 2. Even express prohibition of the wrongful act is no defence to the master, if that act was merely a mode of doing what the servant was employed to do. Thus, in Limpus v. London General Oiimibus Co.^ the defendant company was held liable for an accident caused by the act of one of its drivers in drawing across the road so as to obstruct a rival omnibus, and it was held to be no defence that the company had issued specific instructions to its drivers not to race with or obstruct other vehicles. The driver whose conduct was in question was engaged to drive, and the act which did » (1867) L.B. 2 Ex. 259 at p. 266. ' (1862) 1 H. & C. 526. Sec. 29.] THE COURSE OP EMPLOYMENT 91 the mischief was a negligent mode of driving, for which his employers must answer, irrespective of any authority or of any prohibition. Prohibition is relevant in considering what the scope of the servant's employment was, and therefore in determining whether the wrongful act was or was not a mode of exercising that employment ; but it is powerless to exclude an employer's liability for the wrongiul acts of his servant within the sphere permitted to him. 3. There are two distinct ways in which the wrongful act Acts of of a servant may fall outside the course of his employment sfde^ourse*of so as to exempt his employer from liability. It may do so employment, either because of its nature or because of the intention with which it was done. In the first place, the act may be in its own nature so foreign to the nature of the servant's employ- ment that his master is not responsible for it even though it is done by the servant on his master's behalf. In the second place, the act, although it is not in its own nature foreign to the servant's employment, may fall outside the course of that employment because done by him, not on behalf of his master, but solely on his own account and in pursuance of his own affairs, and therefore not in his capacity as a servant. We shall deal with these two cases separately in the succeeding sections.* § 30. Excess of a Servant's Authority A master is not liable for any act done by his servant Master not even on behalf of his master and with intent to serve his ^'^^^ ^ ^""^r . , vant exceeds interests, if the act is so foreign to the nature of the servant s his authority. employment that it cannot be regarded as a mode of performing that employment. Thus, in Beard v. London General Omnibus Company^ the defendant company was held not liable for a collision caused by the negligence of the conductor of an omnibus, who, at the end of a journey and in the temporary absence of the driver, took upon himself to drive the omnibus for the purpose of turning ^ In the same way a principal is not bound by his agent's contract (apart from questions of apparent authority and estoppel) unless that contract was (a) within the limits of the agent's authority and (6) made by the agent on the principal's behalf and not on his own. ' 1 (1900) 2 Q.B. 530, 92 PARTIES [Chap. II. it round for the return journey. Driving an omnibus is not a mode, rightful or wrongful, of performing the duties of a con- ductor ; and the accident happened, not because the conductor failed to perform his own duty, but because without authority he attempted to fulfil that of a driver. So in The Bank of New South Wales v. Owston^ it was held by the Privy Council that the arrest and prosecution of offenders is not within the ordinary scope of the authority of a bank manager, and therefore that in the absence of evidence of special authorisa- tion a bank was not responsible for a malicious prosecution undertaken by its manager. On the same principle, in Abrahams v. Deakm^ the owner of a public-house was held not liable for the act of his servant who, while in charge of the bar, gave the plaintiff into custody on a mistaken charge of attempting to pass bad money.* We may contrast with these cases the decision of the Exchequer Chamber in Bayley v. Manchester Railway Co.," in which ij 'vas held that the defendant company was liable for the act of a porter in violently putting a passenger out of a railway carriage, under the erroneous belief that he was in the wrong train. Here it was one of the duties of the porter to prevent passengers from getting into the wrong trains ; and, although the plaintiff was in fact in the right train, the act of the porter was merely a wrong and mistaken way of doing the work intrusted to him, and not an unauthorised assumption of work that did not pertain to him. Similarly, in Seymour v. Greenwood^ the defendant was held liable for the mistaken act of his servant, the conductor of an omnibus, in ejecting by force an unoSending passenger. MaBter not liable if servant acts on his own behalf. § 31. Acts done by a Servant on his own Behalf 1 . Even when an act is in its nature within the scope of the servant's employment, the master is not responsible for it unless the servant in committing it was acting on his master's 2 (1879) 4 A.C. 270. » (1891) 1 Q.B. 516. 4 See also i^arasejiv. >FoZZer (1901) 1 K.B. 390; Allen \. London d; S.W. My. Co. (1870) L.B. 6 Q.B. 65 ; Gojfw. Gt. W. Ely. Co. (1861) 3 E. & E. 672 ; Edwards v. London <£• N. W. lily. Co. (1870) L.R. 5 C.P. 445. = (1873) L.R. 8 C.P. 148. = (1861) 7 H. & N. 355. Soo. 31.] SERVANT ACTING ON HIS OWN BEHALF 93 behalf. A master is not responsible for what his servant does while engaged, not on his master's business, but exclusively on his own ; he must answer only for what his servant docs as his servant, not for what he docs in pursuance of his own affairs. A servant is not acting in the course of his employment when he is acting, not for his employer, but solely for himself. 2. This general principle has the effect of exempting an employer from liability in at least four important classes of cases which require special consideration : — (a) When a servant is guilty of fraud or other wilful wrong- doing on his own account ; (6) When he uses his master's property for his own pur- poses without authority and does harm thereby ; (c) When he is guilty of negligence contemporaneous with the execution of his master's business but not in con- nection with it ; (d) When he is negligent in that which his master permits him to do on his own account, but does not employ him to do. 3. Wilful ivrongdoing hy a servant in his own interest. The Wilful liability of a master extends, speaking generally, to frauds and ^""^^yant ^ other wilful wrongs, no less than to negligence and mistake. If his servant does fraudulently what he is employed to do honestly, the master must answer for the fraud. Thus, in Bar- wich v. English Joint Stock BanTc^ the defendant bank was held liable for a fraudulent representation made to the plaintiff by the manager of one of the bank's branches in relation to the business under his control. " With respect to the question," says Willes, J., delivering the judgment of the Exchequer Chamber,^ " whether a principal is answerable for the act of his agent in the course of his master's business and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong." Where, however, the fraud or other wilful wrong of the servant is committed on his own account and not for the benefit of his master, the master is not answerable. Thus, in British Mutual Banking Co. v. Charnwood Forest Ely. Co.^ the 1 (1867) L.R. 2 Ex. 269. ' Ibid, at p. 265. ' (1887) 18 Q.B.D. 714 ; see also Lloyd v. Grace, Smith dk Co. (1911) 2 K.B. 489. Use of master's property for servant's purposes. Servant engaged both on his master's business and on his own. 94 PARTIES [Chap. II. defendant company was held not liable for a fraudulent representation made by its secretary in his own interest, although in a matter which in its nature was within the scope of his employment. On the same principle, an employer who receives property for safe custody is not responsible if it is stolen by one of his servants without the negligence of the employer or of any of his other servants charged with the care of it." 4. Servant's unauthorised use of his employer's property. A master is not responsible for the neghgence of his servant in the unauthorised use of his master's property for the servant's own purposes. This rule has been applied on several occasions when harm has been done by the negligent driving of servants while using their master's horses and conveyances for their own ends. These cases have established the rule that a master is not responsible merely because he intrusted to the care of his servant the instrument which did the mischief. The test is not whether the servant was intrusted with it, but whether he was using it in his master's business or in his own. " The question," says Maule, J.,^ " is not whether the servant was trusted, but whether he was employed, so as to make his master liable. The way it is always put is, whether the man was about his master's business at the time." Accordingly, in Mitchell v. Crassweller^ the defendant's servant was engaged to drive a cart, and on returning to his employer's premises at the end of his day's work it became his duty to take the horse and cart to the stables. Instead of doing so, he drove away on a new journey for his own purposes exclusively ; and while returning he injured the plaintiff by negligent driving. It was held that the defendant, his master, was not liable. Similar decisions have been given on more or less similar facts in Storey v. Ashton,'' Rayner v. Mitchell,^ and Sanderson v. Collins.^ 5. It is to be observed, however, that if the servant is really engaged on his master's business, the fact that he is at the same « Giblin v. McMvllen (1868) L.R. 2 P.O. 317 ; Cheshire v. (1905) 1 K.B. 237. Cf. Abraham v. Bullock (1902) 86 L.T. 796. s Mitchell V. Crassweller (1853) 13 C.B. at p. 243. » (1853) 13 C.B. 237. ' (1869) L.R. 4 Q.B. 476. Bailey ' (1877) 2 C.P.D. 357, (1904) 1 K.B. 628. Seo. 31.] SERVANT ACTING ON HIS OWN BEHALF 95 time engaged on his own is no defence to the master, even thongh it was the competing claims of the servant's business which caused him to perform his master's neghgently. The master is exempt onl)- when the servant was exclusively on his own business. If while driving his master's cart in the course of his emplojTnent he lights his pipe, and while so engaged causes a collision by not looking where he is going, his master will be liable ; and it will be no defence to him to allege that the servant in lighting his pipe was engaged on his own business and not on his master's ; for he was in truth engaged on both. So where a carman deviates for his own purposes from the direct line which he ought to have followed in the execution of his master's business, and an accident happens while this deviation still continues, it is a question of degree whether the deviation is so great that the servant can no longer be said to be driving on his master's business but to be on a journey of his own, or whether, on the other hand, the deviation is so slight that it may be said to be part of the journey on which his master sent him. In Joel v. Morison}^ Parke, B., says : " If the servants, being on their master's business, took a detour to call upon a friend, the master will be responsible. . . The master is only liable where the servant is acting in the course of his employment. If he was going out of his way against his master's implied commands, when driving on his master's business, he will make his master liable ; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable." So in Storey v. Ashton,^^ Cockburn, C.J., says : " I am very far from saying, if the servant, when going on his master's business, took a somewhat longer road, that owing to this deviation he would cease to be in the employment of the master, so as to divest the latter of all liabihty ; in such cases it is a question of degree as to how far the deviation could be considered a separate journey." 6. Servant's negligence contemporaneous with his employment. i» (1834) 6 C. & P. p. 603. " (1869) L.R. 4 Q.B. p. 479. Seo also Gracey v. Belfast Tramway Co. (1901) 2 Ir. B. 322. The case of Coupi Co. v. Maddick (1891) 2 Q.B. 413, must be taken to have been wrongly decided. See Sanderson v. Collins (1904) 1 K.B. 628. 96 PARTIES [Chap. II. Negligence A master is not responsible for the negligence or other wrong- at time of £^j ^g^. ^f j^jg ggrvant simply because it is committed at a time employment, . but not in when the servant is engaged on his master's business. It enrnfovm t ^^^* ^^ Committed in the course of that business, so as to form a part of it, and not merely coincidcni. in time with it. In Williams v. Jones^^ the defendant employed his servant, a carpenter, to make a signboard in a shed belonging to the plaintiff, who had allowed the use of it for this purpose. The carpenter lit his pipe while so engaged, and set the shed on fire by negligently throwing down the light used by him. It was held by the Court of Exchequer Chamber^^ that the defendant was not liable. " It was not necessary that he should smoke in order to make the signboard, nor was the act of lighting the pipe in any way whatever for the benefit of his master or in furtherance of the object of his employment. It is said he was negligent whilst using the shed, and that in a sense is true. It seems to us, however, that in order to make the master liable the servant must not only have been negligent in using the shed, but in using it for the purposes of his master and in the course of his employment. "i* There was no negligence in making the signboard (the master's business) ; there was negligence only in smoking the pipe (the servant's business). The fact that the two things were co- incident in time did not make them parts of a single transaction done on behalf of the master. It is true that the servant was negligent in his management and care of the shed, but he was not employed by his master to look after the shed ; his master's business was the making of a signboard, not the care of the plaintiff's shed. If, on the other hand, the fire had arisen through the act of the servant in lighting a fire to boil his glue-pot, the master would have been responsible. So, to use a former illustration, if the servant had been a carter instead of a carpenter, and had lit his pipe while driving his master's horses, and whilst so doing he had run over the plaintiff through inattention, his master would have been responsible ; for this would have been a negligent way of driving horses, and not merely a '2 (1865) 3 H. & C. 602. 1' Eric, O.J., Keating and Smith, JJ., — Mellor and Blackburn, JJ., dissenting. '* 3 H. & C. at p. 612, per Keating, J. See. 31.] SERVANT ACTING ON HIS OWN BEHALF 97 negligent way of lighting pipes. But if, after lighting his pipe under the same circumstances, he had negligently thrown away the match, and so burned the plaintiff's crops, his master would have been free from responsibility. This would be a negligent way of smoking tobacco, but an unexception- able way of driving horses. 7. Permission distinguished jrom em-ploy ment. On the same Acts which principle, a master is not responsible for the negligence of his !^rm^ted servant while engaged in doing something which he is per- but not mitted to do for his own purposes, but not employed to do for t^do"^^ his master. I am liable only for what I employ my servant to do for me, not for what I allow him to do for himself. If I permit my servant for his own ends to drive my horse, I am not liable for his negligence in doing so. In this respect he is not my servant, but a mere bailee to whom I have lent my property ; and there is no more reason why I should answer for his conduct in such a matter than why I should answer for that of my friends or my children to whom, without personal negligence on my own part, I lend or intrust property that may be made the instrument of mischief. Thus, in respect of Williams v. Jones}^ already referred to, it is submitted that even if the carpenter had been expressly permitted to smoke while doing his work, the master must have been equally free from liability, unless the act of granting such a permission was in itself an act of personal negligence on the master's part.^* § 32. The Rule of Common Employment 1. A master is not responsible for negligent harm done by Master not one of his servants to a fellow-servant engaged in a conunon to^his own employment with him. His liability extends only to harm servant for 1 ■ n- 1 ^ r ^ ■ i negUgence done to strangers, not to harm mfiicted by one of his servants of fellow- on another of them. This rule, indeed, has been to a large servant. extent abrogated by statute — the Employers' Liability Act, 1880 — but this Act does not apply to all trades or to all forms " (1865) 3 H. & C. 602. '« In Ruddirmn v. Smith (1889) 60 L.T. (N.S.) 208 the defendants were held liable by a Divisional Court for the act of a clerk who after office hours washed his hands in the lavatory and left the tap turned on. It is not easy to see, however, how the clerk in such circum- stances could be said to be engaged on his master's business. G PARTIES [Chap. II. Reason of rule. Conditions of exemption of employer. Who are fellow- servants. of accident, and the common-law principle is therefore still applicable in numerous instances. It is irrational, and it is to be regretted that the Legislature has not seen fit wholly to abolish it, instead of merely estabhshing a series of capri- cious exceptions to it. It was first applied in Priestly v. Fowler,^ and first definitely formulated in Hutchinson v. Yorh and Neivcastle Rly. Co.^ 2. The reason alleged for this exemption of the employer from liability to his own servants is that a servant impliedly agrees to run the risk naturally incident to the employment undertaken by him, and that one of these risks is that of harm due to the negligence or incompetence of his fellow-servants. " When several workmen," says Lord Cranworth,^ " engage to serve a master in a common work, they know or ought to know the risks to which they are exposing themselves, including the risks of carelessness, against which their employer cannot secure them, and they must be supposed to contract with reference to such risks." The rule, that is to say, is an applica- tion of the maxim Volenti non fit injuria. This presumption that a servant agrees to take upon himself the risk of his fellow-servants' negligence is, however, not a mere presump- tion of fact, as in other cases in which the maxim is applied ; it is a presumption of law, which can be excluded by nothing less than an express agreement between master and man by which the master forgoes the benefit of it. The rule applies even though the servant injured is a child.* 3. Two conditions must be fulfilled before this rule of exemption from liability is applicable : — (a) The servant injured and the servant causing the injury must be fellow-servants — i.e. they must be servants of the same master ; (b) They must at the time of the accident have been engaged in a common employment. 4. In the first place, then, they must be fellow-servants. It is not enough that they were working together and engaged in the same transaction, unless with respect to that transac- 1 (1837) 3 M. & W. 1. 2 (1860) 5 Ex. 343. » BartonsUll Goal Co. v. Reid (1858) 3 Maoq. 266 at p. 295. * Young v. Hoffmann Manufacturing Co. (1907) 2 K.B. 646 ; Crihb V. Kynoch (1907) 2 K.B. 548. See. 32.] THE RULE OP COMMON EMPLOYMENT 99 tion they were employed by the same master. If A engages an independent contractor B, and the servants of both A and B work together at the same job, A is liable for any harm done by his servants to the servants of B, and B is similarly liable to the servants of A.^ Servants are fellow- servants within the meaning of this rule even though one of them is the superior of the other. ^ The captain of a ship is a fellow-servant with the members of his crew, and the foreman of a factory with the artisans under his charge. The term fellow- servant also includes any person who, at Gratuitous the request or with the permission of a servant or his master, '*^'^'«*'*"'^'^- gratuitously and temporarily assists the servant in his work. By such assistance he puts himself quoad hoc in the position of a fellow- servant of the servant assisted by him, and therefore precludes himself from suing the employer for any harm resulting. Thus, in Degg v. Midland Rly. Co.'' the servants of the defendant company were engaged in turning a truck on a turntable, when a stranger, noticing their difficulty in doing the Avork, voluntarily gave his assistance, and while doing so was crushed and killed by an engine negligently driven by another servant of the company. It was held that the defendants were under no liability. On the other hand, if the person so injured while assisting the defendant's servants is not a mere volunteer, but is engaged in forwarding some business of his own in which those servants , are engaged, he is no fellow-servant of theirs, and is entitled to hold their employer responsible for their negligence towards him. Thus, in Wright v. London and N.W. Rly. Co.^ the plaintiff assisted the defendants' servants to shunt a horse- box containing a heifer belonging to him, and while so engaged he was run over by a train, and it was held that the company was liable. In considering whether the servants concerned arc servants of the same master it is important to remember and apply * Johnson v. Lindmij (1891) A.C. .371 ; Cameron v. Nijsirum (1893) A.C. 308. » Hediey v. Pinkney & Sons (1894) A.C. 222 ; Wilson v. Merry (1868) L.R. 1 H.L. So. 326. ' (1867) 1 H. & N. 773. « (1876) 1 Q.13.D. 252. 100 PARTIES [Chap. II. the rule already explained, that one man may lend his servant to another for a particular purpose, so as to make him quoad hoc the servant of that other, and therefore the fellow-servant of that other's servants.^ Common 5. The Second condition requisite for the exemption of the employment. jjja,ster is that of common employment. It is not enough that the plaintifi was a fellow- servant of the person by whose fault he was injured ; it is necessary also that these two must have been engaged in common employment. It is not meant by this that their work must be identical in nature. Employments are said to be common within the meaning of this rule when they are so connected with each other that the risk of an accident due to ihc conduct of one of them is a natural incident of the other, so that such risk must be deemed to have been in the contemplation of the servant when he undertook that other. This is so, for example, when two servants work at the same time and place at the same job ; as when they are engaged together in lifting heavy weights. Even, however, when they are doing entirely different work, the mere fact that they are working together at the same tilne and place may be sufficient to make their employment common. If an accountant is engaged to keep books in a dynamite factory his employers will be free from liability at common law if he is killed by an explosion due to the negligence of a fellow-servant engaged in the manufacture. Further, employments may be common even though they are conducted at different times and in different places, for they may be so connected that the safety of the one servant is committed to the care and skill of the other. The driver of a train, for example, is engaged in a common employment with the signalman who regulates the traffic, and with the superintendent who is responsible for the repair of the line, and with the engineer whose duty it is to see that the machinery and plant are in safe condition ; for he who undertakes to drive a train knows that he is intrusting his life to the care and competence of these fellow-servants, and has impliedly taken upon himself the risk of their default. " It is necessary," says Blackburn, J., in Morgan v. Vale oj Neath Rly. Co.,'-'' " that the employment must be common in this sense, that the safety of the one servant must in the ordinary " Supra, a. 28 (6). i" (1864) 5 B. & S. at p. 580. Sec. 32.] THE RULE OP COMMON EMPLOYMENT 101 and natural course of things depend on the care and skill of the others." If, on the other hand, the euiployments are not so connected, the master is responsible even at common law for harm done by one of his servants to the other. A domestic servant engaged in the house of a shopkeeper is not engaged in a common employment with the carman who drives the shop- keeper's cart. If she is run over in the street by the negligence of that carman, she will have a good cause of action against her employer ; for the risk of such an accident is not a natural incident of domestic service, and the plaintiff would have been equally subject to that risk whether she had accepted service with her employer or not. So it has been held that seamen engaged on different ships belonging to the same owner are not in common employment. i' It is to be noticed, further, that the servant injured must Common have been engaged in the common employment at the time ^,st°JxiS" of the accident ; for otherwise the risk cannot be said to have ^t ^}™^ f>f been an incident of that employment. If a conductor of an ' omnibus, while doing his work, is injured by the negligence of the driver, he will have no remedy against his employers ; but if he is run down by the omnibus while he is crossing the street on a hoUday granted to him by his employers, they will presumably be liable to him.^^ For this purpose, however, a servant is engaged in his employment not merely while actually at work, but also while going to or from his work, so long as he is on his employer's premises or is using means of access provided by the employer and under his control.^^ i* 6. A master, although he is not responsible to his servant Mastor liable for the neghgence of a fellow-servant, is yet responsible f or ^"^^I'l^p^^"^ his own negligence ; and for this purpose it is negligence to '1 The Petrel (1893) P. 320. " See Tunnel/ v. Midland Ely. Co. (1866) L.R. I C.P. 291 ; Hutchin- son V. York cfc Newcastle Ely. Co. (1850) 5 Ex. p. 352. " Coldrich v. Partridge, Jones, <& Co., Ltd. (1910) A.C. 77. " The nature of common employment is illustrated by the following- cases : Morgan v. Vale of Neath Ely. Co. (1864) 5 B. & S. 570 ; Hutchin- son V. York, etc., Ely. Co. (1850) 5 Ex. 343 ; Charles v. Taylor (1878) 3 C.P.D. 492; Bartonshill Coal Co. v. Eeid (1858) 3 Macq. 266; Bartonshill Coal Co. v. McQuire (1858) 3 Macq. 300 ; The Petrel (1893) P. 320 ; Burr v. Theatre Eoyal Drury Lane (1907) 1 K.B. 544, 102 PARTIES [Chap. 11. Absolute liability by statute. omit to use reasonable care in choosing competent and careful servants and in dismissing those who prove themselves incompetent and careless. ^^ A corporation, though it cannot act except through its servants or agents, may nevertheless have personal negligence imputed to it ^^^thin the meaning of this rule. The negligence of the supreme governing authority of the corporation, or the negligence of officers to whom its general powers have been delegated [e.g. the directors of a company), is in law the negligence of the corporation itself ; and if one of its servants is injured thereby, his remedy against the corporation is not excluded by the defence of common employment. ^^ 7. The defence of common employment is not open to an employer when the cause of action against him is based, not on negligence, but on the breach of some absolute statutory duty independent of negligence. In Groves v. Winiborne^'' a master was accordingly held Hable for an injury suffered by one of his servants through the absence of sufficient fencing around dangerous machinery, although there was no personal negli- gence on the master's part, and the fencing had been wrong- fully removed by one of his other servants ; for the statutory duty to maintain such fencing was absolute .^^ § 33. The Employers' Liability Act, 1880 statutory 1. This is a temporary Act, continued from time to time, exceptions to ^^ which a number of arbitrary exceptions are made to the rule of com- , - , , , . i- i i raon employ- rule of the common law that a master is not bable to his ment. servants for the negligence of their fellow-servants. By this Act an employer is made liable to his servants in the following five cases of personal injury : — [a) Injury caused by a defect in the condition of the ways, works, machinery, or plant connected with or used in " Tarrant v. Webh (1856) 18 C.B. 797 ; Butter v. Fife Coal Co. (1912) A.C. 149. " See, for example, B%tt,er v. Fife Goal Co. (1912) A.C. 149. 1' (1898) 2 Q.B. 402. >8 David V. Britannic Merthyr Coal Co. (1909) 2 K.B. 146 is to the same effect. See, however, the criticisms made by the House of Lords on the reasons of the Court of Appeal in this case : (1910) A.C. 74. See also Butler v. Fife Coal Co. (1912) A.C. 149. Sec. 33.] EMPLOYERS' LIABILITY ACT, 1880 103 the business of the employer, provided that the defect arises. from or has not been discovered or remedied owing to the negligence of the employer or of some person in his service intrusted with the duty of seeing that these things are in proper condition (s. 1, s-s. 1 ; s. 2, s-s. 1). (6) Injury caused by negligent superintendence on the part of any servant whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour (s. 1, s-s. 2 ; s. 8). (c) Injury caused by the negligence of any servant to whose orders the servant injured was bound to conform, if the injury resulted from his having so conformed (s. 1, s-s. 3). (d) Injury caused by the act or omission of any servant in obedience to improper rules or by-laws made by the employer, or in obedience to improper instructions given by any person delegated with the authority of the employer in that behalf (s. 1, s-s. 4 ; s. 2, s-s. 2). (e) Injury caused by the negligence of any servant having the charge or control of any signal, points, loco- motive engine, or train upon a railway (s. 1, s-s. 5). 2. A servant has no cause of action even in the foregoing Defences cases if any of the following circumstances exist : — A^t*"^ ^^^ (a) If he knew of the defect or negligence which caused the injury, and failed within a reasonable time to give or cause to be given information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the defect or negligence (s. 2, s-s. 3). (b) If he has been guilty of contributory negUgence — there being nothing in the Act to exclude this common-law defence.^ (c) If he has expressly or impliedly agreed to take the risk upon himself. A servant may expressly contract him- self out of the Act, and he may also do so impliedly by undertaking or continuing the work with full know- ledge of the danger incurred by him, under circum- 1 Weblin V. Ballard (.1886) 17 Q.B.D. 122., 104 PARTIES [Chap. II. Concurrent liability at common law. Liability when servant killed. stances which prove as a matter of fact that he im- pliedly agreed to take this risk upon himself. In this case the doctrine of Volenti non fit injwia is applicable.^ 3. No action can be brought under this Act unless notice of the injury is given to the employer within siz weeks, and unless the action is commenced within six months from the accident or, in case of death, within twelve months from the death. But in the case of death want of notice is no bar if the Judge is of opinion that there was some reasonable excuse for the failure to give notice (s. 4). 4. Every action under the Act must be commenced in the County Court (s. 6), and the maximum amount recoverable is a sum equal to the estimated earnings of such a servant during the three years preceding the injury (s. 3). 5. The person injured must be a workman within the mean- ing of the Act, and this term includes (1) railway servants, and (2) any person engaged in manual labour, other than domestic or menial servants (s. 8). To servants of other kinds the com- mon-law rule of common employment is still applicable in its full extent : for example, to an omnibus conductor, the driver of a tramcar, a shop assistant, a clerk, a seaman.^ 6. There may be concurrent liability both under the Act and at common law : as, for example, when the master has been guilty of personal negligence, or where there is no common employment ; and in these cases the common-law remedy exists to its full extent, and is not cut down by the conditions and limitations of the statutory remedy. 7. When the servant is killed instead of being merely injured, the right of his relatives and representatives is based both upon the Employers' Liabihty Act and upon the Fatal Accidents Act.* At common law there was a double defence for the master in such a case : first, the rule that the death of a person is not a cause of action (now excluded by the Fatal Accidents Act), and secondly, the riile of common employment (now « Supra, s. 14 (4) ; Smith y. Baker (1891) A.C. 325. ' Morgan v. London General Omnibus Co. (1884) 13 Q.B.D. 832-; Cook V. North Metropolitan Tramways Co. (1887) 18 Q.B.D. 683 ; Hurlt V. Ot. N. Ry. Co. (1891) 1 Q.B. 601 ; Yarmouth v. France (1887) 19 Q.B.D. ,647 ; Bound v. ioiorejice (1892) 1 Q.B. 226. * Infra, Ch.. XL. See. 3-1.] WORKMEN'S COMPENSATION ACT, 1906 105 excluded by the Employers' Liability Act). The claim in such a case, therefore, must conform to the requirements of both of these Acts. § 34. The Workmen's Compensation Act, 1906 By this Act employers have been made, in the cases to which it extends, the insurers of their servants against accidental injuries and death. The obligation of com- pensation is independent of any negligence on the part of employers or fellow-servants, and in strictness it stands outside the law of torts altogether. It is a statutory term of the contract of service, and one which, speaking generally, cannot be excluded even by express agreement. The quasi- contractual liability thus created may be concurrent with delictal liability either at common law or under the Employers' Liability Act ; and in such cases the servant may elect between the various remedies available for him.'^ ' Workmen's Compensation Act, 1906, s. I (2) (6) and s. 1 (4). Remedies judicial and extn- judicial. Damages. Injunction. CHAPTER III JUDICIAL REMEDIES 35. Classes of Remedies for Torts 1. Remedies for torts are of two kinds, being either judicial or extrajudicial — remedies by way of an action at law, and remedies by way of self-help. The various forms of extra- judicial remedy, such as distress, the retaking of property, and the abatement of a nuisance, will be considered in the next chapter, and we are here concerned with the other class alone. 2. The remedies obtainable for a tort by means of an action at law are of three chief kinds — (1) damages, (2) injunction, and (3) specific restitution of property. The first of these is the ordinary and essential remedy ; it is available as of right in all cases of tort. As we have already seen, a civil injury for which an action for damages will not lie is not to be classed as a tort, whatever other forms of process may be available. 3. An injunction is the order of a Court of justice directing the defendant to abstain from the commission, continuance, or repetition of an unlawful act, or to do some act which he is legally bound to do — such an order being enforced by imprison- ment (by way of attachment or committal for contempt) in case of disobedience. Injunction is a precautionary remedy against impending injury ; damages are a remedy for an injury already suffered. Injunction is supplementary to the ordinary and essential remedy of damages, and is granted in the dis- cretion of the Court in cases in which damages would not amount to adequate redress. Thus, in the case of a con- tinuing nuisance the plaintiff can obtain not merely damages for the injury already suffered, but also an injunction to prevent the continuance of it in the future. 4. Thfi third form, of judicial remedy is the specific restitu- 106 Sec. 35.] CLASSES OF REMEDIES FOR TORTS 107 tion of property. He who is wrongfully dispossessed of his Specific land, for example, is entitled to recover, not the value of the "^f^*^*"*'""- land as damages, but the land itself ; and a judgment in his favour will be executed by force if need be.^ So in the case of chattels wrongfully taken or detained the owner has the option of claiming either their value as damages, or specific restitution of possession.'- This remedy of specific restitution is obviously very similar to that of injunction, but differs from it in two ways — (a) in its historical origin, injunction being a purely equitable remedy, available originally only in the Court of Chancery, while specific restitution was a remedy granted by the Courts of common law ; (6) in its mode of execution, injunction being enforced by imprisonment for disobedience, while specific restitution is enforced by the forcible seizure of the property and its restoration to the plaintiff. § 36. Damages 1. The damages obtainable in an action of tort are of three Ordinary kinds, distinguished as ordinary, nominal, and vindictive. '^*'"' Ordinary damages are a sum of money awarded as compensa- tion for the actual loss suffered by the plaintiff by reason of the injury complained of. Certain general principles which determine the amount of this compensation — the measure of damages — ^will be considered by us in a later part of this chapter ; rules which relate merely to particular kinds of torts will be dealt with subsequently in the appropriate connection. 2. Nominal damages are a small sum of money, such as a Nominal shilling or forty shillings, awarded, not by way of compensa- damages. tion for any actual or proved loss, but merely as a recognition of the existence of some legal right vested in the plaintiff and violated by the defendant.^ Such damages can be obtained 1 The plaintiff in such oases recovers not only the land itseK, but also damages for the loss suffered by him during the period of his dis- possession {mesne profits), and it is by virtue of this right to damages that the wrongful dispossession of land is correctly classed as a tort. 2 As to specific recovery of land, see Chapter VI on Dispossession ; and as to the specific recovery of chattels, see Chapter X on Conver- sion. 1 The Mediana (1900) A.C. p. 116, per Lord Halsbury. 108 JUDICIAL REMEDIES [Chap. III. only in the case of those torts which are actionable fer se — that is to say, without proof of actual damage. A trespass to land, for example, is in itself an actionable wrong, even though it does no harm ; a plaintiff therefore must succeed in his action for damages, even though he shows no loss for which damages can be required as compensation. In such a case he will recover nominal damages. Much damages are the outcome of the recognition by the law of injuria sine damno. If, on the other hand, actual loss is proved, compensation awarded for that loss is not to be deemed nominal damages, however small the loss may be. Vindictive 3. Vindictive damages (otherwise called exemplary) are a amages. ^^^^ ^1 money awarded in excess of any material loss actually suffered by the plaintiff, but by way of solatium for any insult or other outrage to his feehngs that is involved in the injury complained of. Thus, an assault may do a man no physical harm whatever (it may amount, for example, to a mere threat of violence), yet if it is committed in such a manner or in such circumstances as to be a grave attack upon the dignity of the plaintiff, he may recover very substantial damages for it. So a trespass to land may be committed with such insolent defiance of the rights of the plaintiff that a jury will be justified in awarding heavy damages, although no actual loss is proved. So in an action by a father for the seduction of his daughter, the only actual loss which gives him a right of action is, as we shall see, the loss of his daughter's services ; yet damages are not limited to the amount of this loss, but are awarded vindictively in respect of the injury to his parental feelings and personal dignity. Vindictive damages, therefore, are given only in cases of conscious wrongdoing in contumelious disregard of another's rights. It is often said that such damages are awarded, not by way of compensation for the plaintiff, but by way of punishment for the defendant. It seems more accurate, however, to regard them as a solatium for wounded dignity and feelings ; as a remedy for injuria, in the sense in which Roman lawyers used that term. Wilful wrongdoing not amounting to injuria in this sense — for example, the wrongful detention of property — is no ground for vindictive damages ; neither is any evidence admissible Sec. 37.] REMOTENIiSS OP DAMAGE 109 as to the means of the defendant for the purpose of increasing or diminishing the damages to be awarded.^ * § 37. Remoteness of Damage 1 . Even when the defendant has committed a wrongful A \\ rongdocr act (whether wilful, negUgent, or of absolute liability) he is not "nVamago"'' responsible for all damage that is caused by it, but only for — caused by (a) Damage which he intended ; and '® ^'^^' (6) Damage which is the natural and probable consequence of the wrongful act. All other damage is said to be too remote. We have already seen that the law does not adopt the principle that a man acts at his peril and must pay compensation for all damage which in fact results from his actions, even by way of inevitable accident. Nevertheless it might be supposed that in the case of illegal acts the rule would be different, and that he who wilfully, negligently, or otherwise breaks the law should do so at his peril, and should be responsible for all damage which he actually causes thereby to other persons. Yet it is not so. Responsibility for wrongful acts is not unhmited, but is confined by the present rule as to remoteness of damage to certain forms of resulting harm.^ 2. This rule of limited liability does not apply only to Wrongs of those wrongs which depend upon the existence of wron_!ifulj^j^^"j!;[*® intent or negligence, but applies equally to those exceptional instances of absolute liability in which mens rea is not required. Thus, he who keeps cattle is absolutely liable if they escape from his custody and trespass on another's land ; yet he is not liable for all the damage which they may do while so " Keyse v. Ket/se (1886) 11 P.D. 100 ; Hodsoll v. Taylor (1873) L.R. 9 Q.B. 79. " For instances of the award of 'vindictive damages, see Merest v. Hnrnij (1814) 5 Taunt. 442; Sears v. Lyons (1818) 2 Stark. 317; Emhkn v. Myers (1800) 6 H. & N. 54 ; HiichU v. Money (1763) 2 Wils. 205; TuUidge v. Wnric (1769) 3 Wils. 18; Bell v. Midland lUy. Co. (1861) 10 C.B. (N.S.) 287. Vindictive damages are not alloAvcd in actions for breach of contract save in the exceptional cases of breach of promise of marriage and tlic wrongful dishonour of clieques by a bankti' : Addis V. Grarmphone Co. (1909) A.C. 488. 1 Sluirp V. Powell (1872) L.E. 7 C.P. 253. 110 JUDICIAL REMEDIES [Chap. III. Measure and existence of liability dis- tinguished. When is damage too remote ? When is damage natural and probable V trespassing, but only for that whicli is not too remote within the meaning of the foregoing rule.^ 3. When the wrongful act of the defendant is actionable fer se, the rule of remoteness determines the measure of liability, though not the existence of it. When, on the other hand, the wrong is not actionable without proof of actual damage, the rule of remoteness determines not merely the measure of damages, but also the existence of the cause of action. If all the damage proved is too remote, the defendant is under no liability at all. 4. Damage is too remote if it is neither the intended nor the natural and probable result of the wrongful act. Every man is responsible for damage which he intended to result and which did result from his wrongful act, however im- probable it may have been. Every man is also liable for the natural and probable results of his wrongful act, even though not intended by him. But no man is liable for conse- quences neither intended nor probable.^ 5. Damage is said to be natural and probable when it is so likely to result from the defendant's act that a reasonable man, in the circumstances of the defendant and with the defendant's = Gox V. Burbidge (1863) 13 C.B. (N.S.) 430 ; Sanders v. Tea-pe (1884) 51 L.T. (N.S.) 263. ' It is sometimes said that a person is presumed in law to intend the natural and probable results of his acts. (See B. v. Harvey (1823) 2 B. & C. p. 264.) Such a form of statement, however, is useless and mis- leading. So far as it is true at all, it is simply an improper way of saying that a person is responsible for the natural and probable con- sequences of his acts, whether he intended them or not. Commonly it makes no diiierence whether a consequence was intended or not, pro- vided that it was natural and probable ; for the same liability exists in each case. But there are exceptional instances (many of them in the criminal law, and some also in the law of torts) in which the distinction becomes important — a defendant being liable for intended consequences, but not for others. In such oases the alleged presumption does not exist, and in aU other cases it is unnecessary. The only constructive intent really kno\vn to the law is in those branches of the criminal law in which conscious negligence amounting to reckless disregard of consequences is imputed to the defendant as an intention to produce those consequences ; as in the case of miu'der, and of malicious injury to person or property. See p. 18, n. 4, In other cases the probability of a consequence may be evidence that it was intended, but there is no legal presumption to that effect, either rebut- table or conclusive. Sec. 37.] REMOTENESS OF DAMAGE 111 knowledge and means of knowledge, would have foreseen and avoided it. "No doubt," sayj Bovill, G.J., in Sharp v. Powell,'^ " one who commits a wrongful act is responsible for the ordinary consequences which are likely to result there- from ; but, generally speaking, he is not liable for damage which is not the natural or ordinary consequence of such an act, imless it be shown that he knows or has reasonable means of knowing that consequences not usually resulting from the act are by reason of some existing cause likely to intervene so as to occasion damage to a third person. Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally considered that the wrongful act is not the proximate cause of the injury so as to render the wrongdoer liable to an action." So in Greenland v. Chaplin,^ Pollock, C.B., suggests as the true rule " that a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur." So in Lynch v. Knight,^ Lord Wensleydale says: " To make words actionable by reason of special damage the consequence must be such as . . . might fairly and reasonably have been anticipated and feared would follow."" 6. The rule as to remoteness of damage is in truth merely Remoteness a special application of the general requirement of mens »-ea j*™*^*^ as a condition of liability in tort. No one is to be held liable for any damage except that which he intended to do or might have foreseen and avoided by due care. The same principle which determines whether the defendant has committed any wrongful act at all determines also, in cases where a wrongful act has been committed, the limit of his responsibility for the consequences of it. This explanation is not inconsistent with the fact that in cases of absolute liability, in which the requirement of 7nens rea does not exist, the rule as to remoteness of damage is still * (1872) L.R. 7 C.P. p. 258. s (1860) 5 Ex. p. 248. « (1861) 9 H.L.C. p. 600. ' See also Cory & Sons v. France Fenwick & Co. (1911) 1 K.B. p. 122. 112 JUDICIAL REMEDIES [Chap. III. applicable. A person is held absolutely liable for a certain event — for example, the trespasses of his cattle ; but he is not liable for the consequences of that event, unless they are natural and probable — i.e. unless they are of such a nature that they would be anticipated by a reasonably careful person as likely to ensue from such an event. The question of negligence and that of remoteness of damage are therefore essentially the same, and where the cause of action is itself based on negligence it is not always easy to keep them distinct. This being so, it is not surprising to find a certain amount of confusion in the books, and it is often difficult to determine whether the real question in a decided case is one as to the sufficiency of the proof of negligence or one as to the remoteness of damage. There is never any genuine question of remoteness unless it is first proved or admitted that the defendant has committed some wrongful act (whether one of negligence or not), and the question then arises whether the resulting damage or some particular portion of it is sufficiently connected with that act. Thus, when the defendant driving a carriage runs over the plaintiff and breaks his leg, the question is one as to the sufficient proof of negligence, and not one of remoteness of damage. But when the defendant, by his proved or admitted negligent driving, has put the plaintiff in such danger that in endeavouring to escape he is run down and injured by another vehicle, the driver of which is also negligent, the question is no longer one as to the negligence of the defendant, but one as to the remoteness of the damage. These two questions are generically the same, though specifi- cally different, and they are to be answered by the application of the same fundamental principle — viz. by the comparison of the defendant's conduct with that of an ordinarily reasonable and careful man. The essential question in each case is, What would such a person have known and foreseen and done had he been placed in the same circumstances as the defendant ? other ex- 7. Attempts have sometimes been made to explain the rule planations of g| remoteness of damage as based on a distinction between remoteness, different kinds of causes or modes of causation. Thus, it has been said that the wrongful act of the defendant must be the causa ■proxima of the damage, and not merely the causa remota. Similarly we find a distinction drawn between causa causans Seo. 37.] REMOTENESS OP DAMAGE 113 and causa sine qua non, or between cause and occasion, or between direct and indirect cause. ^ At other times we find that the test adopted is the existence of an uninterrupted chain of causation, and the liabihty of the defendant is said to cxtciid to all consequences which his act produces, until the chain of causation is broken by the intervention of some new and inde- pendent activity." None of these attempted explanations seems to possess any logical or legal vahdity. The only material and comprehensible difference between one conse- quence and another is a difference in probability, and the only practicable measure of the requisite degree of probability is to be found in the knowledge and foresight of a reasonably careful or prudent man. 8. Damage may be natural and probable although one of Probable the intervening links in the chain of causation may be '™°j^j^g section 25, subsection 8, all divisions of the High Court have power in respect of all kinds of injuries* to issue injunctions, whether prohibitory or mandatory, interlocutory or perpetual, whenever " it shall appear to the Court to be just or convenient that such order should be made." Moreover, by Lord Cairns' Act^ the Court has jurisdiction, in all cases in which it might grant an injunction, to award damages " either in addition to or in substitution for such injunction." 6. The jurisdiction thus conferred upon the High Court to Jurisdiction issue injunctions is discretionary. A claim for damages is a ^^y "^but"^' 1 Proctor V. Bayley (1899) 42 Ch.D. p. 401. 2 Att.-Oen. V. Corporation of Manchester (1893) 2 Ch. p. 92. See also Att.-Gen. v. Corporation of Nottingham (1904) 1 Ch. 673. 3 Harrington {Earl) v. Derby Corporation (1905) 1 Ch. p. 220. * Including even libel. But as to interlocutory injunctions in cases of libel, see Bonrmrd v. Ferryman (1891) 2 Ch. 269. 5 21 & 22 Vict. c. 27, s. 2. See supra, s. 38 (9). I 130 JUDICIAL REMEDIES [Chap. III. injunction granted as of course, fave in excep- tional cases. Jurisdiction to grant damages in lieu of injunction. claim, of right, but a claim for an injunction may be granted or refused by the Court in the exercise of its judicial discretion. The general principle, however, in accordance with which this judicial discretion must be exercised is that an injunction should be granted in all cases of continuing or threatened injury, unless in the particular instance there is some special reason why it should be refused. In other words, an injunc- tion, though not a matter of right, is a matter of course, unless the Court in the exercise of its judicial discretion and on special grounds considers that this remedy would not be just or convenient. " The rule," says Lord Kingsdown,^ " I take to be clearly this : if a plaintiff applies for an injunction to restrain a violation of a common -law right . . . unless there be something special in the case, he is entitled as of course to an injunction to prevent the recurrence of that viola- tion." 7. It is only in very exceptional circumstances that the Court will depart from this general rule of restraining an injury by injunction, and compel a plaintiff to accept pecuniary satis- faction for his wrongs, instead of securing for him the specific fulfilment of his rights. " Ever since Lord Cairns' Act," says Lindley, L.J., in the leading case of Shelfer v. City of London Electric Lighting Co.,'' " the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalising wrongful acts, or, in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrong- doer is able and willing to pay for the injury he may inflict. . . . Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing action- able nuisances, such jurisdiction ought not to be exercised except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer by way of example to trivial and occasional nuisances ; cases in which the plaintiff has shown that he only wants money ; vexatious and oppressive cases ; and cases where the plaintiff has so » Imperial Gas Light Co. v. Broadbent (1859) 7 H.L.C. p. 612. See Shdfer v. City of London Electric Lighting Co. (1895) 1 Ch. p. 310, per Lord Halsbury. (1895) 1 Ch. pp. 315, 316. Sec. 39.1 INJUNCTIONS 131 conducted himself as to render it unjust to give him more than pecuniary relief." 8. The nsicessity of this power of refusing an injunction in special cases in the exercise of a judicial discretion is due to the fact that the remedy of injunction, if granted in all cases as a matter of right, could be used by plaintiffs as an instru- ment of unjust oppression, with the most mischievous results both to individual litigants and to the public. It is notorioui, for example, that the facility with which injunctions have in the past been granted to prevent the obstruction of ancient lights has led to the rise of a class of plaintiffs whose sole object is extortion, and who by a threat of preventing building opera- tions by injunction exact sums of money greatly in excess of any loss which they sustain. A recognition of this and similar evils has resulted at the present day in greater willingness on the part of the Courts to award damages instead of granting injunctions.^ 9. Since the refusal of an injunction is a matter of judicial When an in- discretion, no hard and fast rules can be laid down on the be°refuscd. point ; but we may say that there are at least two matters which will be taken into consideration by the Court — namely, (1) the magnitude of the injury complained of, and (2) the con- duct of the parties. The fact that the damage done or apprehended is so small Injury too that pecuniary compensation will be a just and adequate '^^ "^^' remedy, and an injunction will be needlessly oppressive, may be deemed in the discretion of the Court a sufficient reason for refusing this latter remedy. Thus, in Colls v. Home and Colonial Stores^ (a case of ancient lights) Lord Lindsey says : " I am convinced that even if the plaintiffs have a cause of action, the damages which could properly be awarded them would be very small, and to grant a mandatory injunction in such a case as this would be oppressive and not in accord- ance with the principles on which equitable relief has been usually granted." So in Shelfer's case^" it is said by Smith, L.J. : " It may be stated as a good working rule that (1) if ' See the observations of Lord Macnaghtcn and Lord Lindley in Colls V, Home & Colonial Stores (1904) A.C. pp. 193, 212. Cf. Kine v. Jolly (1905) I Ch. p. 504, per Cozens-Hardy, L.J. ; Jordeson v. Sutton, etc., Oas Co. (1899) 2 Ch. p. 259, per V. WiUiams, L.J. » (1904) A.C. p. 212. i» (1895) 1 Ch. p. 322. 132 JUDICIAL REMEDIES [Chap. III. the injury to the plaintiff's legal rights is small, (2) and is one which is capable of being estimated in money, (3) and is one which can be adequately compensated by a small money payment, (4) and the case is one in which it would be oppres- sive to the defendant to grant an injunction, then damages in substitution for an injunction may be given." On this principle in Kine v. Jolly^^ the Court of Appeal refused a mandatory injunction to pull down a dwelling-house obstructing the light of the adjoining dwelling-house, although the damage was estimated at £300. On the same principle injunctions have been refused in the case of merely temporary or intermittent nuisances, ^^ and in the case of repeated tres- passes committed under a claim of right but causing no damage, 1^ and in cases where the interest of the plaintiff in the property affected was about to determine.^* How small the injury must be in order to exclude the remedy of injunction as unduly oppressive, in accordance with this rule, is a question to which no definite reply can be given. The present tendency, however, of judicial opinion and practice is to use more freely than formerly the power of preventing an oppressive use of this remedy. In the absence of any wilful or insolent disregard of the plaintiff's rights, the Courts tend to show themselves more inclined than formerly to hold an injury to be too trivial to justify the use of the formidable weapon of injunction. ^^ Conduct of 10. A second matter to be taken into account in the exercise the parties. q£ ^^^ Court's discretion to refuse an injunction is the conduct of the parties. If the plaintiff has acted in such a way as to render it unjust that he should obtain the benefit of this dis- cretionary remedy, he will be left to his bare legal right of damages. " An injunction should only be awarded to those whose conduct entitles them to the interference of a Court of equity."!^ Thus, if a plaintiff has knowingly stood by and " (1905) 1 Ch. 480. " Swaine v. Gt. N. Rly. Go. (1864) 4 De G. J. & S. 211. 1= Behrens v. Richards (1905) 2 Ch. 614; Llandudno Urban Council V. Woods (1899) 2 Ch. 705. " Jacomh v. Knight (1863) 3 De G. J. & S. 533. " Colls V. Home & Colonial Stores (1904) A.C. p. 193, per Lord Mac naghten ; Kine v. Jolly (1905) 1 Ch. p. 504, per Cozens-Hardy, L.J", >« Jordeson y. Sutton Gas Co. (1899) 2 Ch. p. 260. Sec. 39.] INJUNCTIONS 133 made no objection, while the defendant has in ignorance in- vaded his rights (as by erecting a building which obstructs an easement of light or a right of way), no injunction will be granted to him.^'' Conversely, if the defendant has himself acted with wilful and high-handed disregard of the plaintiff's rights, an injunc- tion will be granted even in cases which would otherwise have been deemed too trivial for this remedy.^^ 11. When, on the other hand, the damage done or appre- Effect of hended is substantial, and there is nothing in the conduct of on''"nteresta the plaintifi sufficient to render him undeserving of this oi defendant remedy, an injunction will be granted even though its effect public. will be to inflict upon the defendant or upon the public at large a loss that is much greater than any benefit so conferred upon the plaintiff. The Court will not sanction, in the interest of individuals or of the public, any substantial in- vasion of private rights, even on the terms of paying full compensation for the injury so inflicted. " Neither," says Lindley, L.J., in Shelfer's case,^^ " has the circumstance that the wrongdoer is in some sense a public benefactor (e.g. a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. Expropriation, even for a money consideration, is only justifiable when Parliament has sanctioned it." Thus, injunctions have been granted prohibiting the use of electric-lighting machinery which was causing structural injury and discomfort in a pubHc-house ;^'' prohibiting the making of coal-gas to the injury of the plaintiff's vegetable garden f^ prohibiting the discharge of the sewage of a town into a river to the injury of the plaintiff's fishing rights therein f^ ordering a building to be pulled down which 1' Duke of Leeds v. Earl of Amherst (1846) 2 Ph. p. 123 ; Gaskin v. BaUs (1879) 13 Ch.D. 324. Mere delay, however, is no bar to an in- junction, if the defendant has not been thereby misled ii»to altering his position. F-idlwood v. FuUwood (1878) 9 Ch.D. 176. " CoUa V. Home dk Colonial Stores (1904) A.C. p. 193, per Lord Macnaghten ; Kine v. Jolly (1905) 1 Ch. p. 495, per V. Williams, L.J See Daniel v. Ferguson (1891) 2 Ch. 27. " (1895) 1 Ch. p. 316. ^'> Shelfer v. City of London Electric Lighting Co. (1895) 1 Ch. 287. " Imperial Oas Light Co. v. Broadbent (1859) 7 H.L.C. 601. " Att.-Qen. v. Borough of Birmingham (1858) 4 K. & J. 528. 134 JUDICIAL REMEDIES [Chap. III. Damage s in lieu of injunction granted in respect of future damage. obstructed the windows of an adjoining building ■,^^ ordering the removal of great quantities of stones and ballast that had been wrongfully deposited upon the plaintiff's oyster beds.^* In this last case it is said by Holmes, L. J.^^ : " The de- fendants urge that the injunction will be of little advantage to the plaintiffs, and that the cost and trouble which it will impose on the defendants will be out of all proportion to any benefit that will follow from it. In this I am disposed to agree, but it is no legal ground for refusing the relief asked. If it were, persons in the position of the defendants would be able to acquire rights of property by wrongdoing and to carry out a compulsory purchase not only without but in opposition to statutory authority." 12. When damages are awarded in substitution for an in- junction in pursuance of the discretionary jurisdiction con- ferred by Lord Cairns' Act, such damages are given in respect of the future, and not merely, as at common law, in respect of damage already done in the past. Such an award of damages amounts, therefore, to a legalisation of the apprehended mischief ; the defendant has thereby purchased a right to do the act in respect of which an injunction was asked, and in respect of which damages have been given instead. There are, therefore, three alternative courses open to the Court in such cases : — (a) To give damages for the past and an injunction for the future ; (6) To give damages for the past and refuse any relief as to the future, thus leaving the plaintiff free to bring a second action for further damage when it accrues ; (c) To give damages for the past and also damages in respect of the future in lieu of an injunction, thus finally dis- posing of the matter, and legalising the continuance of the injurious state of things. '^^ " Jachmn v. Normanby Brick Go. (1899) 1 Ch. 438 ; Daniel v. Fer- guson (1891) 2 Ch. 27. ^■i Woodhouse v. Nevrry Navigation Co. (1898) 1 Ir. R. 161. ^^ Ibid. p. 174. 2« Fritz V. Hobson (1880) 14 CD. p. 548 and the other oases cited supra, p. 119, n. 24. It is unsettled whether there is any power under Lord Cairns' Act to award damages in lieu of an injunction in a quia timet action, where no actual harm or complete cause of action for «ec. 40.] LIMITATION OF ACTIONS 135 § 40. The Limitation of Actions 1. Subject to certain exceptions which will be considered Six years' later, every action to recover damages for a tort may and must !i"ii'^tion be commenced within six years after the cause of action has of tort. arisen. This is the general rule established by 21 James I. c. 16, sec. 3. 2. The period of limitation begins to run at the time when When the a complete and available cause of action first comes into exist- 1™" I'eg""^ ence. Iherefore when a wrongiul act is actionable per se without proof of actual damage, the statute runs from the time at which the act was committed — for example, hbel, assault, or trespass to land or goods. This is so even though the resulting damage does not happen or is not discovered until a later date ; for such damage is not a new cause of action, but merely an incident of the old one.^ When, on the other hand, the wrong is not actionable without actual damage, the period pf limitation does not begin to run until that damage happens : as in the case of negli- gence, fraud, or wrongful interference with an easement of support.^ 3. When the injury is a continuing one — for example, a Continuing nuisance — a new cause of action arises de die in diem or as '"J"''^'^^- often as fresh damage accrues ; and therefore an action will always he in respect of any continuance of the wrong, or any accrual of fresh damage, which is not more than six years old. Thus, when a continuing nuisance has lasted for ten years, an action will he for damages for its continuance during the last six years, although any claim for damages for the first four years is barred by the statute. So in the case of damages yet exists. Dreyfus v. Peruvian Ouano Co. (1889) 43 Ch.D. p. 333 ; Martin v. Price (1894) 1 Ch. 276. It is possible, therefore, that in such a case the Court has only two alternatives — namely, either to grant an injunction or dismiss the action. 1 BatUey v. Faulkner (1820) 3 B. & Aid. 288 ; Roberts v. Read (1812) 16 East 216 ; Howdl v. Young (1826) 5 B. & C. 259 ; Hughes v. Twisden (1886) 55 L.J. Ch. 481 ; 8hoH v. McCarthy (1820) 3 B. & Aid. 626. ^ Roberts v. Read (1812) 16 East 215 ; Thomson v. Lord Clanmorris (1900) 1 Ch. 718 ; Backhouse v. Bonomi (1861) 9 H.L.C. 503. As to the period of limitation when distinct damage results at different times from the same wrongful act, see s. 38 (10) supra. 136 JUDICIAL REMEDIES [Chap. III. No person capable of suing or being sued. Disability of plaintiff. Absence of defendant. withdrawal of support from land an action will lie for any subsidence not more than six years old.' 4. Even when a cause of action is otherwise complete, it may be that there is not yet in existence any person who is capable of instituting the action, or any defendant capable of being sued ; and in such case the statute does not begin to run until this bar to the institution of an action has dis- appeared. Thus, if a tort is committed against the estate of an intestate in the interval between his death and the grant of letters of administration, the statute does not begin to run until an administrator is appointed.* Similarly, the statute does not begin to run in favour of a foreign ambassador until the termination of his period of of&ce ; for until then no action will lie against him.^ If, however, a complete and available cause of action has once come into existence, no subsequent and temporary bar to the institution of an action — for example, the death of either party intestate — has any effect in suspending the running of the- statute." 5. If, when the cause of action first arises, the plaintiff is a minor or a lunatic, or the defendant is absent from the United Kingdom, the period of limitation does not begin to run until the plaintiff becomes of age or of sound mind, or the defendant comes into the Kingdom.' These disabilities must exist at the time when the cause of action first arises. If the statute has once commenced to run, no subsequent insanity of the 3 Whitehouse v. Fellowes (1861) 10 O.B. (N.S.) 765; Backhouse v. Bonomi (1861 ) 9 H.L.C. 503 ; Darley Main Colliery Co. v. Mitchell (1886) 11 A.C. 127 ; Crumbie v. Wallsend Local Board (1891) 1 Q.B. 503. ■■ Murray v. East India Co. (1821) 5 B. & Aid. 204. •^ Musurus Bey v. Gadban (1894) 2 Q.B. 352. » Rhodes v. Smethurst (1840) 6 M. & W. 351. ' The rule as to the infancy or lunacy of the plaintiff is established by 21 Jao. I. c. 16, sec. 7, and the rule as to the absence of the defendant by 4 Anne, c. 16, sec. 19, and 19 & 20 Vict. o. 97, sec. 12. By virtue of this last Act the Isle of Man and the Channel Islands are to be deemed for this purpose part of the United Kingdom. By the statute of James I. the coverture or imprisonment of the plaintiff or the absence of the plaintiff beyond the seas also prevented the statute from running, but tliese exceptions are no longer recognised. 45 & 46 Vict. c. 75, s. 1. ; 19 & 20 Vict. c. 97, s. 10. As to the effect of the temporary presence of the defendant within the realm, see Gregory v. Hurrill (1823) 1 Bing. 324. Sec. 40.] LIMITATION OP ACTIONS 137 plaintiff or absence of the defendant beyond the seas will have any efEect.^ 6. When the defendant has been guilty of fraud or other Rule of con- wilful wrongdoing, the period of limitation does not begin to ^^^ " '"*^"' ■ run until the existence of a cause of action has become known to the plaintiff. This is commonly spoken of as the rule of concealed fraud, but the term fraud is here used in its widest sense as meaning any act of wilful and conscious wrong- doing — for example, a wilful underground trespass and abstraction of minerals. The term concealed, moreover, does not imply any active suppression of the facts by the defendant, but means merely that the wrong is unknown to the person injured at the time of its commission.' In all other cases save that of concealed fraud as thus defined, the statute runs from the time when the cause of action first arises, and it makes no difference whether the cause of action was or was not known to the plaintiff, or whether it was or was not discoverable by him. This exception of concealed fraud is not expressed in the Equitable statute, but was estabhshed by the Court of Chancery as being '^'^j=in of conformable to the spirit of the statute, if not to its letter. According to certain decisions,^" which are not, however, of such authority as to determine the matter finally, no such exception was recognised by the Courts of common law ; but whether this was so or not, the better opinion is that since the Judicature Act the equitable rule has become applicable in all cases. ^1 It is commonly said that the rule of concealed fraud does not apply when the plaintiff could by the exercise of care and diligence have discovered the fraud. In other words, it is said that the statute runs, not from the time when the cause of action was discovered by the plaintiff, but from 8 Rhodes v. Smethurst (1840) 6 M. & W. 351. » Btdli Coal Mining Co. v. Osborne (1899) A.O. 351. " Imperial Oas Light Co. v. London Gas Light Co. (1854) 10 Ex. 39. 11 Gibhs V. Guild (1881) 8 Q.B.D. 296, 9 Q.B.D. 59 ; Armstrong v. Milburn (1886) 54 L.T. (N.S.) 247, 723. It has been suggested, however, that the equitable rule does not even yet apply to causes of action whicli were formerly cognisable solely at common law. Barber v. Houston (1885) 18 L.R. It. 475 ; Armstrong v. Milburn, supra, per Matthew, J., at p. 249. 138 JUDICIAL REMEDIES [Chap. III. any earlier time at which it ought to have been discovered. But there seems to be no decision to this effect, and it is difficult to see what duty of care or diligence a person de- frauded owes to him who defrauded him.^^ Special periods le than six years. Slander. Injuries to the person. Public Authorities Protection Act. § 41. Special Periods of Limitation 1. The general limitation of six years estabhshed by the Act of James I. is subject to certain exceptions, there being parti- cular species of injuries for which a shorter period is appointed. Some of these exceptions are established by the principal Act itself and others by later enactments. 2. It is provided by the Act of James I. that an action for slander must be brought within two years. This pro- vision, however, applies only to slander actionable per se ; slander actionable only on proof of special damage is subject to the ordinary limitation of six years from the date when the damage accrued.^ This two years' limitation is subject to the same qualifications as to disability, absence, and so forth as the ordinary limitation of six years. 3. By the Act of James I. actions for assault, false im- prisonment, trespass to the person, and possibly other forms of personal injury, must be brought within four years, subject, however, to the same qualifications as in the six years' period.^ 4. By the Public Authorities Protection Act, 1893,^ it is provided that where " any action ... is commenced . . . against any person for any act done in pursuance or execu- tion or intended execution of any Act of ParUament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority . . . the action shall not lie or be instituted unless it is 12 Sej Bulli Goal Mining Co. v. Osborne (1899) A.C. at p. 363 ; JBetje- mann v. Betjemann (1895) 2 Ch. p. 482. * Saunders v. Edwards (1662) Sid. 95. The reason is that the statute says " two years next after the words spoken," impljring that the cause of action is then complete. ^ The words of the statute are " actions of trespass of assault, battery, wounding, imprisonment." Quaere whether this includes personal in- juries for \\'hich the action under the old practice was not trespass but case. = 56 & 57 Vict. c. 61, s. 1. Sec. 41.] SPECIAL PERIODS OF LIMITATION 139 commenced within six months next after the act, neglect, or default complained of, or, in the case of a continuance of "ijury, or damage, within six months next after the ceasing thereof." This Act, notwithstanding the generality of its language, probably extends only to the protection of public authorities, and not to the protection of private persons or bodies corpo- rate, even though they have statutory duties or powers imposed on or vested in them for the benefit of the public— for example, a railway company or a harbour company."* On the other hand, the Act protects public authorities not merely in the exercise of their strictly public functions, but also in the exercise of functions of the same nature as those exercised by private persons ; provided, at least, that these functions are not optional merely, but are performed as a matter of statutory obligation. Thus, a municipal corpora- tion which lies under a statutory duty to carry passengers on its tramways has the protection of the Act in respect of the negligence of its servants whereby personal injuries are inflicted on a passenger.^ * 5. By the Maritime Conventions Act, 1911, a period of Collisions hmitation of two years is imposed upon claims in respect ^* ^^^' of damage to a vessel or her cargo, or in respect of loss of life or personal injuries suffered by any person on board a vessel, caused by the fault of any other vessel.' This * Lyles v. Soufhend-on-Sea Corporation (1905) 2 K.B. at p. 13. = The Ydun (1899) p. 236 ; Parker v. L.G.C. (1904) 2 K.B. 501 ; Lyles Y. Southend-on-Sea Corporation (1905) 2 K.B. 1. " In The Earl of Harrington v. The Corporation of Derby (1905) 1 Ch. 205, it was decided by Buckley, J.,that in the case of a continuing injury, such as a nuisance, the plaintiff, although he must sue within six months after the ceasing of the injury, may in such an action recover compen- sation for aU damage which has accrued within the ordinary period of six years before action brought. In Williams v. Mersey Docks and Harbour Board (1905) 1 K.B. 804 it was decided by the Court of Appeal that an action against a public authority under the Fatal Accidents Act, 1846, must be brought within six months from the date of the injury to the deceased, and therefore that if his death does not ensue until after six months from the injury, no action will lie at all. For other decisions on the meaning of the Public Authorities Protection Act, see Greenwell v. Howdl (1900) 1 Q.B. 535, and Tilling v. Dick, Kerr, d- Co. (1905) 1 K.B. 502. ' Maritime Conventions Act, 1911, s. 8. See s. 13 (6) supra. 140 JUDICIAL REMEDIES [Chap. III. period may, however, be extended by the Court in certain circumstances. Statutory 6. A fifth exception comprises all those miscellaneous special cases in which a right of action in tort is conferred by a limitations, statute which also establishes for it a special period of limita- tion. Examples are the Civil Procedure Act, 1833, conferring rights of action against executors, the Employers' Liability Act, 1880, and the Fatal Accidents Act, 1846. When a statute creates a new tort and imposes no period of limitation, the case falls within the general provisions of the Act of James I.® ' § 42. Felonious Torts No action for I When a tort is also a felony, it seems that no action can telonions tort . -iinfT until felon be brought m respect 01 the tort until the defendant has been prosecuted, prosecuted for the felony. " It has been long established as the law of England," says Cockburn, C.J., in Wells v. Abrahams,^ " that where an injury amounts to an infringe- ment of the civil rights of an individual, and at the same time to a felonious wrong, the civil remedy, that is, the right of redress by action, is suspended until the party inflicting the injury has been prosecuted." The rule is designed in the interests of public justice, for it compels persons injured by criminal offences to fulfil their duty of prosecuting the offender, instead of contenting themselves with the enforcement of their private rights. This seems, however, to be no sufficient justification for such an interference with the ordinary course of civil justice. Moreover, the authority for the rule is scanty and unsatisfactory. It has been often laid down in judicial dicta, but has been seldom applied ; doubt has been cast * Thomson v. Lord Clanmorris (1900) 1 Ch. 718. This case decides that the two years' period of limitation provided by the Civil Procedure Act, 1833, for " actions for penalties, damages, or sums of money given by any statute " applies only to penal actions, and not to statutor3r torts for which the remedy is an action for damages. ' As to the effect of the Statutes of Limitation upon the title to chattels, see Chapter X on Conversion. As to the law of prescription as a defence to an action for nuisance, see Chapter VII on Nuisance. Tho operation of the Statutes of Limitation upon the title to land belongs to the law of property, and not to that of torts. 1 (1872) L.R. 7 Q.B. at p. 557. Sec. 42.] FELONIOUS TORTS 141 upon it ; and it seems not impossible that it may be declared in future to be no part of the law of England.^ 2. If the defendant in an action of tort wishes to raise the objection that the wrong complained of amounts to a felony, it seems that the proper procedure is not to raise this as a defence in the pleadings, but to make an application to the Court to stay the action.^ 3. The rule has no application unless the person sued for Exceptions the tort is the felon himself. If he is a third person innocent *»jg<'"''i''^l of any felony, although civilly responsible for the tort, an action will lie against him, whether the felon has been prose- cuted or not. Thus, an action will lie against a master in respect of a felonious tort committed by his servant in the course of his employment.* So the innocent receiver of stolen goods may be sued in trover, although the thief has not been prosecuted.^ 4. The rule has no application unless the plaintiff in the action of tort is the person who was injured by the felony, and whose duty it therefore is to institute a prosecution. Thus, if the person injured becomes bankrupt, his right of action may pass to his trustee, but it is not accompanied by the duty of prosecuting, and therefore the trustee's right of action is not suspended.^ 5. The rule applies only to felonies, not to mere misde- meanours or criminal offences punishable only on summary conviction. 2 See Wellock v. Constantine (1863) 2 H. & C. 140 ; Cox v. Paxton (1810) 17 Ves. 329 ; Marsh v. Keating (1833) 2 CI. & F. p. 286 ; Wells V. Abrahams (1872) L.K 7 Q.B. 554 ; White v. Spettigue (1845) 13 M. & W. 603 ; ex parte Ball (1879) 10 Ch.D. 667 ; Appleby v. Franklin (1880) 17 Q.B.D. 93 ; Roope v. d'Avigdor (1883) 10 Q.B.D. 412 ; Midland Insurance Co. v. Smith (1881) 6 Q.B.D. 561. 3 Wells V. Abrahams (1872) L.R. 7 Q.B. 654 ; Roope v. d'Avigdor (1883) 10 Q.B.D. 412 ; ex parte Ball (1879) 10 Ch.D. 667 ; Appleby v. Franklin (1886) 17 Q.B.D. 93. In Wellock v. Constantine (1863) 2 H. & C. 146, indeed, a plaintiff suing for damages for a rape was nonsuited because of the felony, and the nonsuit was upheld by a majority of the Court of Exchequer, but this case has been disapproved {Wells v. Abrahams ; ex parte Ball, supra) and may be regarded as not law. 1 Osborn v. Gillett (1873) L.R. 8 Ex. 88. 6 White V. Spettigue (1845) 13 M. & W. 603 Marsh v. Keating (1833) 2 01. & F. 250. 6 Ex parte Ball (1879) 10 Ch.D. 667. 142 JUDICIAL REMEDIES [Chap. III. 6. The rule does not apply to actions brought under the Fatal Accidents Act, 1846, even though the killing of the deceased amounted to murder or manslaughter. This Act expressly provides that the action will lie " although the death shall have been caused under such circumstances as amount in law to felony." 7. The rule does not apply if the prosecution of the offender has become impossible notwithstanding due diligence on the part of the person whose duty it was to prosecute — ^as, for example, when the offender has died or escaped from the jurisdiction before there has been any undue delay in com- mencing a prosecution.' Right of action for tort not assignable. § 43. Assignment of Rights, of Action for Torts 1. The assignment of a right of action for damages for a tort is in general illegal and void. There is, indeed, no decided case which definitely establishes this rule or determines the precise limits of it. Nevertheless it has been so often said or assumed to be the law that there is no serious doubt as to the general principle, though its exceptions and qualifications must remain in the meantime a matter of some uncertainty.^ The rule is based on considerations of public pohcy, and is designed to prevent the oppressive litigation that would result if a right of action for damages were recognised as a marketable com- modity capable of purchase by way of a commercial specula- tion. The purchase of a right of action for a tort is, indeed, merely a particular form of the offence of maintenance — ^the act of assisting and promoting without lawful justification the htigation of others. 2. The rule appUes to torts of all kinds, whether they are injuries to property or to the person or otherwise, and the suggestion which has sometimes been made that injuries to property are an exception seems not maintainable. - 3. The rule is not limited to rights of action for a tort, but ' Marsh v. Keating (1834) 2 CI. & F. 250 ; ex parte Ball (1879) 10 Ch.D. 667. 1 May V. Lane (1894) 64 L.J. Q.B. 236 ; Dawson v. Ot. N. Rly. Co. (1905) 1 K.B. 260 ; Prosser v. Edmonds (1835) 1 Y. & C. 481. 2 See Dawson v. Ot. N. Rly. Co. (1905) 1 K.B. 260. Sec. 43.] ASSIGNMENT OP RIGHTS OF ACTION 143 applies equally to rights of action for damages for a breach of contract. The general principle is that no right to recover damages for an milawful act, whether it is a tort or a breach of contract, is legally recognised as a form of assignable pro- perty.^ ■i. But the rule is not applicable where the right assigned (.lualiiiintkins has some other source than an illegal act. It is on this prin- i'liiy"^'™^ ciple that rights arising under a contract are assignable, as opposed to rights arising from the breach of a contract. So also with rights arising quasi ex contractu, as in the case of money paid by mistake. On the same principle, there should be no objection to the assignment of a judgment debt even in an action of tort, or to the assignment of money agreed to be paid by way of settlement of a claim in tort. So also a claim for compensation under the Lands Clauses Consolida- tion Act, 1845, sec. 68, in respect of lands injuriously affected by an exercise of statutory power is legally assignable.* 5. The rule does not prevent the assignment of property merely because it is the subject of litigation and cannot be recovered without an action. Thus, a sale of chattels by A to B while they are wrongfully detained by C is valid and confers upon B a right of action against C.^ 6. The rule does not prevent the assignment by a trustee in bankruptcy of the bankrupt's choses in action, even though they arise ex delicto. For the trustee has a statutory power and duty of realising the assets, and therefore of selhng them if he pleases. 8 7. The rule does not prevent the subrogation of an insurer to the rights of the insured, even though these rights are rights of action for damages for a tort.'' 8. Presumably the rule does not apply to any other case in which the assignee has any lawful interest in the subject- matter sufficient to exclude the doctrine of maintenance — for example, an assignment by a trustee to his beneficiaries of a right of action for an injury to the trust estate.^ » May V. Lane (1894) 64 L.J. Q.B. 236, per Eslier, M.R., and Rigby, L.J. * Dawson v. Gt. N. Ely. Co. (1905) 1 K.B. 260. 6 Dawson v. Gt. N. Ely. Co. (1905) 1 K.B. at p. 271. » Seear v. Lawson (1880) 15 Ch.D. 426 ; Guy v. Churchill (1888) 40 Ch.D. 481, ' King v. Victoria Insurance Co. (1896) A.C. 250. 8 Guy V. Churchill (1888) 40 Ch.D. 481. 144 JUDICIAL REMEDIES [Chap. III. Effect of illegal assignment. 9. Possibly a right of action for an injury to property is assignable along with the property itself.^ 10. When a right of action for a tort is assignable at all, it is a legal chose in action within the meaning of the Judicature Act, 1873, sec. 25, so that the assignee may sue in his own name.^" 11. When, in accordance with the general principle, a right of action for a tort is not assignable, an attempted assignment of it has presumably the following effects : — (a) The assignment is void as between the parties, and the . right of action remains vested in the assignor, and enforceable by him. (b) An action by the assignee in his own name will fail. (c) An action by the assignee in the name and by the authority of the assignor will amount to the wrong of maintenance. Election between action on tort and action on fictitious contract. In what eases waiver allowed. § 44. The Waiver of Torts 1. There are certain cases in which a person injured by a tort is entitled, if he pleases, to waive the tort, as it is termed, and to sue instead for the breach of a quasi-contract — a con- tract fictitiously implied by law. In the days when forms of action still existed he had his election either to sue in trespass, trover, case, or some other delictal action, or to use instead the remedy appropriate to the breach of a simple contract — namely, assumpsit ; and although forms of action are now happily abolished, the process of waiving a tort has not yet ceased to be of practical importance. 2. The waiver of a tort is not allowed in all cases ; it is a special device for special occasions. There is no general rule that he who is injured by a tort can sue on an imphed contract to pay compensation for the harm so done. In what cases, then, is a waiver permitted ? As the authorities stand this question is not one which it is possible to answer completely. There is, however, one rule which may be laid down with » Dawson v. Gt. N. My. Co. (1905) I K.B. at p. 271 ; Williams v. Protheroe (1829) 5 Bing. 309. 1" King v. Victoria Insurance Co. (1896) A.C. 250. Sec. 44.] THE WAIVER OE TORTS 145 confidence : when the defendant has by means of a tort become possessed of a sum of money at the expense of the plaintiff, the plaintiff may at his election sue either for damages for the tort, or for the recovery of the money thus wrongfully obtained by the defendant ; and this latter action (an action for money had and received by the defendant to the use of the plaintiff)" is based on an implied contract of agency, the defendant being fictitiously assumed to have rightfully received the money as the plaintiff's agent, and to have failed to pay it over to his principal. This is so, for example, if the defendant wrongfully takes by trespass or obtains by fraud the money of the plaintiff.^ So also if the plaintiff's goods are wrongfully converted and sold by the defendant, the plaintiff may choose between an action of trover for the value of the goods and an action of quasi-contract for the price so received by the defendant. " If a man's goods are taken by an act of trespass and are subsequently sold by the trespasser and turned into money, he may maintain trespass for the forcible injury, or waiving the force he may maintain trover for the wrong, or waiving the tort altogether he may sue for money had and received."^ So if the defendant has usurped the plaintiff's office and received the fees belonging to it, the plaintiff may either sue him in case for this disturbance of his office, or in assicmpsit for the money so received.^ 3. It is far from clear, however, how much further this Uncertain doctrine of the waiver of torts extends. There are authorities ^^"J"' °* which, if they could be relied on, would justify us in laying down a general rule to the effect that whenever the defendant has by his tort acquired a profit of any sort (whether it is the receipt of money or not) the tort may be waived, and an action of contract brought to compel payment of a pecuniary equiva- lent for that profit. Thus, in Lightly v. Olouston* the defendant had wrongfully taken the plaintiff's apprentice into his employ- ment, and the plaintiff, instead of suing in tort for damages for this invasion of his right to the services of his appren- tice, successfully sued in assumpsit to recover a reasonable 1 Neate v. Harding (1851) 6 Ex. 349. 2 Rodgera v. Maw (1846) 15 M. & W. p. 448. 3 Arris v. Stukdey, 2 Mod. p. 262. « (1808) 1 Taunt. 112. 146 JUDICIAL REMEDIES [Chap. III. Destruction of one cause of action by election of the other. Judgment recovered. Accord and satisfaction. remuneration for these services as on a contract of hiring. It is doubtful, however, whether any such general extension of the doctrine of waiver is justifiable.^ 4. In those cases in which the waiver of a tort is permitted the two causes of action — delictal and quasi-contractual — are not cumulative, but alternative. The plaintiff must make his election between them, and cannot pursue both. Anything, therefore, which exhausts or extinguishes one of the causes of action destroys the other also. Thus, judgment recovered, even without satisfaction, in an action of tort merges and destroys not merely the cause of action in tort, but also the cause of action in contract ; and, conversely, a judgment in contract is a bar to any subsequent action based on the tort. Accordingly when the plaintiff's goods have been con- verted and sold, and he obtains judgment in an action for money had and received, he cannot thereafter resort to an action of trover ; and this is so even though the damages recoverable in trover would far exceed the price for which the defendant sold the goods and for which judgment has been obtained against him.^ 5. The same result follows if one of the causes of action is destroyed, not by merger in a judgment, but by accord and satisfaction or any other form of release. The settlement of a claim or action for money had and received will effectivelj' destroy any right to proceed subsequently for damages in tort ; and this is so regardless of the relative values of the two claims. In all such cases, however, it is a question of fact, depending upon the intention of the parties, whether the payment made by the defendant to the plaintiff was in truth an accord and satisfaction extinguishing the cause of action, rather than a mere payment on account in reduction of damages.' " See also Foster v. Stewart (1814) 3 M. & S. 191 ; Hamlhj v. TroU, Co-i^TD. 375 ; Russell v. Bell (1842) 10 M. & W. 340 ; Rumsey v. N.E. Rly. Co. (1863) 32 L.J. C.P. 244 ; PhilUfs v. Homfray (1883) 24 Ch.D. 439. « Rice V. Reed (1900) 1 Q.B. 54 ; BtccMand v. Johnson (1854) 15 C.B. 145 ; Smith v. Baker (1873) L.R. 8 C.P. 350. ' Compare Rice v. Reed (1900) 1 Q.B. 54, and Burn v. Morris (1836) 4 Tyrwhitt 485, with Brewer v. Sparrow (1827) 7 B. & C. 310, and Lythgoe v. Vernon (1860) 5 H. & N. 180. Sec. 44.] THE WAIVER OP TORTS 147 6. For the same reason, when there are joint wrongdoers, a Joint judgment obtained against one of them in tort, or an accord """"g^o'^''^- and satisfaction made with him in respect of a claim in tort, will be a bar to any claim for money had and received against the other, and vice versa.^ 7. On the other hand, a mere demand for money had and Effect of received, not followed by an actual settlement, is not such of ™ommence- an election to waive the tort as will preclude an action for it." ™ent of It has been said, however, that the commencement of an action amounts to a conclusive election, even though it is not followed by any judgment or settlement. "If an action for money had and received is brought, that is in point of law a conclusive election to waive the tort ; and so the commence- ment of _an action of trespass is a conclusive election the other way."!" This doctrine, however, seems to be unsupported by any decision, and is contrary to other authorities.^^ § 45. Foreign Torts 1. No action will he in England for any trespass or other No action tort committed in respect of land situated out of England. ^ fo^ tort in This is so even if no question as to the title to the land is in foreign land, issue between the parties, and even though the property is situated in uncivilised regions out of the territory and juris- diction of any civihsed State. In the case of contracts and trusts, on the other hand, the jurisdiction of English Courts is not excluded by the fact that the land to which the contract or trust relates is out of England.^ 2. Except in the case of injuries to land, an action of tort Action lies will lie in England although the cause of action has arisen 1°^ °*'^'^!^ . o " ... foreign torts abroad. Provided that the person of the defendant is within on two con- ditions. « Buckland v. Johnson (1854) 15 C.B. 145. Cf. Rice v. Reed (1900) 1 Q.B. 64. " Valpy, V. Sanders (1848) 5 C.B. 886 ; Morris v. Robinson (1824) 3 B. & C. 196 ; Rice v. Reed (1900) 1 Q.B. 54. 1° Smith V. Baker (1873) L.R. 8 C.P. 350, per BoviJl, C.J. " See Hitchin v. Campbell (1771) 2 W. Bl. 827 ; Morris v. Robinson (1824) 3 B. & C. 196 ; Rice v. Reed (1900) 1 Q.B. 54. 1 British South Africa Company v. Companhia de Mocambique (1893) A.C. 602. ^ See Ewing v. Orr Ewing (1883) 9 A.C. p. 40, per Lord Selborne. 148 JUDICIAL REMEDIES [Chap. III. the jurisdiction of the Enghsh Courts, he can be sued in England for a libel pubHshed in New York, or for an assault committed in Turkey. In order, however, that an action should thus lie for a tort committed out of England, two conditions must be fulfilled : — (ffl) The act must have been unlawful in the place where it was done ; (&) It must be of a kind which would have been actionable as a tort had it been done in England. Act mnst be 3. In the first place, the act must have been unlawful in where done, the place where it was done. " It appears to us clear," says Cockbuin, C.J., in Phillips v. Eyre,^ "that where by the law of another country an act complained of is lawful, such act, though it would have been wrongful by our law if committed here, cannot be made the ground of an action in an Enghsh Court." But need not 4. It seems, however, that the act need not be actionable be actionable jj^ ^j^g place where it is done in order to be actionable in wiiGrG (lone England. Itissufficientif it is iKeg-aZ and the subject of criminal proceedings. This was decided by the Court of Appeal in Machado v. Fontes,'^ in which a plaintiff recovered damages in England for a libel pubhshed in Brazil, although libel is not in Brazil a cause of action for damages, but exclusively a criminal offence. It seems curious that a man should be held liable in damages in England for doing an act abroad which exposes him to no such liability according to the lex loci delicti, and without any voluntary submission on his part to the English law on the matter. Act must be 5. The second condition that must be fulfilled before an of a iciiid action for a foreign tort will lie in England is that an act of actionable by ° . ° . English law. that sort must amount to an actionable tort m accordance with the law of England — ^that is to say, the law which will be apphed in determining the existence, measure, and nature of the defendant's liability is the law of England (the lexfoj-i), and not the law of the place where the tort was committed (the lex loci delicti). The lex loci delicti may serve to justify the act, as we have seen, and to exclude any action in England, ' (1869) L.B. 4 Q.B. p. 239. See also The Moxliam (1876) 1 P.D. 107 ; Can v. Fracis Times & Go. (1902) A.C. 176. « (1897) 2 Q.B. 231. See. 45.1 FOREIGN TORTS U9 but it does not create any right of action in England ; for this right must be given by English law itself. Thus in The H alley ^ an action was brought by the o^vnej; of a Norwegian barque against the owner of a British steamer for damage done by collision in Belgian waters. The steamer was at the time of the collision compulsorily in charge of a pilot, and compulsory pilotage is a good defence to the ship- owner by the law of England, but not by the law of Belgium. It was held that no action would he in England, notwith- standing the fact that the act complained of was wrongful and actionable by the lex loci delicti. Enghsh Courts, that is to say, will not enforce an obligatio ex delicto created by foreign law. "It is," says the Privy Council,^ " ahko contrary to principle and to authority to hold that an Enghsh Court of justice will enforce a foreign municipal law, and will 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."' s (1868) L.R. 2 P.O. 193. « Ihid. p. 204. ' See also The Moxham fl876) 1 P.D. 107 ; Phillips v. Eyre (1870) L.R. 6 Q.B. at p. 28. Modes of permitted self-help. CHAPTER IV EXTEA JUDICIAL EEMEDIES It is not necessary in all cases that a man should resort to judicial proceedings in order to seek protection or redress in respect of injuries threatened or committed against him. In many instances the law grants him liberty to help himself by his own act and strength without recourse to any Court of justice or the sanction of any judicial declaration of his rights. Of these authorised modes of self-help or seK-redress the following are the most important : — 1. Defence of the person against illegal violence. 2. Forcible prevention of trespass to land. Ee -entry on land. Defence and recaption of chattels. Abatement of nuisances. Distress damage feasant. Use of force in self- defence. Defence of other persons. § 46. Self-Defence 1. It is lawful for any person to use a reasonable degree of force for the protection of himself or any other person against any unlawful use of force. Force is not reasonable if it is either (a) unnecessary — i.e. greater than is requisite for the purpose — or (6) disproportionate to the evil to be prevented. 2. In the older books a distinction is drawn between the defence of one's self and of certain persons with whom one is closely connected (such as a wife, child, or master) and the defence of a mere stranger. The full right of defence is said to be limited to the first of these cases, while in the latter case the law is said to grant only a more restricted liberty of using force. Thus, we are told that a servant may lawfully make an assault in defence of his master, but not a master in defence 150 Seo. 46.] SELF-DEFENCE ' 151 of his servant.! It may be safely assumed, however, that at the present day all such distinctions are obsolete, and that every man has the right of defending any man by reasonable force against unlawful force. 3. In order that it may be deemed reasonable within the Force meaning of this rule, it is not enough that the force was not reason'Tbk' more than was necessary for the purpose in hand. For even though not more than necessary, it may be unreasonably dis- proportionate to the nature of the evil sought to be avoided. " A man cannot justify a maim for every assault ; as if A strike B, B cannot justify the drawing his sword and cutting off his hand ; but it must be such an assault whereby in probabiHty the life may be in danger."^ One cannot lawfully defend himself against a trivial assault by inflicting death or grievous bodily harm, even though the assault cannot be prevented in any other way. 4. He on whom an assault is threatened or committed is Need not I.o not bound to adopt an attitude of passive defence. He may 1,'™^*^^ *° lawfully take measures of aggression on his own account, so defence. long as he does not go beyond what is reasonable as a measure of self-defence. Nor need he make any request or give any warning, but may forthwith reply to force by force.' § 47. Prevention of Trespass 1. It is lawful for any occupier of land, or for any other Force to person with the authority of the occupier, to use a reasonable fje'smss degree of force in order to prevent a trespasser from entering or to eject him after entry. 2. This right of using force against trespassers is conferred Riglit only on the occupier of the land (or his agents), for it is only occupiers*" the occupier who is entitled to complain of a trespass and to take legal proceedings in respect thereof. The mere use of property, therefore, without the exclusive possession of it, will not justify the use of force to exclude others.* 1 Leward v. Basdy (1696) 1 Ld. Raym. 62. 2 Gooh V. Beat (1697) 1 Ld. Raym. 176; Cockroft v. Smith (1705) 11 Mod. 43 ; Dale v. Wood (1822) 7 Moore 33. » Green v. Goddard (1704) 2 Salk. 64L 1 Dean v. Hogg (1834) 10 Bing. 345 ; Holmes v. Bagge (1853) 1 E. & 152 EXTRAJITDICIAL REMEDIES [Chap. IV- Request necessary. Amount of force permitted. Exceptions to rule. Porcible entry dis- tinguished. 3. Except when a trespass is committed by actual force, the trespasser cannot be forcibly repelled or ejected until he has been requested to leave the premises, and a reasonable opportunity of doing so peaceably has been afforded to him. As against him who enters or seeks to enter by force, however, force may be forthwith used without any request made.^ 4. As to the amount of force that may be used against a trespasser, the general rule is that it must not exceed that which is indicated in the old forms of pleading by the phrase molliter manus iniposuit. That is to say, it must amount to nothing more than forcible removal, and must not include beating, wounding, or other physical injury. Thus in Collins V. Renison^ the plaintiff sued for the assault of throwing him off a ladder, and it was held a bad plea that the plaintiff was trespassing and refused after request to leave the premises and that the defendant thereupon " gently shook the ladder, which was a low ladder, and gently overturned it, and gently threw the plaintiff from it upon the ground, thereby doing as little damage as possible to the plaintiff." 5. There are two exceptions to this rule as to molliter manus imfosuit : — (a) If the trespasser in the course of eviction makes or threatens to make an assault upon the person evicting him, the case becomes one of the defence of the per- son, and thereafter any force may be used which is reasonable within the rule as to self-defence already considered, even though it involves beating or physical harm.* (6) If the trespasser enters or seeks to enter by way of a forcible felony, the case falls within the rule that any force is justifiable which is necessary to prevent the commission of a felony by force. ^ 6. The forcible ejectment of a trespasser must be carefully distinguished from forcible re-entry upon land of which posses- B. 782 ; Roberta v. TayUr (1845) 1 C.B. 117. As against a mere wrongdoer, however, actual possession without title is doubtless sufficient, just as in an action of trespass. !» PolUnhorn v. Wright (1845) 8 Q.B. 197 ; Oreen v. Goddard (1704) 2 Salk. 641. ' (1754) 1 Sayer, 138. " Supra, s. 46. s Stephen's Digest of Criminal Law, Art. 220, 6th ed. Sec. 48.] RE-ENTRY ON LAND 153 sioii has been wroiigtully taken or detained. This case will be considered later. When a trespasser has not merely entered, but has dispossessed the former occupier, and taken possession of the land himself, any use of force against him thereafter is not the ejectment of a trespasser, but forcible entry upon land in the possession of another, and is governed, as we shall see, bv different rules. ^ ' § 48. Re-entry on Land 1. He who is wrongfully dispossessed of land is not bound Fonible to proceed for its recovery by action at law, for he may retake cr\'j^-i„ai possession of it by his own act, if he can do so peaceably and offence, without the use of force.^ A forcible entry, however, even by a person lawfully entitled to the possession, is an indictable misdemeanour under the Statutes of Forcible Entry. It is provided by 5 Eich. II. st. 1, c. 8, that under pain of imprison- ment no one shall "make entry into any lands and tenements but in case where entry is given by the law, and in such case not with strong hand nor with multitude of people, but only in peaceable and easy manner." Entry by means of a threat to use force will be deemed forcible, even though no force is actually used.^ The force need not consist in violence towards the person of the occupant or any one else, for it is a forcible entry to break into a house even though no one is present in it.3 2. It is a forcible entry to enter peaceably and then eject Forcible by force the adverse occupant. Before force can be so used, ejectment real and effective possession must be obtained, and not the merely formal or nominal possession acquired by entering into premises in which a hostile possessor is still present.* 3. Forcible entry, however, upon a person wrongfully in Forcible possession by a person entitled to the possession is, although c^yiUnjury 6 Infra, s, 48. ' As to the right of an occupier to create a \^^f exists, source of danger on his land for the purpose of preventing trespass, vide infra, s. 123. 1 Taunton v. Coatar (1797) 7 T.R. 431. '^ Hawkins' Pleas of the Crown, ch. 64, sec. 27. ' Comyns' IMgest, Forcible Entry, A. 2. * Bacon's Abridg. Forcible Entry, B. ; Edwick v. Hawkes (1881) 18 Ch.D. at p. 211. 154 EXTRAJUDICIAL REMEDIES [Chap. IV. Assault or damage incidental to forcible entry. a criminal offence, no civil injury for which the wrong-doer so ejected has any remedy. He can neither sue in ejectment for the recovery of the land, nor in trespass for damages.® 4. It has nevertheless been said and sometimes decided that if in the course of a forcible entry an assault is committed upon the occupier or other person defending the possession, or damage is done to chattels upon the premises, an action for damages will lie in respect of this independent injury, although none lies for the entry and eviction itself. It was so held by a majority of the Court of Common Pleas in the case of Newton V. Harland,^ which was followed by Fry, J., in Beddall v. Mait- land.'^ In Harvey v. Brydges,^ on the other hand, the decision in Newton v. Harland was disapproved by the Court of Ex- chequer, Baron Parke saying : " If it were necessary to decide it, I should have no difficulty in saying that where a breach of the peace is committed by a freeholder, who in order to get into possession of his land assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justifi- cation to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly, even though in so doing a breach of the peace was committed." In Blades v. Higgs,^ Erie, C.J., delivering the judgment of the Court of Common Pleas, accepts the view thus expressed by Parke, B., in preference to the decision in Newton v. Harland. In Jones v. Foley ^^ a divisional Court held that no action lay at the suit of a tenant holding over against his landlord, who entered and removed the roof of a cottage, whereby the plaintiff's furni- ture was damaged. The reason given for the decision, however, is that such an act does not amount to a forcible 6 Pollen V. Brewer (1859) 7 C.B. (N.S.) 371 ; Turner v. Meymott (1823) 1 Bing. 158 ; Burling v. Bead (1850) 11 Q.B. 904. « (1840) 1 M. & G. 644. ' (1881) 17 Ch.D. 174. See also Edwick v. Hawkes (1881) 18 Ch.D. 199, where the same Judge reiterated Ms opinion on the point. 8 (1845) 14 M. & W. 437. 3 (1861) 10 C.B. (N.S.) 713. " (1891) 1 Q.B. 730. Sec. 49.] DEFENCE AND RECAPTION OF CHATTELS 155 entry, which may be gra\a>ly doubted. It is submitted that the dictum above quoted from Baron Parke is a correct statement of the law, notwithstanding Newton v. Harland and Beddall v. Maitland. It is difficult to see how it is possible on principle to give a wrongful occupier damages for an assault which is the direct consequence of his own wrongful refusal to go out peaceably. Had he not resisted wrongfully, there would have been no assault ; how then can he sue for it ? § 49. Defence and Recaption of Chattels 1. Any person entitled to the possession of a chattel may jTurcible defend his possession by the use of reasonable force, or may '^?*"l+"?^' °^ retake the chattel either peaceably or by the use of reasonable force from any person who has wrongfully taken or detained it from him. Such a retaking, even though forcible, is neither a civil injury nor a criminal offence.^ As to the amount of force which is permissible, and as to the necessity of a precedent request, the defence and recaption of chattels is presumably governed by the same rules as the ejectment of trespassers upon land. The remedy of forcible recaption is not limited to cases of the wrongful taking of goods, but extends to all cases of the wrongful possession of them.^ 2. It is a matter of some doubt how far the right of retaking Quaere us to chattels will serve to justify an entry on the land on which ™*/\°" '^'^ they are situated. It is clear, indeed, that if the occupier of chattels. the land has himself wrongfully taken and placed the goods there, the owner of them may enter and take them. But what if the occupier is in no way responsible for the presence of the goods on his land, but merely refuses to give them up, or to allow the owner to enter and take them ; as in the case of a tenant who gives up possession of the land, but leaves a chattel behind him, and then seeks to recover it ? This is a question that has more than once come before the Courts, 1 Blades v. Higgs (1861) 10 C.B. (N.S.) 713, 11 H.L.C. 621. 2 Blades v. Higgs, ubi supra. It has been doubted, indeed (Clerk and Lindsell on Torts, p. 156, 5th ed.), whether this remedy extends to a mere wrongful detention of a possession lawfully acquired, as in the case of a bailee refusing to return a chattel. There is no suggestion of any such limitation in Blades v. Higgs. 156 EXTRAJUDICIAL REMEDIES [Chap. IV. recoverable by legal proceedings. but has not yet succeeded in obtaining a definite and com- prehensive answer.^ No right of 3. It seems clear on principle that the right of recaption less property does not exist, unless there is a right to the possession of the property ; and that a right to possession means, for this pur- pose, one that is specifically enforceable by judicial pro- ceedings. If, therefore, the claimant cannot by way of judicial proceedings obtain specific restitution of the property, he cannot recover it by recaption either. For the Courts cannot suffer a man to take for himself that which he cannot obtain by way of an action. If this is so, it follows that there is no right of recaption in the following cases : — (a) When the right of action for damages for a conversion is barred in favour of the possessor by the Statute of Limitations ; * (b) When, since the date of the conversion, the value of the property has been increased by the act of the pos- sessor, or any other event has happened which WDuld induce the Courts to refuse an order for the specific restitution of the property.^ Occupier of land may abate a nuisance. § 50. Abatement of Nuisances 1. It is lawful for any occupier of land, or for any other person by the authority of the occupier, to abate {i.e. to ter- minate by his own act) any nuisance by which that land is injuriously affected. Thus the occupier of land may cut off the overhanging branches of his neighbour's trees, or sever roots which have spread from these trees into his own land.^ So also he may pull down an obstruction to his ancient lights, remove any barrier erected elsewhere against the flow of a 3 Patrick v. Colerick (1838) 3 M. & W. 483 ; Anthony v. Haneys (1832) 8 Bing. 186; Blackstone's Comm. III. 6; Webb v. Beavan (1844) 6 M. & G. 1055 ; Wilde v. Waters (1855) 16 C.B. 637. Notwithstanding the dicta in this last case, there can, it is submitted, be no real doubt that if the occupier of land on which the plaintiff's goods have in any manner come refuses either to deUver them or to allow the plaintiff to enter and take them, he is liable to the plaintiff in an action of trover. * Pollock and Wright on Possession, p. 115. ' Infra, Ch. X on Conversion. » Lemmon v. Webb (1894) 3 Ch, 1, (1895) A.C. 1, Sec. 50.] ABATEMENT OP NUISANCES 157 natural stream through his land, divert a stream of water which is wrongfully cast upon his land, break down a fence which obstructs his right of way, or put out a dangerous fire which has been hghted or suffered to burn upon the adjoining property. 2 2. As sufficiently appears from these illustrations, the term Rule exiondn nuisance, as used in the foregoing rule, includes not merely *° disturb- nuisances in the strict sense of that term — -viz. the escape of servitudes. deleterious substances from the land of one man into that of another — ^but also the disturbance of any servitude, such as a right of way or of light, appurtenant to land. 3. Subject to certain requirements as to prior notice, which Entry on will be considered later, the right of abatement extends to the ^''"^ ^"'' *'"'" ... ^ purpoHO. cases m which it is necessary for the abator to enter upon the land of the other party, no less than to those cases in which he can attain his purpose by acts done exclusively on his own property. 4. The right of removing things that are on one's own land, Right of such as the roots and branches of a neighbour's tree, goes distin'^iUslied further than a mere right of abating a nuisance, for it pre- ffom right of sumably exists whether the things so removed constitute an things from actionable nuisance or not. No action will he for allowing a one's own tree to overgrow one's boundary, unless it is the cause of actual damage ; but there is no reason to suppose that the right of cutting the roots and branches is subject to any such limitation, for this right is simply a part of the occu- pier's right of exclusive possession and of doing as he pleases with his own.^ 5. The right of entry and abatement presumably extends Abatement even to those exceptional cases in which, although a nuisance occupier exists on the adjoining land, the occupier of that land is not ""* lifi'hle for responsible for it ; but in such a case a notice and request would seem to be a condition precedent to any lawful entry or abatement.* " See on the whole matter : Jones v. Williams (1843) 11 M. & W. 176 ; Roberts v. Rose (1865) 4 H. & C. 103 ; PenniMocFs case (1597) 5 Co. Rep. 101 ; Earl of Lonsdale v. Nelson (1823) 2 B. & C. 302 ; Rex V. Rosewdl (1699) 2 Salk. 459 ; Lemmon v. Webb (1894) 3 Ch. 1, (1895) A.C. 1. " Smith v. Giddy (1904) 2 K.B. 448. * See Saxby v. Manchester db Sheffield Rly. Co. (1869) L.R. 4 C.P. 198, 158 EXTRAJUDICIAL REMEDIES [Chap. IV. Unnecessary 6. In abating a nuisance any unnecessary damage done is damage. g^jj actionable wrong. ^ No right of 7. It is to be assumed that there is no right of entry and wherein" abatement in a case in which, although an actionable nuisance injunction exists, an injunction against the continuance of it could not obtained. ^^ obtained. If, for example, a house is built which obstructs ancient lights, but to so small an extent or under such circum- stances that no mandatory injunction would be granted to pull the house down, it cannot be supposed that the owner of the obstructed light is nevertheless at liberty to attain the same end by the exercise of his right of abatement.^ In whom 8. In Ordinary cases the right of abatement, like the right right vested, qj: action for a nuisance, is vested exclusively in the occupier of the land affected ; but there seems no reason why a similar right should not belong to the owner of a reversionary interest in the land in those exceptional cases in which a nuisance is actionable at his suit. Necessity of 9. The question of the necessity of notice before abatement notice before jg q^^ involved in some uncertainty. It is clear, however, that abatement. . •', . . . there are at least two cases in which no notice is required : — (a) When there is no entry on the land of the other party — 6.17. cutting roots and branches :' (b) In case of emergency — i.e. where the nuisance threatens such immediate harm to person or property that the delay involved in giving notice would be unreason- able.^ It seems clear also that there are two cases in which notice must be given : — (a) When the nuisance was committed, not by the present occupier, but by a predecessor in title ;^ (&) When the occupier is not responsible for the creation or continuance of the nuisance. Whether notice is required in other- cases is a question to which no certain reply can be given. In Lemmon v. Webb 10 •i Roberts v. Bose (1865) 4 H. & C. 103. " This question is discussed but not decided in Lane v. Capaey (1891) 3 Ch.D. 411. ' Lemmon v. Wehh (1895) A.C. 1. 8 Jones V. Williams (1843) 11 M. & W. p. 182; Lemmon v. Webb (1894) 3 Ch. p. 13. " Jones v. Williams (1843) 11 M. & W. 176. »» (1895) A.C. 1. Sec. 50.] ABATEMENT OF NUISANCES 159 there is an obvious inclination to state the rule in the general form, that in all cases of entry and abatement notice is required except in case of emergency. In Jones v. Williams, '^'^ on the other hand, the opinion is expressed that the require- ment of notice is exceptional, and a distinction is drawn between cases in which the nuisance is created by the occupier and those in which it is an inheritance from his predecessor in title.i- 10. It is lawful for any person to abate a public nuisance Abatement to a highway, so far as it is necessary to enable him to exercise "^ a"highway his right of way thereon. Thus, if a fence is unlawfully erected across a highwa}-, or a gate wrongfully locked, any member of the public may in the exercise of his right of way remove the fence or break open the gate. And this is so even though the obstruction has been erected in the exercise of a bona fide but unfounded claim of right. Probably this right of abate- ment exists even though the abator cannot prove that he has sustained any such special damage as is required to confer upon him any private right of action. ^^ The right of abating a nuisance on a highway extends only to nuisances of commission, and not to those of omission so as to entitle any member of the public to undertake the repair of a highway or the creation thereon of a permanent structure, such as a bridge which he may consider necessary for the convenient exercise of his right of passage. Such acts must be done by those who are charged with the common law or statutory duty of repairing or constructing highways.^* § 51. Distress Damage Feasant 1. It is lawful for any occupier of land to seize any cattle Right of dis- or other chattels which are unlawfully upon his land doing ^"^^^^ damage " (1843) 11 M. & W. 176. 12 In Marl of Lonsdale v. Nelson (1823) 2 B. & C. 302, a distinction is drawn by Best, J., between nuisances of omission and of commission, but as to this, see the criticism of Lord Davey in Lemmon v. Webh (1895) A.C. p. 8, and the explanation of Baron Parke in Jones v. Williams, 11 M. & W. p. 181. " Webber v. Sparkes (1842) 10 M. & W. 485 ; Dimes v. Pellci/ (1850) 15 Q.B. 276 ; Winterhottom v. Lord Derby (1867) L.R. 2 Ex. 316. " Campbell Davys v. Lloyd (1901) 2 Ch. 518. 160 EXTRAJUDICIAL REMEDIES [Chap. IV. Right limitf'd to occupier. No right of distress if no right of action. Necessity of actual damage. damage there, and to detain them until payment of com- pensation for the damage done. This right is known as that of distress damage feasant — -i.e. the right of distraining things which are doing damage on the distrainor's land. In all ordinary cases the things so distrained are cattle or other trespassing animals, but the right extends to all chattels animate or inanimate. Thus a railway company has been held entitled to seize and detain a locomotive engine which was wrongfully encumbering its lines. ^ 2. The right of distress damage feasant is vested, in general, only in the occupier of land. Mere use without exclusive possession is, it may be assrmied, as insufficient to confer this right as it is to confer the right to eject a trespasser or to sue in an action of trespass.^ 3. The thing distrained must be unlawfully on the land — i.e. it must be there under such circumstances that an action for damages will lie against the owner or some other person responsible for it. Where no action will lie, there can be no distress either : for example, when cattle, being lawfully driven along the highway, stray into the adjoining land, there is neither action nor right of distress unless they are allowed to remain there for a time longer than is reasonably necessary for their removal.^ The right of action, however, need not be against the owner of the thing distrained. If the thing is present by the wrong of him who had the custody of it, or possibly even by the wrong of a mere stranger, it may be seized and detained as a security for compensation.* 4. There must be actual damage done by the thing dis- trained ; for it is rightly taken and detained only as a security for the payment of compensation, and when there is no damage done there can be no compensation due. This damage, however, need not be done to the land itself or to things forming part of the freehold, such as crops. It is sufficient if damage is done on the land to the property or, presumably, the person of the occupier. Thus, in Boden v. Roscoe^ it was held that a pony might be lawfully distrained 1 Ambergate Rly. Co. y. Midland Sly. Co. (1853) 2 E. & B. 793. " Cf. Burt Y. Moor (1793) 5 T.R. 329. 3 Tillett Y. Ward (1882) 10 Q.B.D. 17 ; Goodwyn v. Chevdey (1859) 4 H. & N. 631. * 1 Roll. Ab. 665, Distress D. » (1394) 1 q^^ 608. Sec. 51.] DISTRESS DAMAGE FEASANT 161 for trespassing in a field and there lacking a filly belonging to the occupier. 5. The thing must be seized while still on the land. There Limits o£ is no right of following it, even in fresh pursuit, and even if it ^f tress is purposely removed by its owner in order to avoid distress.* 6. If the same thing comes more than once upon the same land it cannot be distrained or detained on a subsequent occasion in respect of damage done by it on a former visit.' 7. If several animals or other things belonging to the same owner trespass and do damage, each of them can be distrained and held for its own share of the damage only ; one of them cannot be detained as a security for the whole claim. ^ 8. It is not lawful by way of distress damage feasant to take a thing out of the immediate personal control or use of another person : for example, a horse which another person is wrong- fully riding across one's land.^ This is an exception said to be estabhshed in the interests of the public peace. Nevertheless the occupier retains his right of forcibly removing from the land, though not of seizing and detaining, the things which a trespasser thus brings with him. 9. The right of distress damage feasant includes no right No right of sale, but merely a right to retain the thing until adequate °^ ^^^®' compensation is made. Formerly the law was the same in the case of distress for rent also, but the statutes which confer a power of sale on landlords have left unafiected the common law as to distress damage feasant. 10. Things distrained damage feasant may at the option How things of the distrainor be kept by him on the premises where ^re to "be dealt they were seized, or kept in his own custody elsewhere, or with. • Vaspor V. Edwards (1701) 12 Mod. 658, 1 Co. Inst. 161a. The nisi prius case of Warmer v. Biggs (1845) 2 C. & K. 31, seems to have proceeded on a misapprehension of the law. The proposition that the thing distrained must be taken while actuaUy doing the damage does not mean that it must be seized in the very act, but merely that it must be seized on the land on which it has done the damage, and not after an interval during which it has ieen elsewhere. See, for example, Boden v. Roscoe (1894) 1 Q.B. 608. Neither is distress damage feasant a precautionary measure against probable damage in the future, but a security for compensation for accomplished damage in the past. ' Vaspor V. Edwards (1701) 12 Mod. p. 660. » Ibid. » Storey v. Robinson (1795) 6 T.R. 138 ; Field v. Adames (1840) 12 A. & E. 649. L 162 EXTRAJUDICIAL REMEDIES Eight of action suspended by distress. [Chap. IV. impounded by him in a public pound. ^^ By statute he is bound to provide animals impounded by him with food and water.ii 11. The exercise of the right of distress damage feasant suspends the right of action for the damage complained of, so long as the detention of the property continues. Distress and action are alternative remedies which cannot be concur- rently pursued. If, however, the property distrained perishes or is lost without the distrainor's fault, he is remitted to his right of action, and so also if the property is restored to the owner.i^ " Vaspor V. Edwards (1701) 12 Mod. at p. 664. " 1 & 2 Geo. V, 0. 27, s. 7. " Vaspor V. Edwards (1701) 12 Mod. 658 ; Lehain v. Philpott (1875) L.R. 10 Ex. 242 ; Boden v. Boscoe (1894) 1 Q.B. 608. As to the effect of tender, and the remedies of the owner for the recovery of chattels dis- trained damage feasant, see the following cases : Six Carpenters' case 8 Co. Rep. p. 147a ; OulUver v. Cosens (1845) 1 C.B. 788 ; Browne v. Powell (1827) 4 Bing. 230 ; Sherijf v. James (1823) 1 Bing. 341 ; Anscomb v. Shore (1808) 1 Camp. 285 ; Thomas v. Harries (1840) 1 M. & G. 695 ; Green v. Duckett (1883) 11 Q.B.D. 275 ; West v. Nibbs (1847) 4 C.B. 172. If no sufficient tender is made until after impounding in a public pound, and a sufficient tender is made thereafter and refused, the remedy of the owner is to replevy the chattels. He cannot sue in detinue or trover, nor can he pay an excessive demand and then 6ue for its recovery. CHAPTER V TRESPASS TO LAND § 52. Old Forms of Action. Trespass and Case 1. Under the old system of procedure the wrong of trespass Forms of to land (trespass quare clausumf regit) was simply a special form motion = ^^^" of the generic wrong of trespass. This is a convenient place, importance, therefore, in which to consider the nature and scope of the old writ of trespass and its relation to other forms of action. This is an inquiry which is still necessary and profitable, notwith- standing the abolition of forms of action, for at least three reasons. In the first place, to one who is wholly ignorant of the old learning of writs and forms of action many of the older authorities on liabilities for civil injuries are unintelligible and misleading. Secondly, even at the present day, all satis- factory definition and classification of the different species of such injuries must be based on the old procedural distinctions between forms of action, and must conform to those distinc- tions except in so far as they no longer have any relation to the substantive law of the present day. Thirdly, questions as to the existence, nature, and extent of liabihty depend even yet in many instances on the particular kind of writ or remedy that would have been available for the plaintiff under the old practice. 2. Omitting certain special remedies of minor importance, Trespass we may say that under the old practice the ordinary remedies ^^gtj^gu'jsijed. for torts were two in number — namely, the action of trespass and that of trespass on the case (commonly called by way of abbreviation case simply). Trespass was the remedy for all forcible and direct injuries, whether to person, land, or chattels. Case, on the other hand, was a supplementary form of action, provided for all injuries not amounting to trespasses — that is 163 Forcible injuries. Direct and consequen- tial injuries. 164 TRESPASS TO LAND [Chap. V. to say, for all injuries which were either not forcible or not direct, but merely consequential. The term forcible is here used in a wide and somewhat un- natural sense to include any act of physical interference with the person or property of another. To lay one's finger on another person without lawful justification is as much a forcible injury in the eye of the law, and therefore a trespass, as to beat him with a stick. To walk peacefully across another man's land is a forcible injury and a trespass, no less than to break into his house vi et armis. But when there is no physical inter- ference there is no trespass, and the proper remedy is case : as, for example, in libel, malicious prosecution, or deceit.^ To constitute a trespass, however, it is not enough that the injury should be forcible ; it must be also direct and not merely consequential. An injury is said to be direct when it follows so immediately upon the act of the defendant that it may be termed part of that act ; it is consequential, on the other hand, when, by reason of some obvious and visible inter- vening cause, it is regarded, not as part of the defendant's act, but merely as a consequence of it. In direct injuries the defendant is charged in an action of trespass with having done the thing complained of ; in consequential injuries he is charged in an action of case with having done something else, by reason of which (per quod) the thing complained of has come about. In Leame v. Bray^ the distinction is thus expressed and illustrated by Le Blanc, J. : " In all the books the invariable principle to be collected is that where the injury is immediate on the act done, there trespass lies ; but where it is not immediate on the act done, but consequential, there the remedy is in case. And the distinction is well instanced by the example put of a man's throwing a log into the high- way ; if at the time of its being thrown, it hit any person, it is trespass ; but if after it be thrown, any person going along the road receive an injury by falling over it as it lies there, it is case. . . . Trespass is the proper remedy for an immediate injury done by one to another, but where the injury is only consequential from the act done, there it is case." To take other illustrations of the distinction : to plant a tree with its roots across the boundary of one's own land is a 1 Chitty's Pleading, I, 140, 7th e(i. » (1803) 3 East at p. 602. Sec. 52.] TRESPASS AND CASE 165 trespass, but to plant a tree in one's own land and to allow it to spread its roots or branches across the boundary is no trespass, but is actionable only in case, if at all.^ So the act of throw- ing water into one's neighbour's premises is a trespass ; but to fix a spout in such a fashion that rain water is dis- charged by it into those premises is a mere nuisance actionable in case.^ Throwing a match, whether accidentally or on purpose, into another man's haystack is a trespass ; lighting a fire on one's own land, which spreads into the adjoining property and burns a haystack there, is actionable only in case. 3. This distinction between direct and consequential injury Trespass not is not identical with that between intentional and accidental anTnte"-'^ or negligent injury. These are cross divisions. Trespass hes tional injury, for all direct injuries, whether wilful or merely negligent. Case is the appropriate remedy for all consequential injuries, even if they are intended. This was finally settled by the case of Leame v. Bray,^ in which it was held that the act of the defendant in negligently driving his carriage so as to bring it into colhsion with that of the plaintiff was actionable in trespass. " There being an immediate injury from an immediate act of force by the defendant, the proper remedy is trespass, and wilfulness is not necessary to^ constitute trespass."^ ' = Lemmon v. Welh (1894) 3 Ch. p. 11, per Lindley, L.J. ^ Reynolds v. Clarke (1725) 1 Str. 634 ; 2 Ld. Raym. 1399. 5 (1803) 3 East 593. « 3 East, p. 600. ' This distinction between direct and consequential injuries does not seem to possess any logical basis. The distinction between an act and its consequences — between doing a mischief and causing one- seems to be nothing more than an indeterminable difference in degree. In popular speech every act includes within its compass certain of its more immediate consequences and excludes its more remote conse- quences. When I pull the trigger of a loaded gun, at what point in the infinite series of results does my act stop and its consequences begin ? In any case the distinction in question is not one which is entitled to any permanent recognition in a rational system of law, being merely an inheritance from an obsolete system of procedure and the product of historical accidents of development. In an exposition of our law as it stands, however, it is necessary to recognise the distinction, for the existence and extent of liability and the nomenclature and classifica- tion of civil injuries still depend upon it. In the old practice the distinction between trespass and case was 166 TRESPASS TO LAND [Chap. V. Different 4. The term trespass has been used by lawyers and laymen term trespass. ^" three senses of varying degrees of generality, (a) In its widest and original signification it includes any wrongful act — any infringement or transgression of the rule of right. This use is common in the Authorised Version of the Bible, and was presumably familiar when that version was first published. But it never obtained recognition in the technical language of the law, and is now archaic even in popular speech. (6) In a, second and narrower signification the term means any legal wrong for which the appropriate remedy was a writ of trespass as already defined — viz. any direct and forcible injury to persons, land, or chattels, (c) The third and narrowest meaning of the term is that in which, in accordance with popular speech, it is limited to one particular kind of trespass in the second sense — viz. the tort of trespass to land (tres- pass quare clausum fregit). It is with this only that we are in the present chapter concerned. § 53. The Nature of Trespass to Land Trespass 1. The wrong of trespass to land (trespass quare clausum llZsnm fregit f^^d'^*') consists in the act of (a) entering upon land in the defined. posscssion of the plaintiff, or (6) remaining upon such land, further complicated by the fact that in certain instances these two remedies were concurrent, the plaintiff having the option of suing in either form of action for the same injury. Thus, when a trespass produced not only a direct but also a consequential injury, the plaintiff might either sue in trespass (alleging the consequential injury as special damage), or he might waive the trespass and sue in case for the consequential injury as the cause of action. Scott v. Shepherd (1772) 2 W. Bl. p. 897, per Blackstone, J. So also it was settled, illogically enough, that when damage was caused by negligence, the plaintiff could always sue in case, if he pleased, even though the injury was direct ; yet in strict logic trespass was in such instances the exclusive remedy. Moreton v. Hardern (1825) 4 B. & C. 223. Where, however, the injury was wilful and direct, case was not available. Such departures from the strict application of the distinction no longer concern us, for they have left no traces in the substantive law and may now be wholly disregarded. On the whole matter, see also Holmes v. Mather (1875) L.R. 10 Ex. p. 268 ; Morley v. Gaisford (1795) 2 H. Bl. 441 ; Hopper v. Reeve (1817) 7 Taunt. 698 ; Ogle v. Barnes (1799) 8 T.R. 188 ; Scott v. Shepherd (1772) 2 W. Bl. 892. The dissenting judgment of Blackstone, J., in this case must be taken to be correct in principle. See. 53.] The nature of trespass 167 or (c) placing any material object upon it — in each case without lawful justification. 2. Trespass by wrongful entry. The commonest form of Entry. trespass consists in a personal entry by the defendant, or by some other person through his procurement, into land or buildings occupied by the plaintiff. The slightest crossing of the boundary is suiBcient — e.g. to put one's hand through a window, or to sit upon a fence. Nor, indeed, does it seem essential that there should be any crossing of the boundary at all, provided that there is some physical contact with the plaintiff's property.'^ 3. This and all other forms of trespass to land are actionable Trespass per se without any proof of damage.^ If the entry is inten- ^°*'°^^'^''' tional, it is actionable even though made under an inevitable mistake of law or fact,* and therefore an action of trespass may be used to determine a disputed title to land. An accidental, as opposed to a mistaken entry, on the other hand, is not actionable unless due to neghgence. No action will lie against a defendant whose horse runs away with him on a public highway, and carries him without any neghgence of his upon the adjoining land of the plaintiff.* 4. Even he who has a right of entry on the land of another Trespass by for a specific purpose commits a trespass if he enters for any ^f gntr°v "^^^ other purpose. The chief application of this rule is the abuse of a right of way, public or private ; but presumably the same principle apphes to all rights of entry. A public highway is a piece of land vested either in some local authority or in the adjoining landowners, and subject to a public right of way. Any person, therefore, who uses a highway for any purpose other than that of passage (including the subordinate purposes reasonably and ordinarily incident to passage) becomes thereby a trespasser against the owner of the soil, and like any other trespasser maybe either sued in trespass or forcibly ejected. Thus, it is a trespass to depasture one's cattle on the highway,^ 1 Cf. Gregory v. Piper (1829) 9 B. & 0. 691. " Ashby V. White, 2 Ld. Raym. p. 955, per Holt, C.J. = Basely v. Clarkson (1682) 3 Lev. 37. * See Stanley v. Powdl (1891) 1 Q.B. 86 ; Holmes v. Mather (1875) L.R. 10 Ex. 261. These are cases of trespass to the person, but there is no reason to doubt that the principle applies generally to all forms of trespass. ' Dovaston v. Payne (1795) 2 H. Bl. 527. 168 TRESPASS TO LAND [Chap. V. Trespass by remaining on land. AVrongful possession no trespass. Trespass by placing things on land. or to go there for the purpose of interfering with the adjoining occupier's right of shooting," or of watching what is being done on the adjoining land.' It is not necessary that the thing so done in abuse of the right of entry should be the cause of any harm to the occupier of the land or to any one else. It is enough that it falls out- side the purpose for which the right is conferred. But if the act done on the land is within that purpose, it does not matter what ulterior object the defendant may have in exercising his right of entry. Thus, it is not a trespass to walk along a highway with the object of committing a crime elsewhere.^ Moreover, even a wrongful act done upon the land itself does not make the defendant a trespasser within the present rule, unless it can be shown that he entered for that purpose. If he entered for a lawful purpose, he is no trespasser unless the case is one to which the doctrine of trespass ab initio applies.* 5. Trespass by remaining on land. Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased. To refuse or omit to leave the plaintiff's land is as much a tres- pass as to enter originally without right. Thus, any person who is present by the leave and license of the occupier may, on the termination of that license, be sued or ejected as a tres- passer, if after request he fails to leave the premises.^" This case must be distinguished from that of a person law- fully in possession of land who refuses or omits to give it up on the termination of his lease or other interest. A lessee holding over is no trespasser ; for a trespass can be committed, as we shall see, only against the person in the present possession of the property.^i 6. Trespass hy placing things on land. It is a trespass to « Harrison v. Duke of Rutland (1893) 1 Q.B. 142. ' Hickman v. Maisey (1900) 1 Q.B. 752. ' Harrison v. Duke of Rutland (1893) 1 Q.B. p. 158, per Kay, L.J. » Hickman v. Maisey (1900) 1 Q.B. at p. 757, per CoUins, L.J. >" Winterbourne v. Morgan (1809) 11 East 395 ; Playfair v. Mus- grove (1845) 14 M. & W. 239 ; Ash v. Dawney (1852) 8 Ex. 237 ; Wood V. Leadhitter (1845) 13 M. & W. 838. " Hey V. Moorhouse (1839) 6 Bing. N.C. 52 ; Newton v. Harland (1840) 1 M. & G. p. 659. Sec. 53.] THE NATURE OP TRESPASS 169 cause any physical object to cross the boundary of the plain- tiff's land, or even to come into physical contact with the land, even though there may be no crossing of the boundary : for example, to turn cattle upon the land, or to throw stones upon it, or to drive nails into a wall, or to pile rubbish against it.^- In all such cases, in order to be actionable as a trespass the injury must be direct, within the meaning of the distinction between direct and consequential injuries which has been already explained as determinino; the line between trespass and case. It is a trespass, and therefore actionable fer se, directly to place material objects upon another's land ; it is not a trespass, but at the most a nuisance or other wrong actionable only on proof of damage, to do an act which consequentially results in the entry of such objects. To throw stones upon one's neighbour's premises is the wrong of trespass ; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance. ^^ 7. That trespass by way of personal entry is a continuing Continuing injury, lasting as long as the personal presence of the wrong- '^^^P*^^''^- doer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious. " A continuation of every trespass is in law a new trespass."^* It is well settled, however, that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiff's land. Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing ; successive actions will lie from day to day until it is so removed ; and in each action damages (unless awarded in lieu of an injunction) are assessed 12 Chitty's Pleading, I. 199, 7th ed. : Pickering v. Btidd (1815) 4 Camp. p. 220 ; Oregory v. Piper (1829) 9 B. & C. 591. " It is true that under the old practice the -wrong of allowing cattle to stray into another's land was dealt with by writ of trespass, but this must be regarded as an anomaly. Chitty's Pleading, I. 202, 7th ed. To drive cattle upon another's land is a true trespass ; to allow them by default of fencing or watching to escape into another's land is not in truth a trespass, but a nuisance, and in strictness the remedy ought to have been in case. It is impossible logically to class the escape of cattle as a trespass, and the escape of water as a nuisance. There seems no sufficient reason to suppose that the strajdng of cattle is actionable per ee, any more than any other kind of nuisance is. " Winterbourne v. Morgan (1809) 11 East p. 405. 170 TRESPASS TO LAND [Chap. V. Distinguished from continuing consequences of trespass. Trespass beneatli the surface. Trespass above the surface. only up to the date of the action.^'' Whether this doctrine is either logical or convenient may be a question, but it has been repeatedly decided to be the law. Thus, in Holmes v. Wilson,^' the defendants, highway authorities, supported a road by building buttresses for it on the plaintiff's land, who sued in trespass and accepted money paid into Court in full satis- faction. Yet it was held that this was no bar to a subsequent action between the same parties for the further continuance of the buttresses there. So in Hudson v. Nicholson^'' the defendant wrongfully placed certain timbers on the adjoining land in order to support his house. This land having been subsequently purchased by the plaintiff, he was held entitled to sue in trespass for the continuance of the timbers on his property.18 These cases of continuing trespass must be distinguished from cases of the continuing consequences of trespass which is over and done with. If I trespass on another's land, and make an excavation there, the trespass ceases so soon as I leave the land, and does not continue until I have filled the excavation up again. Consequently only one action will lie, and in it full damages are recoverable for both the past and the future.^' Aliter if I have brought a heap of soil and left it on the plaintiff's land. 8. In general he who owns or possesses the surface of land owns or possesses all the underlying strata also.^" Any entry beneath the surface, therefore, at whatever depth, is an action- able trespass ; as when the owner of an adjoining coal-mine takes coal from under the plaintiff's land. Where the posses- sion of the surface has become separated from that of the subsoil (as by a conveyance of the subsoil for mining purposes, reserving the surface) any infringement of the horizontal boundary thus created is a trespass. 9. It is commonly said that the ownership and possession of land bring with them the ownership and possession of the '5 Supra, s. 38 (5), (6), (9). " (1839) 10 A. & E. 503. " (1839) 5 M. & W. 437. " See also Bowyer v. Cooke (1847) 4 C.B. 236. " Glegg v. Dearden (1848) 12 Q.B. 576. "" Corbett v. Hill (1870) L.R. 9 Eq. p. 673. As to the ownership of the subsoil of highways, see Goverdale v. Charlton (1878) 4 Q.B.D. 104 ; Mayor of Tunbridge Wells v. Baird (1896) A.O. 434. Sec. 53.] THE NATURE OP TRESPASS 171 column of space above the surface ad infinitum. Cujus est solum, ejus est usque ad coelumJ'^ This is douhtless true to this extent, that the owner of the land has the right to use for his own purposes, to the exclusion of all other persons, the space above it ad infinitum. He may build the Tower of Babel if he pleases, and may remove all things situated above the surface, even though they are the property of others, and though their presence there does him no harm and is no wrong for which he has any right of action against their owners. Thus, he may cut the overhanging branches of a tree growing in his neighbour's land, whether they do him harm or not ;-^ yet he has no right of action against the owner of the tree unless he can show actual damage.^* So he may cut and remove a telegraph or other electric wire stretched through the air above his land, at whatever height it may be, and whether he can show that he suffers any harm or inconvenience from it or not.^^ It does not follow from this, however, that an entry above the surface is in itself an actionable trespass ; nor is there any sufficient authority that this is so. Such an extension of the rights of a landowner would be an unreasonable restriction of the right of the public to the use of the atmospheric space above the earth's surface. It would make it an actionable wrong to fly a kite, or send a message by a carrier pigeon, or ascend in a balloon, or fire artillery, even in cases where no actual or probable damage, danger, or inconvenience could be proved by the subjacent landowners. The state of the authorities is such that it is impossible to say with any confidence what the law on this point really is. It is sub- mitted, however, that there can be no trespass without some physical contact with the land (including, of course, buildings, trees, and other things attached to the soil), and that a mere entry into the air-space above the land is not an actionable wrong unless it causes some harm, danger, or inconvenience to the occupier of the surface. When any " Co. Litt. 4a ; Corheti v. Hill (1870) L.R. 9 Eq. 671. " Lemmon v. Webb (1895) A.C. 1. " Smith V. Giddy (1904) 2 K.B. 448. "« Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q.B.D. p. 927, per Fry, L.J. 172 TRESPASS TO LAND [Chap. V. such harm, danger, or inconvenience does exist, there is a cause of action in the nature of a nuisance.^^ Plaintiff must be in possession. § 54. The Title of the Plaintiff 1 . A trespass is actionable only at the suit of him who is in possession of the land. This form of injury is essentially a violation of the right of possession, not of the right of propert}'. It is a disturbance of the right of exclusive use vested in the occupier of land. Ownership unaccompanied by possession is protected by other remedies, but not by an action of trespass. ^ Thus, a landlord cannot sue for a mere trespass to land in the occupation of his tenant ; such an action can be brought only by the tenant. The landlord has no right of action unless he can prove more than a mere trespass — viz. actual harm done to the property, of such sort as to affect the value of his rever- sionary interest in it.^ ^'^ In Pickering v. Rudd (1815) 4 Camp. 219, trespass was brought for the fixing by the defendant on his ovm land of a board wliich projected into the space above the plaintiff's land. But Lord Ellen- borough said : " I do not think it is a trespass to interfere OTth the column of air superincumbent on the close. ... If this board over- hanging the plaintifii's garden be a, trespass, it would follow that an aeronaut is liable to an action of trespass qmire dausum fregit at the suit of the occupier of every field over which his balloon passes in the course of his voyage. ... If any damage arises from the object which overhangs the close the remedy is by an action on the case." See also Clifton V. Viscount Bury (1887) 4 T.L.R. 8 (firing of projectiles). On the other hand, in Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q.B.D. 904, it seems to have been assumed by the Court of Appeal that any entry into the space above a plaintiff's land is action- able as a trespass per se. See pp. 915, 919, 927. See also Kenyan v. Hart (1865) 6 B. & S. p. 252, -per Blackburn, J. In Fay v. Prentice (1845) 1 O.B. 828, Baten's case, 9 Rep. 53, and Penruddock's case, 5 Rep. 100, projections over the plaintiff's land were dealt with as nuisances, not as trespasses. As to things placed over a pubhc high- way, see Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q.B.D. 904. See also Andrews v. Abertillery Urban Council (1911) 2 Ch. pp. 406, 408, 413, 415. 1 Cooper V. Crabtree (1882) 23 Ch.D. 689; Wallis v. Hands (1893) 2 Ch. 75 ; Harrison v. Blackburn (1864) 17 C.B. (N.S.) 678 ; Turner v. Cameron's Coal Co. (1850) 5 Ex. 932. * The rights of reversionary owners will be considered in a later chapter, s. 96. Sec. 5i.] THE TITLE OF THE PLAINTIFF 173 2. For the same reason the mere use of land, without the Use of land exclusive possession of it, is not a sufficient title to found an ^**'?°"* P°^" '^ . session not action of trespass for the disturbance of that use. Thus, in sufficient. general a lodger or boarder has no possession of the room in which he is lodged, and cannot sue in trespass for any disturb- ance of his use of it.^ So with a guest at an inn or in a private house, or with a domestic servant or other member of a house- hold. So also with the use of a seat in a theatre or a railway carriage, or the right to post advertisements on a wall or hoard- ing. Whether a person having thus the use of land without the possession of it has any remedy at all against a stranger who disturbs him is a questio.n which we shall consider later. In the meantime it is enough to note that he cannot sue as for a trespass to land, or exercise the rights of self-help avail- able in the case of trespassers.* 3. The mere de facto and wrongful possession of land is a Jus tcriu no valid title of right against all persons who cannot show a better ^otfra of'^ title in themselves, and is therefore sufficient to support an trespass. action of trespass against such person. Just as a legal title to land without the possession of it is insufficient for this pur- pose, so conversely the possession of it without legal title is enough. In other words, no defendant in an action of trespass can plead the jus tertii — the right of possession outstanding in some third person — ^as against the fact of possession in the plaintiff.* Adversus extraneos vitiosa possessio prodesse solet. It is otherwise, of course, if the defendant has done the act complained of by the authority, precedent or subsequent, of him who is thus rightfully entitled. 4. Trespass hy relation. He who has a right to the imme- Trespass diate possession of land, and enters in the exercise of that right, ^^'^^ '°"" is then deemed by a legal fiction to have been in possession ever since the accrual of his right of entry, and may accord- ingly sue for any trespass committed since that time. This is known as the doctrine of trespass by relation, because the plaintiff's possession relates back to the time when he first acquired a right to the possession. Since the abolition of ' Allan V. Liverpool (1874) L.R. 9 Q.B. p. 191. * Supra, s. 47 (2). 6 Graham v. Peat (1801) 1 East 244 ; Chambers v. Donaldson (1809) 11 East 65 ; Corporation of Sa^Hngs v. Ivall (1874) L.R. 19 Eq. at p. 585. 174 TRESPASS TO LAND [Chap. V. forms of action the rule has lost most of its importance ; but as it still in certain cases affects the substantive law, it cannot be disregarded as obsolete. Thus, a person wrongfully disseised of his land may after re-entry sue for any trespass committed on the land during the period of his dispossession. So a lessee may sue for a trespass done between the granting of the lease and his entry in pursuance of it. So a landlord entitled to re-enter after the termination of the lease may after re-entry sue for any trespass committed since the lease determined. We shall see in the next chapter how the action for mesne profits in case of dis- possession is founded on the same rule of trespass by relation. " Before entry and actual possession," says Blackstone,* " one cannot maintain an action of trespass, though he hath the freehold in law. And therefore an heir before entry cannot have this action against an abator ; though a disseisee might have it against the disseisor for the injury done by the disseisin itself, at which time the plaintiff was seized of the land ; but he cannot have it for any act done after the disseisin, until he hath gained possession by re-entry ; and then he may well maintain it for the intermediate damage done ; for after his re-entry the law by a kind of jus postliminii supposes the free- hold to have all along continued in him." So in Newton v. Harland,'' Bosanquet, J., says : " The lessor who is out of pos- session cannot maintain an action of trespass against the tenant holding over. He must first acquire a lawful possession before he can maintain such action. But if the lessor enters upon the land to take possession, he may treat as trespassers all those who afterwards come upon it, or who having unlawfully taken possession wrongfully continue upon the land." So in Anderson v. RadcUffe^ it is said : " When once there is an entry by the person having title, we look to the date when the title accrued, and consider him in possession from that time for the purposes of the action of trespass."^ ' Comm. III. 210. ' (1840) 1 M. & G. p. 659. 8 (1860) 29 L.J. Q.B. p. 128. ' See also Barnett v. Earl of Guildford (1855) 11 Ex. 19 ; Litchfield V. Ready (1850) 5 Ex. 939 ; Butcher v. Butcher (1827) 7 B. & C. 399 ; Hey V. Moorhouse (1839) 6 Bing. N.C. 52 ; Qii^n Accident Corporation, V. Ilford Gas Go. (1905) 2 K.B. 493. Sec. 54.] THE TITLE OP THE PLAINTIFF 176 5. One tenant in common or joint tenant of land cannot sue Trespass as his co-tenant in an action of trespass unless the act of the ^^t^^^"! •i/\ 11 !• co-owners, defendant amounts either (1 ) to the total exclusion or ouster of the plaintiff, or (2) to destructive waste of the common pro- perty. For each of the co-tenants is entitled to the possession of the land, to use it in a proper manner, and to take from it the fruits and profits of that user. If one of the owners receives from the common property a larger share of the profits than that to which he is entitled, this is no tort against the other owner, but the proper remedy is an action for an account. 1" § 55. Trespass ab Initio 1. He who enters on another's land by authority of law, Trespass and is subsequently guilty of an abuse of that authority by "* *'^''"'- committing a wrong of misfeasance against that person, is deemed to have entered without authority, and is therefore liable as a trespasser ab initio for the entry itself and for all things done by him thereunder which cannot be justified save as done under lawful entry. 2. This rule, which is known as that of trespass ab initio, Not limited applies not merely to entry upon land, but to all other acts ^^ land, which, unless done- by some special authority of law, would have amounted under the old practice to the wrong of trespass whether to the land, goods, or person of another : for example, the seizure of cattle damage feasant. If such an authority is subsequently abused by doing a wrongful act under cover of it, it is cancelled ab initio or retrospectively and deemed never to have existed, so that the exercise of it becomes action- able as a trespass. In other words, in an action of trespass to land, goods, or person, a plea that the act was done under authority of law may be effectively met by a replication that the authority was subsequently abused. 3. The leading authority for this doctrine is the case known Six Carpen- as the Six Ga/rpenters' case, reported by Coke. There it is ^^^ "^^^^^ " Jacobs V. Seward (1872) L.R. 5 H.L. 464 ; Wilkinson v. Haygarth (1847) 12 Q.B. 837 ; Murray v. Hall (1849) 7 C.B. 441. For a full dis- cussion of the rights inter se of co-owners of land or chattels, see Lindley on Partnership, pp. 32-38, 7th ed, 176 TRESPASS TO LAND [Caiap. V. Effects of the rule. Limits of the riile, said :^ " When an entry, authority, or license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio. . . . The law gives authority to enter into a common inn or tavern ; so to the lord to distrain ; to the owner of the ground to distrain damage feasant ; to him in 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 or the owner for damage feasant works or kills the distress ; or if he who enters to see waste breaks the house or stays there all night ; or if the commoner cuts down a tree ; in these and the like cases the law adjudges that he entered for that purpose ; and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio. So if a purveyor takes my cattle by force of a commission for the King's house, it is lawful ; but if he sells them in the market, now the first taking is wrongful." 4. The rule is primarily one of procedure, the effect of it under the old practice being that a Avrit of trespass would lie for the entry or seizure itself, instead of a writ of trespass or of case for the subsequent abuse only. In this respect the rule has now lost its significance ; but its secondary effect upon the substantive law still remains — viz. that it enables the plaintiff to recover damages for the entire transaction, and not merely for the wrongful portion of it. If, for example, the defendant rightfully seizes the plaintiff's horse damage feasant, but subsequently injures or sells it, he is liable in damages for the seizure itself in an action which under the old practice would have been trespass de bonis asportatis.^ It is to be regretted that a legal fiction due to the misplaced ingenuity of some medieval pleader should have thus suc- ceeded in maintaining its existence and oppressive operation in modern law. It has been abolished by statute in the case of distress for rent and in certain other instances, but it ought to be wholly eliminated from the law. 5. The rule applies only to acts done in pursuance of an " entry, authority, or license given to any one by the law," as in the examples already given in the extract from the Six 1 (1610) 8 Co. Rep. 146a. Smith's L.C. I. 132, 11th ed. « Oxley V. Waits (1785) 1 T.R. 12 ; Bagshawy. Goward, Cro. Jac. 147, Sec. 55.] TliESPASS AB InMIO 111 Carpenters' case. " Where an entry, authority, or license is given by the party, and he abuses it, there he must be punished for his abuse, but shall not be a trespasser ab initio."^ • 6. The rule applies only when the subsequent abuse amounts Does not to a positive wrongful act, as opposed to a mere omission or ^PP'^ *° „ ^ mi • mere acts oi non-feasance. Thus, m the Six Carpenters case itself it was omission. resolved that the defendant was not a trespasser ah initio merely because he refused to pay for the quart of wine and the pennyworth of bread which he bought and consumed in the plaintiff's inn. For the same reason it is not trespass ab initio to refuse to deliver up a distress after pajonent or tender of the rent or compensation due to the distrainor. The remedy is trover, detinue, or replevin, not trespass.* So a sheriff is not a trespasser ab initio because he wrongfully omits to discharge at the proper time a prisoner in his custody.^ ^ 7. The rule of trespass ab initio does not apply to irregu- Does not larities committed in the course of an otherwise lawful distress ^Fstress" for rent, for it has been abrogated in this particular case by for rent, statute.'' To distress damage feasant, however, the old law still applies.^ ^ Six Carpenters'" case (1610) 8 Rep. 146b. * West V. Nibhs (1847) 4 C.B. 172. « Smith V. Egginton (1837) 7 A. & E. 167. ^ It has been suggested, in consequence of expressions used in the Six Carpenters" case, that the true distinction is not between misfeas- ance and non-feasance, but between acts wliich do and those which do not under the old practice amount to trespass. It is difficult, however, to reconcile such an interpretation with the authorities. To work a horse which has been lawfully seized damage feasant is not in itself a trespass, but it clearly makes the distrainor a trespasser ah initio: Oxley V. Watts (1785) 1 T.R. 12. Conversely, to remain on premises after the determination of a right of entry is a trespass, and yet it seems the better opinion that it does not amount to a trespass ah initio. It is impossible, however, to reconcile all the dicta or even all the decisions on this most confused and unsatisfactory branch of law. ' 11 Geo. II. c. 19, s. 19. " It seems that a lawful entry does not become by abuse a trespass ah initio, unless that abuse has reference to and so takes away the entire ground and reason of the entry. If there remains any inde- pendent ground or reason of entry, which is unaffected by the abuse, it will suffice to justify the entry and protect it from the rule of trespass ah initio. Thus, if a landlord enters lawfully to distrain, and seizes several chattels, some of which are properly distrainable, and some of which are not, he is not even at common law a trespasser ah initio M 178 TRESPASS TO LAND [Chap. V. Ordinary measure of damages. recoverable by occupier without title. Damages recoverable by occupier wth limited interest. § 56. The Measure of Damages in Trespass 1. When a trespass has caused physical damage to the land, the measure of damages is the loss thereby caused to the plaintiff, which in all ordinary cases is measured by the result- ing diminution in the value of the property. The measure of damages is not the cost of reinstatement — the cost of restoring the land to the condition in which it formerly was — a cost which may greatly exceed the actual diminution in the value of the land. Thus, if soil is wrongfully removed from the plaintiff's land, he cannot recover the cost of supplying its place with new soil ; nor if an old building is pulled down can he recover the cost of putting up a new one, but merely the value of the old.^ 2. We have already seen that in an action of trespass de facto possession is a good title as against a wrongdoer. ^ What, then, is the measure of damages in such a case ? Is a me^e possessor without lawful title enabled not only to sue a wrong- doer in trespass, but also to recover the same damages as if he were the lawful owner ? On this point there is no authority, but there seems to be no reason why the rule in the case of land should be different from the rule in the case of chattels ; and in the latter case it is well-established law that a possessor recovers the same damages as an owner.* 3. When a tenant or other person in rightful occupation of land with a limited interest in it sues in trespass, what is the by reason of this abuse ; for it does not go to the whole justification of his entry. He can still justify it by reference to the chattels which he has lawfully distrained. Harvey v. Pocock (1843) 11 M. & W. 740. On the same principle, if all the chattels seized were lawfully dis- trainable, but he subsequently committed an illegal act with respect to some of them, he would not, even before the Distress for Rent Act, have been a trespasser ab initio with respect to all. Dod v. Monger (1704) 6 Mod. 215. If such oases are carried out to their logical consequences, they cut down considerably the doctrine of trespass 06 initio as it was understood in the time of the Six Carpenters. 1 Witham v. Kershaw (1886) 16 Q.B.D. 613 ; Jones v. Gooday (1841) 8 M. & W. 146 ; Wigsell v. ScTwol for Indigent Blind (1882) 8 Q.B.D. 357; Hoshing v. Phillips (1848) 3 Ex. 168; Lodge Holes Colliery v. Wednesbury Corporation (1908) A.C. 323. ' Supra, s. 54 (3). 3 Armory v. Delamirie (1721) 1 Str. 505. See The Winkfield (1902) P. 42. Sec. 56.] MEASURE OF DAMAGES 179 measure of damages ? Is it the damage done to his own limited interest, or is it the whole damage done to the land ? On this point there seems to be no adequate authority ; but it is settled that the bailee of chattels can recover in trespass or trover the whole value of the property, and not merely the value of his interest in it (holding the surplus in trust for the owner or other persons interested in the property) f and there seems to be no reason why the occupier of land should be in a different position. If a plaintiff in wrongful possession of land without any title at all can recover full damages, a plaintiff in rightful possession with a limited interest cannot be in a worse position. 4. When a trespass consists in some beneficial use wrong- Compensa- fully made of the plaintiff's land, even if it causes no damage braeficial the plaintiff is entitled to claim by way of damages a reason- of land. able remuneration for that use, as if it had been had under an agreement ; and in this remuneration compensation for any damage done to the land will be included. Thus, in Whitwham v. Westminster Brymho Coal Co.^ the defendant company had for a considerable period made use of the plaintiff's land for the purpose of tipping upon it the spoil from their colliery, so that the land was rendered useless for any other purpose. It was held by the Court of Appeal that the proper measure of damages was not the mere market value of the land, but the amount which the defendants would have had to pay the plaintiff by way of reasonable remuneration for such use of the land under a contract- that is to say, the value of the land for tipping purposes to the defendants themselves. " If one person," says Lindley, L.J.,^ " has without leave of another been using that other's land for his own purposes, he ought to pay for such user." And according to Rigby, L.J. : ' " The principle is that a trespasser shall not be allowed to make use of another person's land without in some way compensating that other person for that user." The same principle applies to the * The Winkfidd (1902) P. 42. As to trespass to land, see Twyman V. Knowles (1853) 13 C.B. 222, but note that the defendant was him- seK the lessee of the land, and therefore could not be liable except to the extent of the plaintiff's interest. « (1896) 2 Ch. 538. • Ihid. p. 541. ' Ibid. p. 543. 180 TRESPASS TO LAND [Chap. V. Wrongful severance of chattels. Fraud. No fraud. unlawful use of a way over another's land ; even though no harm has been done to the land, a reasonable rent for such a way may be recovered as damages.^ 5. When part of the land has been wrongfully severed and turned into a chattel, the value of that chattel is sometimes greater and sometimes less than the resulting diminution in the value of the land. To remove fixtures from a building will probably diminish the value of the building by a greater amount than the fixtures are worth after removal ; but coal hewed out of a seam is worth more than it was when in situ. In such cases what is the measure of damages — the value of the chattels so taken away, or the resulting diminution in the value of the land ? The rule is that in all cases of wilful wrongdoing the plaintiff may elect to claim either the one or the other, and he will of course claim the amount which is the larger in the particular case. The reason is that he has two alternative causes of action — ^he may sue either for the injury to the land or for the conversion of the chattel severed and taken away ; and the measure of the damages in these two cases is different. The chattel, although it has been severed and made into a chattel by the labour and expenditure of the defendant, nevertheless belongs to the plaintiff, who may recover its full value without making any allowance for the fact that part of that value has been given to it by the defendant. The value so recoverable is the value of the chattel at the moment when it first becomes a chattel ; and if subsequently the defendant has by his labour or expenditure increased its value, the plaintiff has no claim to this addition. So that if coal is wrongfully extracted by the defendant from the plaintiff's land, he is entitled to recover the value of the coal at the pit's mouth, less the cost of drawing and raising it, but without any deduction of the cost of hewing or pro- curing it.® This penal rule, by which the plaintiff recovers more than » Jegon v. Vivian [ISn) L.R. 6 Ch. 742 ; Phillips v. Homfray (1871) L.R. 6 Ch. 770. • Martin v. Porter (1839) 5 M. & W. 351 ; Taylor v. Mostyn (1886) 33 Ch. D. 226 ; Wild v. Holt (1842) 9 M. & W. 672 ; Morgan v. Powell (1842) 3 Q.B. 278i Sec. 56.] MEASURE OF DAMAGES 181 his actual loss, does not apply where there is no fraud or con- scious wrongdoing on the part of the defendant, and where he has been guilty merely of an honest mistake. In such a case the plaintifE cannot recover the value of the chattel, and is entitled to nothing more than his actual loss — viz. the diminution of the value of the land. So that if the plaintifi's coal is severed and taken by a mistake as to title or boundaries, the measure of damages is the value of the coal in the seam, as if it had been bought in situ by the defendant.^" Whether the penal measure of damages applies in the case of negli- gence as well as in that of fraud is perhaps to be regarded as unsettled. There are certain dicta in favour of its applica- tion to such a case." ^^ " Wood V. Morewood (1841) 3 Q.B. 440 n ; Jegon v. Vivian (1871) L.R. 6 Ch. 742 ; Trotter v. Maclean (1879) 13 Ch.D. 574 ; Livingstone V. Savyyards Coal Co. (1880) 5 A.C. 25 ; Peruvian Guano Co. v. Dreyfus Bros. (1892) A.C. pp. 173-177. '^ See the cases cited in the preceding note. ^^ These principles have been worked out by the Courts with ex- clusive reference to the wrongful extraction of coal, but there seems no reason to doubt that they are of general application to aU forms of wrongful severance and conversion. See Peruvian Guano Co. v. Dreyfus Bros. (1892) A.C. p. 176, per Lord Macnaghten. CHAPTER VI DISPOSSESSION OF LAND § 57. The Action of Ejectment Disposses- 1. The Wrong of dispossession consists in the act of depriving sion defined, ^^j pej.gQji entitled tliereto of the possession of land. This deprivation of possession may happen in two ways — namely, either by wrongfully talcing possession of the land, or by wrong- fully detaining the possession of it after the expiration of a lawful right of possession. In the first case, the wrong of dis- possession is also a trespass ; in the latter it is not. But so far as regards the essential nature of the wrong and the remedies available for it, there is no diSerence between one form of dispossession and the other. i The action of 2. Any person wrongfully dispossessed of land may sue for ejectment. ^.j^g specific restitution of it in an action of ejectment. This action was in its origin merely a special variety of the action of trespass (whence its full title — trespass in ejectment), and was available only for leaseholders. It was the remedy by which a tenant for a term of years recovered the possession of the land either from his landlord or from any other person who had dispossessed him. So greatly, however, did it exceed in con- venience and efficiency the remedies available for freeholders, that it came in course of time and by the aid of the most elaborate fictions to be used by freeholders also, superseding all other remedies and becoming the universal means by which the possession of land could be recovered by any person having title to it. ^ In the days of Blaokstone it was necessary to distinguish between many different forms of dispossession, or ouster as it was called — viz. abatement, intrusion, disseisin, discontinuance, deforcement, dispossession of a leasehold, and so on. Blaokstone, III. 167. All these distinctions have become immaterial. 182 Sec. 57.] ACTION OF EJECTMENT 183 The action when brought by a freeholder was instituted in the name of a fictitious plaintiff, usually called John Doe, who claimed possession of the land under a fictitious lease, which the real claimant (the plaintiff's lessor, as he was termed) was alleged to have granted to him. Hence the name of an action of ejectment under the old procedure : Doe on the demise of Robinson v. Johnson. The defendant was permitted to defend the action only on the terms of admitting the alleged lease and the dispossession of the plaintiff, so that the only question left in issue was the title of the plaintiff's lessor (that is to say, the real plaintiff) to the land in question. These fictions were all swept away by the Common Law Procedure Act, 1852 ; and by the Judi- cature Act, 1873, even the term ejectment is superseded by the term action for the possession of land. The older term is, however, conveniently retained in practice.^ 3. The rule in Asher v. WhitlocJc. In an action of ejectment Possessory it is necessary for the plaintiff to prove his right to the posses- ^'^shlr v. sion of the land, but it is sufficient if he proves a better right Whitlock. than the defendant's, even though it is inferior to that of some third person. For the purpose of this rule, as between two wrongful possessors, priority of possession gives the better right. The defendant in ejectment cannot defend himself by pleading jus tertii — that is to say, the existence of a title superior to that of the plaintiff and vested in some third person. In an action between A and B for the possession of land, it is an irrelevant fact that the real owner of the land is neither A nor B, but C. When the real ownership is thus outstanding in some third person, the rights of the two claimants to it depend on priority of possession : Qui prior est tempore potior est jure — he who had the land first in fact has the best right to it in law. And so also with any one who claims through or under the prior possessor, as purchaser, lessee, devisee, heir at law, and so on. In other words, possession of land, even though wrongful, is a title of right as against all persons who cannot show a better title in themselves. Such possessory ownership — ownership • For an account of the history and nature of ejectment under the old practice, see Blaokstone, III. 199-207 ; Select Essays in Anglo- American Legal History, III. pp. 611-645. 184 DISPOSSESSION OF LAND [Chap. VL Ejectment as between co-owners. based on possession — ^has, except as against persons able to show a better title in themselves, all the characteristics of legal ownership. The possessory owner may sell, lease, mortgage, or devise the land, and on his death intestate it will descend like a legal title ; and any person so claiming under the possessory owner has as good a title as he had. This rule as to possessory title in actions of ejectment was definitely formulated in the case of Asher v. WhitlocJc ; ^ and this decision, although long doubtful, may now be regarded as authoritative in consequence of the express recognition of the rule by Lord Macnaghten, delivering the judgment of the Privy Council in Perry v. Glissold.* " It cannot be disputed," he says,^ " that a person in possession of land in the assumed character of owner, and exercising peaceably the ordinary rights of ownership, has a perfectly good title against all the world but the rightful owner." We have already seen that such a possessory title is suiScient to. enable a plaintiff to sue in trespass,^ and we shall see later that the law is the same in the case of injuries to chattels.' 4. Ejectment will lie at the suit of one joint tenant or tenant in common against the other where the act of the defendant amounts to the total exclusion or ouster of the plaintiff from the possession of the common property.^ Recovery of mesne profits. § 58. The Action for Mesne Profits 1. Any person wrongfully dispossessed of land has, in addi- tion to a right of action in ejectment for the recovery of the 3 (1865) L.R. 1 Q.B. 1. See also Allen v. Rivington (1671) 2 Wms. Saund. 110 ; Davison v. Gent (1857) 1 H. & N. 744. « (1907) A.C. 73. The cases of Doe d. Crisp v. Barber (1788) 2 T.R. 749 ; Doe d. Carter v. Barnard (1849) 13 Q.B. 945 ; and Nagle v. Shea (1874) Ir. Rep. 8 C.L. 224, must be taken to be erroneous. Ac- cording to these cases possession is merely prima facie evidence of a legal title, not a title in itseK, even against an admitted wrongdoer. 6 (1907) A.C. p. 79. « Graham v. Peat (1801) 1 East 244 ; supra, s. 54 (3). ' Armory v. Delamirie (1721) 1 Str. 504. 8 Murray v. Hall (1849) 7 C.B. 441 ; Goodtitle v. Tombs (1770) 3 Wils. 118; Co. Litt. 199b; Common Law Procedure Act, 1852, sec. 189. ■ This section is repealed by the Statute Law Revision and Civil Pro- cedure Act, 1883, sec. 3, but the principle remains unafFcetcd. As to trespass between co-owners, vide supra, s. 54 (5). Sec. 58.] ACTION FOR MESNE PROFITS 186 land, a right of action for damages in respect of all loss suffered b}^ him during the period of his dispossession. Such an action is termed an action for mesne profits. 2. A claim for mesne profits is now usually joined with the Mesne profits action of ejectment, this joinder being permitted by the Eules XLed in of the Supreme Court, 0. 18, r. 2. Formerly, however, this ejectment, was not allowable (save by virtue of the Common Law Procedure Act, 1852,i in the single case of ejectment brought by a landlord against his tenant) ; and the practice was to sue first in ejectment, and after the recovery of the land by this means to bring a subsequent action for mesne profits.^ 3. The action for mesne profits was a particular form of Action of the action of trespass quare clausum fregit ; its proper title f^uiXd^n*" was the action of trespass for mesne profits. Whether the doctrine of dispossession had or had not been effected by way of trespass, relation. ^ the claim for mesne profits was always in form a claim for damages for a continuing trespass upon the land.* Such a claim was based upon and rendered possible by the doctrine of trespass by relation, which has been already explained in the chapter on trespass.* To remain wrongfully in possession of land is not, as we have already seen, in itself a trespass, even ^although the act of first entering upon the land was a trespass. But after the plaintiff so kept out of possession has re-entered ,and recovered his possession, he is remitted by a legal fiction to his former status ah initio, and is deemed never to have been out of possession. It then becomes possible for him, therefore, to sue in trespass for all acts that have been done upon the land 1 15 & 16 Vict. 0. 76, s. 214. 2 Chitty's Pleading, I. p. 210, 7tli ed. It is true, indeed, that in the action of ejectment under the old practice, damages were recover- able as well as the land itself ; but these damages were in general merely nominal, being given only in respect of the trespass, if any, committed by the defendant in turning the plaintiff out of possession, and not in respect of the loss sustained by him through being kept out of possession. This had to be sued for separately in an action for mesne profits. » Chitty's Precedents in Pleading, 661 : " That the defendant broke and entered messuages of the plaintiff situate, &c., and ejected the plaintiff from his possession and occupation thereof, and kept him so ejected for a long time, and during that time took and received to the use of him the defendant all the issues and profits of the said tenements, &o." • Supra, s, 54 (4). 186 DISPOSSESSION OF LAND [Chap. VI. during the period of his dispossession — including the continued dispossession itself. Hence the action for mesne profits. " That is the ordinary doctrine on which actions for mesne profits are founded ; you look to the date of the title, and after entry consider the party entitled to have been then in possession."^ " The general doctrine is that where a man is disseised and re-enters, such re-entry refers to and has relation back to the time of his first entry ; and he may bring an action of mesne profits, and recover them from the date of the prior entry." ^ Re-entry a 4. Since the action for mesne profits was thus founded precedent to ^^ *^® doctrine of trespass by relation, it followed that the action for action would not lie until after the plaintiff had re-entered and . mesne pro s. jg^Q^gj-g^ ^j^g possession of the land. This re-entry might be by his own act, or it might be by way of judgment in eject- ment and execution issued thereon. But one mode or the other was an essential condition precedent to the action. The only exception to this rule seems to have been the case where a re-entry had become impossible owing to the deter- mination of the plaintiff's title to the land. If, for example, a leaseholder was ejected and kept out of possession for the residue of the term, he could without entry recover damages for his term.' Modern 5. This requirement of re-entry as a condition precedent practice. ^^ ^^ action for mesne profits is now abolished to this extent, that a claim for such profits may in all cases be joined with an action of ejectment ; for this is expressly allowed in the case of landlord and tenant by the Common Law Procedure Act, 1852, sec. 214, and impliedly in all other cases by the Eules of the Supreme Court, 0. 18, r. 2.^ This, however, leaves open the question whether an action for mesne profits will now lie without an action of ejectment and before the recovery of the land. It seems clear that it will not, and that the prohibition of such a proceeding was not a mere technicality of the old procedure, but is a subsisting rule of substantive law. To hold otherwise would enable a person dispossessed of land to sue in repeated actions de die in diem for damages for being kept out 5 Raddiffe v. Anderson (1858) E.B. & E. p. 824. « Litchfidd V. Ready (1850) 5 Ex. p. 944. See also Co. Litt. 257a. ' 2 Rolle's Abridg. 550. » Dunlop r. Macedo (1891) 8 T.L.R. 43. Seo. 58.] ACTION FOR MESNE PROFITS 187 of possession, just as he might sue for a continuing trespass or nuisance ; whereas his true remedy is to recover the land itself, together with damages once for all in respect of the completed period of his dispossession. The law, then, seems to be as follows : A person dis- possessed of land may — (a) Sue in ejectment and for mesne profits in one action ; (b) Sue for mesne profits, if he has already got back into possession either by means of an action of ejectment or otherwise ; (c) Sue for mesne profits without ejectment and without recovery of possession, if his interest in the land has already come to an end. 6. In an action for mesne profits (notwithstanding the Measure name of the action) the plaintiff is not limited to a claim for °* damages, the profits which the defendant has received from the land, or those which he himself has lost. He recovers all the loss which has resulted from the dispossession.^ 7. When the land has during the period of the plaintiff's Claims dispossession been in the possession of two or more successive successive wrongdoers, an action for mesne profits will lie against each occupiers, of them in respect of the period of his own possession. " For by the re-entry of the disseisee he is remitted to his first pos- session, and as if he had never been out of possession ; and then all who occupied in the meantime, by what title soever they come in, shall answer unto him for their time."^" A lessor is responsible in an action for mesne profits for the period of his tenant's possession as well as for his own.^^ 8. It seems not to have been decided whether a defendant Right to set in an action for mesne profits can set off the value of improve- "ujototc- ° ments made by him to the property in good faith during the ments. period of his possession.^^ Since, however, the plaintiff's » Goodlitle v. Tombs (1770) 3 Wils. p. 121 ; Dunn v. Large (1783) 3 Doug. 335. 1" Halcomb v. Rawlyns Cro. Eliz. 540. See, however, Liford's case 11 Rep. 51a. 11 Doe V. Harlow (1840) 12 A. & E. 40. A tenant who sublets is liable for mesne profits to his lessor if the sub -tenant holds over after the termination of the original lease. Henderson v. Squire (1869) L.R. 4 Q.B. 170. " See Mayne on Damages, p. 527, 8th ed. 188 DISPOSSESSION OF LAND [Chap. VI. claim is for the loss suffered by him in consequence of the dispossession, it would seem clear on principle that he must take into account the value to himself of the improvements made by the defendant. If the defendant has pulled down an old house and built a new one, it can scarcely be supposed that the plaintiff can recover both the new house in an action of ejectment and the value of the old one in an action for mesne profits. nuisances. CHAPTER VII NUISANCE § 59. The Nature of Nuisance 1. It is usual to divide nuisances into two kinds, distinguished Public as public and private. A private nuisance is a kind of civil *"? private wrong, the nature of which we are about to consider. A public or common nuisance is a species of criminal offence, which has been defined as " an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty's subjects. "^ Examples of a public nuisance are keeping a common gaming-house or a disorderly inn, publicly selling unwholesome provisions, obstructing a highway, or making it dangerous for traffic. Public and private nuisances are not in reality two species of the same genus at all. There is no generic conception which includes the crime of keeping a common gaming-house and the tort of allowing one's trees to overhang the land of a neighbour. We are here concerned solely with private nuisances. Public nuisances do not fall within the law of torts at all, except in so far as such a nuisance may in the particular case constitute some form of tort also. Thus, the obstruction of a highway is a public nuisance ; but if it causes any special and pecuhar damage to an individual, it is also a tort actionable at his suit.^ 2. Private nuisances are themselves of two kinds — viz. (a) Two kinds any wrongful disturbance of an easement or other servitude nuSanoes. appurtenant to land, and (b) the act of wrongfully causing or allowing the escape of deleterious things into another person's land (e.g. smoke, smells, fumes, noise, electricity ^ Stephen's Digest of Criminal Law, art. 197, 6th ed. 2 Infra, s. 92. 189 190 NUISANCE [Chap. VII. water, or noxious vegetation). Here again it does not seem possible to include these two kinds of nuisances within any single definition. They are not in reality two species of the same generic injury, but two different injuries which happen to be called by the same name. In the present chapter we are concerned solely with the second of these kinds, and to it alone we shall apply and confine the term nuisance. The disturbance of servitudes will be treated in a later chapter, and will be spoken of under that designation and not under that of nuisance.^ Nuisance 3. The wrong of nuisance, as distinguished from the dis- defined. turbance of servitudes, consists in the act of the defendant in causing or allowing without lawful justification (but not so as to amount to a trespass) the escape of any deleterious thing from his land or from elsewhere into land in the possession of the plaintiff — for example, water, smoke, smell, fumes, gas, noise, heat, vibrations, electricity, disease-germs, animals, and vegetation.* ' The explanation of this threefold meaning and application of the term nuisance is that in its origin the term was merely a generic expres- sion meaning wrongful harm, and that although it has now lost this wide signification it has failed to attain instead any single specific appUcation. The term is derived, through the French, from the late Latin nocentia : see TertuU. Apol. cap. 40 — Deus innocentiae magister nocentiae judex. Chaucer used it in this generic sense : " Helpe me for to weye ageyne the feende. . . . Keepe us from his nusance." (Mother of God, I. 21). Nuisance appears in the old Latin pleadings as nocumentum — i.e. harm. The terms trespass and tort, though similarly generic in their original use, have been more successful in the process of specification. ' The following cases illustrate the different kinds of nuisance : — Smell : Rapier v. London Tramways Co. (1893) 2 Ch. 588 (stables). Noise : Christie v. Davey (1893) 1 Ch. 316 (music to annoyance of neighbours) ; Broder v. Saillard (1876) 2 Ch. D. 692 (stable ad- joining dweUing-house) ; Ball v. Ray (1873) L.E. 8 Ch. 467 (the same) ; Sturges v. Bridgman (1879) 11 Ch.D. 852 (machinery) ; Polsue (1890) 24 Q.B.D. 656. 206 NUISANCE [Chap. VII. Aliter if artificially aooumulated. Aliter if ea- Gape actively caused. levels.^ Nor is he liable for the overflow of a stream on his land caused by the growth of weeds or the deposit of silt in the bed of it.^ Similarly, there is no liability for the escape of noxious animals naturally on the defendant's land, such as rats, rabbits, or birds.* 2. A person is liable, however, even for the escape of things naturally on his land, if he has artificially accumulated them there so that their escape does more mischief than it would otherwise have done. If he collects in a reservoir the rain- water that falls upon his land, he is no less responsible for its escape than if he had brought the water in pipes from else- where!^ So if, for the purposes of sport or otherwise, he purposely accumulates rabbits or game upon his land, he is probably liable for all damage done by them to neighbouring proprietors. " I will first deal," says Pollock, B., in Farrer V. Nelson,^ " with the question whether an action can be brought by a neighbour against any person who collects animals upon his land so as to injure the crops of the neigh- bour, and I should say that beyond doubt such an action would lie."^ 3. Although a person is not liable for allowing the escape of things naturally on his land, he is liable for causing their escape. Thus, in Whalley v. Lancashire & Yorkshire Ely. Co J a railway embankment caused an accumulation of flood water, and in order to get rid of the water the railway com- pany pierced the embankment and so caused the water to escape with destructive violence into the adjoining land of the plaintifi ; and it was held that the company was » Nield r. London c& N.W. Sly. Co. (1874) L.R. 10 Ex. 4. = Hodgson v. Mayor of York (1873) 28 L.T. 836. 1 Brady v. Warren (1900) 2 Jr. R. 632. s (1885) 15 Q.B.D. p. 260. '^ It is true, indeed, that in the old case of Bowlston v. Hardy (1597) Oo. Ehz. 547, it was decided that the making of coney burrows and the keeping of coneys therein which ate the crops on the adjoining land of the plaintiff was no cause of action. But the reason given for the de- cision is the very insufficient one that the defendant had no property in the coneys — that they were not his, and therefore that he was not answerable for them. Probably this case is no longer law. See Brady V. Warrm (1900) 2 Ir R. 632 ; O'Gorman v. O'Gorman (1903) 2 Ir. R. 573. ' (1884)13 Q B.D. 131. Sec. 63.] THINGS NATURALLY ON LAND 207 liable for the damage so done.^ On the same principle, a person is responsible for the escape of water from his land if it is due to some artificial structure made or maintained by him there, or to any other alteration of the natural con- dition of the land. Thus, in Hurdman v. North Eastern Rail- ioay Go.^ the defendants were held liable for maintaining on their land an artificial mound of earth from which rain-water percolated into the wall of the adjoining house of the plaintiff. " If any one by artificial erection on his own land causes water, even though arising from natural rainfall only, to pass into his neighbour's land, and thus substantially to interfere with his enjoyment, he will be liable to an action at the suit of him who is so injured."^" 4. The general principle that a person is liable for causing LiabUity of the escape of water from his land into that of his neighbour "i™6-o'»^o''^- is subject to an exception in the case of adjoining mine- owners. The case of Smith v. Kenrick}^ followed by Baird Smith V. Williamson^^ and Wilson v. Waddell}^ has estabUshed the "" ^^°™'^- rule that no action will lie for the escape of water by natural gravitation into the plaintiff's mine, if this escape is caused merely by the working of the defendant's mine in the ordinary manner. " Each mine-owner has all rights of property in his mine, and among them the right to get all minerals therefrom, provided he works with skill and in the usual manner. And if, while the occupier of a higher mine exercises that right, nature causes water to flow to a lower mine, he is not respon- ' The act of preventing the entrance of flood water, on the other hand, is perfectly la'wful, even though the known and necessary consequence is to cast that water upon the land of one's neighbour. Nidd v. London at common quences which are thus unauthorised, because unnecessary i j^^^^ The answer is that the matter stands exactly as at common law, the statute being inapplicable and irrelevant. If the negligence, therefore, which causes the injurious consequence is that of the defendant himself or his servants, he is liable in all cases. If, however, it is that of an independent con- tractor, his employer is liable only when a person is at common law liable vicariously for the acts of such a contractor. It is sometimes said, indeed, that statutory authority excludes all such rules of absolute liability (notably the rule in Rylands v. Fletcher^^), and protects a defendant from all responsibility except for the negligence of himself and his servants. This, however, is not correct. For consequences which are not necessary, and therefore not authorised, liability stands as at common law, and if the common law imposes absolute liability in that particular case, it still exists notwithstanding the statute. Thus, in Penny v. Wimbledon Urban Council^^ " Metropolitan Asylum District v. Hill (1881) 6 A.C. pp. 208, 213 ; Canadian Pacific Railway Co. v. Parke (1899) A.C. 535 ; Price's Patent Candle Co. v. London County Council (1908) 2 Ch. 526. »i (1868) L.R. 3 H.L. 330, i^ (1899) 2 Q.B. 72. 222 NUISANCE [Chap. VII. the defendant council, though acting in the exercise of statutory powers, was held liable for the negligence of a contractor who was employed by them to repair a road, and who left there a heap of soil unlighted at night to the injury of a passenger. On the same principle, in Holliday v. National Telephone CoP the defendant company, laying wires below the public highway under statutory authority, was held liable for the negligence of an independent contractor. So in Hardaher v. Idle District Council^^ the defendants were held> liable under the rule in Rylands v. Fletcher for an escape of gas from the roadway into the house of the plaintiff, although the only negligence was that of an independent contractor, and although the defendants were acting under statutory authority. § 70. Liability for Fire 1. Liability for damage done by the accidental spread of fire is, it is believed, governed by the same principles as those which determine liability for the escape of any other dangerous thing. For certain reasons, however, and chiefly because of the existence of a statute which bears upon the matter, this form of injury is one which requires separate consideration. Liability for ■ The statute referred to is 14 Geo. III. c. 78, s. 86, which by statute, provides " that no action, suit, or process whatever shall be had, maintained, or prosecuted against any person in whose house, chamber, stable, barn, or other building, or on whose estate any fire shall accidentally begin." This Act repealed certain earlier provisions to the same effect ; the first of them being 6 Anne, c. 31, which, however, extended only to fires in a " house or chamber." The natural interpretation of this very ill-drawn enactment is that it abolishes all liability for accidental fires, whether they are due to negligence or not, and this is the construction put upon the Act of Anne by Blackstone in his Commentaries.^ Yet whatever may have been the real intention of the Legislature, it has been finally determined by the judgment of the Court of Queen's Bench in Filliter v. Phippard ^ that the statute extends only to inevitable accident, and that fires due to negligence are still a source of liability. " (1899) 2 Q.B. 392. " (1896) 1 Q.B. 335. 1 I. 431. « (1847) 11 Q.B. 347. Sec. 70.] LIABILITY FOR FIRE 223 2. This being so, the question arises : For whose neghgence For whose in the matter of fire is the occupier of the land responsible ; oooumeTfs only for his own, or also vicariously for that of other persons ? liable. This question is left open by FUliter v. Pkippard, but receives a partial answer in the case of Black v. Ghristchurch Finance Go.,^ in which the occupier was held liable for the act of an independent contractor who negligently and in disregard of his instructions lit a fire on the defendants' property at a dangerous and improper season of the year. It is clear from this case that the liability of an occupier for negligent damage by fire is not limited to his own negligence and to that of his servants acting in the course of their employment. How far, then, does it extend ? There seems no reason for supposing that it is any more restricted than his liability for the escape of any other dangerous substance ; and if this is so, it prob- ably extends to the negligent acts of all persons lawfully on the premises with the occupier's permission, whether they are servants, contractors, members of his family, or licensees. But for the act of a stranger he is not responsible in this any more than in other cases.* If this is so, the statute of 14 Geo. III. as interpreted by Statute FUliter v. Phijypard is probably merely declaratory of the declaratory, common law, for this seems to be the rule indicated by the common-law decisions prior to the Act of Anne. Thus, in the old case of Beaulieu v. Finglam,^ it is said by Markham, J. : " A man is bound in such a case to answer for the acts of his servant or his ostler. For if my servant or my ostler fix a candle against the wall, and the candle fall into the thatch and burn down all my house and my neighbour's house too, in that case I must answer to my neighbour for the damage done to him. ... I shall have to answer to my neighbour for any one who enters my house by my will or my knowledge, or is received by me or by my servant as a guest, if he do any act (as with a candle or anything else) by which my neighbour's house is burned. But if a man from outside my house, against my will, puts fire into the thatch of my house or anywhere else, whereby my house is burned and in consequence my neigh- => (1894) A.C. 48. ♦ See above, s. 65. 5 Y.B. 2 Henry IV. 18 pi. 5. See Kenny's Cases on the Law of Torts, p. 589. 224 NUISANCE [Chap. VII. Liability at common law. Statutory liability. Contrary opinion considered. bours' houses are burned too, I shall not be bound to answer to them for this." In a somewhat less ancient case^ it is said : " If my friend come and lie in my house and set my neighbour's house on fire, the action lieth against me." And, in Turber- ville V. Stamps,'' Holt, C.J., says : " If a stranger set fire to my house, and it burns my neighbour's, no action will lie against me." 3. It is sometimes said, indeed, that the common law, before the Act of Anne, held an occupier absolutely liable for damage done by fire independently of any negligence either on his part or on that of any one else. There is, however, no sufficient authority for any such doctrine, and it is contrary to the clear opinion of Holt, C.J., and the Court of King's Bench in Turberville v. Stampe,'' decided before the Act of Anne. It is there clearly recognised that liability for fire is based on the negligent lighting or care of it. " He must at his peril take care that it does not through his neglect injure his neighboui. If he kindle it at a proper time and place, and the violence of the wind carry it into his neighbour's ground and prejudice him, this is fit to be given in evidence.""* Yet however this may have been before the statute, it is submitted that since the statute there can be no liability for accidental fire in the absence of any negligence on the part of any one concerned. The present law is a rule of vicarious liability for the negligent acts of all persons except mere strangers — not a rule of absolute liability for accidents for which no one is to blame. This, it will be remembered, is the interpretation which we have already placed on the general rule in Rylands v. Fletcher as modified by Nichols v. Mars- land ;' and if this is correct, liability for fire stands on exactly the same basis as liability for water or any other dangerous thing. 4. It is sometimes maintained^" that even at the present day, and notwithstanding the statute, liability for fire is absolute and independent of negligence. Those who hold this opinion seek to evade the statute by construing the words ^ Crogate v. Morris, 1 Brownl. & Goldes. 197. ' (1697) 1 Ld. Raym. 264. 8 12 Mod. p. 152. s Sufra, s. 66 (2), i» See Clerk & Lindsell's Law of Torts, p. 450, 5t|i ed, Soc. 70.] LIABILITY FOR FIRE 225 " shall accidentally begin " ;is applicable only to fires that are accidental in their origin, and not to fires intentionally lit but accidentally spreading and escaping from the defendant's land. The statute would apply, for example, to a fire caused by lightning or spontaneous combustion, but not to one caused by the bursting of a lamp. This interpretation is suggested in FiUitcr V. Phiffard}^ itself as a second and supplementary ground for the decision. It is submitted, however, that it is unsound. It seems sufficiently clear that the statute was not intended to apply solely to fires caused by lightning or spon- taneous combustion, and that the accidental burning of a house by the explosion of a lighted lamp is as much within the Act as a similar accident caused by an explosion of gunpowder. The cases of Jones v. Festiniog Rly. Co.^^ and Powell v. Fall,^^ which are sometimes cited as authorities for the proposition that liability for fire is independent of any negligence on the part of any one, do not in reality admit of an}^ such interpretation. In these cases the defendants were held liable for fire caused by the escape of sparks from locomotive steam-engines used by them, and it was held to be no defence that all possible care and skill had been used in the construction and management of these engines to prevent the escape of sparks. In neither case was the engine used under any statutory authority which granted any pro- tection against the ordinary rule of liability at common law. It seems clear that these are not cases of absolute liability for fire at all, but are merely illustrations of the familiar principle, already considered by us,^* that if any operation cannot be carried on without causing damage by the escape of deleterious or dangerous things the carrjdng-on of that operation is an actionable nuisance, and it is no defence that all possible care and skill were used to prevent or minimise the damage done by it. He who cannot by any care or skill carry on the business of a sawmill without annoyance to his neighbours cannot lawfully do so at all, except by agreement with his neighbours or under the protection of statutory authority. This liability is not independent of negligence, for the very act of con- ducting an operation which cannot by care and skill be " (1847) II Q.B. .347. " (1868) L.R. 3 Q.B. 733, " (1880) 5 Q.B.D. 597. »* tjufra, s. 61 (4). 226 NUISANCE [Chap. VII. Duty to extinguish fires. Summary aa to fire. rendered innocuous is itself an act of negligence. The argu- ment in these two cases, therefore, was devoted almost wholly to the question whether there was or was not any statutory authority sufficient to legalise the use of these dangerous instruments and to save the defendants from their undoubted common law liability. ^^ 5. We have seen that the occupier of land is not vicari- ously liable in respect of a fire caused by the negligence of a stranger. Does he owe to his neighbour any duty at all in respect of such a fire 1 Is he bound to use any care to prevent or extinguish it, or is he at liberty to leave it alone on the ground that it is not his fire and therefore not his business ? On this point there is no authority, but it would seem difficult to maintain that any such obligation or liability exists. G. We may summarise the conclusions which we have reached in this matter in the form of the following three rules : — (a) The occupier of land from which fire escapes is liable if the escape is due to any negligence on the part of him- self, his servant, an independent contractor intrusted with the lighting or custody of fire, or probably any other person lawfully on the land with the occupier's permission. 1^ (b) He is not responsible for the act of a stranger, or for damage which is not caused by negligence on the part of any one.^' (c) He is probably under no duty to extinguish fires for the hghting of which he is not responsible. Term nuisance here used § 71. The Incidence of Liability for Nuisances 1. Hitherto we have confined our attention to the nature of the wrong of nuisance, and have postponed any inquiry into the '^ The liability of railway companies for fires caused by the escape of sparks or cinders from locomotives is now governed by the Railway Fires Act, 1905. See s. 69 (2), n. 1, ante. 16 FilUter v. Phippard (1847) 11 Q.B. 347 ; Black v. Christchurch Finance Co. (1894) A.C. 48 ; Turherville v. Stampe (1697) Ld. Raym. 264, 12 Mod. 152 ; BeauUeu v. Finglam, Y.B. 2 Henry IV. 18 pi. 5. " 14 Geo. III. u. 78, s. 86 ; Turherville v. Stampe (1697) 1 Ld. Raym. 264, 12 Mod. 152 ; Beaulieu v. Finglam, Y.B. 2 Henry IV. 18 pi. 5. Sec. 71.] INCIDENCE OF LIABILITY 227 incidence of liability for it. We have assumed throughout as including that the person liable in every case is the occupier of the land ofsorviJuXs, on which the cause of the injury exists. This, however, although generally true, is not invariably so, nor is it tho whole truth, and we have now to deal with the matter more definitely. As the law on this point is identical with respect to nuisances strictly so called, and to the disturbance of servitudes, we shall deal with these two injuries together in this connection, and shall in so doing use the term nuisance in its wide sense to include both. 2. Speaking generally, the occupier of premises is liable for Occupie.- all nuisances which exist upon them during the period of his nu^Jance/" occupancy. His duty is not merely to refrain from positive acts of misfeasance which cause a nuisance, but also to take care that a nuisance does not come into existence, and to abate it if it does. " I have the control and management," says Abbott, C.J.,^ " of all that belongs to my land or my house, and it is my fault if I do not so exercise my authority as to prevent injury to another." Thus, the tenant of a dwelling- house is responsible if it so falls into disrepair as to be a source of danger to the adjoining highway.'^ So in White v. Jameson^ the occupier of land was held liable for a nuisance caused by a licensee through the burning of bricks upon the premises. 3. Similarly, an occupier is liable even for a continuing Even when nuisance which already existed on the premises when he first ^y^J^^^g^' entered into possession of them ; for it is his duty either to becomus the refrain from taking possession of such premises or else to abate °'"^"P"^'"- the nuisance so soon as he becomes the occupier. Thus, in Broder v. Saillard,^ the tenant of a house was held liable for a continuing nuisance to the adjoining house caused by the per- colation of water through an artificial mound of earth which existed on the demised premises at the commencement of the tenancy. So in Brent v. Haddon^ an action was successfully brought against the tenant of a mill for the continuance of a 1 Laugher v. Pointer (1826) 6 B. & C. p. 576. 2 See Pretli/ v. Bickmore (1873) L.R. 8 C.P. 401. = (1874) L.R. 18 Eq. 303. See also Odell v. Cleveland House Ltd. (1910) 102 L.T. 602, where the occupier of a house was held hablo for a nuisance caused by an independent contractor employed by him to demolish part of the premises. ^ (1876) 2 Ch.D. 692. " Cro. Jac. 555 When nuisance not created by occupier, he is not liable except for unreasonable failure to abate it. Liability of him who creates a nuisance on another's land. 228 NUISANCE [Chap. VII. weir wrongfully erected before the commencement of his lease. So the tenant of a house which obstructs the plaintiff's lights is responsible therefor. ^ So also with the purchaser of land on which a nuisance exists.'' So in Goupland v. Hardingham^ the occupier of a house was held liable for injuries caused by a dangerous unfenced area abutting on the street, although the premises were in the same condition when his occupation com- menced.^ 1° i. When a nuisance has been created by the act of a tres- passer, or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reason- ably prompt and efficient means for its abatement. -^^ 5. He who by an act of misfeasance creates a nuisance is liable for it, and for any continuance of it, notwithstanding the fact that it exists on land which is not in his occupation, and that he has therefore no power to put an end to it. Thus, if any building obstructs ancient lights, or interferes with any other servitude, the builder is liable no less than the occupier " Byppon V. Boivles, Cro. Jao. 373 ; Boswell v. Prior {1701 ) 12 Mod. 635. ' Penruddock's case, 5 Co. Rep. 100b ; Boswell v. Prior (1701) 12 Mod. 635. " (1813) 3 Camp. 398. ^ It has been said that no action will lie against an occupier for a mere failure to abate a nuisance which existed at the commencement of his occupation, until and unless he has been requested by the plaintiff to abate it. Penruddoclc' s case, 5 Co. Rep. 100b. '" This principle is not applicable so as to make the occupier of land liable for a subsidence wiiich happens during the period of his occupancy by reason of an excavation or other withdrawal of support in the time of his predecessor in title. There is here, it seems, no continuing nuisance for which the oocujjier for the time being can be held respon- sible ; there is merely a completed act done by his predecessor in title, which becomes actionable as against that predecessor so soon as damage ensues. Hall v. Duke of Norfolk (1900) 2 Ch. 493 ; Greenwell V. Low Beechburn Coal Co. (1897) 2 Q.B. 165. Infra, s. 80. " Barker v. Herbert (1911) 2 K.B. 633; Att.-Gen. v. Tod Heatley (1897) 1 Ch. 560. In the unsatisfactory case of Saxby v. Manchester d: Sheffield Bly. Co. (1869) L.R. 4 C.P. 198 it was apparently decided by the Court of Common Pleas that an occupier was under no obliga- tion to abate a nuisance caused by a predecessor in title or by a trespasser, but was bound merely to allow the nuisance to be abated bv those who complained of it. Sed qu. Seo.^71.] INCIDENCE OP LIABILITY 229 of the land on which the building stands. ^^ Moreover, this liability is a continuing one, extending not merely to the wrong-ful act itself, but to the continuance of the wrongful state of things which results from it. It is no defence that the defendant has no power to abate or put an end to this state of things, for he ought not to have created it.^^ 6. Does a person who is in occupation of premises on which Liability of there is a nuisance, and who is liable for that nuisance by °TTZ virtue ot his occupation, cease to be so liable when he ceases tion ceases. to occupy ? Does a vendor of land, for example, put off his responsibility along with his ownership ? Or does the liability of a tenant cease with the assignment, surrender, or determination of the lease ? On this point there is /little authority, but it is submitted that, except in the case of nuisance by positive misfeasance, liability dependent on occupation lasts only so long as the occupation on which it is based. The owner of a ruinous house ceases to be liable for it so soon as he has sold it, just as the owner of a dangerous animal transfers his liability to the purchaser of it. In the case of positive misfeasance, however, this is not so. Liability of this kind is based not on occupancy, but on the doing of the act which creates the nuisance ; and its con- tinuance, therefore, is independent of the ownership or occupa- tion of the property on which the act is done. Thus, he who builds a house which obstructs ancient lights remains liable for the continuance of that obstruction, even after he has sold the property.^* § 72. Liability of a Landlord 1. It is established law that the owner of premises is not Landlord as such liable for nuisances which exist upon them. Respon- n"™i™°[]] •^ sibility for injuries of this kind is based not on ownership, but on possession. No action, therefore, will in general lie against a landlord for any nuisance existing on premises " Thompson v. Gibson (1841) 7 M. & W. 456; Ballon v. Angtis (1881) 6 A.C. 740. " Thompson v. Gibson (1841) 7 M. & W. 456; RosweU v. Prior (1701) 12 Mod. 635. " RoeweU v. Prior (1701) 12 Mod. 635. Landlord liable if he creates a nuisance. Or if he authorises his tenant to create or continue a nuisance. 230 NUISANCE [Chap. VII. leased by him to a tenant, the sole remedy being against the tenant.^ There are, however, certain exceptional cases in which the landlord is responsible, though it is not easy, in the present unsatisfactory state of the authorities, to say definitely how far these exceptions extend, or on what principle they are based. 2. In the first place, it seems clearly settled that when the landlord has, prior to the lease, created a nuisance on the pre- mises by a positive act of misfeasance, for example, the erection of a building obstructing ancient lights (as opposed to a mere non-feasance, such as an omission to repair), he remains liable for the continuance of that nuisance, even after he has leased the property to a tenant.^ Even a stranger is, as we have seen,^ similarly liable for a nuisance due to his misfeasance, though he is not in occupation of the premises at all ; a fortiori the owner of the property. So also if he sells the property, instead of merely leasing it.* The liability of the landlord in such a case is concurrent with and not exclusive of that of the tenant.^ 3. A second case in which the landlord is Hable is when he has expressly or impliedly authorised his tenant to create or continue the nuisance. In Harris v. James' a landlord was held liable for a nuisance caused by the act of his tenant in blasting operations and the burning of lime, on the ground that the land was let to him for that very purpose, which was neces- sarily a nuisance. " There can be no doubt," says Blackburn, J.,' " that where a person authorises and requires another to commit a nuisance, he is liable for that nuisance ; and if the authority be given in the shape of a lease, he is not the less liable." If, however, the purpose for which the lease is granted is not such as necessarily to cause a nuisance, the landlord is 1 Oheetham v. Hampson (1791) 4 T.R. 318; Eussell v. Shenton (1842) 3 Q.B. 449 ; Pretty v. Bickmore (1873) L.R. 8 C.P. 401 ; Owinnell V. Earner (1875) L.R. 10 C.P. 658. 2 Roswell V. Prior (1701) 12 Mod. 635. 3 Thompson v. Oibson (1841) 7 M. & W. 456. 4 Roswell V. Prior (1701) 12 Mod. 635. '^ Brent v. Haddon, Cro. Jao. 555 ; Ryppon v. Bowles, Cro. Jac. 373 ; Roswell V. Prior (1701) 12 Mod. 635. « (1876) 45 L.J. Q.B. 545. ' Ibid. p. 546. Roc. 72.] LIABILITY OF A LANDLORD 231 not responsible merely because a nuisance is in fact created by the manner in which the tenant chooses to conduct his opera- tions. On this principle, in Rick v. Basterfield^ it was held that a landlord was not responsible for a nuisance caused by the smoke of defective chimneys : it being possible for the tenant to avoid the commission of the nuisance — as, for example, by the use of coke instead of coal'." Nor in such a case is the landlord to be deemed to authorise the nuisance simply because, with knowledge of its existence, he refrains from exercising his right of determining the tenancy. 1" 4. A third exception to the general rule of the landlord's Or if exemption from liability exists, it would seem, when the to Londloni's nuisance is due to a breach by him of the covenants of the breach of lease : for example, when the premises are allowed by him '^°'"^"''^" • to fall into a dangerous state of disrepair, and the duty of repair is cast upon him by the terms of the lease. This seems to have been the ground of decision in the unsatis- factory case of Payne v. Rogers ; ^^ and the same doctrine has been repeatedly recognised in subsequent judicial dicta, though there seems to be no other actual decision. ^^ It seems anomalous that the terms of the contract between landlord and tenant should operate inter alios, so as to deter- mine the liability of either of them to third persons ; and the rule, if sound at all, is probably to be explained as merely a special application of the doctrine of authorisation already considered by us — that is to say, a landlord who himself under- takes the duty of repair and disregards it, must be taken to have authorised his tenant to leave the premises in a state of disrepair, and is to be held liable accordingly. This is the view expressed by Keating, J., in the case of Pretty v. 8 (1847) 4 C.B. 783. » In Harris v. James (1876) 45 L.J. Q.B. 545, however, this cr.fe was criticised in respect of the application of the general principle to the facts : a nuisance being the necessary result of the mode of user con- templated by the landlord — namely, the consumption of coal. Cf. Rex V. Pedly (1834) 1 A. & E. 822. i» Bowen v. Anderson (1894) 1 Q.B. 164; Gandi/ v. Juhhrr (1864) 5 B. & S. 78, 9 B. & S. 15. " (1794) 2 H. Bl. 350. " See Rex v. Pedly (1834) 1 A. &. K. 822 ; Todd v. Flight (1S60) 9 C.B. (N.S.) 377 ; Pretty v. Bickmore (1873) L.R. 8 C.P. 401 ; Nelson V. Liverpool Brewery Co. (1877) 2 C.P.D. 311. 232 NUISANCE [Chap. VII. Bichnore :^^ "In order to render the landlord liable in a case of this sort, there must be some evidence that he autho- rised the continuance" (of the nuisance) — "for instance, that he retained the obligation to repair the premises ; that might be a circumstance to show that he authorised the continuance of the nuisance. "i* Or if pre- 5. The fourth and last case in which a landlord is or may mises let ^^ liable is when the nuisance existed at the commencement with nuisance on them. of the tenancy, and the premises were let without any covenant on the part of the tenant to repair or otherwise discontinue or prevent the nuisance. This is apparently the result of the cases of Todd v. Flighfi^ and Gandy v. Jubber,^^ as qualified and limited in their operation by the later cases of Pretty v. Bichnore'^'' and Gwinnell v. Earner}^ Here also the rule is probably to be regarded as merely an application of the rule as to authorisation. By letting the premises with the nuisance already existing, the landlord is to be deemed to have autho- rised its continuance, unless he has taken a covenant from the tenant binding him to discontinue it. The authorities on the whole matter are, however, in an unsatisfactory state. ^^ Summary. 6. The law as to the liability of a landlord may be summed " (1873) L.R. 8 C.P. p. 405. " It is suggested in Payne v. Rogers (1794) 2 H. BI. 350, that when the duty of repair is thus imposed by contract on the landlord, the tenant is thereby exempted from any liability to strangers. But there is no authority for this, and it is contrary to principle. It is also to be observed that the landlord's contract to repair, though it may make him liable to outsiders for a nuisance, does not make him liable for injuries suffered by persons entering upon the premises. Gavalier V. Pope (1906) A.C. 428 ; Cameron y. Young (1908) A.C. 176. 15 (1860) 9 C.B. (N.S.) 377. 16 (1864) 5 B. & S. 78 ; 9 B. & S. 15. 1' (1873) L.R. 8 C.P. 401. " (1875) L.R. 10 C.P. 658. 1" It may be that if the landlord actually knows of the nuisance at the date of the letting, he is liable even if he takes a covenant from his tenant. Qwinnell v. Earner (1876) L.R. 10 C.P. p. 661, per Brett, J. However this may be, it is settled that the mere continuance of a determinable tenancy (for example, a tenancy from year to year, or a weekly tenancy) is not to be deemed a reletting so as to make the landlord responsible for nuisances which have come into existence since the beginning of the term. Bowen v. Anderson (1894) 1 Q.B. 165 ; Oandy v. Jubber, 9 B. & S. 15. Sec. 72.] LIABILITY OP A LANDLORD 2.q3 up as follows, subject, howeviT, to the doubts that have already been expressed : The landlord of premises on \\hich a nuisance exists is not liable therefore except in the following cases : ((() When he has himself created the nuisance by a positive act of misfeasance ; [b) When he has authorised the creation or continuance of the nuisance by his tenant ; (c) When the nuisance is due to a breach by the landlord of the covenants of the lease ; {d) When he has let the premises with the nuisance already existing irpon them, without taking any covenant from the tenant to prevent or discontinue it. CHAPTBE VIII INJURIES TO SERVITUDES Servitudes defined. § 73. Kinds of Servitudes 1. A SERVITUDE is a right to the use or benefit of another person's land, unaccompanied by any right to the possession of it. Examples are rights of way, rights of light, rights to the support of land or buildings by the adjoining land or buildings, rights of shooting or fishing, and rights of extracting minerals. The land or tenement upon which a servitude is imposed is called the servient land or tenement. If, as often happens, the servitude exists for the benefit of another piece of land, and therefore runs with this land into the hands of successive owners, this is termed the dominant land or tenement. A servitude which is thus attached to and runs with a dominant tenement is said to be appurtenant to it. When there is no dominant tenement, the servitude is said to be in gross. The essential difference between a lease of land and a ser- distin^uished. vitude is that the lease gives a right to the exclusive possession, of the property, whereas a servitude does not.^ Thus, the question whether an agreement for a lodging in another's house amounts to a lease of part of that house, or merely to a license to use it {i.e. a particular kind of servitude), depends on whether the lodger has or has not acquired by his agree- ment exclusive possession of that part of the house. ^ So if one agrees with a landowner to be allowed to place a hoarding for advertisements on certain vacant land, the question whether this is a lease of the land on which the hoarding stands, or a mere servitude over it, is one which depends upon the same consideration. 1 Olenwood Lumber Go. v. Phillips (1904) A.C. p. 408. 2 Wright V. Stavert (1860) 2 E. & E. 721 ; Edge v. Strafford (1831) 1 C. & J. 391. 234 Servitudes and leases Sec. 73.] KINDS OF SERVITUDES 235 2. Servitudes arc either public or private. A public Public and servitude is a right of user vested in the public at large or V^^vf^-o ,.,., , '^ „ ° . servitudes. ui some portion of it, such as the inhabitants of a certain parish. The most important example is a public highway — i.e. a public right of way over land. Another example is the right of navigation and fishing in a navigable river. Private servitudes, on the other hand, are those which are vested in particular individuals. 3. Private servitudes are either legal or equitable. Legal Legal and servitudes bind and run with the servient land at lau — that gg^rvitudes is to say, they are protected from disturbance not merely against the grantor, but also against all subsequent owners and occupiers of the servient land, and against the world at largo. Equitable servitudes, on the other hand, bind and run with the servient land only in equity — that is to say, they are not protected against any subsequent purchaser of the servient land who acquires the property without notice of the existence of such equitable rights over it. 4. Legal servitudes are of two kinds, distinguished as ease- Easements ments and profits (or profits a 'prendre). Equitable servitudes ""'^ profits, are also of two kinds, distinguished as licenses and restrictive contracts. We shall consider these four classes in their order. § 74. Easements 1 . An easement is a legal servitude imposed upon one piece Easements of land for the benefit of another piece, running with each of these tenements at law, and not being the kind of servitude called a profit. Examples of easements are rights of way, rights of light, and rights of support. 2. The distinction between an easement and a profit is Easements that a profit entitles its owner to take away and appropriate ^^gti^g°^*lied. some part of the produce or substance of the servient land, whereas an easement entitles him merely to the use or benefit of the land without any such appropriation. Thus, a right of way or of support is an easement, but a right of pasturage or of fishing or of mining is a profit. It is to be noted, however, that a right to take water is an easement and not a profit.^ 3. Every easement necessarily involves both a dominant No easements in gross. 1 Race V. Ward (1855) 4 E. & B. 702. Positive and negative easements. Natural and acquired easements. How created. 2.'?6 INJURIES TO SERVITUDES [Chap. VIII. and a servient tenement — that is to say, an easement is always appurtenant and never in gross.- It can only exist for the benefit of another piece of land, so that the benefit of it runs with that land into the hands of successive owners. A right to enter upon or cross the land of another, for example, which is personal and not connected with the occupation and use of some other adjoining land, cannot amount to a legal easement though it may, as we shall see, amount to a valid equitable servitude. A profit, on the contrary, may be either in gross or appurtenant,-' and this is the chief practical importance of the distinction between it and an easement. A personal right of fishing or mining on another's land may be a good legal servi- tude, but a personal right of way or entry is at the most an equitable one. 4. Easements are either positive or negative. A positive easement is a right to enter upon the servient land or to do some other act in relation thereto which would otherwise be illegal. A negative easement is a right that the owner of the servient land shall refrain from doing some act which he would otherwise be entitled to do — e.g. the erection of a building which would obstruct his neighbour's lights. In other words, the obligation of the owner of the servient land consists either in patiendo (i.e. in suffering the dominant owner to do an act on or in relation to the servient land) or in non Jaciendo [i.e. in refraining from doing some act on the servient land). In the first case the servitude is positive, and in the second negative. 5. Easements are either natural or acquired. Natural easements are those which are naturally appurtenant to land, and therefore require no special mode of acquisition. Thus, the right of land, unencumbered by buildings, to the support of the adjoining land is a natural easement ; but the right of a building to the support of adjoining land or buildings is an acquired easement. The term easement is sometimes limited to the second of these two classes, but, as natural easements are essentially of the same nature as those which are acquired, this limitation of the term seems inadvisable. 6. Easements are created by deed, prescription or grant "" Ackroyd v. Smith (1850) 10 C.B. 164 : Co. (1868) L.R. 3 Ch. at p. 310. ' Fitzgerald v. Firbank (1897) 2 Ch. 96. Eangeley v. Midland Ely. Sec. 74.] EASEMENTS 237 implied in law {e.g. a way of necessity). A mere agreement not under seal creates at the most an equitable servitude, not a legal easement. This is so whatever is the intended duration of the right in question. A mere agreement is as powerless to create a legal right of way for the term of a year as to create such a right in perpetuity.* 7. It is not possible to create new kinds of easements not New kinds already known to the law. The class of these rights is closed, ""*■ ^'''f'','™eiit« J . 1 1 J ■ • • • cannot bo and is not capable of mdefinite increase at the will and caprice created. of an owner of land.^ The chief recognised easements are (1) rights of way, (2) rights of entry for any purpose relating to the dominant land,^ (3) rights in respect of the support of land and buildings, (4) rights of light and air, (5) rights in respect of water, (6) rights to do some act which would otherwise amount to a nuisance to the servient land,' (7) rights of placing or keeping things on the servient land.^ There can be no easement consisting in a right to an un- interrupted view from the windows of a house, ° or in a right to the uninterrupted view of one's business premises from the public road ; ^^ nor can there be any right of privacy amounting to a legal easement — a right, for example, that the owner of a house shall not open windows in it so as to over- look the adjoining garden. ^^ For the same reason, a covenant under seal not to build on land, or not to use the premises as * Hewlins v. SMppam (1826) 5 B. & C. 221 ; Holford v. Bailey (1850) 13 Q.B. p. 446. ^ Ackroyd v. 8mith (1850) 10 C.B. 164 ; Hill v. TiL-pper (1863) 2 H. & C. 121 ; Keppd v. Bailey (1834) 2 M. & K. at p. 535, per Lord Brougham : " It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner." Leech v. Schweder (1874) L.R. 9 Ch. at p. 475 ; Nutkdl v. Bmcewdl (1866) L.R. 2 Ex. p. 10. * E.g. a right to enter and open sluices to prevent flooding. Simp- son V. Godmanchester Corporation (1897) A.C. 696. ' E.g. a right to conduct a noisy or otherwise offensive business. See above, s. 68. ^ E.g. a right to have a signpost or signboard on the adjoining land or building. Hoare v. Metropolitan Board of Works (1874) L.R. 9 Q.B. 296 ; Moody v. Steggles (1879) 12 Ch.D. 261. » Leech v. Schweder (1874) L.R. 9 Ch. at p. 475 ; Cf. Campbell v. Paddington Corporation (1911) 1 K.B. 869. " Butt V. Imperial Gas Co. (1866) L.R. 2 Ch. 158. " Turner v. Spooner (1861) 30 L.J. Ch. 801. 238 INJURIES TO SERVITUDES [Chap. VIII. Disturbance of easements. Injuries to reversionary interests. Possessory title to ! ervitudes. a shop, does not constitute a legal easement which will bind that property in the hands of all successive owners, but creates at the most an equitable servitude which will run with and bind the property in equity. ^^ 8. Any act done without lawful justification, either by the owner of the servient land or by a stranger, which interferes with the exercise or enjoyment of any easement is a tort actionable at the suit of him who is in lawful possession of the dominant land. What acts amount to such an actionable interference is a question which depends on the contents or scope of the particular easement concerned, and to which no general reply can here be given. The more important ease- ments will receive detailed examination later. 9. The right of action, if any, possessed by the reversionary owner of land with regard to the disturbance of easements appurtenant to it will be dealt with later. ^^ Disturbance of an easement, like trespass, is in general an attack upon the rights of the possessor of the dominant land, not on those of the owner of it. Any right of action vested in the owner as such is exceptional. 10. We have already seen how in cases of trespass, dis- possession, and nuisance, mere de facto possession is a suffi- ciently good title against a wrongdoer, and we shall see later that the same rule is applicable in the case of injuries to chattels also. We have here to consider how far, if at all, a similar principle is recognised in respect of the dis- turbance of servitudes. This, however, is a difficult question which has received very little consideration, and in the absence of adequate authority it must be dealt with mainly on principle. The possession of a servitude is of two kinds : — (a) The use and enjoyment without legal title of a legal servitude vested in some other person : as when I occupy without title land to which a right of ancient lights or a right of way is legally appurtenant. (6) The use and enjoyment of a mere de facto servitude : as when the owner of a house is de facto in the possession of support afforded to it by the adjoining land, or of the access of light to his windows, no legal right to such support 12 Tulk V. Moxhay (1848) 2 Ph. 774. " See s. 96. Sec. 74.] EASEMENTS 239 or light having been acquired by grant, prescription, or otherwise. As to the first of these modes of possession it may be said with some confidence that a possessory title to land will bring with it a possessory title to all servitudes legally appurtenant to that land, and that the disturbance of such a servitude by any stranger {i.e. any person other than the lawful owner or occupier of the servient land) is actionable at the suit of the possessory owner. Such a stranger could no more plead the jus tertii in an action for the disturbance of a right of way, light, or support than in an action for trespass or nuisance. What shall be said, however, of an action against the servient owner himself, as opposed to a mere stranger ? Can he plead the jtis tertii of the true dominant owner ? Probably in this case a distinction must be drawn between natural and acquired servitudes. In the case of natural servitudes a possessory title is probably valid even against the servient owner ; in the case of acquired servitudes such a title is probably invalid, and the servient owner could plead that the person to whom the servitude had been granted was neither the plaintiff nor any person through whom he claimed. If this is so, the possessory owner of the domi- nant land can sue the servient owner for disturbing his right of support, or his riparian right to the flow of a natural stream (for these are natural incidents of his possessory ownership of the land), but he has no cause of action against the servient owner for blocking his ancient lights or pre- venting his use of a right of way, for in such a case he would have to plead and prove his title to an acquired easement. We come now to the second form assumed by possessory titles to servitudes — viz. that which is based on the mere use and enjoyment of a de facto servitude which has no legal existence as against the land over which it is enjoyed : for example, the actual access of light to a window, the actual support of a house by the adjoining land, the actual supply of underground water to a well, the actual use by trespass or license of a way over another's land. Such de facto ser- vitudes possess, of course, no protection as against the owner of the quasi-servient land ; but the question which 240 INJURIES TO SERVITUDES [Chap. VIII. we have to consider is whether they are not protected adversus extraneos. If a trespasser on the adjoining land injures my house by interfering with its de facto support, or blocks up my modern windows, will he be permitted to plead that I have acquired no legal servitude over the land entitling me to such support or light, or will my mere possession of these things be recognised as a sufficient title to them as against him and all other strangers ? To this question it is not possible to answer simply either Yes or No, for distinctions must be drawn. It is clear, both on principle and authority, that in certain cases at least such a possessory title is sufficient. Thus, in Jeffries v. Williams^* and Bibby v. Carter,^^ it was held that it was an actionable wrong for a stranger to do damage to a house by interfering with the support received by it from adjoining land, even though no right to that support had been acquired against the owner of that land. On the other hand, it seems clear, on principle, that we cannot extend this rule to cover all cases of the de facto enjoyment of servitudes. It cannot be the law that a mere trespasser who has been in the habit of crossing another man's land can sue a stranger for an act which obstructs his use of this de facto easement. Nor can it be supposed that a poacher can sue a stranger who by polluting the water of a stream has interfered with his practice of catching fish therein. What, then, is the dis- tinction between these two classes of cases ? To what forms of de facto possession does the principle recognised in Jeffries v. Williams apply ? It is submitted that the true principle is this : As against strangers the possessor of land is entitled to the use and enjoyment of it free from all harmful interference due to acts done on the adjoining land ; and all such interference by a stranger is actionable, even though had it been done by the lawful owner of the adjoining land it would have been damnum sine injuria because of the absence of any acquired servitude making it illegal. Where, on the other hand, the act complained of has produced no harmful effects upon the plaintiff's land, it is necessary for him to ])lead and prove, even against a stranger, that he has a legal right to the 1* (1850) 5 Ex. 792. " (1859) 4 H. & N. 153. See. 74.] EASEMENTS 241 benefit of which he complains that he has been deprived. Thus, if this is so, a landowner can sue a stranger not merely, as Nve have already seen, for interfering with de facto support, but also for blocking up his windows, or for withdrawing his supply of underground water, or for cutting the roots and branches of his trees which spread into the adjoining land, or for causing a harmful percolation of water from the neigh- bouring mine into his. All of these acts are lawful if done by the adjoining owner himself ; unlawful, it is submitted, if done by a stranger. On the other hand, he cannot sue even a stranger for interfering with his use of a way across another's land, or with his practice of taking minerals from it, or of fishing in another's stream, unless he can show a legal right to do those acts.i'' § 75. Profits 1. A profit (profit A prendre) is a legal servitude consisting Profits in the right to enter upon the servient land and take away defined, part of its substance or produce : for example, minerals, stone, clay, timber, herbage, fish, or game. A profit differs from an easement in two waj's. In the Profits first place, a profit always comprises a right to take something distinguished from the servient land, whereas an easement never does. In easements, the second place, a profit may be either appurtenant to a dominant tenement or in gross, whereas an easement is neces- sarily appurtenant. Thus, a right conferred on a person to enter upon another's land for the purpose of mere recreation 1^ The authorities on the whole matter are singularly scanty and un- satisfactory. The following cases may be referred to : Jeffries v. Williams (1850) 5 Ex. 792 ; Bibby v. Carter (1859) 4 H. & N. 153 ; Pullan V. Roughfoot Bleaching Co. (1887) 21 L.R. Jr. 73 ; Nuttall V. BraceweU (1866) L.R. 2 Ex. 1 ; Whaley v. Laing (1857) 2 H. &. N. 476, 3 H. & N. 675, 901 (this case is so complicated with points of pleading and with special considerations touching the particular kind of servitude in question — viz. riparian rights — that it cannot be regarded as a satisfactory authority upon the general question at all) ; Stockport Waterworks Co. v. Potter (1864) 3 H. & C. 300 ; Hill V. Tupper (1863) 2 H. & C. 121. See also Smith's Leading Cases, I. 358-360, 11th ed. The question of the protection of de facto ease- ments is closely connected with that of the right of action possessed by licensees, as to which, see infra, s. 76 (5). Q 242 INJURIES TO SERVITUDES [Chap. VIII. How profits created. Disturbance of profits. can not be a legal servitude of any kind, even though granted by deed ; for it is not a profit, and it cannot be an easement because it is merely in gross. But, on the other hand, a right conferred by deed to enter on another's land for the purpose of fishing or hunting is a legal servitude, because a validly constituted profit.^ A profi-t is created in the same manner as an easement — viz. by deed and prescription. A mere agreement not under seal creates, however, a good equitable servitude of the same nature as a legal profit, except that it runs with the servient land in equity only. 2. Any act done without lawful justification, whether by the owner of the servient land or by a stranger, which inter- feres with the exercise or enjoyment of any profit is a tort actionable at the suit of him in whom the profit is legally vested in possession. Thus, in Fitzgerald v. Firbank^ the grantees for a term of years of a right of fishing in a river were held entitled to receive damages from a railway con- tractor who in the course of his work discharged such quantities of muddy water into the river as to drive away the fish. What acts amount to an actionable disturbance of a profit IS a question which depends on the scope and nature of the particular profit concerned, and which does not admit of any general answer. The rights of the reversionary owner of a profit are dealt with later, ^ and as to those of a possessory owner reference may be made to the preceding discussion of possessory titles to servitudes.* Licenses defined. § 76. Equitable Servitudes : Licenses 1. A license is an agreement (not amounting to the gTant of a legal easement or profit) that it shall be lawful for the licensee to enter upon the land of the licensor, or to do some other act in relation thereto which would otherwise be illegal. A license may be either to do something on the land of the licensor, or to do something on the land of the licensee him- self. Examples of the former kind are an agreement for Fitzgerald v. Firbank (1897) 2 Ch. & (1897) 2 Ch. 96. » See s. 96. s. 74 (10). Soc. 76.] LICENSES 243 board and lodging (not amounting to a demise), the purchase of a ticket for a seat in a theatre, and an agreement for a right to place advertisements on another's land or buildings. Examples of the second kind of license are an agreement for liberty to obstruct an ancient window, or to let down the surface of the adjoining land by excavation, or to carry on some business which would otherwise amount to a nuisance. A license may or may not be exclusive — i.e. it may or may not confer a monopoly upon the licensee to do the act so permitted. In either case it may be granted either in per- petuity, or for a fixed period, or merely at the will of the licensor. 2. Nothing is to be classed as a license which amounts to Licenses a valid legal easement or profit, and there are at least three ^^01^°"^*^ ^"^ reasons which may prevent the existence of such an easement easements or profit so as to reduce the right claimed to the level of a mere ^° ^'^° ' ^' license or equitable servitude : — (a) An imperfect mode of creation. A legal easement or profit must be created by deed : therefore a mere agreement not under seal can create merely a license or other equitable servitude. (6) The absence of a dominant tenement. Every legal easement must be appurtenant to a dominant tene- ment : therefore if a right is created (even by deed) which is merely in gross or personal, it amounts at the most (unless it is a profit, which does not require to be appurtenant) to a mere license or equitable servitude — -e.g. a grant even under seal of the right to put advertisements on the grantor's property, (c) Rights of a kind not recognised at law. We have seen that the class of legal easements is closed and incapable of expansion by the addition of new forms at the will and caprice of a grantor : therefore any right falling outside this class amounts at the most, even though appurtenant and created by deed, to a merely equitable servitude — the right, for example, to an uninterrupted view or the right of privacy.^ 3. Since a license is not a legal servitude, it docs not run 1^'.'=™'*^ ''™'^ with the servient land at law so as to bind all subsequent j^ equity. 1 Supm, p. 237. 244 INJUEIBS TO SERVITUDES [Chap. VIII. owners of it. At law, indeed, it is a mere agreement, wliich binds no one save the grantor himself. Such an agreement, however, if of such a nature as to be specifically enforceable, amounts to a good equitable servitude — ^that is to say, it binds and runs with the land in equity so as to be enforceable not merely against the grantor, but also against all subse- quent owners and occupiers of the land except purchasers for value without notice of any such equitable right. Thus, in Moreland v. Richardson^ a right of burial in a ceme- tery, acquired by agreement with the owners of the cemeter}^, was enforced by injunction against a subsequent mortgagee of the property, who had taken his mortgage with notice of the right in question. Such a right of burial is clearly not a legal easement, even though granted by deed, because it is in gross ; yet it was held to constitute a good equitable servitude which ran with the land. So in Hervey v. Smith^ an agreement was made by two adjoining proprietors that one of them should have the right to discharge smoke into one of the chimneys in the wall of the other's house, and this agreement was enforced by injunction against a subsequent purchaser (with constructive notice) of the servient property. This was not a legal easement for want of a deed, but it was a good equitable servitude. In the case of the Duke of Devon- shire V. Eglin* the same principle was applied to a parol agreement for the right to have a watercourse upon the servient land.^ Remedies of 4. A licensee may protect his right to the exercise of tlie a licensee : license by an action in his own name for an injunction, if the Injunction. ■' . . . agreement is of such a nature that specific performance of it will be decreed in accordance with the rules of equity in that behalf ; and an injunction may be so obtained against the licensor himself, or against any subsequent owner or occupier of the servient land except a purchaser for value without notice, or against a mere stranger. '^ 2 (1855) 25 L.J. Ch. 883. 3 (1856) 22 Beav. 299. " (1851) 14 Bcav. 530. ^ For a license by way of an equitable profit, see Lowe v. Adams (1901) 2 Ch. 598 — a puroliaso not under seal of a right of shooting. " Duke of Devonshire v. Eglin (1851) 14 Beav. 530 ; Moreland v. Richardson (1855) 25 L.J. Ch. 883 ; Hervey v. Smith (1856) 22 Beav. 299. Cf. McManus v. Cooke (1887) 35 Ch.D. 681, which, however, is Sec. 76.] LICENSES 245 5. A licensee lias an action for damages against the licensor Damages as for any disturbance of the license committed by him. Fory^amet although a license does not confer any legal estate or interest in the land Avhich is subjeist thereto, it nevertheless amounts to a valid contract between licensor and licensee, and is enforce- able at lu\y in the ordinary way of an action for damages for breach of contract.' But since the licensee has no legal estate or interest in the Aliicr servient land, he has, it would seem, no remedy at law against ^^ against . ' J b strangers, any subsequent owner or occupier or any stranger for a dis- turbance of his right. This was decided in the case of Hill v. Tupper,^ in which the plaintiff had acquired by grant under the seal of a canal company an exclusive right of keeping pleasure-boats for hire upon the canal. He sued at law for damages a stranger who infringed this monopoly, and it was held thit he had no such cause of action. " This grant," it is said,* " merely operates as a license or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right." This absence of a legal remedy by way of damages available by a licensee against a stranger is a very anomalous feature of our law. It seems curious that he who, by agreement with the occupier of a building, has expended money in painting advertisements upon one of its walls, should have no legal remedy against a third person who wilfully defaces them. The whole law on this matter requires more consideration than it has yet received.^" a case of restrictive contract, not of license ; but the same principle is applicable to each. That an injunction may be obtained against a mere stranger, not an assignee of the servient land, appears fropi Mander v. Falcke (1891) 2 Ch. 554. ' Kerrison v. Smith (1897) 2 Q.B. 445 ; Bvtler v. Manchester Rhj, Co. (1888) 21 Q.B.D. 207 ; WelU v. Kingston-on-Hull (1875) L.K. 10 C.P. 402 ; Wilson v. Taverner (1901) 1 Ch. 578 ; Lowe v. Adam? (1901) 2 Ch. 598. « (1863) 2 H. & C. 121. » Ibid. p. 127. *» It has been suggested (Smith's Leading Cases, I. 359, lltli ed.) that there is at least one important class of licenses in which the rule in Hill v. Tupper has no application — viz. those in which the license is of such a nature that it would, if created by deed or pre- scription, amount to a legal easement or profit {e.g. a right of way or of light created by written agreement only). " It is submitted tha,t wherever the right cls^imed is ope which may by law be madp 246 INJURIES TO SERVITUDES [Chap. VIII. Licenses revocable at will. Wood V. Leadbitter. Damages for premature revocation. § 77. The Rule in Wood v. Leadbitter 1. A license, unless specifically enforceable, is revocable at will by the licensor, even though granted for a fixed term, and is therefore no justification for any act done in the exercise of it after revocation. But the premature revocation of a license is nevertheless a breach of contract, for which an action for damages may be brought against the licensor. This is known as the rule in Wood v. Leadbitter. ''^ In this case the plaintiff bought a ticket for admission to the stand of a racecourse, entitling him to remain there throughout the continuance of the races. In breach of the agreement thus entered into between him and the occupiers of the racecourse, they ordered him to leave the premises while the races were going on, and on his refusal to leave they ordered and procured his forcible expulsion by their servant, the defendant. An action of trespass for this assault was thereupon brought by him against the defendant, who pleaded that the plaintiff was a trespasser and had been ejected by order of the occupiers of the premises, to which plea the plaintiff replied that he was on the premises by the leave and license of the occupiers. On these pleadings and facts it was held by the Court of Exchequer that the action would not lie. Although the license had been revoked improperly and in breach of contract, its revocation was none the less effectual. The license was terminated, and the plaintiff was a trespasser and could not sue in tort for his expulsion by order of the occupiers. 2. It is to be noticed as to this case that the action was one of tort against the servant of the licensor, and not one for breach of contract against the licensor himself. It is now well settled that an action of this latter description will lie in such a case. He who is ejected from land by the licensor in the subject-matter of property, then enjoyment of such a right, though only under a license revocable by the grantor, is as against a ^vTongdoer a sufficient title to enable the liceneee to maintain an action upon it." (See supra, s. 74(10).) It is also a question fit to be considered whether the power of Courts of equity to grant an injunction to a licensee, taken in conjunction with its power to grant damages in lieu of an injunction, does not exclude the rule in Hill v. Tiipper in all cases in which an injunction can be granted. 1 (1845) 13 M, & W. 838, Sec. 77.] RULE IN WOOD V. LBADBITTER 247 breach of his license, or is otherwise disturbed by the licensor in the exercise of it, has a good cause of action in contract.^ 3. If, however, the licensee insists, notwithstanding the Exercise of revocation of his license (even though it is thus premature and ^^rong^fur*''^ wrongful), in entering or remaining on the land or in other- revocation wise exercising his license, he becomes thereby a trespasser wrongful. or other wrongdoer, and is liable in an action accordingly at the suit of the licensor. The result is that in such a case both parties are in the wrong as well as in the right, and each of them can sue the other as well as be sued by him. The damages recoverable respectively in these cross actions will depend on the circumstances of the case. This rule is an illustration of the difference between a legal power to do a thing effectively and a legal right or liberty to do it lawfully. A Hcensor has the power to revoke the license at any time, but he has no right to revoke it until the expiration of the term. i. Since the fusion of law and equity it may be assumed License not that the rule in Wood v. Leadhitter no longer applies to licenses gpecificallv which are of such a nature that they are specifically enforce- enforceable, able and therefore constitute equitable servitudes over the servient land. It would be difficult to hold that a licensee is a trespasser because of doing an act which the licensor may be compelled by injunction to allow him to do. If this is so, the old law now applies only to those cases in which a licensee is limited to an action for damages and has no claim to specific performance. As so restricted, the rule in Wood V. Leadhitter would seem to be founded on good sense, and is not to be regarded as a mere technicality of the law. If a license is not fit to be specifically enforced, neither is it fit to be exercised in defiance of the will of the licensor ; and the sole remedy of the licensee is and ought to be a claim for pecuniary compensation.^ 5. Before the rule in Wood v. Leadhitter can take effect the Rights of licensee must be allowed a reasonable time in which to enter or ^^y^lHj^^ remain on the land for the purpose of removing any property 2 Kerrison v. Smith (1897) 2 Q.B. 445, and the other cases cited, supra, s. 76 (6), n. 7. 3 See, however, the observations of Cozens-Hardy, J., in Lowe v. Adams (1901) 2 Ch. p. 600. See also Jones 1 • -I / CA.CGpt 1x1 confer any right to the access of light to open ground (e.g. a respect of garden) or to any structure which is not a building.^ Pre- "^"'''I'^gs- sumably the same limitation exists in the case of a grant ; so that the grant of a right to the access of light otherA\ise than to a building would not create any legal easement, but would amount at the most to a restrictive covenant running with the servient land in equity. 3. When an easement of light has been acquired, it is an Disturbance actionable wrong to erect or keep any building or other struc- j°„,"^^ '* *" ture or thing on the servient land which so far obstructs the access of light as to render the dominant building uncomfort- able or inconvenient for habitation or for any other ordinary purpose for which such a building is adapted. An ordinary purpose is one which does not require an extraordinary or exceptional quantity of light. The rule as here stated is established by the leading case Colls of Colls V. Home and Colonial Stores,^ which finally settled [;^JJ°"i °''"^ the law as to the extent of the right to light. " According to Stores. both principle and authority," says Lord Davey in this case,* " I am of opinion that the owner or occupier of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind." So according to Lord Lindley : ^ " An owner 1 2 & 3 Wm. IV. c. 71, s. 3. 2 Harris v. De Pinna (1885) 33 Ch.D, 238, ' (1904) A.C. 179, * (1904) A.C, 204, ' iiid, p. 208. 260 INJURIES TO SERVITUDES [Chap. IX. Anilogy between interference with light and a Circum- stances aflecting liability. Amount of light formerly received. of ancient lights is entitled to sufficient light, according to the ordinary notions of mankind, for the comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling- house, or for the beneficial use and occupation of the house, if it is a warehouse, a shop, or other place of business." •±. This being so, there is an obvious analogy between the disturbance of the easement of light and a nuisance affecting comfort and convenience. It is not true that such a disturb- ance is indeed a nuisance — save in that vague sense in which nuisance includes not only nuisances properly so called, but also all disturbances of servitudes appurtenant. A nuisance in the proper sense consists, as we have seen,* in the escape from the land of the defendant into that of the plaintiff of some deleterious thing, such as noise, smoke, or smells. If darkness could be classed among such things, then an obstruc- tion of light would be a true nuisance ; but it is clear that the claim of the owner of ancient lights is a claim to receive a benefit from the neighbouring land, and not a claim to be free from its detrimental influences. Nevertheless, though the obstruction of light is no true nuisance, the test of its action- able nature is the same as if it were — viz. its effect on the comfortable and convenient occupation of the property for ordinary purposes as judged by the standard of ordinary people. 5. The effect of an obstructing building upon the lights of the dominant building depends on the following considerations : — (a) The amount of light formerly received ; (6) The use to which the dominant building is put, or is capable of being put ; (c) The size and number of the obstructed windows and the extent of the space to be lighted by them ; (d) The existence of other windows not obstructed ; (e) The height and proximity of the obstructing building — i.e. the angle of obstruction. We proceed to consider how far, if at all, each of these con- siderations is relevant in determining whether an actionable obstruction exists. 6. Amountof light formerly received. The dominant building is not necessarily entitled to the whole of the light which it has ' Supra, s. 59 (2) (3), Sec. 81.] THE RIGHT TO LIGHT 261 hitherto received, and even a substantial diminution of this light is not actionable unless it is so great as to produce the effect already defined. Before the decision of the House of Lords in Colls v. Home and Colonial Stores'' it was supposed to be the law that the measure of the right to light was not the amount required for comfortable and convenient habita- tion and use but the amount actually received, even though in excess of any such requirement ; and that any substantial and sensible diminution was therefore actionable.^ This doctrine may now be taken to have been definitely overruled by Colls' case. The test of an actionable obstruction is not whether a dwelling-house, for example, has been made less bright, cheerful, or desirable than it was before, but whether it has been made uncomfortable according to the standard of ordinary men. Any light received beyond this standard is a surplus luxury for which the law affords the householder no protection at the expense of his neighbours. " Tn ordinary cases," says Lord Lindley,' "a person does not necessarily acquire a right to enjoy in future all the light he has had for twenty years. He may have had more than was reasonably required either for domestic or business purposes ; and in that case his right to protection is limited to the amount of light reasonably required." ^^ 7. The use made of the dominant building. The use which Use made of the plaintiff has actually made or actually intends to make of "' ^ ^^' ' (1904) A.C. 179. " Warren v. Brown (1902) 1 K.B. 15. » Colls V. Home and Colonial Stores (1904) A.C. p. 206. 1" It is submitted that this is a correct statement of the law not- withstanding the later and very unsatisfactory case of Jolly v Kine (1907) A.C. 1, in which the House of Lords was equally divided, and therefore upheld the decision of the majority of the Court of Appeal in favour of the plaintiff ; (1905) 1 Ch. 480. The only mode of re- conciling this decision with the accepted principle of Colls v. Home and Colonial Stores is to regard Jolly v. Kine as a decision on the particular facts of the case, to the effect that the diminufon of light did in fact amount to a nuisance in a locality of that nature, the standard of comfortable living being there exceptionally high. See the observa- tions of Lord Lorebum at p. 3, and see p. 196 supra. Whether on the facts such a conclusion was justified is another question, on which it is difficult to avoid concurrence with the dissenting judgments of Lord Robertson and Lord Atkinson. The reasoning of the majority of the Court of Appeal seems to involve nothing less than a recurrence to the overruled doctrine of Warren v. Brown (1902) 1 K.B. 15. 262 INJURIES TO SERVITUDES [Chajj. IX. the building is irrelevant in determining whether the obstruc- tion of light is actionable. The true test is the ordinary uses of which such a building is capable. The amount of light to which a building is entitled is the amount reasonably required for any ordinary purpose to which the building in its present structural form- may reasonably be put. Ordinary purposes are those which do not require any exceptional or extra- ordinary quantity of light. This being so, the plaintiff does not lose or restrict his right by not making full use of it. He may for twenty years have used a room in his house as a lumber room, or not have used it at all, and yet he may sue for any obstruction which would prevent its comfortable occupation. On the other hand, he cannot increase his right by using his building for a purpose which requires more than the ordinary quantity of light— e.g'. for a photographic studio ; and this is so, even though the building has been put to that use for the full period of twenty years with the knowledge of the owner of the servient land.^^ " Regard may be had," says Lord Davey in Colls' case,i- " not only to the present use, but also to any ordinary uses to which the tenement is adapted. ... It is agreed on all hands that a man does not lose or restrict his right to light by non- user of his ancient lights, or by not using the full measure of light which the law permits. . . . The question for what pur- pose he has thought fit to use that light . . . does not affect the question. The actual user will neither increase nor diminish the right." So Lord Lindley says,^^ " The purpose for which a person may desire to use a particular room or building in future does not either enlarge or diminish the easement which he has acquired." Structural 8. Stricctural arrangement of the dominant building. It is, of buildin"? ^^ seems, no defence that the plaintiff's building is structurally defective in the matter of lighting, and that had the windows been large enough or numerous enough no inconvenience would have been suffered by him. It is clear that the effect of an obstructing building will be the greater the worse the lighting arrangements of the dominant building are, and that " Ambler v. Gordon (1905) 1 K.B. 417. In Colls' case the question as to the effect of prescription is left open by Lord Davey (1904) A.C. p. 203. " (1904) A.C. pp. 202, 204. " (1904) A.C. p. 211. Sec. SI.] THE RIGHT TO LIGHT 263 an erection may cause serious inconvenience in a building already badly lighted, which would have no such effect on a well-lighted one. It would seem, however, that such a con- sideration is irrelevant. The plaintiff has a right to the com- fortable and convenient occupation of his building as it stands, and if it is badly lighted, the defendant must take all the more care not to obstruct such light as it possesses, or else not to allow an easement of light to be acquired. Thus, in Dent V. Auction Mart Co.^* it is said, in answer to such a defence : "I apprehend it is not for the defendants to tell the plaintiffs how they are to construct their house, and to say ■ You can avoid this injury by doing something for which you would have no protection.' . . . They have a right already acquired by their old existing window ; that right they wish to preserve intact ; and I think they are clearly entitled to retain the right as they acquired it, without being compelled to make any alterations in their house to enable other people to deal with their property." A structural alteration made in the dominant building Efifect of cannot increase the amount of light to which the building is structural '^ . "^ . alterations. entitled. The plaintiff cannot by diminishing the size of his windows, or by blocking up one of them, forthwith increase the burden on the servient land.^^ He must acquire an increased right by twenty years' enjoyment from the date of such an alteration. So also if, without altering the windows, he increases the size of the room lit by them, so as to require more light ; or if he alters the structure of the building, so as to make it fit for a purpose for which it was not formerly adapted, and which requires an increased flow of light. Thus, in Martin v. Gohle,^^ an ancient malt-house was by structural alterations transformed into a workhouse, and it was held that the building was entitled to the amount of light necessary for a malt-house but not to that which was necessary for a workhouse. " The converting it from the one into the other," says McDonald, C.B.,i' " could not affect the rights of the owners of the adjoining ground. No " (1866) L.E. 2 Eq. p. 251. See, however, the observations of Lord Robertson in CoUa' case (1904) A.C. p. 181. 15 Ankersen v. Connelly (1907) 1 Ch. 678. 10 (1808) 1 Camp. 320. " Ibid. p. 322, other sources. 264 INJUEIES TO SERVITUDES [Chap. IX. man could by any act of his suddenly impose a new restric- tion upon his neighbour." So in Colls v. Home and Colonial Stores^^ the plaintiffs had, less than twenty years before, altered the structure of their building by enlarging the room lit by their ancient windows, and it was held that they had no cause of action simply because they were deprived of sufficient light to light the whole of the room so enlarged. " It would be contrary to the principles of the law relating to easements," says Lord Davey,^^ " that the burden of the servient tenement should be increased or varied from time to time at the will of the owner of the dominant tene- ment. The easement is for access of light to the building . . . and it does not seem to me to depend on the use which is made of the chambers in it, or to be varied by any altera- tions which may be made in the internal structure of it." Light from 9. Residuary light from other windows. In estimating the actionable nature of any obstruction of light, no account is to be taken of any residuary light entering through other windows in respect of which no legal protection exists and which are capable of obstruction by third persons. The plaintiff cannot be deprived of his right to complain of an obstruction of his ancient lights merely because of the irrelevant circumstance that he has at present the precarious enjoyment, at the will of another person, of sufficient light through other windows. " I apprehend," says Lord Lindley in Colls' case,^" " that light to which a right has not been acquired by grant or prescription, and of which the plaintiff may be deprived at any time, ought not to be taken into account." ^^ As to residuary light of other kinds, the law remains un- settled, and the true solution is probably one of considerable complexity. It may be necessary to distinguish between residuary light coming over the same servient land, residuary light coming over different servient land, and residuary light coming over the dominant land itself. When there is any residuary light of such a nature that no account is to be taken of it, the question as to the actionable nature of the obstruction may be formulated thus : If this 18 (1904) A.C. 179. " Ibid. p. 202. =» (1904) A.C. p. 211. " See also Jolly y. Kine (1907) A.C. p. 7, per Lord Atkinson. Sec. SI.] THE RIGHT TO LIGHT 265 residuary lii;ht did not exist, would the obstruction loni- plained of make the building uncomfortable or inconvenient or more uncomfortable or inconvenient than it would other- wise have been ? 10. Tlie angle of obstruction. The actionable nature of The an.nir ot any obstruction will depend inter alia on the angle of obstruc- tion — ^that is to say, the angle between a horizontal line and a line drawn from the window to the top of the obstructing building. In an ordinary case the fact that this angle does not exceed forty-five degrees is prima facie proof that the obstruction is not actionable. If, indeed, the height and proximity of the obstructing building (i.e. the angle of obstruction) were the only considera- tion, the law would be very much simplified, for it would be possible to lay down a fixed rule — e.g. that the angle of obstruction may amount to forty-five degrees, but must not exceed that limit. This, however, is not so, for there are, as we have seen, several other circumstances to be taken into account which may either increase or diminish the per- missible angle. All that can be said, therefore, is that in ordinary cases an angle of forty-five degrees may be pre- sumed not to be excessive.^^ § 82. The Right to Air 1 . An easement of the passage of air through a defined Acquired aperture in a building may be acquired by grant, express or passa<^eof'^ implied, or by prescription. Thus, in Bass v. Gregory^ the ^'■^■ plaintiff was held entitled by prescription to the access of air to his cellar through a shaft which opened into a disused well on the defendant's property. So in Hall v. Lichfield Brewery Co.^ a, claim was allowed to the access of air to a slaughter- house through two apertures made in the adjoining wall belonging to the neighbouring owner.* 2. No prescriptive right, however, can be acquired to the 22 See Colls v. Home :!:; 290 INJURIES TO SERVITUDES [Cliap. IX. liability when the negligence of the independent contractor for which it is sought to make his employer liable is merely collateral.^ In a certain sense this is obviously true. For if collateral negligence means negligence outside the matter in which the independent contractor is employed by the defendant, it is clear that the defendant can be under no liability ; he would not be responsible in such a case even if the party so negligent were his servant. This, however, is not the sense in which the term collateral negligence is used in the dicta referred to ; it is clearly used to indicate some kind of negligence for which the master of a servant is liable but for which the employer of an independent contractor is not. The reality of any such distinction may well be doubted- Its existence is not established by any decided case, and its nature is not rendered clear by any of the judicial references that have been made to it. In Holliday v. National Tele- phone Co.,^° the case already cited in which molten solder was scattered by the explosion of a benzoline-lamp, judgment was given for the defendant in the Court below on the express ground that the negligence of the plumber was merely collateral. " The act," says Wills, J., " of Alfred Highmore in carelessly plunging into molten metal a lamp which he wanted to heat, containing benzoline and having a safety valve out of order, is about as typical an instance of negligence merely casual, collateral, or incidental as can well be con- ceived." Nevertheless, the Court of Appeal disagreed with this view of the case, and gave judgment for the plaintiff. No explanation of collateral negligence, however, was given. In the case of Reedie v. London & N.W. Ely. CoM the de- fendants were held not liable for injury caused to a passenger in the highway upon whom a workman employed by their contractor dropped a brick while building a railway bridge. This has been regarded as an example of the rule as to col- lateral negligence, but it would seem difficult to reconcile the decision with that of Holliday v. National Telephone Co 12 s See Hole v. Sitting'bowne Ely. Go. (1861) 6 H. & N. at p. 497 ; Balton V. Angus (1881) 6 A.C. at p. 829 ; Hardaker v. Idle District Council (1896) 1 Q.B. at p. 340 ; Penny v. Wimbledon Urban Council (1899) 2 Q.B. p. 76. " (1899) 1 Q.B. 221. " (1849) 4 Ex. 244. i= (1899) 2 Q.B. 392. See. 94.] LIABILITY FOR NON-REPAIR OF ROADS 291 § 94. Liability for the Non-Repair of Roads 1. In the absence of an express statutory provision to that No liability effect, no action will lie against any local authority intrusted ^,°^ d-am^ige ° „ . due to non- with the care of highways for damage suffered m consequence repair of of the omission of the defendants to perform their statutory '^°'''^^- duty of keeping the highway in repair ; but this exemption from liability extends only to cases of pure non-feasance, and the local authority is responsible in damages for any active misfeasance by which the highway is rendered dangerous. 2. This is a particular application of the general principle History of which will be considered later, that no action will lie for the '" breach of a statutory duty unless the Legislature in creating the duty intended this remedy to be available. At common law the duty of repairing highways rested upon the inhabit- ants of the parish, and was enforceable by way of indictment only, and not by way of action at the suit of an individual, even though he had suffered special damage.^ Nor would an action lie against a surveyor of highways appointed under statutory provisions, it being held that the Legislature did not intend to subject the surveyor, who was only the agent of the parish in this matter, to a liability from which the parish itself was free.^ Finally, when the care of highways was transferred by statute to corporate local authorities, the same rule of exemption was appHed to them. The duty of repair, in being thus transferred from the inhabitants at large to a body corporate, has not changed its nature, nor does the breach of it now, any more than formerly, confer any right of action upon injured individuals.^ 3. This exemption from liability does not extend to bodies, Tramways. such as tramway companies, which are empowered to place lines or other structures in the streets on the terms that they shall keep the adjoining portions of the roadway in good repair. In such cases an action will lie at the suit of any person injured through the breach of this obligation.* 1 Russell V. Men of Devon (1788) 2 T. R. 667. 2 Young v. Davis (1862) 7 H. & N. 760. 3 Cowley V. Newmarket Local Board (1892) A.C. 345 ; Municipalitij of Pictou V. Oeldert (1893) A.C. 524 ; Municipal Council of Sydney v. Bourke (1895) A.C. 433 ; Maguire v. Corporation of Liverpool (1905) 1 K.B. 767. * Dublin Tramways Co. v. Fitzgerald (1903) A.C. 99. 292 INJUEIES TO SERVITUDES [Chap. IX. Aliter with 4. The rule of exemption applies only to cases of mere feasance''' passive non-feasance — ^mere omission to repair. It does not making road extend to an active misfeasance — a, positive act by which a ^"^ ' ■ danger is wrongfully caused in the highway and by which the plaintiff has come to harm. Local authorities are saved from any civil liability for merely failing to do what ought to have been done, but are liable at common law for doing that which ought not to have been done.^ Non-repair of It is a misfeasance within the meaning of this rule, and ^tructiirc in ^^^^ ^ mere non-feasance, to erect or place in the highway any road. artificial structure which is not itself a part of the highway, and then to allow that structure, as opposed to the highway itself, to fall into a dangerous state of disrepair. Thus, in White V. Hindley Board of Health,^ a local board -of health, having charge both of the road and of the sewers beneath it, was held liable for allowing the grating of a sewer to become so worn as to become a nuisance to the highway, whereby the plaintiff suffered an injury. This decision was approved in Blackmore v. Vestry of Mile End,'' in which the cause of mischief was the cover of a water-meter. Similarly, in The Borough of Bathurst v. Macpherson^ (explained, with the correction of certain erroneous dicta, in Municipal Council of Sydney v. Bourke ^) the defendant corporation had con- structed a drain below the roadway, and had allowed this drain to fall into disrepair, whereby the surface of the road was so weakened that it fell in and so caused injury to the plaintiff ; and it was held that this was a misfeasance on the part of the corporation, and not a mere omission to keep the road in repair, and that they were liable in damages. No liability A bridge, however, is not an artificial structure in the high- ^Tbrk? e'^^'^"^ way within the meaning of this rule, but is itself a part of the highway, and there is no liability for its non-repair.^" 5. If the danger is caused not by any defect in the arti- ficial structure itself, but solely by the wearing-away or dis- '• Foreman y. Mayor of Canierhury (1871) L.R. 6 Q.B. 214 ; Penny V. Wimbledon Urban Council (1899) 2 Q.B. 72 ; Whyler v. Bingham Rural Council (1901) 1 Q.B. 45 ; Corporation of Shoreditch y. Bull (1904) 90 L.T. 210 ; McClelland v. Manchester Corporation (1912) 1 K.B. 118. " (1875) L.R. 10 Q.B. 219. ' (1882) 9 Q.B.D. 451. 8 (1879) 4 A.C. 256. » (1895) A.C. 433. i» Municipality of Pictou v. Oeldert (1893) A.a 624. Sec. 94.] LIABILITY FOR NON-REPAIR OP ROADS 293 repair of the highway, whereby the structure is rendered a Artificial source of danger, there is no liability at all : none in respect dangerous of the artificial structure, for it is not defective ; and none in only beoauso respect of the road, for the case is merely one of non-feasance. °£ roaeiy^^^"^ Thus, in Thompson v. Mayor of Brighton, '^'^ overruling Kent V. Worthing Local Board}^ the plaintiff was riding along a public road, and his horse's foot struck the cover of an entrance to the sewer, whereby the horse was thrown down and injured. The cover was in perfect order, but projected an inch or so above the surface of the road owing to the wearing away of the latter. The defendants were held not liable, on the ground that the cause of the accident was a mere omission to repair the road. " Apart from the state of the road," says Lindley, L.J.,^^ " no breach of duty can be imputed to the defendants, and consequently no cause of action has accrued to the plaintiff. But for the only breach of duty which can be imputed to the defendants, I am now compelled to say that no action lies. The law on this subject is in my opinion very unsatisfactory ; but I cannot on that account declare it to be different from what it is." Where the artificial structure which causes the accident has been placed in the highway, not by the local authority having charge of the highway, but by some other person or body lawfully authorised thereto — ^for example, a waterworks company or a tramway company — ^the same principles apply. If the structure is itself in disrepair, the persons who placed it there are responsible for it ; ^* and if the structure is in good order, but dangerous through the disrepair of the road, no one is responsible at s\\}^ unless, indeed, as in the case of a tramway company, the persons authorised to place the structure in the road have at the same time a statutory obliga- tion imposed upon them to keep the adjoining portions of the road in good repair, in which case an action for damages will lie for any omission so to do.^^ " (1894) 1 Q.B. 332. ^^ (1882) 10 Q.B.D. 118. " (1894) 1 Q.B. at p. 337. I'' Chapman v. Fylde Waterworks Co. (1894) 2 Q.B. 599 ; AUter when the responsibility is otherwise determined by any statutory provision. Batt v. Metropolitan Water Board (1911) 2 K.B. 965. " Moore v. Lambeth Waterworks Co. (1886) 17 Q.B.D. 462. " Dublin Tramways Go. v. Fitzgerald (1903) A.C. 99 ; Hartley v. 294 INJURIES TO SERVITUDES [Chap. IX. OTHER INJURIES TO LAND § 95. Wrongful Damage Wrongful We have now considered four classes of injuries to land — land!^^** ° namely, trespass, dispossession, nuisance, and disturbance of servitudes. This classification, however, although it includes almost all cases, is not exhaustive. We must recognise a further injury of small importance and infrequent occur- rence, which has no recognised title, but which we may term wrongful damage to land. It consists in any act done without lawful justification, and not amounting to trespass, nuisance, or the disturbance of a servitude, whereby physical harm is done to land in the possession of the plaintiff. In the immense majority of cases physical harm to land is done by way of one of the forms of injury already considered by us ; but occasionally it is done without bringing the wrong- doer within the scope of any of these causes of action. An example is wilful or negligent injury, as by fire, caused by a person lawfully on the plaintifE's premises, such as a guest, workman, servant, or licensee. This is not trespass because of the lawful entry ; and not nuisance because the cause of harm originates on the land itself, and is not a wrongful invasion from without. Rochdale Corporation (1908) 2 K.B. 594. Even in the absence of any- such express statutory obligation it may be that m certain classes of cases there is an implied or common law obligation of repair imposed upon persons who, under statutory or other lawful authority, interfere with the highway, and that the breach of that obligation is an action- able tort. Thus, in Oliver v. North Eastern Railway Co. (1874) L.R. 9 Q.B. 409, the defendant company was held liable in damages for an accident due to the non-repair of a level crossing, although under no express statutory duty to repair. If this decision is reconcilable at all with Thompson v. Mayor of Brighton (1894) 1 Q.B. 332, and Moore V. Lambeth Waterworks Co. (1886) 17 Q.B.D. 462, it must be regarded as an exception to the general principle of non-liability established by these cases, and as based on an implied obligation of repair which exists in some cases of interference with the highway and not in others. See also Hertfordshire County Council v. Great Eastern Railway (1909) 1 K.B. 368. Sec, 96.] INJURIES TO REVERSIONARY INTERESTS 295 § 96. Injuries to Reversionary Interests 1. Hitherto, in dealing with the injuries of trespass, injuries to nuisance, disturbance of servitudes, and wrongful damage, f'=y<=''^'°''''''y we have considered exclusively the rights of action thereby- vested in the occupier of the land. For these injuries are essentially injuries to the possession of land, and not to the ownership of it. It remains, therefore, to consider the position of a reversioner — using that term in a wide sense to include any person having a lawful interest in land but not the present possession of it, the typical case being that of a landlord whose land is in the occupation of a tenant. Injuries to reversionary interests are of two kinds, accord- Waste. ing as they are committed, (1) by the tenant or other person in possession of the land, or (2) by a stranger. Injuries of the first kind may be included under the generic title of Waste, which may be defined as unlawful damage done or permitted by he occupier of land as against those having reversionary interests in it. An account of the law of waste does not pertain to the law of torts, but is a branch of the law of pro- perty, and in particular of the law of landlord and tenant ; for the obligations of the occupier to the reversioner are dependent on the nature of the proprietary or contractual relation existing between them in the particular case, and cannot be profitably considered in a general account of the law of torts. It is otherwise with the second class of injuries to rever- sionary interests — viz. those which are committed not by the occupier, but by strangers. These injuries are governed by general principles which properly pertain to the law of torts. The question, therefore, which we have now to consider is this : In what circumstances ^\ill an action lie at the suit of a reversioner for an act done in respect of the land by a stranger who is not in possession of it ? 2, A reversioner may sue for any trespass, nuisance, dis- Reversioner turbance of servitudes, or wrongful damage if, and only if, permanent it actually afEects his reversionary interest ; and in general injury only, this is so only if the effects of the injury so committed are permanent. None of these wrongs is per se a wrong against the reversioner or actionable at his suit. It is necessary for him iij every case to prove not merely that such a wrong has 296 INJURIES TO SERVITUDES [Chap. IX. been committed, but also that his reversionary interest has been actually affected by it, so that it is a wrong against him and not merely against the possessor. There is more than one way in which a reversionary interest may be so afiected, but in general it is afiected only by reason of the permanence of the consequences of the wrongful act. Temporary conse- quences give a cause of action only to the occupier ; per- manent consequences give a cause of action both to him and to the reversioner. Consequences are permanent in this sense if they are of such a nature that they will continue to affect the land, even after the interest of the reversioner has become an interest in possession. In Rust V. Victoria Graving Dock ^ it is said by Cotton, L.J. : "It is an undoubted general rule that a reversioner or other person who has not an interest in possession in the land cannot recover any damages unless it is shown that the injury to the land is of a permanent character, and will be injurious to the land when his estate comes into possession." So in Shelfer V. City of London Electric Lighting Co.^ Lindley, L.J., says : " The common law decisions show that an action by a rever- sioner for an injury to his reversion will lie if he can prove actual damage to his reversion, or as some express it, an injury of such permanent nature as to be necessarily injurious to his reversion." Accordingly a mere trespass, unaccom- panied by any physical injury to the land, is not actionable at the suit of a reversioner, even though committed under a claim to a right of way ; ^ neither is a temporary nuisance, such as noise or smoke, which causes no enduring physical harm to the property.* It is otherwise, however, if permanent physical harm is done, whether by way of trespass, nuisance, or otherwise : as, for example, the destruction of a building, the removal of soil, the cutting of timber, or structural damage done to a building by the removal of support.^ 1 (1887) 36 Ch.D. p. 130. ' (1895) 1 Ch. p. 318. 3 Baxter v. Taylor (1832) 4 B. & Ad. 72 ; Cooper v. CraUree (1882) 20 Ch.D. 589. * Simpson v. Savage (1856) 1 C.B. (N.S.) 347 ; Jones v. Ohappell (1875) 20 Eq. 539 ; Mott v. Shoolbred (1875) 20 Eq. 22 ; Mumford v. Oxfordshire Bly. Co. (1856) 1 H. & N. 34. ^ Alston V. Scales (1832) 9 Bing. 3 ; Shelfer v. City of London Electric Lighting Co. (1895) 1 Ch, 287 ; Tucker v, Newman (1839) 11 A, & E, Sec. 00.] INJURIES TO REVERSIONARY INTERESTS 297 3. In applying this rule we must be careful not to ton- Ptiinancnt found a permanent injury with a continuing one. A per- winWies"' manent injury is a completed wrong the consequences of distinguished, which will endure until the interest of the reversioner has fallen into possession, and for which accordingly he has a present right of action — e.g. the destruction of a building on land in the possession of the plaintiff's tenant. A continuing injury, on the other hand, is one which is still in process of being committed — e.g. a nuisance caused by the smoke or noise of a factory. We have already seen that even the occupier himself cannot recover damages for the future con- tinuance of such a continuing injury, howsoever probable that continuance may be.* He recovers damages only for the past ; and if the wrong continues, be may sue a second time on a new cause of action thus arising. Since this is the case with the occupier, a fortiori it is so with the reversioner also. He must wait until his interest falls into possession, and then, if the injury still continues, he will have his action. Nor does anything turn upon the degree of probabihty of its continuance. Whether probable or improbable, he cannot sue for prospective damage any more than the occupier himself can. 4. Notwithstanding the preceding rule as to the necessity Reversioner of permanent damage, a reversioner may sue for any continu- J^p^p^^t" *re ing injury which by virtue of the law of prescription will by scriptive its continuance prejudicially affect his reversionary interest ^^° *^" in the land by creating or destroying a servitude in relation thereto. On this principle it has been repeatedly decided that a reversioner may sue for an obstruction to ancient lights or for interference with a right of way.'' The operation of 40 ; Rust V. Victoria Graving Dock (1887) 36 Ch.D. 113. In excep- tional cases, however, even a temporary disturbance of possession may amount to an injury to the reversion, as in Bell v. Midland Rly. Co. (1861) 10 C.B. (N.S.) 287, in which the royalties payable by a tenant to his landlord were diminished by the wrongful disturbance of a right of way appurtenant to the land. * Save when damages are awarded in substitution for an injunction as the price of the legalisation of future continuance. Supra, s. 38 (9). ' Jesser v. Oifford (1767) 4 Burr. 2141 ; Metropolitan Association V. Fetch (1858) 5 C.B. (N.S.) 604 ; Shadwell v. Hutchinson (1831) 3 B. & Ad. 97 ; Mott v, Shoolbred (1876) 20 Eq. 22 ; Kidgill v. Mom- 298 INJURIES TO SERVITUDES [Chap. IX. the rule depends on the law of prescription. If by that law the act complained of will operate to the prejudice of the plaintiff notwithstanding the fact that he is not in present occupation of the land, then he has a right of action given him by which he can protect himself against this mischief. But if, on the contrary, the fact that he is not in possession will by the law of prescription prevent any prejudice accruing to him, he has no present right of action.* A detailed con- sideration of the scope and application of this rule, therefore, pertains to the law of prescription rather than to that of torts, and would here be out of place.'' (1850) 9 C.B. 364. The reasoning in several of these cases is mi- salisfaotory owing to the fact that insufficient attention has been given to tlie distinction between the present rule as to the effect of pre- scriptive rights and the rule already considered as to the necessity of permanent damage. 8 See, for example, Baxter v. Taylor (1832) 4 B. & Ad. 72 ; Mvtt V. SJwolbred (1875) 20 Eq. 22. » See Gale on Easements, pp. 192-200, pp. 550-556, 7th ed. CHAPTER X CONVERSION AND OTHER INJURIES TO CHATTELS § 97. History of the Action of Trover 1. The wrong of conversion is so dependent for a due under- standing of its true nature and incidents upon a knowledge of its origin and historical development, that before attempting any systematic exposition of the present law it is necessary to give an outline of the mode in which it has come into existence. 2. If we seek for a definition of this wrong, we may find it Conversion in the form of declaration provided for the action of trover by defuaed. the Common Law Procedure Act, 1852. ^ By this enactment the form of the action was brought into harmony with its true scope and purpose by the abolition of the old fictitious allega- tions on which it was based ; and a new form of declaration was provided, in which it was simply alleged that " the defendant converted to his own use, or wrongfully deprived the plaintiff of the use and possession of the plaintiff's goods." This is the essence of the matter. The wrong of conversion consists in any act of wilful interference with a chattel, done without lawful justification, whereby any person entitled thereto is deprived of the use and possession of it. There are three distinct methods in which one man may Three modes deprive another of his property, and so be guilty of a conver- ° conversion. sion and liable in an action of trover — (1) by wrongly taking it, (2) by wrongly detaining it, and (3) by wrongly disposing of it. In the first case the wrongdoer acquires a possession which is wrongful ah initio. In the second he acquires possession rightfully but retains it wrongfully. In the third case he neither takes it wrongfully nor detains it, but so acts that it is lost to the true owner. Now, although in modern law the term conversion covers all these three cases, it was » 15 & 16 Vict., c. 76, s. 49, and Sohed. B, 299 300 CONVERSION [Chap. X. originally limited to the third of them. To convert goods meant to dispose of them, to make away with them, to deal with them in such a way that neither owner nor wrongdoer has any further possession of them : for example, by con- suming them, or by destroying them, or by selling them, or otherwise delivering them to some third person. Merely to take another's goods, however wrongfully, was not to convert them. Merely to detain them in defiance of the owner's title was not to convert them. Money was converted to the use of the thief when it was spent by him ; food, when it was eaten ; jewels, when they were pawned or sold. The fact that conversion in its modern sense includes all three modes in which a man may be wrongfully deprived of his goods, and not one mode only, is the outcome of a process of historical development whereby, by means of legal fictions and other devices, the action of trover was enabled to extend its limits and appropriate the territories that rightly belonged to other and earlier forms of action. Trespass, 3. Corresponding to these three modes of wrongful de- privation there were three distinct forms of action provided by the law — (1) trespass de bonis asfortatis, for wrongful taking ; (2) detinue, for wrongful detention ; and (3) trover, for wrong- ful conversion (that is to say, disposal). Of these three actions, trover is the most recent in origin. Trespass and detinue date from the beginnings of our legal system, but trover is a later invention. An early instance — perhaps the earliest — occurs in Y.B. 18 Ed. IV. 23 pi. 5 : " In an action on the case the plaintiff declared how he bailed certain boxes of money to the defendant to be safely kept, and how the defendant broke them et eux convert a son oefs." Two cases of a similar nature are reported in Y.B. 20 Hen. VII. 4 pi. 13, and 8 pi. 18. In the thirty-third year of Henry VIII. we hear of an " action on the case that the defendant found the goods of the plaintiff and delivered them to persons unknown." ^ A similar instance occurs in the following year : " Action on the case that the goods of the plaintiff came to the defendant's hands (devenerunt ad manus), and he wasted them." ^ In the fourth year of Edward VI. we find the action in its modern form : " Action on the case that the plaintiff was in possession of such and such " Brooke's Abridg. Action sur le case, pi. 109. ' Ibid. pi. 103. detinue, and trover. Sec. 97.] HISTORY OF THE ACTION OF TROVER 301 goods ut de propriis et ilia perdidit et def. ilia invenit et ilia in iisum proprium convertU." * It is not to be supposed, however, that there was no remedy at all for a conversion before the invention of trover in the fifteenth century. Before this remedy was heard of, its work was doubtless done by detinue. For the defendant in detinue, charged with unjustly detaining the goods of the plaintiff, was not suffered to object that he had already converted and disposed of them, and therefore that he no longer detained them. In Jones v. Dowle^ this very defence was pleaded in detinue, and it was said by Parke, B. : " Detinue does not lie against him who never had possession of the chattel, but does lie against him who once had but has improperly parted with the possession of it." So in Reeve v. Palmer^ it is said : " All the authorities from the most ancient time show that it is no answer to an action of detinue, when a demand is made for the redelivery of the chattel, to say that the defendant is unable to comply with the demand hy reason of his own breach of duty." This being so, it is clear that detinue was available as a remedy for wrongful conversion as well as for wrongful detainer. Why, then, was the new remedy of trover invented ? The Reasons for answer is to be found in the fact that detinue was an exceed- *f "^tJoyer *'°" ingly unsatisfactory form of action, for the defendant had the right of defending himself by wager of law, a form of licensed perjury which reduced to impotence all proceedings in which it was allowable. The ingenuity of pleaders, therefore, was devoted to avoiding all forms of action in which wager of law was admitted, and to inventing other forms of action which should take their place, and in which a plaintiff might have the benefit of the verdict of a jury. Hence the action of trover as a remedy for conversion. Conversion came to be treated for the first time as an independent wrong — a quasi - trespass, to be sued for in a special form of trespass on the case. It was no longer treated as a mere incident of a wrong- ful detention, to be sued for in the action of detinue. For trespass on the case led to the verdict of a jury on a plea of not guilty, and a plaintiff might hope for justice ; but detinue led to nothing but defeat by the defendant's wager at law. * Brooke's Abridg. Action sur le case, pi. 113. 5 (1841) 9 M. & W. 19. » (1858) 5 C.B. (N.S.) at p. 91. 302 CONVERSION [Chap. X. Just as indebitatus assumpsit was substituted for debt, so trover was substituted for detinue. *rhe foi*!!! of 4. The declaration in trover was simply a variant of the in trover. declaration in detinue, the only material difference being that in trover the defendant was charged with wrongly converting the property to his own use, while in detinue he was charged with unjustly detaining it. Detinue was of two kinds, dis- tinguished as detinue sur bailment and detinue sur trover. The former was the appropriate remedy when the property had come to the defendant's hands by a bailment or contract between the parties. The latter, or detinue sur trover — which is not to be confounded with the action of trover itself — was appropriate when the defendant had found the goods, or indeed had come by them in any other fashion save by contract with their owner. These allegations of bailment or finding were, however, immaterial and untraversable.' It mattered nothing in what manner the defendant had obtained possession of the property. Indeed, the older mode of pleading was to make no allegation in the matter, save that the goods of the plaintiff had come to the defendant's hands [devenerunt ad manus) and were unjustly detained by him. In Y.B. 33 Hen. VI. 27 pi. 12 we find an action of detinue sur trover in which the specific allegation of finding (declara- tion fer inventionem) is criticised as a novelty. The only issues were whether the goods were the property of the plaintiff, and whether the defendant unjustly detained them. The action of trover and conversion was modelled upon that 'of detinue sur trover. The plaintiff alleged in his declaration '(1) that he was possessed of certain goods ut de bonis propriis ; (2) that he casually lost them, and that the defendant found them ; and (3) that the defendant did not restore them, but wrongfully converted them to his own use. As in detinue, so in trover, this second allegation as to losing and finding was in most cases a mere fiction ; in any case it was immaterial and untraversable. Nor was it ever essential. The plaintiff might have alleged a bailment instead of a loss' and finding, ' Brooke's Abridg. Detinue, pi. 50 ; Gledstane v. Hewitt, 1 C. & J. 565 ; Chitty's Pleading, I. 138, 7tli ed. For the form of declaration see Chitty's Pleadings, II. 428. Sec. 97.] HISTORY OF THE ACTION OF TROVER 30S thus modelling his declaration on detinue sur bailment instead of on detinue sur trover. In Gumhletcm v. Grajton^ such a declaration in trover was objected to, but held good. Or a general allegation of devenerunt ad manus defendentis would have been good enough. It must not be supposed that the action of trover was specially or originally designed to meet the case of an actual loss and finding. The allegation of loss and finding was from the beginning merely a form of pleading- imitated from the action of detinue. 5. Such, then, was the origin of the action of trover, and Erfensforf so far as we have gone with the story the matter stands thus : °l *'^° scope . . . .01 trover. there are three modes in which a man may be deprived of his property, and three corresponding forms of action provided for his relief. If his property is wrongfully taken, he may sue in trespass ; if it is wrongfully detained, he may sue in detinue ; and if it is wrongfully converted, he may sue either in detinue, as was the older practice, or in trover in accordance with the new. No sooner, however, has trover become thus estab- lished than it begins to extend its boundaries, and it very rapidly succeeds in appropriating almost the whole territory both of trespass and of detinue. It becomes a universal remedy applicable in all cases in which a plaintiff has been deprived of his goods, whether by way of taking, by way of detention, or by way of conversion in its proper and original sense. In every case of wrongful taking the plaintiff might elect between trespass and trover, and in every case of detention he might elect between detinue and trover. We have now to see how this extension was effected. 6. Conversion by Detention : Trover and Detinue. It is Conversion clear that a mere detention is not a conversion in the original ^y detention, sense. Just as a man cannot both eat his cake and have it, so he cannot convert another's goods to his own use and at the same time detain them. Nevertheless it was settled at an early date in the history of trover that a neglect or refusal to deliver up a chattel, after demand made, is evidence of a con- version — evidence, that is to say, that the defendant has already made away with the property and therefore cannot and does not restore it. Moreover, this evidence was received as sufficient and conclusive in the absence of any proof that 8 Cro. Eliz. 781. 304 CONVERSION [Chap. X. the failure to deliver was justified. The defendant was not suffered to prove that, although he had unlawfully refused to deliver up the property, he had not converted it but still retained it. Juries were directed as a matter of law to find a conversion on proof of demand and refusal without lawful justification. Blackstone,^ speaking of a finder of goods, says, " He must not convert them to his own use, which the law presumes him to do if he refuses to restore them to the owner." So in Alexander v. Southey ^° Best, J., says : " An unqualified refusal is almost always conclusive evidence of a conversion." So in Coke's Reports : ^^ " If A brings an action on the case against B upon trover and conversion of plate, jewels, &c., and the defendant pleads not guilty, now it is good evidence frimd facie to prove a conversion that the plaintiff re- quested the defendant to deliver them and he refused, and therefore it shall be presumed that he has converted them to his use." ^^ So soon as this rule has been established, it is clear that trover has passed beyond its original scope, and has become concurrent with detinue. These two forms of action have now become alternative remedies ; every detention after demand made is now become a constructive or fictitious conversion — a conversion in law, though not in fact^^ — on which the plaintiff may bring his action of trover if he will, and so avoid the disadvantages inherent in detinue. Detention This doctrine that a detention after demand is merely not now mere ., . . , ^^ • -, ir • r, evidence of evidence 01 a conversion, and not a conversion itself, is often conversion, gg^ forth as a subsisting rule of law even at the present day. " The mere fact," it is said,^* " of a refusal in answer to a demand is never of itself a conversion, though it may be very strong evidence of it." Now that its historical basis has » Comm. iii. 153. " (1821) 5 B. & Aid. p. 250. " X. 56b. 1^ See, for what is perhaps the earliest case in -which the rule was laid down, Eason v. Neioman, Cro. Eliz. 495. " In Alexarider v. Southey (5 B. & Aid. 247) ; Abbott, C. J., says : " Perkins v. Smith and Stephens v. Elwall were both cases of actval conversion by servants in disposing of goods the property of others to their master's use ; but here the question is whether the refusal of the servants to deliver the goods in question amounts to a conversion of tlic property. This, therefore, is the case of a conversion arising hy con- struction of law." " Clerk and Lindsell's Torts, p. 248, 5th ed. Soc. 07.] HISTORY OF THE ACTION OF TROVER 305 disappeared and been forgotten, however, such a statement is merely a source of complexity and confusion. It is necessary to acknowledge frankly that the term conversion is now used in a wide sense to mean any act by which another person is deprived of his property, and that to detain property withou . lawful justification is a conversion of it, no less than to destroy it or to make away with it. There is no reason for retaining in our modern law a distinction which was in its origin merely a pleader's device to justify the use of trover instead of detinue. Even in comparatively early times wo find Judges prepared to rationalise the law in this respect, and to eliminate the fictitious elements from the law of trover. Thus, in Baldwin v. Cole^^ Holt, C.J., says, " The very denial of goods to him that has a right to demand them is an actual conversion, and not only evidence of it as has been holden." This view, however, did not prevail, although there was much conflict on the point. ^^ Notwithstanding this extension of the original scope of Negligent trover, there remained even to the last one respect in which JJfattels not the action of detinue was of wider application. Detinue was conversion, available not only when there was a real detention of a chattel [i.e. a refusal to deliver it, while it still remained in the posses- sion or power of the defendant), but also where the defendant was unable by his own fault to make delivery, whether this fault consisted in a wilful act of wrongful disposition or in mere negligence leading to the loss or destruction of the chattel. Thus, a bailee who negligently allowed the goods to be stolen from him, or to be destroyed while in his possession, could be sued in detinue as for the detention of them.^' But he could not be sued in trover as for a conversion, for there was no conversion unless he had wilfully disposed of the property (as by delivering it to another person) or unless he refused to deliver it on request while he still had it in his possession.^* 7. Conversion by Taking : Trover and Trespass. We have 15 6 Mod. 212. " Sec Eason v. Newman, Cro. Eliz. 495 ; Wilson v. Chambers, Cro. Car. 262 ; Mires v. Solebay, 2 Mod. 242 ; 10 Co. Rep. 66b ; I sack v. Clarke, 1 RoUe 126. " Jones V. Dowle (1841) 9 M. & W. 19 ; Reeve v. Palmer (1858) 5 C.B. (N.S.) 84. " Williams v. Oesse (1837) 3 Bing. N.C. 849. D 306 CONVEESION [Chap. X. Conversion now Seen how the new remedy of trover was extended to cover y a ng. ^j^g ground of detinue, and it remains to notice the process by which it became concurrent with trespass de bonis asportatis also. The allegations of loss and finding being immaterial and untraversable, it mattered nothing in what way the property came to the defendant's hands. Whether it was by bailment, or by finding, or by tortious taking was irrelevant, if an actual or constructive conversion could be proved. Therefore, when goods were taken and converted, the plaintiff had an election either to sue in trespass for the taking, or, waiving the trespass, to sue in trover for the conversion. This was settled, not indeed without difficulty, in the case of Bishop v. Viscountess Montagu, : ^^ " Although trespass lies, yet he may have this action if he will, for he hath his election to bring either." So in Kinaston v. Moore : ^° " The losing is but a surmise and not material, for the defendant may take it in the presence of the plaintifi or any other who may give sufficient evidence ; and although he take it as a trespass, yet the other may charge him in an action upon the case on a trover if he will." In Cooper V. Chitty^^ Lord Mansfield says of the action of trover : " In form it is a fiction, in substance a remedy to recover the value of personal chattels wrongly converted by another to his own use. The form supposes the defendant may have come lawfully into the possession of the goods. The action lies and has been brought in many instances where in truth the defendant has got the possession lawfully. When the de- fendant takes them wrongfully and by trespass, the plaintiff, if he thinks fit to bring this action, waives the trespass and admits the possession to have been lawfully gotten." So it has been said : " Whenever trespass for taking goods will lie — ^that is, where they are taken wrongfully — trover will also lie."22 When trover is thus brought for what is in truth a trespass, the unlawful taking is itself sufficient and conclusive proof of a conversion ; or, in other words, it amounts in itself to a sufficient constructive conversion to enable the action to be i» Cro. Eliz. 824, Cro. Jao. 50. "» Cro. Car. 89. ==1 1 Burr. p. 31. ^^ Wilhraham v. Snow, 2 Wms. Satind. 47aa ; see also Chitty's Pleading, I. 172, 7th ed. Sec. 97.] HISTORY OP THE ACTION OF TROVER 307 maintained without any iurtlier proof that tlie defendant converted the goods in fact. He who wrongfully took another's goods would not be permitted to deny that he had also converted them ; and he was in the same position in this respect as he who detained them after a request. Nor was any request of restoration needed when the taking was unlawful. It was only when a defendant came lawfully into possession of the property that a demand and refusal was a condition precedent to the right of suing in trover. Thus it is said : ^* " Where the possession is lawful, the plaintiff must show a demand and refusal to make a conversion. Bub if the possession was tortious, as if the defendant takes away the plaintiff's hat, there the very taking is a sufficient proof of the conversion." Had the law developed logically it would have maintained to the end the position that an unlawful taking is merely evidence of a conversion, just as an unlawful detention is. This, however, was not so. At an early period we find it said without scruple or qualification that a tortious taking is a conversion,^* although to this day we continue to say of a tortious detainer that it is merely evidence of a conversion. This is an obvious lapse both from the history and the logic of the matter. If we use the term conversion in its original and strict sense, it is clear that neither a taking nor a deten- tion is anything more than evidence ; each amounts at the most to a constructive conversion, a conversion in law though not in fact. While if we adopt the wider sense, and mean by conversion any deprivation of property, it is clear that both a taking and a detention are actual conversions if there is no lawful justification for them, and that there is no distinction to be drawn between them. To say that taking is a conversion, but that detention is merely evidence of one, is to use the term conversion in two diverse senses, its old and its new ; it is to retain the old historical theory of trover in one case, and to abandon it in the other.^^ 2' 3 Salk. 365. "* See, for example, Bruen v. Roe, 1 Sid. 264. " There is one decision — viz. Fouldes v. Willoughhy (1841) 8 M. & \V. 540 — which is in conflict with the proposition that every wrong- ful t£i,king of a chattel amounts to a conversion of it. It is there lai(J 308 CONVERSION [Chap. X. 8. Such, then, is the history of trover and of its relations to the earlier actions of trespass and detinue. We now pro- ceed to consider systematically the modern law of conversion. § 98. Conversion defined Conversion 1. A conversion is the act of wilfully interfering with any m general. chattel, without lawful justification, whereby any person entitled thereto is deprived of the possession of it. 2. In order to amount to conversion the act done with down that a wrongful taking is not a conversion (although it is, of course, a trespass) unless it is done with the intent to deny the plaintiff's title to the property, and so amounts to the setting-up of an adverse claim on behalf of the defendant or some third person. " It has never yet been held," it is said in the judgment of Abinger, C.B., " that the single act of removal of a chattel, independent of any claim over it either in favour of the party himself or any one else, amounts to a conversion of the chattel." The facts of the case were that the defendant wrongfully removed from his ferry-boat certain horses belonging to the pjaintiff, and turned them loose on shore, whereby they were ultimately lost to the plaintifi. It was held that the plaintiff had no cause of action in trover, but ought to have sued in trespass. As to this case the following observations may be made. (a) The distinction thus drawn between a cause of action in trespass de honis asportatis and a cause of action in trover was a novelty in the law, being unsupported, it is believed, by any previous decision. AU the older authorities are to the effect that in case of tortious asportation, trover and trespass are alternative remedies. (6) The suggestion that every conversion involves a denial of the plaintiff's title and the setting up of an adverse claim on behalf of the defendant or some third party is inconsistent with later cases, such as Hiort v. Bott (1874) L.R. 9 Ex. 86, in which the defendant was held liable in trover for causing the loss of property through intermeddling with it, although his sole object in so doing was to restore it to the plaintiff himself. (c) Even if this distinction between trover and trespass formerly existed, there is no reason, now that forms of action are abolished, for perpetuating the remembrance of it in the law of conversion. It never was more than a technicality of pleading. Any wrongful asportation of chattels resulting in the loss of them to the plaintiff admittedly gave a cause of action for the value of them, and there is no reason at the present day why this cause of action, even if formerly trespass exclusively, should not now be included within the definition of conversion. Sec. 98.1 CONVERSION DEFINED 309 respect to the chattel must have been one of wilful and wrong- No conver- ful interference. He who so interferes with a chattel acts at ^°ifu7'*^°"* his own risk, and if the loss of the chattel does in fact (whether interference. intended or not) result from his act he is liable for the value of it in an action of trover. In the absence, however, of a wilful and wrongful interference there is no conversion, even if by the negligence of the defendant the chattel is lost or destroyed. Thus, a carrier or other bailee who by accident loses the goods intrusted to him was by the old practice not liable in trover, but merely in detinue, case, or assumpsit.^ But if he wrongfully and mistakenly delivered the chattel to the wrong person, or refused to deliver it to the right person, he could be sued as for a conversion. This distinction is not a mere matter of form or a technicality of the old law of procedure, but a subsisting principle of modern substantive law. 3. Although a conversion is necessarily an intentional Mistake no wrong in the sense already explained, it need not be know- ''°'^'^" ingly wrongful. A mistake of law or fact is no defence to any one who intentionally interferes with a chattel. He does so suo periculo, and takes the risk of the existence of a sufficient lawful justification for the act ; and if it turns out that there is no justification, he is just as responsible in an action of trover as if he had fraudulently misappropriated the property. " Persons deal with the property in chattels or exercise acts of ownership over them at their peril." ^ Thus, an auctioneer who honestly and ignorantly sells and delivers property on behalf of a customer who has no title to it is liable for its value to the true owner, even though he has already paid the proceeds of the sale to his own chent.^ So in the leading case of Hollins v. Fowler''' the defendant, a cotton broker, honestly purchased from a person who had obtained possession of it by fraud certain cotton belonging to the plaintiff, and forthwith sold and delivered it to a manufacturer, receiving merely a broker's commission on the transaction. On being sued in trover by the true owner. 1 Williams v. Oesse (1837) 3 Bing. N.C. 849. 2 Hollins V. Fowler (1874) L.R. 7 Q.B. p. 639, per Cleasby, B. 3 Consolidated Co. v. Curtis (1892) 1 Q.B. 495 ; Barker y. Furlong (1891) 2 C!h. 172. * (1875) L.R. 7 H.L. 757. Remoteness of damage no defence. Defendant need not have acted on his own account. 310 CONVERSION [Chap. X- the broker was held by the House of Lords to have no defence and to be liable for the full value of the property. 4. If the defendant has thus intentionally interfered with a chattel without lawful justification, and a loss of the chattel does in fact result from the interference, it is no defence that such a loss was not intended, or even that it was not the natural or probable result of the defendant's act. The doctrine of remoteness of damage has no application to the wrong of conversion so long as no damages are claimed beyond the value of the property.^ The question is not whether the defendant intended to deprive the plaintifi of his property, or whether he knew or ought to have known of the probability of such a result, but merely whether his wrongful interference did as a matter of fact produce that result. In Hiort v. Bott^ the plaintiffs, by a mistake fraudulently induced by their own agent, consigned certain barley to the defendant which he had not ordered, and they sent him a delivery order to enable him to obtain it from the carrier. The plaintiff's agent thereupon informed the defendant that the consign- ment was a mistake, and induced him to indorse and hand over the delivery order to him (the agent) in order that the goods might be obtained by him from the carrier and re- delivered to the plaintiffs. The agent thus obtained posses- sion of the barley, sold it, and absconded with the proceeds ; and the defendant was held liable in trover for its value.'' 5. It is not necessary that the defendant should have acted on his own account, or have converted the goods to his own use. He is equally liable if he has acted on behalf of some other person as his agent or servant. In Stephens v. ElwalP a servant was held liable for dealing with goods for his master's benefit and under his master's orders. " The clerk," it is said,^ " acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master. But, never- theless, his acts may amount to a conversion ; for a person is guilty of a conversion who intermeddles with my property and 6 Su-pra, s. 37 (13). « (1874) L.R. 9 Ex. 86. ' Sed qu. whether there was any act of wrongful interference in this case at all. Is not an involuntary bailee entitled to return the goods, and does he owe any duty to the owner save one of reasonable care ? (1815) 4 M. & S. 259. 4 M. & S. p. 201. Sect. 98.] CONVERSION DEFINED 311 disposes of it, and it is no answer that lie acted under authority from another who had himself no authority to dispose of it." Even when the act is done on behalf of the true owner and with the honest intention of preserving or restoring the property, it will amount to a conversion if done without lawful justification, and if it results in fact in a loss of the property : as if I find A's goods which I wrongfully believe to have been lost or mislaid by him, and hand them to B to take to A, and B misappropriates them.^" 6. The loss or deprivation of possession suffered by the Loss need plaintiff need not be permanent. " Conversion," it has been ^°^ ^^ . . , £, . . '■ . permanent. said,^^ consists in any tortious act by which the defendant deprives the plaintiff of his goods either wholly or but for a time." The duration of the dispossession is relevant with respect to the measure of damages, but makes no difference in the nature of the wrong. In Baldwin v. Cole^^ the chattels were wrongfully taken, and then tendered again to the plaintiff, and Holt, C. J., says, " Here, if the plaintiff had received them upon the tender, notwithstanding the action would have lain upon the former conversion, and the having of the goods after would go only in mitigation of the damages." § 99. Conversion by Taking 1. Every person is guilty of a conversion who, without Every lawful justification, takes a chattel out of the possession of p'f°."gf"' -i_. " rni,- i._i- __.i ,• ^t j-T '„ ^ ing a any one else. " The taking and carrying away of another's conversion. goods is a conversion. . . . Wherever trespass for taking goods will lie . . . trover will also lie." ^ He who takes possession of a chattel is liable for its value unless he restores it ; and even if he does restore it, he is hable for any loss suffered by the plaintiff in consequence of the temporary dispossession. It is no defence that restoration has become »» See also GonaoUdated Co. v. Curtis (1892) 1 Q.B. 495 ; Barker v- Furlong (1891) 2 Ch. 172 ; Cochrane v. Rymill (1879) 40 L.T. 744. " Chitty's Precedents in Pleading, 662, 3rd ed. " 6 Mod. 212. 1 Wilbraham v. Snow, Wms. Saund. II. 47; n. 47aa. Norman v. Bell (1831) 2 B. & Ad. p. 192, per Parke, J. : "A plaintifT )nay always bring an action of trover where an action of trespass de bonis asportatis would lie." 312 CONVERSION [Chap. X. impossible, even though no permanent talcing was intended, and even though the impossibility has resulted from no act or default of the defendant, but solely through the loss or destruction of the property by some inevitable accident or the wrongful act of some third person. For he who wrong- fully takes possession of another's goods has them at his own risk, and must in all events either return them or pay lor them. 2 iJenial ^ 2. We have already considered the suggestion in Fouldes titl^.'^''^ ' ^ ^- Willoicghhy^ that a taking is not a conversion unless it amounts to a denial of the plaintiff's title to the goods, and we have seen that even if this was once the law it is a distinction which no longer calls for any recognition. For every taking was at all events a trespass, creating exactly the same liability to pay or restore which is created by a taking which amounted to a conversion. The distinction, therefore, related merely to the form of action and not to the substantive law, and is accordingly now obsolete. § 100. Conversion by Detention Detention no 1 . The detention of a chattel amounts to a conversion un"est'^^^°'^ only when it is adverse to the owner or other person entitled adverse. to possession — that is to say, the defendant must have shown an intention to keep the thing in defiance of the plaintiff.-' Merely to be in possession of a chattel without title is not a conversion, nor indeed is it a tort of any kind. Thus, if a bailee merely holds over after the end of the period for which the chattel was bailed to him, he may be liable for a breach of contract, but he is not guilty of conversion or of any other tort. He has not deprived the owner of the possession, for there is nothing to show that the plaintiff may not have the chattel again whenever he desires it. So he who finds a chattel lost cannot be sued for a conversion, however long he keeps it, unless by refusing to give it up or in some other way he shows an intention to detain it adversely to the owner. No one is bound, save by contract, to take a chattel " Supra, s. 98 (4). 3 (1841) 8 M. & W. 540- ; supra, s. 97 (7), n. 25. 1 Clayton v. Le Roy (1911) 2 K.B. 1031. Soc. 100.] CONVERSION BY DETENTION 313 to the owner of it ; his only obligation is not to prevent the owner from getting it when he comes for it. This rule is not a mere peculiarity of the action of trover, for it is equally applicable to all forms of action in tort which are based on the detention of a chattel. Thus, in Clements v. Flight,^ it was applied to the action of detinue. There the Court distinguished between three possible meanings of the tevm detain in a declaration in detinue — viz., (1) the mere act of having the goods in the defendant's possession ; (2) the mere omission to deliver, in the sense of taking the goods to the plaintiff ; and (3) the act of withholding the goods and preventing the plaintiff from obtaining possession of them. " We are satisfied that the last is the true meaning of the word detain. If it meant the mere keeping a possession, not adverse, how could such a possession form the ground of an action ? If it meant that the defendant had omitted and still omitted to be active in bringing the goods to the plaintiff, the action could not be maintained without showing an obligation by contract to do so. We have no doubt, therefore, that the detention complained of is an adverse detention." ^ 2. The usual method of proving that a detention is adverse Demand and within the meaning of this rule is to show that the plaintiff demanded the delivery of the chattel, and that the defendant refused or neglected to comply with the demand. " It is common learning that where the goods came into the de- fendant's possession by delivery or finding, the plaintifi must demand them and the defendant refuse to deliver them, in order to constitute a conversion." * It is submitted, how- ever, that demand and refusal is not the sole method in which an adverse detention may be proved. There may be cases in which the making of a demand is impracticable, and it cannot be supposed that in such circumstances the owner of the goods is without a remedy. Presumably any conduct of the defendant which shows that he not merely possesses the goods, but intends to hold them in defiance of the plaintiff, and to deprive him of the possession of them, is sufficient to con- stitute a conversion, even though there has been no formal demand of restitution. Moreover, it is to be remembered that 2 (1846) 16 M. & W. 42. ' 16 M. & W. p. 49. » Wms. Saund. II, 47i. 314 CONVEESrON [Chap. X. when the defendant is in possession by means of an unlawful taking of the goods out of the plaintiff's possession, this is in itself a conversion, and the plaintiff is not bound to rely on the detention or to prove by demand and refusal or otherwise that it is adverse.^ Delay due to 3. Adverse detention does not necessarily involve any title ^'^ ° knowledge of the plaintiff's title. Detention under an honest but mistaken claim of right on the part of the defendant is just as much a conversion as a fraudulent purpose to keep another's property is. Where, however, there is a genuine doubt in the defendant's mind as to the ownership of chattels, a temporary and provisional refusal to deliver them to a claimant, pending inquiries into his title, is justifiable, and is neither a conversion nor any other kind of wrong. No person is bound to deliver forthwith to the first claimant on peril of being sued for a conversion. In such cases it is a question of fact for a jury whether there was an honest doubt as to the title, and whether the delay was reasonably required for the purpose of making the needful inquiries.^ Chattel 4. A failure to deliver up goods on demand is not a con- defondanVs version if at the time of the demand they are no longer in the possession. power or possession of the defendant : as when they are already destroyed or consumed, or have already got into the possession of some other person. No one can convert a chattel by refusing to give it up when he no longer has it, and this is so even if it is due to his own act or default that delivery is no longer possible.' If by his own wilful act he has already destroyed or consumed the property or disposed of it to some other person, he is indeed liable in trover ; but the conversion to be sued on in such a case is the very act of destruction, consumption, or disposal, and not the subsequent omission to ' Supra, s. 97 (7) ; Wms. Saund. II. 47 n. " Vaughan v. Watt (1840) 6 M. & W. p. 497 ; " The learned Judjio was incorrect in tolling the jury that the mere refusal to deliver the goods to the real owner waa a conversion. ... It ought to have been left to the jury whether the defendant had a hona fide doubt as to the title to the goods, and, if so, whether a reasonable time for clearing up that doubt had elapsed." See also Alexander v. Sovihey (1821) 5 B. & Aid. 247 ; Pillott v. Wilkinson (1864) 3 H. & C. 345 ; Burroughes v. Bayne (1860) 5 H. & N. 296 ; Clayton v. Le Roy (1911) 2 K.B. 1031. ' Williams v. Oesse (1837) 3 Bing. N.C. 849. Sec. 100.] CONVERSION BY DETENTION 315 i;:i\'o delivery to the plaintiff. Therefore it is from the date of this prior act, and not from that of the demand, that the Statute of Limitations begins to run in the defendant's favour. 8 If, on the other hand, the defendant's inabihty to comply with the demand is due not to any wilful act of wrongful interference, but merely to negligence, as when the goods have been accidentally lost or destroyed while in his possession, he is not liable for a conversion at all ; not for the loss or destruction, because it was not the result of any wilful and wrongful interference ; and not for the omission to deliver, for it is no proof in these circum- stances of any adverse detention. If he is liable at all, it is in an action for neghgence, provided that he was in possession of the goods under such circumstances that he owed to the owner of them a legal duty to take care of them. Finally, if the goods are lost or destroyed without any act or negligence of the defendant at all, and before by demand and refusal or otherwise his possession has become adverse and actionable, he is not liable at all, either for a conversion or on any other ground. § 1 01. Conversion by Wrongful Delivery Every person is guilty of a conversion who, without lawful Wrongful justification, deprives a person of his goods by delivering ^^'^''y- them to some one else. Examples of this form of conversion have been already considered by us. Thus, a bailee commits a conversion who sells or pledges the goods to a third person. So with a finder of goods who similarly makes away with them. So an auctioneer who sells and delivers stolen pro- perty or property subject to a bill of sale is liable to the true owner or to the bill-of-sale holder, even though ignorant of any such adverse title, and even though he has already paid over the proceeds to his own client.^ So a purchaser of goods from a vendor who has no title to them is liable in trover for their full value if he subsequently resells and delivers them to another person.^ So a servant or agent in » Granger v. George (1826) 5 B. & C. 149. ' Consolidated Co. v. Curtis (1892) 1 Q.B. 495 ; Barker v. Furlong (1891) 2 Ch. 172 ; Cochrane v. RymiU (1879) 40 L.T. (N.S.) 744. ' Hollins V. Fowler (1875) L.R. 7 H.L. 757. 316 CONVERSION [Chap. X. possession of goods who delivers them to a purchaser by order of his master or principal commits a conversion against the true owner.^ * § 102. Conversion by Wrongful Disposition disposition ^' ^^'^W person is guilty of a conversion who, without lawful justification, deprives a person of his goods by giving some other person a lawful title to them. There are certain cases in which a person in possession of goods to which he has no title can nevertheless efficiently, though wrongfully, so dispose of them by sale, pledge, or otherwise that he confers a good title to them on some one else. Any such disposition amounts to a conversion as against the true and original owner, for by the creation of this adverse title he .has been deprived of his property. This is the case, for example, with a sale in market overt ; ^ with a wrongful disposition made by a mercantile agent under the provisions of the Factors Act, 1889 ; with a wrongful disposition made by a vendor or purchaser of goods who retains or obtains pos- session of them ; * and with any wrongful act which creates a good title to a negotiable instrument, adverse to the right of the original owner. In most of such cases, indeed, the wrong- ful disposition is also a wrongful delivery, and therefore is a conversion for that reason also, but this coincidence is no essential. 2. A mere sale or other attempted disposition unaccom- panied by delivery and ineffectual to divest the plaintiff's title to the property is not a conversion.' => Stephens v. Elwall (1815) 4 M. & S. 259. ^ It is to be remembered, however, that when a carrier, warehouse- man, or other bailee dealing with goods under a contract with their owner delivers them by mistake to the wrong person, his liability for this mistake depends not on the law of torts and of conversion, but on that of contracts. Whether he is bound to deliver, at his peril, to the right person or is bound only to exercise due care in making a delivery depends upon the express or implied terms of the contract. Ordinarily the duty of a carrier is merely to use reasonable care to deliver to the right person in accordance with the usual course of business. Stephen- son V. Hart (1828) 4 Bing. 476 ; Heugh v. London & N.W. Slij. Co. (1870) L.R. 5 Ex. 51 ; McKean v. Mclvor (1870) L.R. 6 Ex. 36. 5 Sale of Goods Act, 1893, s. 22. « Ihid. s. 25. ' Lancashire Waggon Co. v. Fitzhugh (1861) 6 H. & N. 502 ; Barker Soc. 103.] CONVERSION BY WRONGFUL DESTRUCTION 317 § 103. Conversion by Wrongful Destruction Every person is guilty of a conversion who, without lawful Wrongful justification, wilfully consumes or otherwise destroys a '^'^^ti'i^ctioii. chattel belonging to another person. ^ Mere damage, how- over, which falls short of actual destruction, is not in itself a conversion. The test of destruction, as opposed to mere damage, is presumably the disappearance of the identity of the article. Grapes are presumably destroyed when they are turned into wine, cotton when it is woven into cloth, corn when it is ground into flour. § 104. Other Forms of Conversion Every person is guilty of a conversion who, in any other Sliscellaiuous forms of conversion. way than those mentioned in the preceding sections, causes "'^"'^ ° the loss of a chattel by any act of wilful interference without lawful justification. This is a residuary class of conversions which includes all modes of wrongful interference and loss except taking, detention, delivery, disposition, and destruc- tion. Thus, in Lilley V. Douhleday ^ the defendant, a ware- houseman, received the plaintiff's goods for deposit in a certain warehouse. In breach of his agreement he stored them in a different building, which was burned down while the goods were in it, and he was held liable for the loss of them. There was no negligence in so keeping the goods, their loss was in no way a natural or probable result of his breach of contract, yet by reason of his wrongful interference with them they were at his risk. So he who without lawful justification lets loose another's dog from his chain, or opens the cage in which another keeps a bird, or frightens another's cattle so that they escape from the place in which they are kept, is liable for any loss of the property which so results. 7. Furlong (1891) 2 Ch. at p. 181 ; Consolidated Co. v. Curtis (1892) 1 Q.B. at p. 498. 1 Com. Dig. Action upon the case, Trover, E. ; Hollins v. Fowler (1875) L.R. 7 H.L. p. 768. 1 (1881)7 Q.B.D. 510. 318 CONVERSION [Chap. X. § 105. Acts not Amounting to Conversion Mere receipt 1. We have already seen that the mere possession of goods a conversion, without title is neither a conversion nor any other kind of tort.^ The only detention that is actionable is adverse detention — -a withholding of possession from the person entitled to it. It seems to follow logically from this, that merely to receive goods in good faith by the way of pledge, sale, or otherwise from a person who has no title to them is not a conversion by bhe recipient. He commits no con- version until he refuses to deliver them to the true owner, or until he wrongfully disposes of them. Thus, in Spackman V. Foster,^ certain deeds belonging to the plaintiff were fraudulently taken from him and pledged in the year 1859 with the defendant, who received them in good faith and in ignorance of the plaintiff's title. In the year 1882 the plaintiff discovered the loss of the deeds and demanded them from the defendant, who refused to give them up and pleaded the Statute of Limitations. It was held that no cause of action accrued until the demand and refusal, and that therefore the defendant was liable in trover although he had been in possession of the deeds for twenty-three years. " The defendant," says Grove, J.,^ " when he received these deeds had no knowledge that the person who pledged them had no title to them. He kept them as depositee or bailee, bound to return them on payment of the money he had advanced. He held them against the person who had deposited them, but not against the real owner : and non constat that he would not have given them up if the real owner had demanded them. This does not seem to' me to be conversion." A similar decision was come to on very similar facts in Miller v. Dell,* in which Lord Esher says, " Where title-deeds are fraudulently taken from the rightful owners and deposited with a third person, until demand and refusal to give up the deeds to the real owners they have no right of action against the third person against which the statute would run." Kay, L.J., quotes and adopts the reasoning 1 Supra, s. 100 (1). " (1883) 11 Q.B.D. 99. 3 (1883) 11 Q.B.D. p. 100. ' (1891) 1 Q.B. 468. Sro. 105.] ACTS NOT AMOUNTING TO CONVERSION 319 of the passage just cited from the judgment in Spackman v. Foster.^ 6 2. If this is so it seems further to follow that if he who No conYer- thus innocently acquires possession of another's goods re- ^°rcf '^^''^ delivers them to him from whom he got them, before he has rostorid to received notice of the plaintiff's claim to them, he is free from whom'it'^waa responsibility. He has not deprived the plaintiff of his pro- received. perty, for that property is now in exactly the same position as if the defendant had never interfered with it at all. Ac- cordingly in Union Credit Bank v. Mersey Docks and Harbour Board ^ certain hogsheads of tobacco belonging to the plaintiffs were fraudulently pledged by a third person with the de- fendants- by the delivery of the dock warrants. The defendants acted throughout in good faith, and subsequently returned the warrants to the pledgor on redemption. The plaintiffs thereafter demanded the property from the de- fendants and sued in trover, when it was held by Bigham, J., that they were not liable. " A warehouseman," says Black- burn, J., in Rollins v. Foivler,^ " with whom goods have been deposited is guilty of no conversion by keeping them or restoring them to the person who deposited them with him, though that person turns out to have no authority from the true owner." ® 3. What shall be said, however, if the innocent holder Delivery to a has delivered the goods not to the person from whom j^e *'''"^ P''™°°- received them, but at his order to some third person : as when a carrier receives stolen goods from a consignor, and delivers them to the consignee ; or a warehouseman delivers such goods to him to whom the delivery warrant has been transferred by the depositor. If in such a case the defendant acts in wood faith and without any knowledge that the dehvery made by him is in pursuance of some sale or other disposition purporting to affect the title and not merely the possession of ' (1891) 1 Q.B. p. 473. ' It is submitted that the dicta to the contrary in McCombie v. Davis (1805) 6 East 538, and in Fine Art Society v. Union Bank of London (1886) 17 Q.B.D. at p. 711, must be taken to be incorrect in view of the decisions already cited. ' (1899) 2 Q.B. 205. " (1875) L.R. 7 H.L. p. 707. ' Aliter if he has notice of the claim of the true owner. He then delivers at his peril. WirUer v. Bancks (1901) 84 L.T. 504, 320 I CONVERSION [Chap. X. the goods, it is probable that he is under no liability. Black- burn, J., in Hollins v. Fowler^'' expresses this principle as follows : "I cannot find it anywhere distinctly laid down, but I submit to your Lordships that, on principle, one who deals with goods at the request of the person who has the actual custody of bhem in the bona fide belief that the cus- todier is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession, if he was the finder of goods or intrusted with their custody." On this principle a carrier who merely receives and delivers goods in the ordinary way is not liable in trover merely because the transaction was a conversion on the part of the consignor.^! If, however, a carrier, warehouseman, agent, or bailee has actual knowledge that his delivery of the goods is part of a transaction affecting the title and not merely the pos- session, the question of his liability would seem to be still an unsettled point in the law of conversion. If the case of The National Mercantile Bank v. Rymill ^^ is well decided, there is no liability even under these circumstances. In this case it was held by the Court of Appeal that an auctioneer with whom the goods of the plaintiS had been wrongfully deposited for sale was not liable for a conversion, although he had delivered them at the request of the vendor to a person to whom, as the auctioneer knew, the vendor had sold them by private contract. It is difficult to reconcile this decision with earlier cases such as Stephens v. Elwall}^ and it is contrary to the opinion of Blackburn, J., in Hollins v. Fowler.^* If well decided, it is an authority for this principle : that a bailee commits no conversion merely by redelivering the goods to his bailor or to the order of his bailor, even with the knowledge that the transaction is a sale or other disposition of the title, provided that he has no notice of any adverse claim i» (1875) L.R. 7 H.L. p. 766. 11 Cfreenway y. Fisher (1824) 1 C. & P. 190 ; Sheridan v. New Quay Co. (1858) 4 C.B. (N.S.) p. 650, per Willes, J. ; Fowler v. Hollins, L.R. 7 Q.B. p. 632, per Martin, B. See also McEntire v. Potter (1899) 22 Q.B.D. p. 441, per Cave, J. i^ (1881) 44 L.T. 767. 13 (1815) 4 M. & S. 259. " (1875) L.R. 7 H.L. at p. 767, Sco. 105.] CONVERSION BY ESTOPPEL .■?21 on the part of the plaintiff. It is clearly otherwise, however, if the bailee has not merely delivered with knowledge of the sale, but has himself sold as well as dehvered, even though he sells merely as an agent and without claiming any beneficial interest in the property for himself.^^ § 1 06. Conversion by Estoppel 1. A defendant who has in truth committed no conversion may be held liable for one because he is estopped by his own act from alleging the fact which constitutes his defence : for example, that he has never had possession of the goods, or that he is no longer in possession of them, or that the plaintiff has no title to them. Thus, in Seton v. Lafone^ goods were deposited by A for Estoppel by safe custody with the defendant, a warehouseman, whose ^p'^*'^''"*'''- servants subsequently delivered them by mistake to a stranger. Thereafter, in ignorance of this fact, the defendant repre- sented to B that he was still in possession of these goods on behalf of A, whereupon B purchased them from A and demanded delivery from the defendant. It was held that the defendant was estopped from denying that he had the goods, and he was accordingly held liable as for a conversion by refusing to deliver them.- So in Henderson v. Williams^ the owner of goods in the defendant's warehouse was induced by the fraud of F to instruct the defendant to transfer them into the name of F. F then sold them to the plaintiff, who before paying for them obtained from the defendant an acknowledgment that they were now held on his account. On discovery of the fraud of F the defendant, at the request of the true owner, refused to deliver the goods to the plaintiff, and defended an action of trover on behalf of the true owner and by his authority. It " Barker v. Furlong (1891) 2 Ch. 172 ; Consolidated Co. v. Curlic (1892) 1 Q.B. 495. See the observations of Collins, J., in this case en the whole question. 1 (1887) 19 Q.B.D. 68. 2 According to Bristol and West of England Bank v. Midland Rly, Co. (1891) 2 Q.B. 653, however, the defendant is equally liable in such a case even when there is no estoppel. See also Gondman v. Boycott (1862) 2 B. & S. 1. ' (1895) 1 Q.B. 521. 322 CONVERSION [Chap. X- Estop}; el of a bailee. was held by the Court of Appeal that the defendant was estopped from disputing the plaintiff's title, and was liable accordingly as for a conversion. 2. A bailee is estopped from denying the title of his bailor, and therefore a refusal to redeliver the property is a con- version, even though in fact the plaintifi has no title to it.* Nor does it make any difference whether the plaintiff has no title at the time of the bailment, or has lost his title since the bailment. Thus, in Rogers v. Lambert ^ the plaintiffs bought certain copper from the defendants and paid for it, but it remained in the defendants' possession as warehouse- men for the plaintiffs. The plaintiffs then resold the copper to a third person, who paid them for it. The plaintiffs having thereafter demanded possession, the defendants re- fused to deliver on the ground that the plaintiffs had no longer any title to the copper. It was held, however, by the Court of Appeal that the defendants were estopped as bailees from raising any such defence, and that they were liable in trover for the full value of the property. L The estoppel of a bailee no longer exists, if he has already, on the demand of the true owner, given up possession to him, or if he defends the action on his behalf and by his authority.^ Action by person entitled to immediate possession. § 107. The Title of the Plaintiff 1. Whenever goods have been converted, an action will lie at the suit of any person entitled at the time of the conversion to the immediate possession of them. The action of trover was based on the right of immediate possession, and not on the right of ownership. A person entitled to such posses- " Biddle v. Bond (1865) 6 B. & S. 225. = (1891) 1 Q.B. 318. » Biddle v. Bond (1865) 6 B. & S. 225. The remedy of a bailee against whom adverse claims are made is to take intci pleader pro- ceedings. Robinson v. Jenkins 24 Q.B.D. 275 ; Attenborovgh v. London d- St. Katharine's Dock Co. (1878) 3 C.P.D. 450. The estoppel of a bailee is closely analogous to the iiile that a possessory title is good against all but the true owner. It is possible, indeed, that the former rule is in truth merely a particular application of the latter. The true nature and extent, however, of the latter is still far from definitely settled, and it is necessary in the meantime to recognise the estoppel of a bailee as an independent principle. Soc. 107.1 THE TITLE OF THE PLAINTIFF 323 sion could sue in trover, even though he was not the owner of the property but a mere bailee, agent, or pledgee.^ Con- versely, a person not so entitled could not sue in trover, even though he was the owner of the property. Thus, no action of trover would lie at the suit of a bailor of goods for a fixed term ; - or at that of a purchaser of goods which were still held by the vendor under his lien ; ^ or at that of a pledgor, or of the holder of a bill of sale before default made by the debtor.* In all such cases the remedy of the plaintiff was not trover, but a special action on the case for the injury done to his reversionary interest. A bailor at will, however, retained a sufficient right of immediate possession to enable him to sue even a stranger in trover.^ 2. Although the remedy for an injury to a reversionary Action by right in chattels was under the old practice not trover, but a ^'^Ji'^gr'""'^^^ special action on the case, there seems no sufficient reason at the present day why any such technicality should receive continued recognition. We include such injuries, therefore, under the name of conversion. 3. Although a plaintiff entitled to immediate possession has a right of action in every case in which a conversion has been committed, a reversioner cannot sue unless by reason of the conversion he has been actually deprived, permanently or temporarily, of the benefit of his reversionary interest." Thus, he can sue if the chattel has been destroyed, or if it has been so disposed of that a valid title to it has become vested in a third person, as by sale in market overt. So also he can sue if, after his reversionary interest has fallen into possession, he is prevented from obtaining possession by reason of the previous act of conversion. But while his 1 The Winkfield (1902) P. 42. ^ Gordon v. Harper (1796) 7 T.R. 9. ' Lord V. Price (1874) L.R. 9 Ex. 54. « Halliday v. Holgate (1868) L.R. 3 Ex. 299 ; Donald v. Suckling (1866) L.R. 1 Q.B. 585 ; Bradley v. Copley (1845) 1 C.B. 685. 5 Manders v. Williams (1849) 4 Ex. 339. A similar rulo limited the application of the action of detinue (Nyherg v. Handelaar (1892) 2 Q.B. 202) and of trespass de bonis asportatis {Ward v. Macaulay (1791) 4 T.R. 489). • Tancred v. Allgood (1859) 4 H. & N. 438 ; Hears v. London d- 8.W. Ely. Co. (1862) 11 C.B. (N.S.) 850 ; Donald v. Suckling (1866) L.R. 1 Q.B. at p. 611 : Halliday v. Holjate (ISGS) L.R. 3 Ex. r/; p, S,32 ; Lancashire Waggon Co. v. Fitzhugh (1861) 6 H, & N, 502. 324 CONVERSION [Chap. X. Remitter to right of immediate possession. interest remains reversionary he cannot sue merely because the chattel has been wrongfully taken or detained from him who is entitled to the immediate possession of it. For non constat that his reversionary interest will be in any way affected.' 4. It is to be remembered that in certain cases a person who has a merely reversionary interest is remitted to the right of immediate possession by the very act of conversion itself, which causes in certain circumstances a forfeiture and deter- mination of the particular interest in possession. Thus, if chattels are bailed for a fixed term by way of hiring, and the bailee sells them, he thereby determines the bailment ; and the bailor accordingly becomes entitled to immediate possession, and can therefore sue either the bailee himself or the purchaser in trover, and not merely for an injury to his reversionary interest.* Whether a wrongful act does or does not thus determine a bailment depends on whether it is or is not a breach of some express or implied condition of the contract of bailment. " In Mulliner v. Florence^'^ the plaintiff's goods were in possession of the defendant, an innkeeper, and rightly held by him under a lien for a debt incurred by a third person, who had brought them to the inn. The innkeeper sold them illegally, and it was held that the lien was thereby destroyed, and the plaintiff remitted to his right of immediate possession, and thereby entitled to sue the innkeeper in trover for the full value of the property without any allowance in respect of the debt.i'- In Donald v. Suckling^^ and HalUday v. Holgate,^^ on the other hand, it was held that a pledge is not determined by a premature sale or improper sub-pledge, and that the pledgor therefore cannot maintain trover or detinue until by payment or tender of the debt due by him he has entitled himself to immediate possession.^* ' Cf. the rules as to the rights of action possessed by reversionary oAXTiers of land ; supra, s. 96. 8 Nyberg v. Handelaar (1892) 2 Q.B. 202. » Domld V. Suckling (1866) L.R. 1 Q.B. p. 614, per Blackburn, J. i» (1878) 3 Q.B.D. 484. ^^ This was before the existence of the present statutory power of sale. 12 (1866) L.R. 1 Q.B. 585. " (1868) L.R. 3 Ex. 299. " These cases are inconsistent with the earlier decision in Johnson V Stear (1863) 15 C.B. (N.S.) 330, in which trover (although only for nominal damages) was held to lie in similar circumstances. Seo. 107.] THE TITLE OF THE PLAINTIFF 325 5. Mere de facto possession is, as against a stranger, a Pussessory sufficient title to support an action for a conversion, and the *'i''jt^^''^' defendant cannot plead the jus tertii unless he defends on trover. behalf and by bhe authority of the true owner, or has already made satisfaction to him. " The law is," says Lord Campbell in Jeffries v. Great Western Railway Co.,^^ " that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by showing that there was title in some third person for against a wrongdoer possession is a title." Thus, in Armory v. Delamirie^^ a boy who found a jewel recovered its full value in trover from a jeweller to whom he offered it for sale and who refused to return it to him. So in Bridges V. Hawhesivorth^'' he who found a lost bundle of bank-notes on the floor of a shop was held entitled to sue for their value the shopkeeper with whom he had deposited them for the purpose of discovering the owner.^^ i" 6. The measure of damages in an action brought by a Measure of plaintiff having a merely possessory title is the same as if his ^"-'"''■ses. title were a legal and perfect one.^" As against a stranger he is conclusively presumed to be the true owner, and therefore he has all the rights of one. 7. Presumably it makes no difference in what mode the plaintiff obtained the possession on which he relies. Whether honest or dishonest, it is a good title adversus extraneos.'^^ 8. A possessory title once acquired probably continues to " (1856) 5 E. & B. p. 805. iV(1721) 1 Str. 505. " (1851) 21 L.J. Q.B. 75. 18 See also Swtton v. Buck (1810) 2 Taunt. 302 ; The Winkfield (1902) P. 42 ; Glenwood Lumber Go. v. Phillips (1904) A.C. 405. 1' Title to goods found. It is to be observed that the best title to goods found is not necessarily in him who finds them. In certain cases he is bound to give them up to some third person, for whom he is deemed to have found them. Thus, a workman, agent, or servant finding goods in or on the property of his employer in the course of his employment cannot keep them against his employer ; as if I engage a carpenter to open a locked box, and he finds money in it. See South Staffordshire Water Co. v. Sharman (1896) 2 Q.B. 44. So also if a trespasser finds goods belonging to A on the land of B. " Armory v. Delamirie (1721) 1 Str. 505; The Winkfield (1902) P. at p. 54. " Buckley v. Gross (1863) 3 B. & S. p. 574. 326 CONVERSION [Chap. X. Duration of p:)Sse8sory title. Destruction of possessory title. exist notwithstanding a loss of the possession by the wrongful act of a stranger. Thus, if A finds goods, and they are taken from him by B, and sold by B to C, it is probable that A has an action of trover not only against B, but also (after demand and refusal) against C also. At the time of C's conversion it is true, indeed, that A had no longer any subsisting possession, but he still retained the possessory title which he acquired through his former possession. In Buckley v. Gross^^ Black- burn, J., says, " I do not wish to question that possession alone is sufScient as against a wrongdoer ; and I am inclined to agree that a person having possession would have a right of action against a person who claims through a stranger, just as much as against the stranger himself." 9. A possessory title once acquired continues, although the possessory owner has delivered possession to a bailee, agent, or other person who holds the property on his behalf returnable at will. Thus, if A finds goods, and deposits them with B, A has not merely a right of action against B, but also one against any other person who converts the property. ^^ 10. What, then, shall be said if the possessory owner, instead of merely bailing the goods at will, pledges them or bails them for a fixed term, or otherwise parts with the right to the immediate possession of them : is his possessory title thus destroyed, or does it still subsist as a reversionary interest capable of protection by action against third persons ? This has never been decided, but it is submitted, on principle, that there is no reason for any such distinction between a bailment at will and one for a term, and that a possessory title may become reversionary and yet subsist, just as a legal title may. If this is so, a possessory owner who pledges the property or bails it for a term has not merely a title by estoppel against his own pledgee or bailee, but a title valid against all persons except the true owner. 11. When a possessory title thus subsists notwithstanding the absence of actual possession (as when the property is in the possession of a wrongful taker or a bailee), it is probably destroyed by any act or event which would have destroyed it » (1863) 32 L.J. Q.B. p. 131. See also ibid. p. 131, per Crompton, J. 23 Bourne v. Fosbrooke (1865) 18 C.B. (N.S.) 515 ; Barker v. Furlong (1891) 2 Ch. 172. Soc. 107.1 THE TITLE OP THE PLAINTIFF 327 had it been a good legal title : as for example, a sale of the property by the possessory owner, or his bankruptcy. Thus, in Richards v. Jenkins-'^ A, the owner of chattels, lot them to B at a rent, and became bankrupt. He concealed his ownership of the property from his trustee in bankruptcy, and continued to receive rent from B, who was ignorant of the bankruptcy. An execution creditor of B subsequently seized the goods, and A claimed them, the trustee in his bankruptcy not intervening. It was held by the Court of Appeal that the execution creditor was entitled to the goods as against A, and Fry, L.J., says : -'^ " It seems to me clear that the claimant had at that time no property in the goods. At the utmost he had only a right of way of estoppel against the execution debtor. . . . The execution creditor is not a party or privy to the estoppel, and is not bound by it." This was a case, therefore, in which the jus tertii was successfully set up against the claim of a person from whose bailee the defendant had taken the property. The defendant was permitted to say to the bailor : " Your title has determined since the bailment was made ; you are no longer in possession ; and any title (possessory or legal) which you formerly had has been divested by your bankruptcy." ^® 12. A possessory title is divested by any rightful dispos- session effected by or on behalf of the true owner : for example, the retaking of the property, or the attornment of the possessory owner's bailee to the true owner. 2' 13. Notwithstanding the foregoing rules as to possessory When the title, it seems clear that a defendant may plead the jus fe^'^^'be^pieaded.'^^ in three cases : — (a) When he defends the action on behalf and by the authority of the true owner ; ^* 2* (1887) 18 Q.B.D. 451. ^^ (1887) 18 Q.B.D. p. 458. "« The estoppel of a bailee, on the contrary, survives such deter- mination of the bailor's interest, and in this respect at least the rule as to title by estoppel seems to be wider than the rule as to title by possession. Rogers v. Lambert (1891) 1 Q.B. 318. On the whole matter, however, the law is uncertain and undeveloped. 2' Buckley v. Oross (1863) 3 B. & S. 566. This case depends on the authority of the police to take possession of and deal with property suspected to have been stolen. 28 Biddle v. Bond (1865) 6 B. & S. 225, 328 CONVERSION [Chap. X. Effect of satisfaction made to possessory owner. (h) When he committed the act complained of by the authority of the true owner ; (c) When he has already made satisfaction to the true owner either by returning the property to him or by paying him the value of it. 14. Payment of the value of the property to a merely possessory owner, even in pursuance of a judgment and by compulsion of law, is no defence to a subsequent action by the true owner. ^' But it is to be presumed that if by reason of this rule a defendant has been compelled to pay twice for a conversion committed by him, he will have a right of action against the possessory owner for repayment of the amount so received by him. As we have already seen, if the defendant, instead of paying damages at the suit of a possessory owner, restores the chattel to him without notice of any adverse claim, this is no con- version, and he incurs no liability to the true owner. ^^ Moreover, a defendant sued by a possessory owner may protect himself against an adverse claim by taking inter- pleader proceedings.^^ Conversion as between co-owners. § 107a. Conversion as between Co-owners When a chattel is held in common ownership, one of the owners cannot sue another of them in trover unless the act of the defendant amounts to the destruction of the chattel or otherwise permanently destroys the right of the plaintiff to the possession thereof — e.g. by a sale in market overt. " One tenant in common," it has been said,^ " cannot re- cover for a chattel in trover against his companion without first proving a destruction of the chattel or something that is equivalent to it. There must be that which amounts, as it were, to an ouster, so that the tenant in common who commits it cannot account." Each of the co-owners is equally entitled 2" Attenborough v. London & St. Katharine's Dock Co. (1878) 3 C.P.D. p. 454, per Bramwell, B. ^^ Supra, a. 105 (2). Aliter after notice of the claim of the true owner : Winter v. Bancks (1901) 84 L.T. 504. '1 Robinson v. Jenkins (1890) 24 Q.B.D. 275 ; Attenborough v. London & St. Katharine's Dock Co. (1878) 3 C.P.D. 450. 1 Fennings v. Lord Grenville (1808) 1 Taunt, p. 249. Sec. lOTa.] THE TiTLE OF THE PLAINTIFF 329 to the possession and use of the chattel, and neither therefore commits any wrong as against the other by taking or retaining possession of it and using it for the purposes for which it is designed, even if the other is thereby prevented from making the like use of it. If any owner in the exercise of this right derives from the use of the common property a greater share of the profits derived therefrom than that to which he is entitled, he does not thereby commit any actionable tort against the other owner, but the proper remedy is an action of account.^ § 1 08. Conversion and the Limitation of Actions 1. It often happens that two or more successive acts of iSucces.sivc conversion are committed by the same person in respect of 5°"^^^^'°^^ the same property. The defendant, for example, wrongfully person, takes a chattel, and on a subsequent date wrongfully consumes it, or refuses to restore it on demand. From what date in such a case does the Statute of Limitations begin to run ? The answer is that there is only one cause of action — ^namely, the first act of conversion, and the statute begins to run from that time. " It is a general rule," says Willes, J., in Wilkinson v. Verity,^ " that where there has once been a complete cause of action arising out of contract or tort, the statute begins to run, and that subsequent circumstances which would, but for the prior wrongful act, have constituted a cause of action are disregarded." Thus, in Granger v. George^ the defendant received from the plaintiff certain goods by way of bailment returnable on demand, and shortly afterwards delivered them by mistake to a third person. More than six years after this misdelivery the plaintiff, being still ignorant thereof, demanded from the defendant the return of the goods. It was held that the Statute of Limitations ran from the date of the original conversion by misdelivery, and not from the date of the ' See Jacobs v. Seward (1872) L.R. 5 H.L. 464 ; Nyberg v. Handdaar (1892) 2 Q.B. 202 ; Farrar v. Beswick (1836) 1 M. & W. 682 ; Mayhew V. Herrick (1849) 7 C.B. 229 ; Morgan v. Marquis (1853) 9 Ex. 145 ; see also Lindley on Partnership, pp. 32-38, 7th ed. Cf. the law as to trespass between tenants in common of land, supra, s. 54 (5). ' (1871) L.R. 6 C.P. p. 209. " (1826) 5 B. & C. 149. 330 CONVERSION [Chap. X. Conocalod fraud. Successive conversions subsequent failure to deliver on demand, and that the action was barred.^ 2. This rule must be read, however, in the light of the general exception of concealed fraud. If the prior act of conversion is a fraudulent one, the period of limitation runs not from the date of that conversion, but from the date of its subsequent discovery by the plaintiff. Thus, in Wilkinson V. Verity ^ a bailee of chattels fraudulently sold them, and the bailor, being ignorant of this conversion, demanded possession more than six years afterwards. It was held by the Court of Common Pleas that he had a good cause of action in detinue notwithstanding the lapse of time. It is to be observed, indeed, that in this case of Wilkinson V. Verity the expressed ground of the decision is the fact that the cause of action was not a pure tort, but also a breach of contract ; but it is difficult to reconcile any such distinction cither with principle or authority. In the case of Granger v. George,'' already cited, the act of the defendant was equally a breach of contract, and yet the decision was the opposite. The only difference between these two cases is that in Wilkinson V. Verity the prior conversion was fraudulent, so that the plaintiff got the benefit of the rule as to concealed fraud. ^ If the reasoning in Wilkinson v. Verity is correct, it leads to the very remarkable result that whenever a bailee at will has converted, lost, or damaged the goods, the bailor, although he well knows this, may postpone his action indefinitely, and at any distance of time afterwards may make demand of the property and sue successfully in detinue. It is submitted that this is not so, and that the Statute of Limitations applies to a bailor in the same manner as to any other owner of goods. ^ 3. When there have been successive conversions of the same property by different persons, each of these conversions 5 See also Philpott v. Kelley (1835) 3 A. & E. 106. ^ (1871) L.R. 6 C.R 206. ' (1826) 5 B. & C. 149. 8 " The statute," says Abbott, C.J., in Granger v. George (1826) 5 B. & C. p. 152, " began to run from the time of the act done by the defendant, although the plaintiff had not any notice of it ; there not being evidence of any fraud practised by the defendant in order to prevent the plaintiff from obtaining knowledge of that which had been done," » See HinchcUffe v. Sharpe (1898) 77 L,T. 714, Sec. 108.] LIMITATION OP ACTIONS 331 is an independent cause of action, and the barring of one by different of them by the Statute of Limitations has no efEect on the P^''^""^- others. The effect of the Statute of Limitations in respect of injuries to chattels is merely to destroy the plaintiff's right of action, but not to divest his ownership of the property. Therefore, if A converts goods belonging to B, ib is no defence that formerly and more than six years before action brought they were converted by X also. Thus, in Miller v. Dell ^° a deed belonging to A was in the year 1881 fraudulently pledged by B with C, who became bankrupt, and whose assignee in 1889 delivered it to D, from whom A thereupon demanded ii. It was held by the Court of Appeal that he had a good cause of action against D notwithstanding the lapse of time : for the mere receipt of the deed, either by C, or by his assignee in banla-uptcy, or by D, was no conversion, and there was no cause of action against D until he converted the property afresh by refusing to dehver it. Even if the cause of action against B was then barred, this did not affect the new cause of action against D.^^ 4. What shall be said, however, if at the time when the Title of defendant received the property from the prior wrongdoer the ^"^p'j. '^^^^t plaintiff's right of action against the latter was already barred ? of action What if A takes the goods of B, keeps them for six years, and then sells or bails them to C ? Can B demand them from C, and sue in trover on a refusal to restore them ? This point seems never to have been decided, but it is submitted as clear on principle that no such action will lie. The original wrong- doer has acquired a right to retain possession of the property as against the true owner, and this right should be assignable and transmissible. The owner, indeed, still retains a nominal ownership, but he has no longer the jics possidetidi, which is now vested in the wrongdoer and in those who claim under him. To hold otherwise would lead to the absurd result " (1891) 1 Q.B. 468. 11 Inasmuch as the original taking by B was fraudulent, the doctrine of concealed fraud would preserve the action even against him ; but this point was not adverted to, and the decision would have been the same even had B's act been an honest one. Spackman v. Foster (1883) 11 Q.B.D. 99 is a similar decision on very similar f;iets. 332 CONVERSION [Chap. X. that even after the Statute of Limitations has run in the possessor's favour, he is protected only so long as he retains the property in his own personal possession, and that ifc can be recovered by the true owner either by action or recaption from any agent, bailee, servant, or other person to whom the wrongdoer has intrusted it. B.iilce can recover the whole value of the property. § 109. The Measure of Damages for Conversion 1. Any person who has a right to the immediate possession, of a chattel is entitled, in an action for the conversion of it, to recover its full value as damages, even although he is not the owner of it, but has merely a hmited interest in it. Thus, a bailee, agent, or pledgee is entitled not merely to sue for a conversion, but to recover in such an action not only the value of his own limited interest, but the whole value of the chattel. For the plaintiff is entitled, as against the defendant, to the possession and specific restitution of the chattel itself. Damages are merely a substitute for such restitution, and the damages must therefore be the equivalent of the chattel, and amount to the full value of it. In other words, the plaintiff in trover is entitled either to the property or to its pecuniary equivalent. 2. The same rule applies not only to conversion, but to any other injury to chattels where the plaintiff relies on a right of immediate possession. Thus, if goods in the possession of a bailee are lost or damaged by the negligence of the defendant, the bailee may recover not only his actual loss, but the whole value of the chattel if lost, or the whole amount of its depreciation in value if it is damaged. 3. The leading case on the subject is The WinhfieU} in which the Postmaster- General was held entitled as bailee to , recover the whole value of certain mails which were lost •^' "^ ' ' through a collision at sea caused by the negligence of the ^ ^ ^?' 'defendants. <^ '^ ' ^'of I 4. The damages so recovered by the plaintiff above the '^'